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Dean Jara Lecture Notes in Remedial Law 2013 Plea of guilty in civil cases, specific denial is not applied,

, if pleaded, the court cannot compel the defendant to explain why plea of guilt was given. Denial without specificity in civil cases, it is tantamount to admission of allegations in the pleadings, and thus could lead to a judgment on the pleadings. This is not allowed in criminal cases. Quantum of evidence guilt should be proof beyond reasonable doubt in criminal cases, while only preponderance of evidence is required in civil cases. Jurisdiction of courts in civil actions, laws governing: 1. Constitution 2. Judiciary Act of 1848 (RA 296) 3. BP 129 and its amendments 4. Law creating the family court (1997) 5. Law creating the Sandiganbayan General Law on jurisdiction: BP 129 and its amendments. Note: The cases formerly taken in cognizance by the abolished Juvenile and Domestic Relations Court came under the jurisdiction of the RTC under BP 129, which is in the concept of exclusive original jurisdiction. Then came the special law creating the Family Court, which provides that the said court has exclusive original jurisdiction over cases involving marriage, adoption, cases involving minors, habeas corpus involving minors, and other civil or criminal cases involving minors. BP 129 vs. special law on jurisdiction the special law generally prevails. (General law shall give way to special law, except if the special law specifically provides otherwise or that the law allows parties to stipulate pertaining to the matter of jurisdiction.) Jurisdiction is a matter of substantive law. This is not necessarily true. (Dean Jara) Substantive law deals with jurisdiction over the subject matterand/or jurisdiction over the nature of the action. This is the aspect of jurisdiction governed by BP 129 and the other substantive laws on jurisdiction.

Other aspects of jurisdiction governed by procedural law: Jurisdiction over the person of the litigants governed by the RoC Jurisdiction over the property involved governed by the RoC Jurisdiction over the issues of the case governed by the RoC Thus, jurisdiction as part of substantive law is limited to a court to decide the case insofar as the subject matter of the case or the nature of the action. Jurisdiction over the litigants, the issues of the case and property involved are governed mostly by procedural law, mostly under the Rules of Court.

BP 129 does not mention anything about the SC. It begins with the CA downwards, up to the MTC and the Sharia Courts.Supreme Court exercises its authority from the Constitution. In the Constitution, the SC exercises original jurisdiction and appellate jurisdiction. But the Constitution does not say that original jurisdiction of the SC is exclusive, nor about the appellate jurisdiction being exclusive. The basis for this is in the old Judiciary Act of 1948 where SC jurisdiction is delineated in a very thorough manner, providing exclusive original and appellate jurisdiction of the SC. Note that BP 129 did not repeal the old judiciary act and hence it is still in force . What BP 129 did repeal are provisions of Judiciary Act of 1948 that are inconsistent with BP 129. The best argument to support this statement is Sec. 9 in BP 129.

Sec. 9 BP 129 last sub provides for the jurisdiction of the CA. 3. Exclusive appellate jurisdiction over all final judgments, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commission, 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 Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, 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 . The Constitution provides for a limited number of cases over which the SC can exercise original jurisdiction and limited number of cases over which it can exercise appellate jurisdiction. These are not exclusive. Art. VIII Sec. 5 Section 5. The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (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. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

The Constitution provides that the SC has original jurisdiction over cases involving ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. Reading the 1987 Constitution with BP 129, we will find out that the same authority is given by BP 129 to other courts.

SCs Exclusive original jurisdiction: Petitions for certiorari, prohibition or mandamus against CA, COMELEC, CoA and Sandiganbayan

Concurrent Jurisdiction: (Subject to Doctrine of Hierarchy of Courts and direct recourse only in cases when redress desired cannot be obtained in the lower courts or when it serves the broader interest of justice) With RTC: Cases affecting ambassadors, other public ministers and Consuls With CA: Petitions for certiorari, prohibition or mandamus against RTC Petitions for Writ of Kalikasan With RTC and CA: Petition for habeas corpus Petition for quo warranto Petitions for certiorari, prohibition or mandamus against MTC and other bodies With RTC, CA and Sandiganbayan: Petition for Writ of Amparo Petition for Writ of Habeas Data

Appellate Jurisdiction: By way of Certiorari under Rule 45 against CA, Sandiganbayan, RTC (pure questions of law only), CTA en banc and cases on the constitutionality and validity of a law or treaty, international agreement or executive agreement, presidential decree, proclamation order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court. BP 129 provides that CA exercises original jurisdiction over certiorari, prohibition, mandamus, quo warranto and habeas corpus. BP 129 vests jurisdiction to the RTC to exercises original jurisdiction over certiorari, prohibition, mandamus, quo warranto and habeas corpus. In effect, there are 3 courts in the judiciary which exercise jurisdictions over certiorari, prohibition, mandamus, quo warranto and habeas corpus:SC, CA and RTC.Thus, theoretically, if one has been wronged due to grave abuse of discretion amounting to lack of jurisdiction, petition for mandamus can be filed with the SC immediately, based on the 1987 Constitution and BP 129. However, Certiorari, Prohibition and Mandamus have been greatly limited by certain procedural rules. The limitation is known ashierarchy of courts. (See Rule 65) Thus, while theoretically a petition can be filed directly to the SC, one should follow the procedure under the principle of hierarchy of courts. In Rule 65, it is expressly provided that petitions for Certiorari, Prohibition and Mandamus (and even Quo Warranto. Dean Jara) should be filed directly only with two courts, a RTC or the CA. On analysis, Sec. 4 Rule 65 is a severe limitation on the right of an aggrieved party to avail of Certiorari, Prohibition and Mandamus as provided for in the Constitution. Rule 65, Sec. 4. Where petition filed. The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court . It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction , or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals.

Among the basic principles of the enactment of BP 129 was to do away with the concept of concurrent jurisdiction. BP 129 has not been able to do away entirely with concurrent jurisdiction. BP 129 does not use the term concurrent in vesting jurisdiction upon courts. The law classifies jurisdiction into original jurisdiction; appellate jurisdiction; exclusive original jurisdiction, and exclusive appellate jurisdiction; unlike that under the old Judiciary Act of 1948 where the law expressly contained provisions that conferred concurrent jurisdiction over different cases upon different courts, which resulted in confusion. Generally, BP 129 has been able to do away with the concept of concurrence of jurisdiction, except with respect to certiorari, prohibition, mandamus, quo warranto and habeas corpus. Since the Constitution and BP 129 allocate original jurisdiction upon 3 courts, then it is safe to conclude that these 3 courts exercise original and concurrent jurisdiction over these petitions.

BP 129 WITH RESPECT TO THE COURT OF APPEALS: Exclusive Original Jurisdiction only cases of annulment of judgment of an RTC. AppellateJurisdiction: Ordinary appeal from RTC and Family Courts Petition for review from RTC in exercise of its appellate jurisdiction Petition for review from decisions, resolutions, orders or awards from CSC, Ombudsman in administrative cases and other quasi-judicial agencies in exercise of its quasi-judicial functions as mentioned in Sec. 1 Rule 43. Concurrent Jurisdiction: With SC: Petitions for certiorari, prohibition or mandamus against the RTC Petitions for Writ of Kalikasan Petition for Mandamus against NLRC (But St. Martin Funeral Homes vs. CA says petition should be filed in CA instead of SC) Concurrent Jurisdiction with RTC and SC: Petition for habeas corpus Petition for Quo warranto Petitions for certiorari, prohibition or mandamus against the MTC and other bodies Concurrent Jurisdiction with RTC and Sandiganbayan: Petition for writ of Amparo Petition for habeas data

The SC, despite being the supreme court of the land, is not a court of general jurisdiction, it exercises only limited original jurisdiction as provided for under the Constitution. It is generally not a trier of facts. The same is true in the CA. In Sec. 9 BP 129, the CAs authority is very limited. CA has exclusive original jurisdiction over Annulment of Judgment of an RTC under Rule 47. Does it mean that the CA can annul a judgment rendered by an MTC? Since the CA is a court of limited jurisdiction, it is allowed to annul judgment only judgments from the RTC. It cannot annul decisions of an MTC. Would it mean that the judgment of an MTC is immune from annulment of its judgment? Yes. The decision of an RTC can be annulled by the CA. But the decision of an MTC is immune from annulment by the CA. But, the decision of an MTC can be annulled by an RTC. It is not so provided in BP 129 that an RTC can annul a judgment of an MTC, but it is provided for under Section 10 of Rule 47 on Annulment of Judgment in the Rules. Thus, jurisdiction is vested in the RTC under the Rules for it to be able to annul judgments rendered by an MTC. Can we then challenge the jurisdiction of RTC as BP 129, a special law, should take precedence over a substantive law, as BP 129 does not expressly give the RTC the authority to annul judgment of an MTC? Why? We cannot. This is because, under BP 129 there is an allocation to the RTC of jurisdiction to entertain and decide all kinds of actions which are not especially given to other courts. This is the provision why an RTC can annul judgments of the MTC as well as the reason why the RTC is considered as the real court of general jurisdiction in our justice system. Since no

substantive law has allocated to other courts the jurisdiction to annul judgments of an MTC, it follows now that the RTC is the proper court to decide on the matter as provided under BP 129 for an RTC to entertain and decide all kinds of actions not especially given to other courts. Islamic Da'wah Case BP 129 The SC traced the history of annulment of judgment as an action. SC mentioned that before BP 129, the SC had recognized the regularity and propriety of filing a petition to annul an MTC judgment in the RTC. Can an RTC entertain and decide on cases of annulment of judgments of another RTC prior to BP 129? Why? Before BP 129, SC held yes, because the RTC is a court of general jurisdiction. This is the reason why in BP 129, Congress deemed it necessary to incorporate a provision giving exclusive authority to the CA to annul a judgment rendered by the RTC to do away with the anomalous situation where an RTC is able to annul judgments rendered by another RTC, as there was no specific substantive law prior to BP 129 which allocated to other courts the authority to annul judgments of the RTC. A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby (Islamic Dawah Council v. CA, G.R. No. 80892, Sept. 29, 1989). Canthe SC annul the judgment of the CA? No. The Constitution and BP 129 does not provide authority for the SC to annul judgments rendered by the CA. There is no substantive law or special law authorizing SC to annul judgments rendered by the CA. It does not mean that the decisions of the CA are immune from annulment. The SC could still exercise its equity jurisdiction, most likely under Rule 65, in order to annul a judgment of the CA, based on the same grounds given under Rule 47, extrinsic fraud and lack of jurisdiction. Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured (Alaban v. CA, GR no. 156021, September 23, 2005 ). Extrinsic fraud or collateral fraud not a valid ground if it was availed of, or could have been availed of in a motion for new trial or petition for relief. Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. Lack of jurisdiction over the subject matter and over the person May be barred by estoppels by laches, which is that failure to do something which should be done or to claim or enforce a right at a proper time or a neglect to do something which one should do or to seek or enforce a right at a proper time. (1998 Bar Question) What is annulment of judgment? A: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executor judgment set aside so that there will be renewal of litigation. Note: A co-equal court cannot annul the final judgment of a similar court. CA has exclusive jurisdiction over actions for annulment of judgments of RTC. An action to annul a judgment or final order of MTC shall be filed in the RTC having jurisdiction in the former and it shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47). Q: When may it be availed of? A: The remedy of annulment of judgment may be availed of when the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner (Sec. 1, Rule 47). Q: Who may avail this remedy?

A: A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby (Islamic Dawah Council v. CA, G.R. No. 80892, Sept. 29, 1989). The extraordinary action to annul a final judgment is restricted to the grounds provided by law to prevent it from being used by a losing party to make a mockery of a duly promulgated decision that has long become final and executory. Q: Where should the petition be filed? A: Judgments of RTC Filed with the CA Basis It has exclusive original jurisdiction over said action under Sec. 9 (2), BP 129 CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition.

Judgments of MTC Filed with the RTC Basis RTC as a court of general jurisdiction under Sec. 19 (6), BP 129 RTC has no such discretion. It is required to consider it as an ordinary civil action.

If a judgment of an MTC can be the subject of annulment by CA or RTC as the case may be, can we also seek annulment of the decisions by a quasi-judicial or administrative body? Under BP 129, annulment of judgment, as procedurally explained in Rule 47, does not extend to the quasi-judicial or administrative body, unless such provision was allowed by the charter of such administrative or quasi-judicial body. Rule 47 refers to an action filed by a petitioner to annul a judgment rendered by an RTC in a civil case. This is what literally BP 129 provided where CA is given the authority to annul decisions made by an RTCin a civil action. Therefore, if the action is not a civil action or rendered by a quasi-judicial or administrative body, we cannot use Rule 47. (possible Bar Q area) Since Rule 47 says that the annulment contemplated in BP 129 refers to a judgment in a civil action, does it mean to say that the judgment of an RTC acting as a criminal court cannot be subject to annulment of judgment by the CA under Rule 47? No. If the judgment of the RTC is a judgment in a criminal case, we cannot use Rule 47 as it is specifically stated in the said rule that annulment of judgment is availing only to civil cases decided by the RTC. Rule 47 is not a remedy to annul decisions or judgments rendered by the RTC as a criminal court. A decision of an RTC in a criminal case can be annulled by filing a case for habeas corpus.Petition for habeas corpus is the equivalent in criminal cases of petition for annulment of judgments in civil cases. An RTC could act as a civil and criminal court. It exercises original actions over both actions. RTC decisions in civil actions could be the subject of annulment by CA under rule 47, but Rule 47 does not apply if the decision is one rendered from criminal cases. The remedy in order to annul a judgment in criminal cases is by filing a petition for habeas corpus. BP 129 is very clear under Rule 47. What can be annulled under Rule 47 are judgments in civil cases only. Is there a difference between Rule 47 (petition for annulment of judgment rendered by an RTC in a civil case) and petition for habeas corpus? There are substantial differences. Annulment under Rule 47 is a direct attack of a final and executory judgment, the only purpose of which is to nullify and set aside a court decision in a civil case. But in a criminal case where the decision of the RTC may not be valid due to lack of jurisdiction or extrinsic fraud, the remedy is petition for habeas corpus, which is an indirect attack on the judgment of an RTC in the criminal case. When a habeas corpus petition is filed in order to nullify a decision on a criminal case, the principal relief which the petitioner seeks is to declare the petitioner has been deprived of his liberty unlawfully. It is not principally to set aside the judgment rendered by the RTC in a criminal case. The remedy of petition for habeas corpus in criminal case are more advantageous than that of an annulment of judgment in civil cases. This is because an annulment of judgment in civil cases is a direct attack against the judgment in the civil case, while in the criminal cases, the detainee can challenge the validity of the judgment of conviction, although he is not attacking directly the validity of the said judgment of conviction. He is attacking the validity of the deprivation of his liberty.

What is a collateral attack on judgment? A: It is made in another action to obtain a different relief; an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face is null and void, as where it is patent that the court which rendered such judgment has no jurisdiction(Co vs. Court of Appeals, 196 SCRA 705). Note that Rule 47 is inserted in between the rules governing appeals. The procedure for appeal starts with Rule 40 up to 56. Annulment of judgment has nothing to do with appeals as it is a civil action. Annulment of judgment is an original action that can be filed in the RTC and CA. And, in Rule 47, when particularly applied to a petition for annulment commenced before the CA, you will notice that some of the features of a special civil action are carried by a petition to annul the judgment filed with the CA. For instance, if a petition to annul a judgment of an RTC in a civil case is filed in the CA, the CA has the authority to outrightly dismiss the petition for lack of merit. This is similar to Rule 65, where the petition for certiorari, prohibition or mandamus can be outrightly dismissed if it is not meritorious on its face. What if the decision in the RTC was already final and executory, can the petition to annul judgment filed in the CA stop the execution of the said judgment? No. The petition will not stop the prevailing party from moving for the execution of the final and executory judgment in the civil case, notwithstanding the commencement of the petition to have the judgment in the civil case annulled. The only remedies available to a petitioner for annulment of judgment of an RTC in the CA is to apply for the provisional remedy of PI or TRO to stop the RTC from proceeding with the execution of the said judgment. Under Rule 47 in relation to BP 129 in the case of annulment of judgments of an RTC filed in the CA, is it correct that only the litigants thereto can file the petition to annul a judgment in a civil case? No. As held in the case of Islamic Da'wah vs. CA, the petition for annulment of judgment in BP 129 and Rule 47 does not prohibit a stranger from filing a petition to annul judgment. He can do so, so long as he can show he will be prejudiced by the judgment sought to be annulled. Requirements: 1. All other Remedies of motion for new trial, petition for relief, appeal and other remedies are no longer available or to do so will not redound to his benefit. 2. Through no fault of petitioner, remedies were unavailing 3. Petitioner is a stranger to the case (Islamic Dawah case) In Islamic Dawah, in allowing a stranger to file annul a judgment, then he need not seek other remedies since the stranger to a case cannot possibly avail of remedies that are available only to a litigant in a case. While CA has authority to outrightly dismiss annulment of judgment, RTC cannot. Insofar as RTC is concerned, petition to annulment of a judgment by an MTC should be treated as any normal civil case. In Rule 47, if the judgment is annulled, it is declared void by the court. It is unenforceable, or if already enforced, CA can order restitution if that is still possible.

Rule 47 in relation to BP 129 and Rule 132: There are no grounds for annulment mentioned in BP 129. Rule 47 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.

Judicial record must be discredited. Judgment of the court must be discredited by such impeachment. In BP 129, there are no grounds for annulment mentioned at all. They are mentioned in Rule 47 and Rule 132. Rule 132 Sec. 29 . How judicial record impeached. Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedin gs. 3 grounds under Rule 132 to impeach judgment: 1. lack of jurisdiction 2. extrinsic fraud 3. collusion Grounds under Rule 47to impeach judgment: 1. absence of jurisdiction over the subject matter 2. absence of jurisdiction over the person of the accused 3. Extrinsic fraud (this encompasses collusion as found under Rule 132) Thus, there is no conflict between Rule 132 and Rule 47.

JURISDICTION OF THE RTC Factors determining jurisdiction: 1. Whether or not action is capable of pecuniary estimation 2. whether or not the action is a real action 3. if the amount is known, whether the amount is within the ambit of the jurisdictional amount Incapable of pecuniary estimation not all actions incapable of pecuniary estimation are cognizable by RTC Note: Ex. Under BP 129, these actions are not exclusively cognizable by an RTC: 1. Annulment of judgment rendered by RTC not capable of pecuniary estimation, cognizable only by the CA 2. Annulment of arbitral award by barangay court acting as arbitral body cognizable by MTC, as provided by LGC, although incapable of pecuniary estimation. 3. Certiorari, prohibition and mandamus not exclusively cognizable by RTC, although incapable of pecuniary estimation.

JURISDICTIN IN REAL ACTIONS TITLE TO OR POSSESSION OF PROPERTY This area is qualified by BP 129 as amended as it has expanded the jurisdiction of MTCs. What are the possessory actions on real property? A: Accion Interdictal Accion Publiciana Summary action for the recovery of A plenary action for the recovery of physical possession where the the real right of possession when the dispossession has not lasted for more dispossession has lasted for more than 1 year. than 1 year. All cases of forcible entry and RTC has jurisdiction if the value of the unlawful detainer irrespective of the property exceeds P20,000 or P50,000 amount of damages or unpaid rentals in Metro Manila. sought to be recovered should be MTC has jurisdiction if the value of the brought to the MTC. property does not exceed the above amounts.

Accion Reinvindicatoria An action for the recovery of ownership, which necessarily includes the recovery of possession. RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila. MTC has jurisdiction if the value of the property does not exceed the above amounts.

Accion reinvindicatoria and accion publiciana RTC exercising original jurisdiction if property is worth above 20k/50k, as the case may be. Is it possible a real action is at the same time one incapable of pecuniary estimation? Yes. A good example of a real action that is incapable of pecuniary estimation is foreclosure of real estate mortgage. It is not capable of pecuniary estimation asthe determinative issue here is the right of the mortgagee to foreclose, not the value of the property. What do we do in determining jurisdiction of an action is a real action but is incapable of pecuniary estimation? What factor will be determinative to determine jurisdiction of the court? SC held that if the action carries the feature of real action and one incapable of pecuniary estimation, then the determinative factor is the feature of incapable of pecuniary estimation. Thus, RTC has exclusive jurisdiction of foreclosure actions, even if the assessed value of the property involved is less than the jurisdictional amount of the RTC. As long as the action is foreclosure of mortgage, the RTC has jurisdiction. The feature of foreclosure of mortgage as a real action will only be important in determining the venue, not the jurisdiction. A similar action which applies the same principle is expropriation. Expropriation of a piece of land is one involving real action, but it does not take into account the assessed value of the land in determining jurisdiction. Thus, it is real action, although incapable of pecuniary estimation, as the right to expropriate is the main issue, not the value of the land involved. JURISDICTION IN MONEY CLAIMS When it comes to personal actions, under BP 129, the determining factor will be the amount sought to be recovered if it is a claim for money, or if it is recovery of personal property, it is the value of the personal property as alleged in the complaint. The determining factor for jurisdiction in a pure collection suit is the principal sought to be recovered, exclusive of charges interest, attorneys fees, damages etc. If the amount sought to be recovered by the plaintiff is 1M, it may be cognizable by the RTC if it represents the aggregate amount of the claim , the principal amount being within the jurisdictional value of the MTC. If the principal is only 200k and the rest are charges, damages, interest, etc., then the MTC has jurisdiction over the case. What if the plaintiff seeks only recovery of damages inclusive of actual, moral, nominal, etc.? Ex. Plaintiff sought 100K actual, 500K moral and 500k exemplary damages. How do we determine jurisdiction here? Complaints purely for damages = the aggregate (total) amount of damages will determine jurisdiction, not the specific amounts claimed. Thus, in the example, the RTC has jurisdiction. Even if the complaint specified the amount of damages for each aspect, the aggregate amount shall determine the jurisdiction. JURISDICTION OVER RECOVERY OF PERSONAL PROPERTY BP 129 as amended takes into account the assessed value only in the case of real properties. Personal property values have no bearing in jurisdiction. The value as stated in the complaint shall be determinative (whether the figure is true or not). Ex. Plaintiff sought recovery (replevin) of the car, claiming that is worth 800k (even if it is not true).If defendant challenges the value, stating the car is 30 years old, and willing to submit evidence to show true value, will the court entertain the defendants motion? No. The court shall rely only on the allegations in the complaint. Once the court acquires jurisdiction, it cannot be ousted; the court proceeds with the case until finally adjudicated. What if it is found during trial that the car is actually worth far less than the value claimed? Will the court remand the case to the lower court? No. It will continue to hear until final judgment. There will be adherence of jurisdiction of the court over the case. The court will continue trying the case until it is finally adjudicated. The only way to oust jurisdiction in this regard is if Congress files a law abandoning the principle of adherence of jurisdiction over a particular case. Dean Jara

With respect to MTCs, notwithstanding the expanded jurisdiction thereof, practically all cases decided by the RTC pertaining to personal property can also be decided by the MTC, depending only on the value of the property involved. Ex. Estate proceedings, accion reinvindicatoria, accion publiciana Note: MTC is still a court of limited jurisdiction despite the expanded jurisdiction under BP 129 as amended. It can try only the cases given to it under substantive law. The provision in BP 129 making the RTCs courts of general jurisdiction is not given to MTCs. BP 129 stated explicitly that the RTC shall have exclusive original jurisdiction over all actions that are not specially assigned to any other court. This is not contained in the allocation of jurisdiction of MTCs. Vesting of authority to MTCs Sec. 33, the Totality test, is used in determining jurisdiction Totality test is a proviso for ascertainment of jurisdiction, more encompassing than that provided in the Rules. Difference in Totality Test in the Rules vs. Totality Test in BP 129: RoC totality test in Rule 2 concerns causes of action for money, as to the amount. The totality of the money claims shall be determinative of jurisdiction of courts. BP 129 the totality test refers to of all claims or causes of actions in a complaint, whether they refer to the same or different parties or arising out of the same or differing transactions. This is more encompassing in scope.

BP 129 has contained therein the provision on delegation of jurisdiction to the MTC and also the special jurisdiction of the MTC. The MTC, in its delegated jurisdiction, acts as if it were an RTC. Ex. MTC acts as if it was a cadastral court (usually done by RTC). If the land registration or cadastral case is contested, the assessed value of the contested property is determinative of jurisdiction. If uncontested, MTC acts as a cadastral as if it were an RTC, there being no limitation as to jurisdiction. But BP 129 clearly states that if MTC acts as a cadastral court the MTCs decisions on cadastral cases shall be appealable in the CA, not to the RTC (hierarchy of courts is not followed). Habeas Corpus proceedings can be heard in the MTC, but only in situations where petition was filed in the RTC, but no judges are available in the RTC, so the petition is transferred to an MTC wherein a judge is available . The MTC gains jurisdiction as habeas corpus cases are urgent. In fact, habeas corpus cases are always given special preference by the courts; and thus, if no RTC judges are available to hear the petition,the clerk of court in the RTC must transfer the case to the MTC, and MTC must hear the petition promptly.BP 129 does not authorize the filing of the habeas corpus case directly in the MTC. Petition for habeas corpus filed in the MTC can be challenged on jurisdictional grounds because BP 129 does not vest unto an MTC an authority to entertain a petition for habeas corpus. It is only under circumstances where there are no RTC judges available to entertain a petition for habeas corpus when an MTC judge can now analyze and study the propriety the issuing of the writ of habeas corpus.

SPECIAL JURISDICTION OF MTCS. Take note that the trial court still has residual jurisdiction to act on certain matters even if the case is already on appeal. See Rules 41 RoC. It is not correct to assume that if a case has been decided by the trial court. After an appeal is perfected, the case is now under the jurisdiction of the appellate court. Do not assume that the case is entirely divested from the jurisdiction of the trial court, even if there is a perfected appeal. The trial court continues to exercise jurisdiction over certain matters for a limited period of time in its residual jurisdiction. After the expiration of that period, absolute jurisdiction will now be exercised by the appellate court. In Primary Jurisdiction,this involves quasi-judicial bodies. What happens in primary jurisdiction is that Congress enacts a law which vests jurisdiction unto a quasi-judicial body to try and decide cases which are cognizable by regular courts under BP 129. The reason why Congress enacts these laws is that Congress feels that the quasi-judicial body is better equipped to decide disputes of litigants in certain cases than the regular courts.

Ex. HLURB has exclusive original jurisdiction to adjudicate disputes between subdivision buyer/s vs. subdivision developers.In cases of breach of contract under the NCC on matters pertaining to the jurisdiction of quasi-judicial bodies, the trial court cannot take cognizance of these matters, although BP 129 gives jurisdiction to regular courts over such matters, given the fact that there is a substantive law vesting jurisdiction to the HLURB to decide on such disputes. This is because it is presumed that the HLURB is better equipped than a regular court to decide on such cases due to its expertise. What if the subdivision developer filed in the MTC a complaint for ejectment of a subdivision buyer who allegedly violated the terms of the contract? The subdivision developer sought to recover the property from the buyer, among other prayers. The subdivision buyer challenged that MTC has no jurisdiction over the case, and that it is HLURB which is the proper body to take cognizance of the complaint. Does HLURB have jurisdiction over the ejectment case? SC held that the primary jurisdiction of the HLURB does not extend to complaints of ejectment filed by one party against the other. Tin the case of primary jurisdiction vested by substantive law to quasi-judicial bodies, the authority of the quasijudicial body is interpreted strictly. Ejectment could really be a dispute between developer and buyer, but since the complaint was for recovery of physical possession of the property (or even accion publiciana), SC held that regular courts should take cognizance. Note: Complaint for ejectment by subdivision developer vs. subdivision buyer was actually a suit for recovery of possession of property. Residual Jurisdiction found in appeal cases (Rules 41 and 42); jurisdiction enjoyed by the trial court to act on certain matters for a very limited period, even if the case is on appeal. Constitutional limits provided in the Constitution limiting SC s authority in promulgating rules: 1. uniformity in all courts of the same grade 2. speedy and inexpensive determination of the case 3. does not modify, increase or decrease substantive rights Any rule on procedure violating any one of the limitations given in the Constitution, the rule can be properly challenged as to its validity and applicability. A litigant challenged a rule on criminal procedure (Rule 115 Rights of the Accused). Litigant stated that Rule 115 is not procedural, and modified substantive rights as espoused in the Constitution, and should be deleted in the RoC. SC denied the petition. SC said that while the authority of the SC is to promulgate rules on proceedings, practice and procedure, and that substantive rights should not be covered by the provisions of the Rules, SC said that it is practically impossible for rules of procedure to be devised without incorporating certain provisions that are dealing substantive law.The standard is that we take the Rules as a whole, and determine whether it is procedural in character. If the answer is yes, and there are certain provisions speaking about substantive rights, that should not be a justification of deleting these provisions in the RoC. Also, SC noted that the NCC, a substantive law, contains procedural articles concerning court processes such as those concerning unlawful detainer and forcible entry, but NCC still remain a substantive law. The civil code provisions shall not be affected by the procedural provision in the Rules concerning the filing of claims (Recovery of creditor of the whole debt from surviving solidary debtors). According to the Rules, the Rules of Court should be interpreted liberally. But the interpretation is one not in favor of the plaintiff or defendant. The meaning of liberal interpretation is to promote the ends of justice, to carry out the duty of the SC under the limitations given under the Constitution.

PLEADINGS COMPLAINT General Rule:A civil action is always commenced with the filing of a complaint. This is the general rule. Some cases are commenced by a petition, most notably in special civil actions.The filing of a complaint has given rise to the action that when the case is filed, the court acquires jurisdiction over the action. The court will then have to gain jurisdiction over the

person of the defendant. Service of summons will gain jurisdiction over the defendant. A recent decision of the SC held that if the person filing the case is not authorized to file the case, then the court does not acquire jurisdiction over the person of the plaintiff, and will not acquire even the jurisdiction to decide the case. The court can examine whether or not the person who filed the case is authorized. If not so authorized, the court will not acquire jurisdiction over the person of the accused and it will not acquire the authority to decide the case. The court will be absolutely without jurisdiction to try and decide the case. Amendment of the Complaint In Complaints properly filed by the plaintiff, the plaintiffcan amend the complaint as a matter of right under Rule 10, provided an answer has not yet been filed. (Amendment as a matter of right). If amendment is to implead a new defendant, the court will accept such amended complaint as it is a matter of right. As to the new defendant, the period to file an answer will relate to the filing of the original complaint (Relating Back Doctrine). But, if a new cause of action is introduced along with the new defendant, it is not an amendment, as a new cause of action is being included. The classification of actions Civil Actions Criminal Actions Special Civil Actions Special proceedings In the definition of a civil actions it is very clear that we do not necessarily follow the definition of a cause of action as defined in Rule 2. A cause of action is a violation of a right belonging to the plaintiff by a defendant. For a cause of action to accrue, the plaintiff must allege he has a right, and then allege that the defendant had violated that right. Elements: Plaintiff must allege he has a right. Plaintiff must allege the defendant has violated for that right. The implication of given by the definition of a cause of action is that the right holder must wait for a violation of his right before he can have a cause of action against such person who violated his right and have a reason to go to court. That cause of action should always be related to the definition of a civil action found in Section 3(a) Rule 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. Rule 2 SEC. 2. Cause of action, defined.A cause of action is the act or omission by which a party violates a right of another. Civil action does not require prior violation of a right before right holder can proceed to court. A plaintiff need not have his right actually violated before a case can be filed. Even a threat to violate a right gives rise to a cause of action. The Rules of Procedure becomes more complicated if there are several rights that are violated by one and the same wrongful act. If there is just one wrongful act and there are several rights violated, how will the causes of action accrue? The standard given by the SC:In order to determine whether several causes of actions will arise , if there is one wrongful act and there are several rights that are violated, is to determine whether these rights belong to the same person or to different persons. Common Standard: Determine whether these rights belong to the same person or to different persons. Several rights of one person violated by one and the same act = 1 cause of action = 1 complaint. Several rights of several persons violated by one and the same act = several causes of action = separate complaints.

If a person drives his car negligently, and causes damage or wrecks 3 cars, how many causes of action accrue against him using the standard given by the court? Using the standard, determine whether the three cars belong to one person only or the cars belong to three different persons. If the 3 cars belong to only one person, only one cause of action will accrue. The owner of the cars can only file one case against the negligent driver. Otherwise, that will be splitting of causes of action. The owner had only one right that was violated by the negligent driver. But if these 3 cars belong to 3 different owners, there are 3 separate causes of action. Because there are 3 causes of action that arise, they can file separate complaints, and they dont have to be joined. Conceivably, one owner can file his case in the RTC if he claims the damages suffered by him amounted to more than 500k. Another owner can file his case in the MTC if he claims that his car incurred damages amounting to 200k. The filing of these complaints by 3 different owners will depend on the amount of damages each will respectively claim in their respective complaints. The fact that there are 3 different causes of action does not mean that they should go to the same court in order to recover the damages suffered by them. In the first example where the 3 damaged cars were owned by one owner, there is only one cause of action. The owner of the 3 cars can only file one complaint for recovery of damages. Can he properly and rightfully go to court right away? No. If we rely solely on substantive law alone, it would seemingly be yes. But if we apply other procedural principles, the owner may be precluded from filing a complaint right away. The owner has to first satisfy certain conditions precedent before cause of action could accrue. If these conditions precedent are not satisfied, the filing of the complaint shall be premature and shall cause the dismissal of his complaint. Conditions precedent given under procedural rules and substantive law are as follows: 1. prior barangay conciliation 2. arbitration clause 3. certification on non-forum shopping 4. exhaustion of administrative remedies 5. earnest efforts towards a compromise Even if a right has been violated and a cause of action indeed accrued, if the action is covered under the circular on prior barangay conciliation, the trial court can dismiss or not entertain the case and order the parties to undergo barangay conciliation first. Arbitration clause invariably provides that in case of breach of contract, the parties must first undergo arbitration before a complaint can be filed by the innocent party.

Rule 7 Certification on Non-Forum Shopping The complaint/initiatory pleading must have Certification on Non-Forum Shopping. The effect of a complaint/initiatory pleading without Certification on Non-Forum Shopping is that the court acquires jurisdiction over the case, but the court can order the dismissal of the case for non-observance of Certification on Non-Forum Shopping as a condition precedent. Effects of complaint filed without certification of non-forum shopping: 1. court obtains jurisdiction of the case 2. court can dismiss the case for noncompliance of condition precedent

Exhaustion of administrative procedures is another condition precedent to the accrual of a cause of action. In the NCC, in disputes between members of the same family, it must be shown that earnest efforts to reconcile or compromise have been attempted but was unsuccessful. Thus, the definition of a cause of action under the Rules is now qualified by certain conditions precedent before the injured party can go to court. He must see to it that these conditions precedent, if applicable, must first be observed. The risk of not doing so is that the court, although competent and may have jurisdiction over the case, may refuse to file the case and issue an order directing the plaintiff to undergo or comply with these conditions precedent.

If the conditions precedent have been met, the general rule that we follow is for every cause of action, the plaintiff/right holder can file one complaint. Splitting a cause of action abhorred by the court. Ex. Creditor filed separate actions for recovery of the principal and the interest earned by the principal. Even if there are 2 different courts where these complaints are filed, there is still splitting cause of actions. 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. Rule 7 SEC. 5. Certification against forum shopping. The plaintiff or 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 commenced 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 present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. 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 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. Sanctions for splitting causes of action: 1. filing of one could be used to dismiss the other due to litis pendencia 2. if one of the case has been decided, the other case can be dismissed due to res judicata 3. if there are 2 concurrent cases, the cases can be dismissed on ground of forum shopping. It is now settled that if the party is guilty of splitting his cause of action, he is also guilty of forum shopping. There is no need to elaborate as to whether there is forum shopping as long as it can be shown that there is splitting causes of action. Why does the Rules prohibit splitting? It is because, the effect of splitting a cause of action could be harmful to our courts. If splitting is allowed, and one case each will be filed for example in the RTC and MTC, there is the possibility that one court will decide differently from the other and would result in the courts looking funny, even if the same facts, the same parties and the same pieces of evidence were presented therein. The rule on splitting is designed more for protecting the integrity of our courts. The likelihood that different courts will render conflicting decisions involving the same issue, the same parties and the same pieces of evidence and thus destroy the credibility of the judicial system is sought to be prevented. Consequences of splitting: Suppose the plaintiff filed 2 complaints arising from the same cause of action, but the defendant ignores this. Defendant did not act on the fact. Can the court motu propio dismiss the cases? Yes. Res judicata and litis pendenciaare both non-waivable offenses under Rule 9. Even if the defendant did not waive these, the court motu propio can order dismissal of these cases once these becomes clear during trial. But if the ground for dismissal is litis pendencia, only one of the cases will be dismissed. If the ground for dismissal is res judicata, all cases filed will be dismissed.

In litis pendencia, movant cannot move for dismissal of all cases, only one can be dismissed. Rule 9SECTION 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. (Note: If you are counsel for the defendant, if cases are filed in 2 different courts [RTC and MTC], move for the dismissal of the case in the RTC, as the amount involved in the MTC is smaller. Hence, if the amount involved in total should have been 2.2M, and the amount involved in the MTC is only 200k, only 200k will be extent of liability that your client will have in case of judgment against him.) Can we have the defendant have the remedy of dismissal of both cases filed in RTC and MTC? Yes, on the ground of forum shopping. If a plaintiff is guilty of forum shopping, the court shall order the dismissal of all cases. But the qualification is that the dismissal is without prejudice, not an adjudication on the merits. Exception to the dismissal being without prejudice is that if the forum shopping was DELIBERATE, then dismissal is with prejudice. SUMMARY: If the wish of the defendant is the dismissal of all cases, move for dismissal under Rule 7 on the ground of forum shopping. Anyway, if the party is guilty of splitting of a cause of action, he violates the rule on forum shopping. But if one of the cases has been decided, the ground of dismissal should be res judicata, as long as the decision in that previous case has become FINAL AND EXECUTORY. Litis pendencia and res judicata are NON-WAIVABLE defenses. Courts can motu propio dismiss the case on these grounds under Rule 9.

On Cases of Collection of Payments Payable on Installments Larena vs. Villanueva old case but still applicable Each installment = different maturity dates. The rule of thumb is that for each installment that becomes due and unpaid, one cause of action arises for that particular installment. If the installment becomes due and unpaid, the creditor has one cause of action against the debtor for recovery of money. But his cause of action against the debtor is only for the recovery of the installment that was overdue. Can the creditor insist on recovery of the entire amount instead of installments? Generally, no. Each installment must be due so that right of recovery can be had. Exception: The contract has an acceleration clause. It is a clause in contracts payable in installments where parties stipulate that in case of default in the payment of a certain number of installments (or even just one), the entire obligation becomes due. So if there was an acceleration clause in the contract wherein the whole obligation becomes due after default of the first installment, the creditor will have one cause of action only to recover the entire amount. Suppose the creditor indeed filed one case only, and later a judgment was decided in his favor and the has become final, and later the second installment has become due, he cannot file another case for the recovery of the second installment by virtue of the acceleration clause. Only one cause of action shall arise. But without an acceleration clause, the rule of thumb is each installment that is unpaid shall give rise to a different cause of action when they become due and unpaid.There will be as many cases as there are installments filed by the creditor against the same debtor, but each case corresponding to a different installment.

The qualification given in Larena is that if two installments are already due, then they should be the subject of one complaint. If the other installments are not yet due, they cannot yet be subject to a complaint.

RULE ON ANTICIPATORY BREACH Blossom vs. Manila Gas (Rule on Anticipatory Breach) Even if the obligations are not yet due according to the contract, but the debtor has expressed formally his desire not to pay, then that is an anticipatory breach of contract from which creditor can file a case against the debtor to collect the entire obligation. This anticipatory breach should be formally pleaded in the complaint.

SWAGMAN RULE If such anticipatory breach was not pleaded in the complaint filed, and defendant failed to file an answer, the court will set the case for pre-trial. By the time the pre-trial was conducted, the first installment had become due. The trial was scheduled, but by that time, the whole obligation became due and unpaid. Can the court properly decide the case in favor of the plaintiff? No. Swagman Hotel vs. CA If a plaintiff files a complaint in court although he has no cause of action at all, and the claim of the plaintiff matures at the time the case is tried, the court still does not have any authority to decide the case. This is because at the time of the filing of the complaint, the plaintiff did not have a cause of action. Can we not apply Rule 10 (Amendment to conform to evidence)? SC held that we dont apply amendment to conform to evidence, if in the first place the plaintiff does not have a cause of action at the time of the filing of the complaint. It is essential under the Swagman Rule that acomplaint should be filed after the cause of action has accrued. If there is no cause of action that has accrued and a complaint is filed, the court will have no authority to decide the case, even if that obligation matures and becomes defaulted during the trial of the case. We apply Rule 10 only if there is a cause of action at the time of the filing of the complaint. Swagman Hotel vs. CA Facts: Sometime in 1996 and 1997, Swagman through Atty. Infante and Hegerty, its president and vicepresident, respectively, obtained from Christian loans evidenced by three promissory notes dated 7 August 1996, 14 March 1997, and 14 July 1997. Each of the promissory notes is in the amount of US$50,000 payable after three years from its date with an interest of 15% per annum payable every three months. In a letter dated 16 December 1998, Christian informed the petitioner corporation that he was terminating the loans and demanded from the latter payment of said loans. On 2 February 1999, Christian filed with the RTC a complaint for a sum of money and damages against the petitioner corporation, Hegerty, and Atty. Infante. The petitioner corporation, together with its president and vice-president, filed an Answer raising as defenses lack of cause of action. According to them, Christian had no cause of action because the three promissory notes were not yet due and demandable. The trial court ruled that under Section 5 of Rule 10 of the 1997 Rules of Civil Procedure, a complaint which states no cause of action may be cured by evidence presented without objection. Thus, even if the plaintiff had no cause of action at the time he filed the instant complaint, as defendants obligation are not yet due and demandable then, he may nevertheless recover on the first two promissory notes in view of the introduction of evidence showing that the obligations covered by the two promissory notes are now due and demandable. When the instant case was filed on February 2, 1999, none of the promissory notes was due and demandable, but , the first and the second promissory notes have already matured during the course of the proceeding. Hence, payment is already due.

This finding was affirmed in toto by the CA. Issue: Whether or not a complaint that lacks a cause of action at the time it was filed be cured by the accrual of a cause of action during the pendency of the case. Held: No. Cause of action, as defined in Section 2, Rule 2 of the 1997 Rules of Civil Procedure, is the act or omission by which a party violates the right of another. Its essential elements are as follows: 1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created; 2. An obligation on the part of the named defendant to respect or not to violate such right; and 3. Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief. It is, thus, only upon the occurrence of the last element that a cause of action arises, giving the plaintiff the right to maintain an action in court for recovery of damages or other appropriate relief. Such interpretation by the trial court and CA of Section 5, Rule 10 of the 1997 Rules of Civil Procedure is erroneous. The curing effect under Section 5 is applicable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts.Amendments of pleadings are allowed under Rule 10 of the 1997 Rules of Civil Procedure in order that the actual merits of a case may be determined in the most expeditious and inexpensive manner without regard to technicalities, and that all other matters included in the case may be determined in a single proceeding, thereby avoiding multiplicity of suits.

SWAGMAN RULE: At the time of the filing of the complaint, the plaintiff must have a cause of action. He must be able to show that his right was violated by the time the complaint was filed. Otherwise, he cannot make use of amendment to conform to evidence.

SPLITTING VS JOINDER OF CAUSES OF ACTIONS Splitting is prohibited, joinder is encouraged by the Rules. The Rules encourages a plaintiff to incorporate as many causes of action he may have against the same defendant, although his causes of action are totally unrelated to one another. This is allowed so long as the parties remain the same. A plaintiff can file a complaint against a defendant for accion reinvindicatoria, for recovery of money arising from the loan, recovery of damages arising from a quasi-delict committed by the defendant, although arising out of different transactions. There is nothing wrong if the plaintiff sets up three different causes of action in a complaint that arose of different transactions. The limitations to joinder of causes of action: 1. Jurisdiction 2. Venue 3. Joinder of parties According to Rule 2, there could be joinder causes of actions which is valid as long as the plaintiff

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: (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.

If the plaintiff files a complaint against the defendant for accion reinvindicatoria, and the assessed value of the property is 1k only, and the second cause of action is the recovery of money, obviously the actions are misjoined. This is because accion reinvindicatoria, the property being only 1k, is cognizable only by the MTC. SC decided a case where one of the parties contended joinder when there was actually misjoinder of causes of action. The complaint filed by the plaintiff against the defendant, the first cause of action was for partition, and second cause of action was for rescission of a donation. Both causes of action were cognizable by the RTC. If we rely solely on Sec. 5 Rule 2, is there misjoinder of actions? Why? Yes. This is because a complaint for Partition is a special civil action while rescission is an ordinary civil action. They are governed by different procedures, and thus there is misjoinder of causes of action under Rule 2 Sec. 5(b). On the same facts above, the defendant did not notice the misjoinder and did nothing, whereas the court did nothing also. The judge most likely waited for the defendant to move to split the misjoinder causes. But since nothing was done by defendant, the judge proceeded to try the two misjoined cases. Under the rules, can a court, motu propio, order the severance of one of the misjoined causes of action? Yes. The court can do so. Under the Rules, there is no need for a motion from the defendant if the court finds out that causes of action are misjoined . It can motu propio order the severance of cases. This is done for the benefit of the court, because if the court will wait for the defendant to make a motion, to raise the misjoinder of causes, the court will find himself confused with the procedure he will follow. This is because partition will involve a different procedure from ordinary civil actions. In fact, under our Rules now, partition is a multi-stage proceedings. Rescission is an ordinary civil actions. The court went ahead and tried the case, until a decision was finally issued by the court. Only then did the defendant raised, on appeal to the SC, the misjoinder of causes of action. If nobody objected, the court may proceed in the disposition of the case. If the court decided on the case, the decision will still be valid. SC made a qualification that these misjoined causes should be within the jurisdiction of the trial court under BP 129. In other words, this rule on misjoined causes could be a ground for severance of these causes. But it if it is not raised timely, and the court decided on the case, the courts decision is valid as long as the trial court has jurisdiction over the misjoined causes. Does the RTC have jurisdiction over a complaint for Partition? Does the RTC have jurisdiction over rescission of a donation? Note that a case for partition is one incapable of pecuniary estimation. So even if there are misjoined causes in one complaint, but this misjoinder is not raised before the trial court, the parties are deemed to have waived this issue of misjoinder of causes of action, the judgment rendered by the court is valid and the same can be executed if it is duly entered. If the court does not motu propio order the severance, the defendant cannot blame the court for it. It is the burden of the defendant to raise this as an issue before the trial court.

As long as one of the misjoined causes falls within the jurisdiction of the trial court, there is nothing wrong if the trial court will eventually decide the case although there is misjoined causes of action. Can a complaint be filed where these two causes of action are set up, first, petition for certiorari, and then, as a second cause, petition for habeas corpus? Yes, the petition is allowed, by way of exception, according to SC. A complaint was filed in the MTC. The first cause of action was for accion reinvindicatoria, the assessed value of the land was 1k. The other cause of action unlawful detainer of a condominium unit, with value of back rentals being 2M. Can an MTC have jurisdiction over the action? Yes. The value of the land in the accion reinvindicatoria where the assessed value was only 1K. The recovery of possession by a MTC will be by a summary proceeding, regardless of the backrentals sought to be recovered.. Are the causes properly joined? No. There is still misjoinder, although both causes are cognizable by an MTC. This is because accion reinvindicatoria, although cognizable by the MTC, shall be governed by ordinary proceedings while unlawful detainer will be governed by summary procedure. We cannot join causes of action which are governed by different Rules of Procedure, although they may fall within the jurisdiction of that same court. New case Baylon Case. Even ifthere is misjoinder, if it is not raised as an issue, and the court has decided upon the case, the decision rendered thereafter is still valid so long as the court has jurisdiction over all causes of action that are misjoined in the same complaint. Limitations to the prerogative Unlike joinder of parties, there is a rule against misjoinder of causes of action, in the same way there is a rule on misjoinder of parties. There is no rule on non-joinder of causes of action, while there is non-joinder and misjoinder of parties. The reason why there is no rule on non-joinder of causes is because it is permissive, it is always at the option of the plaintiff. The plaintiff can join as many causes of action as he may have. The court cannot force him to do so. But there is a rule against MISJOINDER of parties. Misjoinder of causes occurs when the joinder of two or more causes violates the rules. Ex. Joinder of special and ordinary causes of action in one complaint, it is prohibited for being in violation of the rule that actions covered by different rules of procedure cannot be joined, although both may be cognizable by the same court. But the latest jurisprudence of the court is to the effect that even if causes are misjoined, if that issue is not raised on appeal, the CA and SC will ignore the violation of the rule on misjoinder. Judgment will not be disturbed, so long as the court deciding has jurisdiction on all causes that have been misjoined. Limitations: 1. Sec. 6, Rule 3, Permissive Joinder of Parties - It envisions a situation where there are 2 or more plaintiffs, 2 or more defendants, or both, where there is a series of transactions, with common questions of fact concerning the same parties. Rule 3 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 owner of a land discovered that his property has been occupied forcibly by 11 informal settlers and they retained physical possession thereof. The informal settlers had constructed houses therein. The owner wanted to recover the possession thereof. Should the owner file 11 cases of forcible entry or just one against the 11, or one complaint wherein there is a joinder of parties? SC said that the owner has the option of choosing any one of these remedies. Plaintiff can file 11 separate complaints impleading only one defendant in each complaint. If plaintiff chooses to file just one action, in that complaint, he must allege 11 causes of action (First Cause of Action, etc.). The last recourse will involve joinder of parties. Why? Sec. 6 Rule 3 is permissive in character. (use of the word may) 2. Compulsory joinder of indispensible parties party must be joined so that final adjudication of the issue can be had. - even if the court tries a case without impleading an indispensible party, such non-joinder will render the proceedings void. The decision is void and will never be entered, and thus cannot be made final and executory. Indispensible partyparties in interest without whom no final determination can be had. Rule 3, 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 s plaintiffs or defendants. If there are 2 parties to the contract of sale, one vendor and one vendee. If in case there is a violation of the contract of sale, the vendor and vendee are of course indispensible parties. Necessary partythe joinder of such party is not compulsory. Rule 3 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.

What is the sanction if the complaint is filed without impleading indispensible party? It is not per se a ground for dismissal as very clearly stated in Section 11, Rule 3; but if the defendant uses another ground used, specifically failure to state a cause of action, then the complaint will be dismissed. Rule 3 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. SC held differently in several cases: It held that failure to state a cause of action is evident when an indispensable party is not impleaded. A cause of action envisions the existence of a right violated and a wrongdoer who did such violation. The proceedings taken by the court are considered void in terms of those who were not impleaded, being indispensable parties. Even if the court decided the case, the judgmenttherein will be unenforceable since such decision will be subject to question by those parties not impleaded. There were also decisions stating otherwise. SC stated than non-joinder/misjoinder is not a ground for dismissal. If a motion to dismiss is filed, SC stated that the court should order amendment of the complaint instead of dismissing it. In Rule 16 on alternatives of a court on ruling a motion to dismiss, SC says a trial court has 3 options: deny, dismiss or to order amendment of the complaint. Thus, trial court can order denial of a motion to dismiss by ordering amendment. 4 alternatives to resolve misjoinder/non-joinder of indispensable parties: 1. Grant motion 2. Deny motion

3. Order amendment to the pleading 4. Refer the matter to arbitration or prior barangay conciliation Hence, if a defendant moves for the dismissal of the case of non-joinder of indispensible parties, the court can order amendment of that complaint to implead the indispensible party. Plaintiff also has a choice; he can either ignore or comply with the order.If he complied, the defect is cured. But if plaintiff disobeys the order directing him to implead an indispensible party, can the court do something about it? SC held that the case can be dismissed under Rule 17. If the dismissal was ordered by the court due to disobedience of a lawful order, it shall be a dismissal with prejudice, an adjudication upon the merits. Adopt the 2nd set. Order amendment. If amendment order is not complied with, court will order dismissal under Rule 17, unless the court orders otherwise. What is the difference of a dismissal under Rule 16 and Rule 17? If a complaint is dismissed under Rule 16 due to failure to state a cause of action from failure to implead, dismissal is without prejudice. If dismissal is by reason of Rule 17, for failure to obey lawful orders of the court, it is a dismissal with prejudice unless the court orders otherwise. NECESSARY AND INDISPENSABLE PARTIES How do we distinguish whether a party is necessary or indispensable? The rule to guide us in this fact is the NCC on liability of debtors. In the case of debtor/creditor relations where there are 2 debtors to the same debt: Plaintiff should evaluate liability, whether debtors liabilities are solidary or joint. In the NCC, in absence of any other stipulations/factors, when there are two debtors of the same indebtedness, the assumption will be that they are joint creditors. If there are stipulations referring to the debt as solidary, then they are solidary debtors. The provisions of the NCC will be the guide in this situation. If we apply the provisions of the NCC, and the creditor filed a case to recover the entire debt, and debtor A and B are joint debtors, do we consider both debtors to be indispensible parties? Yes. If the purpose of the creditor is to recover the entire obligation, then both debtors should be impleaded in the complaint. Can the creditor file a case against only debtor A? Yes, applying the provisions of the NCC, the creditor can go after A, but recovery can be had only to the extent of the amount owed by A. In this example, debtor A is an indispensible party. How about debtor B, is he a necessary party? Yes. His presence in the case against debtor A is not indispensible. The court may require B be impleaded to complete the determination the subject matter. There is another presumption in the NCC that if there is no indication as to the extent of the debt of two joint debtors the presumption will be that both shall share equal obligations to the creditor. Hence, if the creditor loaned Debtors A and B 1M, there being no other stipulation, it is presumed that Debtors A and B are joint debtors with individual liabilities of 500K each.

Indispensable Parties Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. (Sec.7, Rule 3) Must be joined under any and all conditions because the court cannot proceed without him (Riano, Civil Procedure: A Restatement for the Bar, p. 224, 2009 ed.) No valid judgment if they are not joined Note: In the absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present (Riano, Civil Procedure: A Restatement for the Bar, p. 221, 2009 ed.)

Necessary Parties 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. (Sec.8, Rule 3) Note: Should be joined whenever possible, the action can proceed even in their absence because his interest is separable from that of indispensable party (Ibid p.224) The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined

Note: 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-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non-compliance with the said order would be a ground for the dismissal of the action (Feria, Civil Procedure Annotated, Vol. I, p. 239, 2001 ed.) Note: 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. (Sec. 11, Rule 3)

The presence of a necessary party is not determinant to the resolution of the action, but can be impleaded if only to satisfy completely the issue. The duty of the plaintiff is only to tell the court that he has left out a necessary party, he is not compelled to include such party. The court will have to determine if it is essential for the court to order requiring that necessary party to be impleaded. If plaintiff ignored the court order to implead the necessary party, is Rule 17 applicable? No, Rule 3 should apply, which provides for the sanction if plaintiff refuses to obey an order to implead necessary party. The case will continue. But, the plaintiff would be deemed to have waived any right of action against necessary party. If later on, the plaintiff decides to file a complaint against such necessary party, the complaint will not prosper, as the necessary party can claim that the right to file a claim against him has been paid, waived, abandoned or otherwise extinguished under Rule 16.

THE RULE ON ASSIGNMENT/TRANSFER OF INTEREST (RULE 3, LAST SECTION) Ex. There is a creditor who lent 1M to the debtor. The debtor defaults in payment. But before the creditor filed a complaint, the creditor felt the need for money. He assigned his claim to another for a certain value. Such person now stands in the shoes of the creditor, and may file a claim against the debtor. The creditor sold his rights to X for 700K. Can the assignor/original creditor, file a claim for 1M against creditor? No, he is no longer a real party in interest, as he has assigned his rights to another.

What if assignee files a complaint against debtor? Assignee is the proper party to file a complaint against debtor, so the case will prosper. How much can assignee recover? He is entitled to recover 1M. The assignee steps into the shoes of the creditor who sold his right to the assignor for 1M. What if the original creditor has not assigned his credit for 1M. He files a case against debtor. While the case was pending in the RTC, the plaintiff/creditor assigned his claim. The assignment was in pendente lite, for 700K. Will the assignee be considered as indispensable party? No. Under Rule 3, assignee pendente lite is not considered an indispensable party and the court may ignore such party. The creditor assigned his rights to assignee. The assignor pendente lite/creditor stipulated that the case should be dismissed in consideration for the payment of the 700k. Is this allowed? Yes. This is allowed under Art. 1634 NCC. Husband and wife should sue or be sued jointly. SC Held that the law contemplated in the exemption is the Family Code or NCC as the case may be. This is pertinent on the rule of partnership and co-ownership in case of husband and wife. It is impertinent to compel a husband to implead the wife as co-plaintiff. In case of co-owner, a partner can file a complaint without impleading the co-owners. The same would be applicable to husband and wife. The wife may file a case without impleading her husband. There is a caveat: If the husband as a co-owner files a complaint against another, he should indicate in the complaint that he is filing such case as co-owner. But if he claims sole ownership, he should implead the wife.The law authorizes either spouse alone to file a complaint. The spouse left behind is not considered a necessary party as a complete determination of the case could be had even with just one spouse as a party. Exceptions: (See Art. 113 NCC) Husband and wife are judicially declared legally separated from each other, the other party must be impleaded. If the husband and wife are separated in fact for at least one year. (See also Arts. 25 to 35 NCC)

CLASS SUIT There is a common interest among persons so numerous that it would be impracticable to bring them all to court. It is not required that all be presented in court, but only enough to represent the rest of those who are party to the same suit. Ex. Oposa vs. Factoran is now enshrined in the Writ of Kalikasan via the Citizens Suit on behalf of persons yet unborn. This is effectively a class suit. Do we consider the class as indispensable or necessary parties? SC held that all in the class involved in the litigation are considered indispensable parties. Should they all be identified? SC held that there is no need. Only a representative number can be impleaded as they represent all of the class. Determination made on such representative class is tantamount to determination for all of the members of the class. Why did SC hold that all such members of the class are deemed indispensable? SC stated that the last sentence of Sec. 12 Rule e states that Any party in interest shall have the right to intervene to protect his individual interest. A member of a class in a class suit has a right to intervene. Note: Intervention a matter that is subject to the discretion (allow or disallow) of the trial court. Exception, court cannot deny intervention of a member of the class in a class suit.

Deceased Litigant 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. A contract of agency is present when a lawyer is engaged by his client, an agency which exists until the client dies. The lawyer has to inform the court about the death of his client. The court may then cause substitution of the representatives of the estate of the deceased.

Rules on death of the plaintiff in marriage-related cases : Dismissal death occurred before entry of judgment Substitution of parties death occurred after entry of judgment Plaintiff dies the court would require the lawyer to submit the names of the heirs in order to act as substitute plaintiff. Refusal of all heirs to act as substitute parties, court can require the defendant to seek the appointment of an administrator or executor of the estate (in the settlement court for probate of a will or intestacy). Settlement court either RTC or MTC depending on the value of the estate. If the executor or administrator has been chosen, he will be tasked to represent the estate until final judgment. If there is an appeal on the decision of the trial court, the executor/administrator shall represent the estate. Their representative capacity ends upon final entry of judgment. Death of a debtor will not extinguish an obligation, there being transfer of the interest from debtor to his estate. There will have to be proper substitution of parties. If there is a decision against debtor that was final and executory, can the substituted party ask for motion for writ of execution for satisfaction of the deceaseds claim ? No. It cannot be subject to execution under Rule 39. Creditor must file a claim, attaching the said judgment as evidence of a valid claim.

Rule 4 VENUE OF ACTIONS One court that can disregard rules on venue SC All other courts cannot disregard the rules on venue.

Trial courts can incorporate in their decision an advisory to the defeated party to appeal the matter to the SC. Venue can be subject to stipulation of parties. Elements: 1. Stipulation has the feature of exclusivity 2. Written, and 3. It must have been entered into before the commencement of the action Caveat: If the stipulation will cause undue inconvenience to parties, then such stipulation can be dispensed with by parties. In a real action, the venue, in absence of any stipulation designating a specific venue, is the place where the property or a part thereof is located. Mixed action action is both real and personal the venue in absence of stipulation is the same as that of the rule in personal actions. (Whether Action in-rem real; Quasi inremor In personam personal) Analyze the actions whether they are real or personal. For purposes of venue, we follow its classification as a real action. Accion reinvindicatoria and publiciana recovery of title or ownership a real action that at the same time an in personam action. Settlement of estate involving personal properties of the deceased personal action Sweet Lines case(on venue) The place where the principal office was located would cause undue inconvenience for the complainants, hence the agreement stipulating that cases should be filed in Cebu is void.Rule 4 is designed for the convenience of complaining parties, not for the benefit of defendants. The rule on venue does not apply to CA, CTA and SC. It is only applicable to trial courts and other lower courts.

Procedure before Barangay Courts Prior barangay conciliation a condition precedent to accrual of cause of action. 2 requisites: 1. the parties must be natural persons 2. they reside in the same city or municipality As long as these 2 requisites are present, prior barangay conciliation is a MUSTregardless of the nature of the action; if claim is for collection of money, regardless of the amount involved. If case is filed directly in court in violation of the LGC, will the court acquire jurisdiction? Yes, under BP 129. What are the remedies of defendant and the court if prior barangay conciliation was not done? ~Defendant can file a motion for dismissal for lack of cause of action. ~Court can compel plaintiff to submit to barangay conciliation while being held in suspension. ~Court can hold case in abeyance until conciliation was had or had failed. (Court will dismiss the case, and await result of the barangay conciliation.) Note: Barangay Court is not part of the judiciary, but part of the executive. Inherently, barangay courts are not allowed to adjudicate, only to mediate, to conciliate, and convince parties to arrive into a compromise agreement and settle amicably. They act as an arbitration court; that is, if parties have mutually agreed in writing to constitute the barangay court as an arbitration court for their dispute.

The barangay courts follow procedurally the same rules as that of court cases. The pleadings could be verbal, although the barangay court usually asks for pleadings to be written. They also require payment of minimal docket fees, regardless of the amount of claim. If the complainant fails to appear repeatedly during the conferences called by the Barangay Court, the Barangay Court can order the dismissal of the complaint, and that dismissal is with prejudice. The complainant loses his right to recover against the respondent. Rule of venue is different from Rule 4 RoC. The venue is the residence of the respondent. If the complainant and respondent resides in different barangay, the complaint should be filed in the barangay where the respondent resides. This applies to civil actions, as well as special civil actions in appropriate cases. Ex. Complaint for interpleader Complaint for forcible entry and unlawful detainer, although these are special civil actions This does not apply to: ~Rule 65 cases, nor in petition for relief cases. ~Cases that involve public officers or LGUs. ~Certiorari, Prohibition, Mandamus usually involves exercise of public duties (especially of a judge) ~It does not apply to expropriation or quo warranto. If they are unable to settle, the barangay court issues a certification that no compromise was entered into. This enables the plaintiff to file a case in court. But if a compromise agreement was filed, that agreement will be considered a final and executory judgment, subject to repudiation by any party within 10 days from execution of the agreement. Grounds are any of the vices of consent. If there is repudiation, the barangay court will issue certification allowing plaintiff to file the case in court. If parties agreed in writing that a barangay court shall be the arbitration court, this can be repudiated within 5 days from filing said agreement. The Barangay Court, as an arbitration court, can make arbitral awards. A party can cause annulment of said award based on vices of consent. No other ground need be presented (such as lack of jurisdiction, etc.) There is no need for the barangay court to ask for confirmation of the compromise agreement. After the lapse of the 10-day period, it becomes final and executory. It can become subject to execution by the barangay court. If the terms of the agreement are not complied with, the barangay court can execute the judgment, provided such judgment should be executed within six months from signing of compromise agreement. Execution of the barangay court. While it can make a levy on execution, it is limited to personal properties belonging to respondents. It cannot levy on real properties owned by respondents. It can also sell these levied personal properties at public auction to satisfy the compromise agreement. If there is no satisfaction of the claim, the remedy is for the judgment creditor to file a case of collection in the MTC to satisfy the compromise agreement. Montaez vs. Miguel enforcement of compromise agreement by barangay courts (2012) The case substantially has the following facts: The claim of the creditor was 500k. Both parties submitted the matter for conciliation in the barangay court. The claim of 500k was reduced substantially in the proceedings, 250k paid in installments. The debtor failed to comply. The agreement was not repudiated. The creditor filed a complaint in the regular court for recovery of the 500k. CA held that the only recourse of the creditor was to enforce the compromise agreement as provided in LGC and the implementing circulars, the creditor having lost the right to claim the 500k.

SC HELD that the barangay court being final and executory, if the debtor fails to comply, the failure to comply is considered as a repudiation of that compromise agreement. SC cited Art. 2041 of the NCC which states that when a party fails to comply with the compromise agreement, the agreement is rescinded by operation of law, and thus the creditor is entitled to recover the original claim in the courts of justice. There is no need to file rescission of the compromise agreement in this instance. The effect is that the creditor who has agreed to the compromise agreement will be reverted to his original position as a creditor claiming the amount in his original claim before the compromise agreement. Mere refusal or failure to comply with compromise agreement is tantamount to repudiation of the compromise agreement. Note: Judgment based upon a compromise is immediately executory. A party can sought execution thereof immediately. Failure to comply can lead to rescission of that compromise agreement.

SUMMARY PROCEEDINGS It refers to the summary procedure followed by lower courts in unlawful detainer, forcible entry and money claims up to 200k, exclusive of interest, etc. Note: Small claims proceedings involve claims up to 100k. There are cases which follow summary procedure that is cognizable by RTC. However, these cases involve family-related cases. They are not civil actions involving summary procedures under the rules. Summary proceedings prohibit filing of certain pleadings and motions. The only Pleadings allowed: Complaint Answer Compulsory Counterclaim/crossclaim Motion to dismiss under Rule 16 is prohibited, unless the ground is absence of jurisdiction over the subject matter and absence of prior barangay conciliation (failure to follow condition precedent).Although prohibited, what is prohibited is a motion to dismiss filed by the defendant. Summary Dismissal is allowed given, by the court itself, no motion being given. The court itself will examine the contents of the complaint. If the court finds the case should be dismissed under Rule 16, it can do so motu propio, without a correlative motion to dismiss filed by the defendant. Ordinarily, under ordinary procedures, a court cannot simply dismiss the case without a correlative motion to dismiss. The defendant is given time to file a responsive pleading for a shorter period than in ordinary procedure. Period is nonextendible (10 days). If defendant ignores the period, but files a motion for extension of 5 days to file an answer, the court can ignore it, considering it as if it was not filed. If such a motion was filed, and there was failure of the defendant to file an answer within 10 days, plaintiff can move for judgment on the pleadings.

If the defendant is prohibited from filing a motion to dismiss, but the defendant, after evaluating the complaint that the case should be dismissed based on any ground in Rule 16, can he still make use of these grounds to cause dismissal eventually? Yes. The defendant should follow Rule 16 by making use of the grounds as an affirmative defense in his answer, and later on raise these issues. Motion to declare defendant in default a prohibited pleading in summary procedure. If defendant failed to answer on time, the plaintiff can move for judgment on the pleadings. In ordinary proceedings, a motion to declare defendant in default must be initiated by plaintiff before the court can declare defendant in default. Unless such motion is made, the court can do nothing. The reason why the rules on summary proceedings does not allow the court to declare defendant in default, it is because the rules under Rule 9 cannot be allowed in summary proceedings. It will be tantamount to allowing a defendant in default to ask for lifting the order of default, defeating the purpose of the rule on summary proceedings. Motion for new trial, motion for reconsideration and petition for relief from judgment are prohibited in summary proceedings. This does not mean the defendant has no remedy after judgment. The only remedy available for a defendant is to appeal the judgment. Annulment of judgment under Rule 47 can also be had under these proceedings. But, before he can avail of Rule 47, the rules are strict insofar as the requirements for annulment of judgment are concerned. Such must be complied with before it can be availed. Preliminary conference identical to pre-trial in ordinary proceedings.Submission of affidavits and position papers, no presentation of evidence. A trial is not absolutely prohibited in summary proceedings, as certain criminal cases are governed by summary proceedings. A trial has to be conducted. The court cannot deprive defendant/accused from cross-examining the witnesses. Why did not the SC adopt a common summary procedure for civil and criminal cases? Why disallow trial in civil cases under summary proceedings? This is because SC cannot violate the rights of an accused in a criminal case. The same right is not availing to a defendant in a civil case under summary procedures.

Small ClaimsProceedings It contains prohibition against counsels appearing in court. The scheme in Small Claims proceedings is that they are not required to prepare their own pleadings. In Metro Manila, the MTC assigned to entertain these claims have ready forms for complaints or answer to be filed in court. Minimal docket fee is paid. Joinder of causes of action is allowed, so long as the aggregate should not go beyond 100k exclusive of interest, damages, etc. Prohibited pleadings and motions : similar to summary proceedings. Judicial dispute resolution MTC encourage parties as much as possible to enter into a compromise agreement. Small claims procedure has nothing to do with criminal cases, only civil collection cases.

In small claims procedure, the judgment is immediately final and executory, no appeal available . Motion for new trial, motion for reconsideration and petition for relief from judgment are not available. The only remedy available to an aggrieved party is under Rule 65, Certiorari. Thus, there is no appeal, plain, speedy or adequate remedy available. Does it mean that the aggrieved party in small claims procedure is treated more kindly than in summary procedure? No. The availability of Rule 65 in Small Claims procedure is not really a benefit. A petition under Rule 65 does not stop the respondent court from carrying out its decision. Unlike in an appeal, usually, execution is not allowed, except in forcible entry and unlawful detainer. In case of unlawful detainer, payment of supersideas bond and the payment of current rate of rentals can stop enforcement of the summary proceedings judgment. The only way Rule 65 can prevent immediate execution in small claims is that the court taking cognizance of Rule 65 will issue a TROor writ of preliminary injunction upon application of appellant. There is a need to post an injunction bond to avail of the TRO or writ of preliminary injunction.

Back to pleadings. PLEADINGS AND CONTENTS OF PLEADINGS Rule 6 and Rule 10 (Take them as one set, as they refer to the same thing, pleadings and content of pleadings) Pleadings should always be in writing. The rules now allow a parties/litigants to make use of 9 pleadings, but numerous motions. Classes of pleadings: 1. Claim pleading (7 kinds) 2. Responsive pleading (2 kinds) Claim Pleadings: 1. Complaint 2. Counter-claim 3. Cross-claim 4. Third-party complaint 5. Amended pleading 6. Supplemental pleading 7. Petition Responsive Pleading: 1. Answer 2. Reply Defendant may make use of certain claim pleadings under appropriate circumstances. Ex. Answer with counterclaim and cross-claim. RULE 7 CERTIFICATION OF NON-FORUM SHOPPING Classification of pleadings under Rule 7: 1. Initiatory Pleadings there should be a certification on non-forum shopping, the violation thereof could lead to adverse consequences such as dismissal with or without prejudice; the court imposes docket fees, violation thereof will render the case to be that which does not fall under the courts jurisdiction; payment of docket fees required. 2. Non-initiatory Pleadings needs no certification of non-forum shopping; no docket fees required.

The classification under Rule 7 is made for the purpose of determining whether such pleading will require the inclusion of a certification of non-forum shopping. General Rule: If an initiatory pleading is filed in court without the payment of the requisite docket fees, the court does not acquire jurisdiction over the initiatory pleading. Payment of docket fees carries with it the authority of the court to entertain the complaint. With respect to a compulsory counterclaim, courts do not consider it an initiatory pleading, which will necessitate the payment of docket fees. In 2010, SC decided that if the defendant files an answer with permissive counterclaims, and fails to pay docket fees, the court has neglected to collect docket fees thereto, and the court tries the case resulting in its dismissal and granting the permissive counterclaim (the defendant won), the decision (even if already entered) over the permissive counter-claim is void due to lack of jurisdiction, there being no showing that the court acquired jurisdiction over the counter-claim. The defendant has the duty to remind the clerk of court that docket fees should be collected against the defendant so as to enable the execution of a decision in favor of the defendant.

COMPLAINT Ultimate facts In ordinary civil cases, ultimate facts should be alleged in the complaint. But plaintiff is not sanctioned in case evidentiary facts are included therein, wherein the plaintiff also presents evidence he intends to present in court . In several circulars, in certain proceedings, a complaint need not state just ultimate facts. In a complaint filed under summary proceedings, plaintiff is encouraged to include in his complaint evidentiary facts and to attach his evidence in the document. In Kalikasan proceedings, the plaintiff is required to attach to his complaints all the evidence that are in the possession of the plaintiff (documentary, testamentary or object). In Kalikasan cases, the defendant should include his evidence in the answer, aside from specific denials. Take Note: Even Rule 6 does not prohibit alleging evidentiary facts along with ultimate facts. Rule 6 does not impose sanctions if evidentiary facts are included in the pleadings. But the inclusion in the complaint of ultimate facts alone is sufficient. The ultimate facts are those that constitute the cause of action, an allegation that the plaintiff has a right, an allegation that the defendant has violated that right, or an allegation of compliance with conditions precedent that gave rise to accrual of the cause of action. Insofar as the answer is concerned, it is the pleading in response to a complaint. It may contain positive or negative defenses or both along with evidentiary facts. The defendant, however, cannot move for the court to order the plaintiff to present evidentiary facts in his complaint as the statement of the ultimate facts alone in the complaint are sufficient. Problems arise when an answer interposes a negative defense. Negative Defense In civil cases, a negative defense is always an important part of the answer. ( Specific denial) What is the standard to follow that a denial is specific? It is found in Sec. 10 Rule 8 (Relate Rule 6 with this). 3 modes where a specific denial can be had: 1. Total denial of the allegations in the complaint with accompanying statementsin which he will have to rely his defenses on 2. Part denial and part admission

3. Just a statement by defendant that he has no knowledge or information about the truth of the allegation and therefore defendant specifically denies the allegation Theoretically, the defendant can make use of any mode of denial right away. The court has in several cases discouraged the 3rd mode of specific denial, and imposed some sanctions if a defendant insists in using the 3rd mode as the only mode contained in his answer. SC has given sanctions in several cases. SC held that if the defendant had no knowledge or information on the matter, defendant should explain why. Failure to do so, such denial will not be considered a specific denial. A general denial will be treated as a judicial admission to the allegations contained in the complaint. Thus, a judgment on the pleadings can be had upon motion of the plaintiff. Another form of denial frowned upon by jurisprudence are the following: I specifically deny paragraph_ because I had not dealt with the plaintiff or I specifically deny paragraph _ of the complaint. They are considered as negative pregnant. They are specific denials that contain no ground relied upon in support of the denial, and thus are considered as general denial. The remedy of the defendant is to amend the answer as a matter of right as provided in Rule 10.

Rule 10 Amendment as a matter of right Done before a responsive pleading is filed or before expiration of the period to file such responsive pleadings. Note: A general denial is allowed in Habeas Corpus cases, but expressly prohibited in Writ of Amparo and Habeas Data cases.

Counter-claim It is a claim made by a defendant against a plaintiff. Permissive vs. Compulsory counterclaim. Study Compulsory Counterclaim as discussed in the Rules.
Compulsory Counterclaim One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim (Sec.7, Rule 6) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Barred if not set up in the action (Sec. 2, Rule 9) Need not be answered; No default Not an initiatory pleading. Need not be accompanied by a certification against forum shopping and certificate to file action by the Lupong Tagapamayapa. Permissive Counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing partys claim

It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Not barred even if not set up in the action Must be answered,: Otherwise, default Initiatory pleading. (Riano, Civil Procedure: A Restatement for the Bar, p. 336, 2009 ed.) Must be accompanied by a certification against forum shopping and whenever required by law, also a certificate to file action by the Lupong Tagapamayapa (Santo Tomas University v. Surla, G.R. No. 129718, Aug. 17, 1998) (2007 Bar Question). Must be within the jurisdiction of the court where the case is pending and cognizable by regular courts of justice otherwise, defendant will have to file it in separate proceeding which requires payment of docket fee

The court has jurisdiction to entertain both as to the amount and nature (Sec. 7, Rule 6; Ibid p.331)

Compulsory Counterclaim filed in the RTC vs. that filed in the MTC A compulsory counterclaim filed in RTC cannot be a compulsory counterclaim filed in the MTC. Ex. Counterclaim filed in the RTC states that the case filed was unjust and defendant claimed legal expenses amounting to 200k. This is considered to be a compulsory counterclaim in the RTC even if such amount is below the threshold for claims in the RTC. We cannot challenge the RTCs jurisdiction by the amounts claimed in the counterclaim.

If the counter claim filed in the MTC by defendant was claiming 500k in moral damages. Under the rules, this is no longer a compulsory counterclaim, and treated as a permissive counterclaim. The MTC can order dismissal of the counterclaim, as the counterclaim is outside the jurisdiction of the MTC. If the amount to be recovered is beyond the jurisdictional amount of the MTC, the compulsory counterclaim is converted to a permissive counterclaim. If the amount to be recovered is below the jurisdictional amount of the RTC, the counterclaim is still treated as a compulsory counterclaim.

Reply The filing of a reply is generally not necessary. It is in fact next to useless. Note: If a party does not file such reply. All the new matters that were alleged in the answer are deemed controverted (Sec. 10, Rule 6) (not deemed admitted). The matters not answered in the reply are deemed controverted (not admitted). In a complaint, if the allegations therein are not specifically denied or were not dealt with in the answer, they are deemed admitted. If the defendant does not specifically deny or does not set up proper affirmative defenses in the answer, the defendant is sanctioned by law. This will lead the court to conclude that the defendant has admitted all allegations in the complaint, and thus will lead to a judgment on the pleadings. But if the defendant filed an answer properly crafted, introducing a new matter. The new matter asserts a positive defense of extinguishment, for example, which is a ground for a motion to dismiss. The plaintiff does not file a reply. Is the plaintiff deemed to have admitted the new matter? No. The new matter alleged in the answer is deemed controverted even without a reply. Plaintiff need not submit a reply as the law itself that the new allegation or matter is deemed controverted to be subjected to trial in the court. Under Rule 16, the defendant can now ask for a preliminary hearing to determine whether there was extinguishment or not. But for purposes of a reply, there is no need for the plaintiff to controvert the new matters. The second sentence of the definition of a reply is the most important. All matters alleged in the answer are deemed controverted, and a reply need not be filed. EXCEPTIONS: 1. Where the answer alleges the defense of usury in which case a reply under oath should be made. Otherwise, the allegation of usurious interest shall be deemed admitted. (NO LONGER APPLICABLE) 2. Where the defense in the answer is based on an actionable document, a reply under oath pursuant to Sec. 8 of Rule 8 must be made. Otherwise, the genuineness and due execution of the document shall be deemed admitted. Under our present rules, allegations of usury MUST be contained in a complaint or similar pleadings. The law is not specific, but given the liberal interpretation of the rules, it leads to the conclusion that as long as the allegations of usury are contained in a complaint or similar pleading like counter-claim or cross-claim, there is a need for specific denial. The responsive pleading would be an answer, not a reply.If the allegation of usury is contained in a counterclaim/cross-claim, the responsive pleading is an answer to the counterclaim/cross-claim. If the allegation of usury is contained in an answer, there is no need to specifically deny in the reply. The only exception applicable is when the answer is founded on an actionable document. The law says that when the defense is founded on an actionable document, the plaintiff, if he wants to make a denial of the actionable document, must do so specifically and under oath. Otherwise, the genuineness and due execution of that actionable document will be deemed admitted (a judicial admission). What is an actionable document? A: Referred to as the document relied upon by either the plaintiff and the defendant. (Araneta, Inc. vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A promissory note in an action for collection of a sum of money. (Riano, Civil Procedure: A Restatement for the Bar, p. 101, 2009 ed.)

Note: This manner of pleading a document applies only to an actionable document, i.e., one which is the basis of an action or a defense. Hence, if a document does not have the character of an actionable document, it need not be pleaded strictly in the manner prescribed by the rules (Ibid p.102) How are actionable documents pleaded? A: By setting forth: 1. The substance of such document in the pleading and attaching said document thereto as an exhibit 2. Include the contents of the document verbatim in the pleading (Sec. 7, Rule 8). Note: A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant the dismissal of the action (Convets, Inc. v. National Development Co., G.R. No. L-10232, Feb. 28, 1958). However, the contents of the document annexed are controlling. For example, the defendant alleges payment in his answer supported by a receipt issued by the plaintiff, acknowledging full liquidation of the indemnity. Under law, if the claim or demand is based on an actionable document, it is imperative upon the impleader to allege on the pleading the actionable document. Can the plaintiff simply file an affidavit in opposing the actionable document? The only way that a plaintiff can make a specific denial under oath against the actionable document alleged in an answer is by way of a reply. This is because, this is the only pleading that is available that responds to an answer. If the plaintiff makes a reply setting up a specific denial, he should also see to it that the specific denial is under oath.If he did not do so, the genuineness and due execution of the actionable document is deemed admitted. Take note of the exceptions in the Rules as to non-availability of the judicial admission of the genuineness and due execution of an actionable document if there is no specific denial under oath. There are 2 exceptions: 1. When the adverse party does not admit being a party to that document, or 2. Even if such party is a party to the document, there being an order issued by the court for the inspection of the original document, the said party does not comply with that order. The mode of impleading an actionable document was held by the SC to be mandatory. If the party impleading such did not follow the modes provided in the Rulesforimpleading of an actionable document, the party will not be allowed to present proof of his cause of action or defense as the case may be, as the attachment of the actionable document or adding of the contents of that actionable document in the allegations of the pleadings will adversely affect the other party.

Third/Fourth Party Complaint, Etc. There can potentially be no end to the number of parties in the complaint as longas the allegations in the pleadings have something to do with the claim of the plaintiff in his complaint. If you would notice among the pleadings, it is only the third/fourth party complaint, etc. that would require leave of court. The third/fourth party complaint, etc. must allege that the third/fourth party defendant is liable to the said third/fourth party plaintiff, by reason of contribution, subrogation or any other relief in relation to the subject matter of the claim in the complaint. The third/fourth party complaint is always connected to the subject matter of the complaint. If a complaint for instance is for the recovery of an unpaid loan, a third party complaint cannot contain a claim for the recovery of ownership of a piece of land. The subject of the third party complaint should always be related to the subject of the complaint. Why do we need leave of court in order to file a third party complaint? This is because a third party complaint will forcibly bring into the action a stranger to the case. The third party defendant is a stranger to the case. This is why the rules require that the court should be given discretion whether to allow or not to allow the third party complaint to see if there is a need to bring a stranger to the case or even if there may be a need, the

claim is unrelated to the subject to the case. If the court denies the motion for admission of a third party complaint, the remedy of the defendant is to file a separate complaint against the third party defendant. It is in third party complaints that will best illustrate the meaning of ancillary jurisdiction of a trial court. Q: What is a third (fourth, etc.) party complaint? A: A third (fourth, etc.) party complaint is a claim that a 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 respect of his opponent's claim. (Sec.11, Rule 6) Q: Distinguish a third-party complaint from the rules on bringing in new parties. A: A third-party complaint is proper when not one of the third-party defendants therein is a party to the main action. Whereas in bringing in new parties, if one or more of the defendants in a counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought in under the rules on bringing in new parties Q: Why is leave of court necessary in third (fourth, etc.) -party complaint? A: To obviate delay in the resolution of the complaint such as when the third-party defendant cannot be located; or unnecessary issues may be introduced; or the introduction of a new and separate controversy. (Herrera, Vol. I, p. 705, 2007 ed.) Q: What are the tests to determine whether the third-party complaint is in respect of plaintiffs claim? A: 1. Whether it arises out of the same transaction on which the plaintiffs cla im is based, or, although arising out of another or different transaction, is connected with the plaintiffs claim; 2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiffs claim against the original defendant; and 3. Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiffs claim. Note: Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third-party complaint is merely auxiliary to and is a continuation of the main action (Republic v. Central Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968). A third party complaint is not proper in an action for declaratory relief. (Commissioner of Customs v. Cloribel, G.R. No. L21036, June 30, 1977). Note: The court is vested with the discretion to allow or disallow a party to an action to implead an additional party. Thus, a defendant has no vested right to file a third party complaint (China Banking Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p. 342, 2009 ed.).

Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get full payment, Abby went after UNICAPs debtor Ben. Ben is a policy holder of Insular. The courts sheriff then served a notice of garnishment to Insular over several account receivables due to Ben. Insular refused to comply with the order alleging adverse claims over the garnished amounts. The trial court ordered Insular to release to Abby the said account receivables of Ben under the policies. Insular then filed a petition for certiorari with the CA alleging that the trial judge gravely abused his discretion when he issued the garnishment order despite its adverse claim on the garnished amounts. The CA gave due course to the petition and annulled the order of the trial court. Is the Court of Appeals correct? A: No. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a third-party claim. Since the third-party claimant is not one of the parties to the action, he could not, strictly speaking, appeal from the order denying its claim, but should file a separate reinvindicatory action against the execution creditor or a complaint for damages against the bond filed by the judgment creditor in favor of the sheriff. The rights of a third-party claimant should be decided in a separate action to be instituted by the third person (Solidum v. CA, G.R. No. 161647, June 22, 2006).

Q: What is Doctrine of Ancillary Jurisdiction? A: It involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary jurisdiction. Note: Under its ancillary jurisdiction, a court may determine all questions relative to the matters brought before it, regulate the manner in which a trial shall be conducted, determine the hours at which the witnesses and lawyers may be heard, and grant an injunction, attachment or garnishment. Let us say that the subject of the complaint is the recovery of 1M unpaid loan. The competent court is an RTC. The defendant asks the court for permission to file an answer with a third party complaint. In the third party complaint, the defendant asserts that Juan de la Cruz is bound to pay defendant the sum of 200K by reason of contribution, indemnity, subrogation or any other relief. With respect to the complaint, there is no question as to jurisdiction as the competent court is really an RTC. It is with respect to the third party complaint where a jurisdictional issue is present. The third party complaint is effectively a complaint filed by the defendant against a stranger to the case, and the amount sought to be recovered is 200k, which is an amount not within the jurisdiction of the RTC. Can the court, upon motion by the third party defendant, order the dismissal of that third party complaint on the ground of lack of jurisdiction over the subject matter of the case? No. We apply rule of ancillary jurisdiction of a trial court. If the trial court has jurisdiction over the principal complaint filed by the plaintiff against the defendant, the same court will exercise ancillary jurisdiction over all collateral pleadings, incidental pleadings that are related to the complaint. Thus, the third party complaint to recover 200k is still cognizable by the same court. Is it correct to say that third party complaint or fourth party complaint would be the only pleadings which will enable a litigant to bring in a stranger to the case? Can a litigant bring in a stranger without a third or fourth party complaint? No. The Rule does not say that it is the only means/pleading available to bring in a stranger to the case. Can the defendant compel a stranger to be a party to the case by filing a counterclaim or cross-claim? The law authorizes the defendant to bring in a stranger by filing a permissive or compulsory counter-claim. The law authorizes the defendant to bring in a stranger to the case through the filing of a cross-claim. Although the Rules defines a cross-claim as a claim by a defendant against his co-defendant, the Rules does not say that in filing a cross-claim against a co-defendant that a third person can be impleaded in the cross-claim. In the definition of a counterclaim, the defendant could set up the counterclaim against the plaintiff or against any party or person who is not yet a party to the case, as long as the court can acquire jurisdiction over the person of the said person. Why do we allow a defendant to bring in a stranger to the case by not using a third-party complaint but by cross-claim or counterclaim, especially when such is compulsory? Because there is another provision in the Rules which say that if there is a compulsory counterclaim or cross-claim not set up in the answer, that compulsory counterclaim or cross-claim are barred. If there is a need to implead a stranger, he should be allowed to implead a stranger, although not via a third party complaint. Sec. 11 Rule 6 provides a cross-claim or counterclaim could be the basis for the court to bring in a stranger to the case for the complete determination of the issues.

FORMS OF A PLEADING A pleading must always be signed. An unsigned pleading will be treated as a sham pleading. You cannot submit an unsigned pleading. The court motu propio can order the striking out of the pleading. Who will sign the pleading? The litigant can sign the pleading. Or, his counsel can sign for him. Either or both can sign the pleading.

Are there pleadings that are inadmissible by the court if the only signature is that of the lawyers? By way of exception, yes, in case of marriage annulment cases, according to the SC Circular, the complaint and the answer must be signed also by the party himself. If signed only by the lawyer alone, the court will not accept the pleading. But generally, the signature of the counsel is enough for a pleading to be accepted by the court. Q: What is the effect of lawyers signature? A: The signature of counsel constitutes: 1. A certificate by him that he has read the pleadings; 2. That to the best of his knowledge, information and belief there is good ground to support it; and 3. That it is not interposed for delay. (Sec. 3, Rule 7) VERIFICATION Q: Is verification necessary in pleadings? A: No, except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (Sec. 4, Rule 7) Q: What is the significance of verification? A: it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of a proper verification is cause to treat the pleading as unsigned and dismissible (Chua vs. Torres, 468 SCRA 358; Riano, Civil Procedure: A Restatement for the Bar, p. 60, 2009 ed.) Q: What are the pleadings that should be verified? A: The following should be verified: 1. Petition for relief from judgment 2. Petition for review from the RTCs to the CA 3. Petition for review from the CTA and quasi-judicial agencies to the CA 4. Appeal by certiorari from the CA to the SC 5. Petition for annulment of judgments or final orders and resolutions 6. Complaint for injunction 7. Application for appointment of receiver 8. Application for support pendente lite 9. Petition for certiorari against the judgments, final orders or resolutions of constitutional commissions 10. Petition for certiorari, prohibition, mandamus, quo warranto (1996 Bar Question)

11. Complaint for expropriation 12. Complaint for forcible entry or unlawful detainer 13. Petition for indirect contempt 14. Petition for appointment of general guardian 15. Petition for leave to sell or encumber property of an estate by a guardian 16. Petition for the declaration of competency of a ward 17. Petition for habeas corpus 18. Petition for change of name 19. Petition for voluntary judicial dissolution of a corporation; 20. Petition for correction or cancellation of entries in Civil Registry.

Q: What are the effects of lack of verification? A: 1. A pleading required to be verified but lacks the proper verification shall be treated as an unsigned pleading (Sec. 4 as amended by A.M. 00-2-10, May 1, 2000). Hence, it produces no legal effect (Sec. 3, Rule 7) 2. It does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading (Benguet Corp. v. Cordillera Caraballo Mission, Inc., G.R. No. 155343, Sept. 2, 2005) and non-compliance therewith does not necessarily render it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471, Feb. 5, 2007) 3. The absence of verification may be corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases (Pampanga Sugar Development Co., Inc. v. NLRC, G.R. No. 112650, May 29, 1997)

If the law requires a pleading to be verified, but the pleading is not verified or there is insufficient verification, the absence or insufficiency would mean that the pleading is effectively an unsigned pleading. Therefore it produces no legal effect. With respect to verification, the general rule is we do not require that pleadings should be verified. It is only in instances where the law requires verification that the pleading should be verified.Also, take note that Rule 7 is very emphatic as to how to verify a pleading. Q: How are pleadings verified? A: It is verified by an affidavit. This affidavit declares that the: 1. Affiant has read the pleading; and 2. Allegations therein are true and correct of his personal knowledge or based on authentic records (Sec. 4, Rule 7) If the verification is not according to the tone given in the Rules, that will be an inadequate or insufficient verification. And under Rule 7, the absence or inadequacy of the verification shall result in an effectively unsigned pleading. But the SC keeps on ignoring the Rules on verification. Although it would appear in Rule 7 that absence of verification could be a fatal defect, the SC keeps on ruling that the absence of verification is only a formal defect. If you come across a question concerning the need to verify a pleading or determining the adequacy of a verification in a pleading, and you are asked what is the effect, based on rulings by the SC, in instances required by law for submission of a pleading with an inadequate verification is only a formal defect. A complaint, a permissive counterclaim, cross-claim, a third/fourth party complaint, all of these being initiatory pleadings, must have a certification of non-forum shopping. Does it mean to say that Verification of a pleading is now the general rule, given that in Rule 7, initiatory pleadings must carry with them a certification of non-forum shopping? No. Certification of Non-forum shopping is different from verification of a pleading. Verification of a pleading refers to the allegations in the pleading. The verification states that one has read the pleading and that it is correct based on his personal knowledge or based on authentic records. The contents of certification of nonforum shopping does not have anything to do with the contents of an initiatory pleading , as it simply certifies that no similar case had been filed in any other court, tribunal or body, and to notify the court right away if one should come to know of such fact. In the case of a Certification of Non-Forum Shopping, the SC appears to have adapted the rule of substantial compliance as to the requirements of the certifications contents. Take note that the Rules say that all principal plaintiffs should sign the certification. Otherwise, the certification will be ineffective. This defect is not curable by amendment under Rule 7. There was a recent case wherein the complaint had 5 principal plaintiffs and only two of them signed. The defendant challenged the authority of the court receive the case as the certification was ineffective. The court refused to dismiss the case. The court said that it will go ahead with the case but will drop the claims where the non-signing plaintiffs are concerned. In effect, the court said the signature of the two plaintiffs will of substantial compliance with the requirement. As to the issue of a lawyer signing the certification of non-forum shopping, the general rule being that a party himself must sign, if the lawyer sign for the plaintiff, the lawyer must be able to show his authority to do so via a special power of attorney authorizing him to sign in the stead of his client. REQUIREMENTS OF A CORPORATION EXECUTING THE VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING Q: What is the rule when the plaintiff is a juridical person? A: The certification against forum shopping where the plaintiff is a juridical entity like a corporation, may be executed by properly authorized person. This person may be a lawyer of a corporation. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification, such may be signed by the authorized lawyer (National Steel Corporation vs. CA, 388 SCRA 85; Riano, Civil Procedure: A Restatement for the Bar, p. 70, 2009 ed.)

Q: Corporation XYZ is the petitioner in a civil case. Alexander, president of corporation XYZ, signed the certification against forum shopping in behalf of said corporation without presenting any proof of authority from the corporation. Is the certification against forum shopping valid? If not, how may it be cured? A: No. When the petitioner in a case is a corporation, the certification against forum shopping should be signed by its duly authorized director or representative. The authorized director or representative of the corporation should be vested with authority by a valid board resolution. A proof of said authority must be attached with the certification (PAL v. FASAP, G.R. No. 143088, Jan. 24, 2006).

RULE 9 (Effect of Failure to Plead) and Omnibus Motion Rule Basic Principles contained in Rule 9: 1. Omnibus Motion Rule all objections that are not included are deemed waived if not set up in the motion to dismiss. 2. Because of the rules in joinder of causes and joinder of parties, there could be several causes actionsthat can be alleged in the complaint either joined or in the alternative; there could be several defenses set up in the answer, also either jointly or in the alternative. Rule 3 in relation to Rule 9 also says that since there could be alternative causes or defenses, we can also have joined and/or alternative defendants. Omnibus Motion Rule a defense is waived if not set in defenses in the pleadings. Q: What is the Omnibus Motion Rule? A: GR: All available grounds for objection in attacking a pleading, order, judgment, or proceeding should be invoked at one time; otherwise, they shall be deemed waived (Sec. 8, Rule 15). XPN: The court may dismiss the case motu proprio based on: 1. Lack of jurisdiction over the subject matter; 2. Litis pendencia; 3. Res judicata; and 4. Barred by statute of limitations (Sec. 1, Rule 9)

Can there be a judgment in the alternative? Yes. Note: Under Rule 60 (Replevin), in its Section 9, alternative judgment may be had for either the delivery of the personal property or the value thereof in case delivery cannot be had or made, plus damages the party may be able to prove and costs. Nothing is mentioned in the rules about the propriety of a complaint with plaintiffs named in the alternative, as plaintiffs are named jointly. But if we follow the general rule that pleadings should be liberally interpreted to provide for a fast, speedy and inexpensive determination of the case, the SC might allow a complaint where the plaintiffs are named in the alternative, which is followed in the federal rules of procedure in the US where plaintiffs can be named in the alternative, causes of action, as well as defenses alleged in the alternative. Unfortunately, one of the rules not incorporated in our Rules was that of plaintiffs named in the alternative. By express provision in the rules, we have defendants named in the alternative, causes and defenses alleged in the alternative. We can even have judgments in the alternative form. With respect to the non-waivable defenses given in Rule 9, it sounds better to compare the non-waivable defenses in civil actions and non-waivable defenses in criminal cases. Non-waivable defenses in civil procedure Res judicata Prescription Lack of jurisdiction over the subject matter Litis pendencia Non-waivable defenses in criminal procedure Double jeopardy Prescription of the penalty imposed Lack of jurisdiction over the subject matter

Note: A previous decision or judgment will bar the filing of another case similar or tackling the same issues, having the same parties, and the same or related reliefs. In a civil case, it is called res judicata, while in a criminal case, it is called double jeopardy. In the case of criminal cases, there is the defense thatthe information does not charge an offense. In civil cases, this is equivalent to Rule 16, failure to state a cause of action. In civil cases, if the complaint does not properly allege a cause of action and the complaint was not amended at all, where the defendant does not file a motion to dismiss, the case went to trial, and the plaintiff showed in the trial that he indeed has cause of action, the complaint is deemed amended. This is called amendment to pleadings to conform to evidence. Thus, in civil cases, the failure to state a cause of action or to improperly allege such is waivable, the remedy being an amendment to conform to evidence. The court may order such amendment be made.

PRINCIPLE OF AMENDMENT OF PLEADINGS TO CONFORM TO EVIDENCE Amendment to pleadings may be made to conform to presented evidence. When may amendment be made to conform to or authorize presentation of evidence? A: 1. When issues not raised by the pleadings are tried with the express or implied consent of the parties. Note: Failure to amend does not affect the result of the trial of said issue. 2. Amendment may also be made to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby (Sec. 5, Rule 10). The information submitted by the prosecutor did not really allege a crime was committed. But the prosecutor was able to show in court by the evidence presented that indeed a crime was committed. Can amendment of pleadings to conform to evidence be allowed in this case? No, it cannot be allowed. It will violate the constitutional right of the accused to be informed of the charges against him.We can apply amendment of pleadings to conform to evidence in a criminal case so long as the constitutional right of the defendant is not violated.

DEFAULT Q: When is a declaration of default proper? A: 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 (Sec. 3, Rule 9, Rules of Court). (Riano, p. 507, 2005 ed.) Q: In what situations where declaration of default is proper? A: It is proper in 3 situations: 1. Defendant did not file any answer or responsive pleading despite valid service of summons; 2. Defendant filed an answer or responsive pleading but beyond the reglementary period; and 3. Defendant filed an answer to the court but failed to serve the plaintiff a copy as required by the Rules. EFFECT OF AN ORDER OF DEFAULT Q: What are the effects of an order of default? A: 1. The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in the trial [Sec. 3(a), Rule 9]; 2. While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent proceedings [Sec. 3 (a), Rule 9]. It is submitted that he may participate in the trial, not as a party but as a witness; and

3. A declaration of default is not an admission of the truth or the validity of the plaintiffs claims (Monarch Insurance v. CA, G.R. No. 92735, June 8, 2000). RELIEF FROM AN ORDER OF DEFAULT Q: What are the reliefs from an order of default? A: 1. After notice of order and before judgment The defendant must file a verified motion to set aside the order of default upon proper showing that: a. His failure to answer was due to fraud, accident, mistake or excusable negligence; and b. That he has a meritorious defense. [Sec. 3(b), Rule 9] (2000 & 1999 Bar Question) 2. After judgment and before judgment becomes final and executory He may file a motion for new trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the law (Talsan Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 169919, Sept. 11, 2009) 3. After the judgment becomes final and executory he may file a petition for relief from judgment under Rule 38 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) (2006, 1998 Bar Question) 4. Where the defendant has however, been wrongly or improvidently declared in default, the court can be considered to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial records, he may avail of the special civil action of certiorari under Rule 65 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) EFFECT OF A PARTIAL DEFAULT Q: What is the effect of partial default? A: GR: The court will try the case against all defendants upon the answer of some. XPN: Where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer e.g. forgery. (1995 Bar Question) EXTENT OF RELIEF Q: What is the extent of relief? A: The judgment shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages [Sec. 3(d), Rule 9]. However, if the court orders submission of evidence, unliquidated damages may be awarded based on such. ACTIONS WHERE DEFAULT ARE NOT ALLOWED Q: When is default not allowed? A: 1. Actions for annulment; 2. Declaration of nullity of marriage and legal separation [Sec. 3(e), Rule 9]; and 3. In special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed. There are several instances where declaration of default is prohibited like mortgage, the rules on summary procedures, Writ of Amparo, Writ of Habeas Data, and marriage related cases. It is not correct to say that it is absolute in civil actions that if a defendant does not file his responsive pleading, he can be declared in default. What is clear is the general rule: If a complaint is filed, summons is served upon the defendant, but defendant does file an answer within the reglementary period, the defendant can be declared to be in default upon motion of the plaintiff. The court cannot motu propio declare the defendant in default. Motion must be madeby the plaintiff before declaration of default can be had. Failure to file the motion for declaration of default by the plaintiff can result to the complaint being dismissed for failure to prosecute for an unreasonable length of time under Rule 17. It is a dismissal with prejudice.

Suppose Plaintiff files a motion for declaration of defendant in default, but the motion was for that of an ex-parte motion to declare defendant in default. The reasoning is that since the defendant had not bothered to file an answer, there is no use of serving notice to the defendant. This is for the plaintiff to prevent the defendant from entertaining the idea that he must file an answer to prevent being declared in default. Is plaintiff correct? No. Rule 9 is very clear that a copy of the motion to declare defendant in default should be served upon the defendant. If such copy is not served upon the defendant, that motion will not be acted upon by the court. What if the defendant filed an answer after receiving a copy of the motion to declare him in default, can the court still declare him in default? Yes, if the court follows strictly Rule 9. But, as a matter of policy, an answer filed out of time will not result in the defendant in being declared in default. SC held repeatedly that as much as possible the technical aspects of default should not be applied strictly in the interest of furtherance of justice. Even if the period to answer has already expired, but an answer is filed out of time, the courts will still admit that answer and deny the motion to declare the defendant in default. The reason why SC adopted this policy is because at present, under Rule 9, if defendant is declared in default, the court can right away render a judgment in default against defendant without conducting a trial. Under Rule 9, the court is given 2 choices: to render a judgment of default based on the complaint (judgment on the pleadings), or to order the complainant to present evidence ex-parte in support of his allegations. At least in the second option, there can be presentation of evidence, unlike in the first option where only the pleadings will be the basis of the judgment. And if there is a trial ex-parte on default ordered by the court, the defendant will not be allowed to participate in the proceedings, unless he is able to secure an order to lift the default. Rule 9 is very explicit in stating that the award in default judgments cannot be greater than that prayed for in the complaint, even if there is an ex-parte presentation of evidence showing evidence thereto. This limiting of award is only allowed in default cases where plaintiff is allowed to present evidence ex-parte. Default Under Rule 18 Pre-Trial Plaintiff does not appear during pre-trial or failed to submit pre-trial brief = dismissal of the complaint. Defendant does not appear during pre-trial or non-submission of pre-trial brief on time = ex parte presentation of evidence by plaintiff and court can render judgment based thereon. Comparison between Rule 9 and Rule 18 Default Rule 9 In Rule 9, defendant shall be declared in default for not filing an answer. Rule 18 Under Rule 18, a plaintiff shall be declared in default for not appearing during pre-trial or failure to submit a pre-trial brief, while a defendant shall be declared in default for not appearing or submitting a pre-trial brief on time. The court can grant a relief more than that alleged, based on what the plaintiff can prove based on his evidence presented. In Rule 18, the defendant already filed an answered. The defendants failure to comply with attending a pre-trial conference or file a pre-trial brief is meted with severe sanction. Also, the fact that the court gives the plaintiff the opportunity to present his evidence, what the plaintiff proves on evidence shall be the basis of the judgment of the court.

The court cannot grant a relief more than that alleged in the complaint. In Rule 9, the defendant in default has not filed an answer at all. The court is considered to have been taking pity on a defendant who had surrendered.

During ex parte presentation during pre-trial, the plaintiff was able to prove damages of 2M. However, the complaint alleges only 1M. The court awarded 2M. Is the court correct? Why? Yes, the court is correct. This is because the defendant has failed to comply with a court order to either appear in pre-trial or to submit a pre-trial brief, and thus the court can sanction defendant at default. Also, since the court allows the plaintiff, as provided under Rule 18, to present evidence to prove his allegations, what the plaintiff was able to prove shall be the basis of the courts judgment.

PARTIAL DEFAULT Partial default one of several defendants, sued under a common cause of action, is declared in default, while the others can still participate in the case. Default is founded on the premise that the defendant has been served with summons but chose not to response within the reglementary period. Can there be a judgment in default against the non-answering defendants? No, the court cannot do that. In case of several defendants, of which some have filed an answer, the most that the court can do is to declare the non-answering defendants in default. The court cannot declare the answering defendants in default as there is no reason to do that. Insofar as the non-answering defendant is concerned, they shall be declared in default but there could be a separate judgment that will be rendered. Can the answering defendant call the defendants in default as witnesses? Yes. Defendants declared in default can be witnesses, although he will not be allowed to participate as a litigant. If the court finds for the answering defendant, will that decision also affect the defendants declared in default? Yes. Whatever happens to the case, the defendants in default shall be subject to the decisions rendered. Thus, if the answering defendant wins, the decision shall also be in favor of the defendants in default. This is one situation where a defaulting defendant can prevail in the case. The reason is that the non-answering defendants are sued under a common cause of action with answering defendants. In one case, the creditor who sued 2 defendants where one had answered and other failed to answer, and subsequently ordered by the court to be declared in default, his counsel most likely told him about this principle in default. The plaintiff moved for the dismissal of the complaint against the answering defendant. The answering defendant did not object to the dismissal. The case caption was then changed to plaintiff versus the defendant in default. Can the court now ask for presentation of evidence ex-parte? SC held that it is not necessary. Even if the answering defendant has been dropped from the case upon the initiative of the plaintiff, what the trial should examine is whether or not the answering defendant is an indispensable party to the case. If answering defendant is an indispensable party, then the court should require the inclusion of such party. What the court should do is to order the plaintiff to amend his pleadings and include the indispensable party. Failure to do so will be dismissal of the complaint with prejudice under Rule 17. This is because if answering defendant is an indispensable party but he is not around, the proceedings of the court could be void, it would be useless for the court to try the case. And under the new doctrines enunciated by the SC, if an indispensable party has not been included or has been dropped from the case, the court should compel the indispensable party to be impleaded via an amendment to the complaint. Failure of plaintiff to do so will allow the court to dismiss the case with prejudice under Rule 17 for refusal to obey a lawful court order. Since it is disadvantageous for a non-answering defendant to be declared in default, what are the remedies given by law to the defaulting defendant? To file a motion to lift the order of default at any time before judgment, the motion, filed with an affidavit of merit along with his proposed answer, alleging the reasons of why he defaulted and alleging that he has a good defense as stated in the proposed answer. If the motion to lift the order of default is denied, it is inappealable, being an interlocutory decision. Denial to lift order of default Rule 65 can be had, but appellant must show that the court acted with lack or in excess of jurisdiction If the court has already rendered judgment by default (after motion to life order of default has been denied), defendant can appeal.A judgment by default is an adjudication on the merits, hence appealable, Rule 65 is automatically non-available as a rule.

If court lifted order of default, the defendant should file the answer as soon as possible. The court, as a matter of public policy, should allow the defendant who had been in default to file his answer. The court should not deprive defendant the right to present his side before the court.

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS Plaintiff filed a case for accion reinvindicatoria. The assessed value of the property determined jurisdiction. It was filed in the RTC. No allegation was included as to the value of the property. Can RTC dismiss the case? Yes. If the court is unable to determine that it has jurisdiction over the case, as in this instant, it may dismiss the case for lack of jurisdiction over the subject matter of the case. Plaintiff failed to make the necessary jurisdictional averment. Having discovered it, he amended the complaint and submitted it prior to an answer made. Is the plaintiff correct? Yes. The amendment was an amendment as a matter of right.The plaintiff has the right amend his complaint once before a responsive pleading is filed, even to the extent of amending the averment to confer jurisdiction. Thus, the plaintiff is correct to amend his pleading to include the jurisdictional averment. This is applicable for example in unlawful detainer, wherein the plaintiff failed to allege in his complaint that a final demand had been made. Plaintiff may amend his complaint as a matter of right to include the said allegation. The plaintiff made a change in the cause of action in the complaint, and the amendment was as a matter of right. Is this allowed? What if an answer was already filed? If amendment is a matter of right, the plaintiff can change his pleadings cause of action. If amendment is not a matter of right, the plaintiff must be authorized by the court (given leave) to amend the pleading to include another cause of action or change a cause of action. All pleadings can be amended as a matter of right or with prior leave of court. Philippine Ports Authority vs. Gothong 2008 (Change from a complaint for specific performance to one for injunction.) If amendment is a matter of right, the plaintiff can change his pleadings cause of action. If amendment is not a matter of right, the plaintiff must be authorized by the court (given leave) to amend the pleading to include another cause of action or change a cause of action. Change in the cause of action in the complaint is a matter of discretion upon the court once an answer had already been filed. As long as the amendment gives the parties the opportunity to tell the court what is the true dispute between the parties, and as long as it does not involve prejudice to substantial justice. Hence, if the complaint was amended not as a matter of right, the defendant can also amend his answer, if needed, to properly respond to the amended complaint. In the Gothong Case, the SC encouraged trial courts to liberally the Rule on amendment of pleadings, whether as a matter of right or as a matter of discretion. Defendant can change his denials in his answer from general to specific by filing an amended answer as a matter of right. 2nd, 3rd etc. amendment must be with leave of court. Amendment as a matter of right can only be availed of once, and it can be availed of only before an answer has been filed. Can we amend pleadings if the case has already been decided and is on appeal either in the CA or SC? Yes. Amendments can be done if it is only formal in nature. But if the amendment is substantial, appellate courts will hesitate as such amendment will injure the rights of parties who had not appealed. What can be brought on appeal are issues that have been raised from the trial court.

AMENDMENT TO CONFORM TO EVIDENCE UNDER RULE 10 AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE Q: When may amendment be made to conform to or authorize presentation of evidence? A: 1. When issues not raised by the pleadings are tried with the express or implied consent of the parties. Note: Failure to amend does not affect the result of the trial of said issue. 2. Amendment may also be made to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby (Sec. 5, Rule 10). If the evidence presented by the plaintiff is not material to the allegations in his complaint, and there is an objection by the defendant, that objection should be sustained. But if the presentation of evidence that is not material to the complaint is not objected to, the court can motu propio tell the plaintiff not to continue the presentation of that evidence. For instance, the case if for accion reinvindicatoria, where the issue is title to or possession of the real property. During the trial, the plaintiff presented evidence that the defendant owed him 3M, but not any evidence pertaining to the right of possession of the real property. If you are the lawyer of the defendant in this case, you will have to object that the evidence presented is not material to the allegations of the case for recovery of ownership and possession of real property. If there is an objection raised by the defendant, the court will sustain that objection, the plaintiff will not be allowed to present his evidence concerning the 3M liability. But if the defendant did not object, the court cannot refuse to admit the evidence. The court cannot refuse to admit any evidence not objected to by the other side. When the time comes for the court to decide on the case, can court will simply award the plaintiff 3M, although the plaintiff has not alleged this fact at all in his complaint? Yes. The reason is that rule in amendment to conform to evidence under Rule 10. There is no need for the plaintiff to formally amend his pleadings, it takes place by operation of law in order to conform with the evidenced submitted by the plaintiff.

Q: Distinguish an amended pleading from a supplemental pleading. A: Amended Pleading Supplemental Pleading Refer to the facts existing at the time of filing of original Refers to facts occurring after the filing of the original pleading pleading. Supersedes the original, causes of action may be changed Merely supplements the original pleading. May be amended without leave of court before a responsive Always with leave of court pleading is filed. Amendment must be appropriately marked. There is no such requirement in supplemental pleadings (Herrera, Vol. I, p. 854, 2007 ed.) EFFECT OF AMENDED PLEADING Q: What is the effect of an amended pleading? A: An amended pleading supersedes the pleading it amends. However, admissions in the superseded pleading can still be received in evidence against the pleader. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived (Sec. 8, Rule 10). An amended pleading takes the place of the original pleading. Will the court discard the original pleading? No, the court will retain the pleading for court record purposes. Admissions made in superseded pleadings are considered extra-judicial admissions. They can be rebutted. Admissions made in the original pleadings are still admissions, but cannot be considered as judicial admissions. They are mere extra-judicial admission by the person making it.

A judicial admission is always conclusive. It cannot be subject to rebuttal by evidence.

PERIOD TO FILE PLEADINGS In the periods for filing of pleadings, there is nothing mentioned as to the period as to when a complaint should be filed. Nothing is fixed in the rules. The reason is that the filing of the complaint is solely dependent upon the whim of the plaintiff. If SC does so fix such period, it will be invading the turf of substantive law. If there is a period fixed as to when that complaint should be filed, it is determined by substantive law so long as the complaint is filed within the period of prescription. Prescription is a matter of substantive law. With respect to counterclaim, cross-claim or third party complaint, there is a period fixed in the Rules. Of particular is the period for filing a cross-claim and a compulsory counter-claim. They must be filed within the period as that for the filing of an answer. Why? Because even if the cross-claim, counter-claim or third-party complaint are claim pleadings, the rules do not allow the defending party to file an answer separately from a counterclaim, cross-claim or a third-party complaint. Such pleading must be included in his answer. Thus a defendant must file an answer with a counterclaim, cross-claim or a third-party complaint.Otherwise, defendant may file a motion for leave to file an amended answer with cross-claim, counterclaim, etc. With respect to a third-party complaint, defendant would have to first file a motion for leave to file a third-party complaint along with the amended answer, attaching the amended answer to the motion. Because of this rule, the filing of a compulsory counterclaim should be the same as that provided for the filing of an answer (15-30-60, as the case may be). If there is an answer filed, but the defendant feels he should file a counterclaim, he will have to file a motion for leave to file an amended answer with counterclaim (with a copy of the amended answer attached).

BILL OF PARTICULARS Motion for leave to file bill of particulars there is inadequacy of the allegations contained in the complaint. As a rule, Rule 16, as to a bill of particulars, the inadequacy of the allegations in a complaint is not a ground for the filing of a motion to dismiss the complaint. Can there be an instance when a trial court may dismiss a case on ground of inadequacy or vagueness in the allegations in the complaint? Yes, by way of exception. The only instance when a defendant may file motion to dismiss due to vagueness or inadequacy of the allegations in the complaint, instead of filing motion for bill of particulars, is when the RTC is sitting as a commercial court. In this case, where there is indefiniteness or vagueness in the allegations of the complaint, defendant may file a motion to dismiss. This is because, in commercial courts, a motion for bill of particulars is forbidden as outlined in the circular for commercial courts. In ordinary civil cases, motion for bill of particulars is available to both sides. They should be in the form of a motion. While a motion for bill of particulars should comply with the requisites of a motion, so as not to be deemed as a useless piece of paper, when the motion is submitted to the court, the court can act upon the motion right away, without waiting for the hearing set for the motion, either granting or denying such motion. By its very nature, a motion for a bill of particulars should be filed by a defendant before submitting an answer, or in case of a plaintiff, a reply. It is useless if a defendant files a motion for bill of particulars after he has already filed his answer. It is understood that if a defendant has filed an answer, it would mean that he has understood fully the allegations stated in the complaint. What is a bill of particulars and when can it be availed of? A: 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 10 days from service thereof (Sec. 1, Rule12). (2003 Bar Question) Note: Its purpose is to aid in the preparation of a responsive pleading. An action cannot be dismissed on the ground that the complaint is vague or definite. (Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973).

If denied, the movant should file the required pleading in the remaining period, which should not be more or less than 5 days. But if the motion is granted, in case of a defendant, the court will order the submission of an amended complaint or a bill of particulars, which will form part of the allegations contained in the complaint. If the plaintiff does not obey the order of the court to submit a bill of particulars, what is the remedy of the defendant? The remedy is either to strike out the parts of the pleading that are vague. Or, the more practical move, the defendant move to strike out the entire pleading, wherein the case is dismissed. The remedy if pleading still remains vague after bill was approved and particulars were provided for: 1. Striking out parts still vague 2. Striking out the entire pleading (if it is a complaint, the case is dismissed. If it is the answer stricken, motion for declaration of defendant in default.) If the defendant disobeyed the court order to amend his answer or to supply bill of particulars, the situation will be as if the defendant has not filed an answer at all. The next recourse of the plaintiff is to file a motion to declare the defendant in default. This is one instance where the defendant can be declared in default even though he had filed an answer on time. Therefore, if the defendant did not amend his answer or file a bill of particulars, the court can order the striking out of the answer and thereafter, upon motion, the defendant can be declared in default. This Rule is found under Rule 29 (Refusal To Comply With Modes of Discovery).

SUBSTITUTE SERVICE OF PLEADINGS AND MOTIONS VS. SUBSTITUTE SERVICE OF SUMMONS Filing and service of pleadings, motions and other papers in the court: Substitute service of pleadings, motions and other papers: Motion/pleading/other papers cannot be served in person or by registered mail. Movant should submit the motion and the pleadings with the clerk of court with proof that personal and mail service failed. Upon receipt of court, substituted service is now completed. Substitute service of summons: This is resorted to when there is failure on the part of sheriff to serve summons in person upon the defendant after several attempts and despite diligent efforts. Sheriff then can serve the summons at the resident of the defendant upon a person of sufficient age of discretion, or insteadof the residence, at hisplace of business, upon a competent person in charge. The reason for resorting to such substituted service must be explained. If a movant files a motion against an adverse party, but chooses a mode of service other than personal service, he must explain the reason why. Recently this has been relaxed by the court, depending on the nature of the case or depending on the nature of the motion to be served or the pleading filed in the court. But in case of a motion to dismiss, the courts are very strict, personal service is a must. If it was served by mail, the court requires submission of proof of actual delivery/receipt by mail (the registry return card). If such proof is not presented, the court will not act on the motion to dismiss for failure to observe the requirements concerning service of this important motion.

SUMMONS Q: What is the nature of summons? A: It is the writ by which the defendant is notified of the action brought against him ( Gomez vs. Court of Appeals, G.R. No. 127692, March 10, 2004). An important part of that notice is a direction to the defendant that he must answer the complaint within a specified period, and that unless he so answers, plaintiff will take judgment by default and may be granted the relief applied for (Sec. 2, Rule 14). (Riano, p. 411 , 2005 ed.)

Q: What are the purposes of summons? A: 1. Actions in personam a. To acquire jurisdiction over the person of the defendant; and b. To give notice to the defendant that an action has been commenced against him (Umandap v. Sabio, Jr., G.R. No. 140244, Aug. 29, 2000) 2. Actions in rem and quasi in rem not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004). What is the effect of voluntary appearance before the court? Explain. A: GR: The defendants voluntary appearance shall be equivalent to service of summons and the consequent submission of ones person to the jurisdiction of the court (Sec. 20, Rule 14). Note: Voluntary appearance cures the defect in the service of summons. XPN: Special appearance in court to challenge its jurisdiction over the person of the defendant and the inclusion in a motion to dismiss of other grounds shall not be deemed a voluntary appearance (Sec. 20, Rule 15; La Naval Drug Corp. v. CA, G.R. No. 103200, Aug. 31, 1994).

Sec. 20, Rule 14, RoC Instances when appearance of defendant is not tantamount to voluntary submission to the jurisdiction of the court: (a) when defendant files the necessary pleading; (b) when defendant files a motion for reconsideration of the judgment by default; (c) when defendant files a petition to set aside the judgment of default; (d) when the parties jointly submit a compromise agreement for approval of the court; (e) when defendant files an answer to the contempt charge; (f) when defendant files a petition for certiorari without questioning the courts jurisdiction over his person. PERSONAL SERVICE Q: When is personal service of summons proper? A: Only if the suit is one strictly in personam. The service of summons must be made by service in person on the defendant. This is effected by handing a copy of the summons to the defendant in person, or if he refuses to receive it, by tendering the copy of the summons to him (Sec. 6, Rule 14). (Riano, p. 423 , 2005 ed.) SUBSTITUTED SERVICE Q: When is substituted service of summons proper? A: In our jurisdiction, for substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of service of summons in person within a reasonable time; 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient age and discretion in the same place as the defendant or some competent person in charge of his office or regular place of business (Sabio, Jr., 339 SCRA 243 [2000]; Hamilton vs. Levy, G.R. No. 139283, November 15, 2000). (Riano, p. 427 , 2005 ed.) CONSTRUCTIVE SERVICE (BY PUBLICATION) Q: Is leave of court required in constructive service of summons? A: This service always requires permission of the court. Summons is the writ available to a trial court to enable the court to acquire jurisdiction over the person of the defendant. Although not the only writ available for the court to acquire jurisdiction over the person of the defendant, it is the usual

writ used. The court can acquire jurisdiction over a defendant by compulsion, even though it has not issued a summons. An example is in the case of a special civil action under Rule 65, certiorari, prohibition and mandamus. Certiorari, prohibition and mandamus are special civil actions. They are distinct from the case from which that order or decision has originated. But in Rule 65, the Rules do not allow the certiorari court or prohibition court to issue summons to the defendant. What Rule 65 authorizes is to issue a notice to defendant/respondent requiring him to submit a comment before the court. That comment will enable the court to acquire jurisdiction over the person of the respondent. There is even that mode of acquisition where the court need not do anything, wherein a party makes a voluntary appearance in court.

Service of Summons upon a unregistered/unlicensed foreign corporation with no resident agent that transacted in RP: In a 2011 Circular, summons upon a foreign private corporation can be served in four ways, with leave of court: 1. Personal service of summons upon a foreign private corporation not doing business in RP, with assistance of DFA and the court of the country where the foreign corporations main office is located; 2. Publication of the summons in the country where the foreign corporation has its office 3. By facsimile message or by any electronic device authorized by the trial court 4. A combination of any one of the three as authorized by the court. With respect to domestic private corporations, service of summons must be effected as stated in the Villarosa vs. Benito case. It must be served upon the officers of the corporation stated specifically in the RoC (President, Managing Partner, GM, Treasurer, Corporate Secretary or in-house counsel of the corporation).In the Villarosa case, the branch manager was the one served with summons, which is not among those officers listed in the Rules. Thus, the trial court did not acquire jurisdiction over the corporation. This is still the rule observed. EB Villarosa & Partner Co. Ltd. Vs. Benito It should be noted that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with the rules has been enjoined. In the case of Delta Motor Sales Corporation vs. Mangosing, the Court held: A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient. x x x. The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, to bring home to the corporation notice of the filing of the action. x x x. The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. x x x. (underscoring supplied). Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been held as improper. Even under the old rule, service upon a general manager of a firms branch office has been held as improper as summons should have been served at the firms principal office. In First Integrated Bonding & Ins. Co., Inc. vs. Dizon, it was held that the service of summons on the general manager of the insurance firms Cebu branch was improper; default order could have been obviated had the summons been served at the firms principal office. And in the case of Solar Team Entertainment, Inc. vs. Hon. Helen Bautista Ricafort, et al. the Court succinctly clarified that, for the guidance of the Bench and Bar, strictest compliance wit h Section 11 of Rule 13 of the 1997 Rules of Civil Procedure (on Priorities in modes of service and filing) is mandated and

the Court cannot rule otherwise, lest we allow circumvention of the innovation by the 1997 Rules in order to obviate delay in the administration of justice. Accordingly, we rule that the service of summons upon the branch manager of petitioner at its branch office at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner. The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon its person. There is no question that the defendants 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. Court of Appeals, et al., which became the basis of the adoption of a new provision in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules. 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. Service of summons in case of a partnership: What the rules require is that summons must be made upon a GM or managing partner as the case may be. If there are 4 partners in the partnership, service upon any of the partners will be a valid service of summons. All partners under the NCC are considered as managing partners. Since all partners under the NCC are presumed to be managing partners, service upon anyone will be a valid service of summons. It is in the acquisition of jurisdiction over natural persons that there is conflict in jurisprudence. 2006 case Defendant owed money to a corporation. Defendant lived in a gated subdivision. The sheriff was not allowed inside the subdivision. What the sheriff did was to leave a copy of the summons, together with the complaint, with the guards. Is there valid service of summons? To be literal, no, there was no valid substituted service of summons. If the summons and the complaint were left only with the security guard, it did not comply with leaving at the place of residenceof the defendantwith some person of suitable age and discretion then residing therein. The guards do not actually reside in the place of residence of the defendant. The SC stated that the meaning of sufficient age and discretion does not mean that the person to be served could be a minor. This person means that this person should mean a person at least 18 years of agewith a relationship involving confidence with the defendant.So, if the service of summons was given to a person who was only a visitor of the defendant, that will not comply with this requirement.

In this 2006 case, the SC became very liberal. Although it was clear sheriff did not satisfy the requirements of a valid service of summons, the SC ruled that the trial court did acquire jurisdiction over the person of the defendant. However, in 2009, the SC decided a case involving the validity of a substituted service of summons not in accordance with the Rules.If substitute service of summons is not in accordance with Sec. 7 of Rule 14, the service is invalid, the court does not acquire jurisdiction over the defendant. Any proceedings taken by the court are invalidated.

Concentrate on Sec. 14, 15 and 16 Rule 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) 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) 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. Former Procedure Citizens Surety vs. Herrera (Service of summons for an Action in personam publication of summons with preliminary attachment of properties) Sheriff stated that the summons could not be served personally or by substituted service. The plaintiff filed an ex parte motion to issue a summons by publication. The court granted it. Plaintiff caused the publication of the summons. After 60 days, there was no responsive pleading. Plaintiff filed a motion to declare defendant in default. During the hearing of the motion, plaintiff presented the court the order authorizing publication and affidavit of the publisher. Plaintiff expected the court to grant his motion. The court did not, but instead asked the plaintiff to explain why the complaint should not be dismissed. The court stated that publication did not enable the court to acquire jurisdiction of the court. The requirement left out was a constitutional requirement of due process, that the action was converted from one in personam to that one in rem or quasi-in rem. This could be done, after causing the publication of the service of summons, by applying with the court for an order for preliminary attachment of defendants personal properties in order to acquire jurisdiction over the person over the defendant. This conclusion by the plaintiff, aside from Rule 14 Sec. 15, this is supported by Rule 57 Sec. 1. Rule 57 SECTION 1. Grounds upon which attachment may issue.At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication . (1a) The court interpreted these provisions to mean that if there is publication of the summons, there should be a proceeding accompanying preliminary attachment over the personal properties of the defendant. Otherwise, the court will be unable to acquire jurisdiction over the person of the defendant. If we are not able to convert the action inpersonam to that in rem, the court will not be able to acquire jurisdiction over the person of the defendant, and therefore, the court will not have authority at all to entertain the case. Note: If the court still did not still acquire jurisdiction over the defendant despite the attachment of the personal properties of the defendant, then the case will be archived. There can be no dismissal of the case. No prescription will not run, since the complaint is archived.

Citizens Surety vs. Herrera Digest : Facts: Citizens Surety and Insurance Co (Citizens) alleged that at the request of Santiago Dacanay, it issued 2 surety bonds to guarantee payment of P5K promissory notes in favor Gregorio Fajardo and Manufacturers Bank & Trust Co respectively. As security, the Santiago and Josefina Dacanay executed an Indemnity Agreement to jointly indemnify Citizens for losses, costs and expenses (with 12% annual interest) and a REM over a parcel of land in Baguio. The Dacanays failed to pay the promissory notes compelling Citizens to pay. The Dacanays failed to reimburse Citizens however, forcing the latter to cause the extra-judicial foreclosure of the mortgage and file a case to recover the unsatisfied balance. At petitioners request, the respondent Judge caused summons to be made by publication in the Philippines Herald. But despite such publication and deposit of copy with the Manila post office, the defendant did not appear within 60 days from the last publication. Plaintiff sought the defendants to be declared in default, but the Judge eventually dismissed the case, the suit being in personam and the defendants not having appeared. Issue: W/N summons made by publication is sufficient for the court to acquire jurisdiction Held: No. In an action strictly in personam, personal service of summons, within the forum, is essential to 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 cannot consistently with the due process clause in the Bill of Rights confer upon the court jurisdiction over said defendants. The proper recourse for the creditor is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached, in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may be valid.

Given the skill of debtors to conceal their properties however, the decision of the respondent Judge should be set aside and held pending in the archives until petitioner tracks down the whereabouts of the defendants person or properties.

In 2008, Santos vs. PNOC was decided, which changed the principles held under Citizens Surety vs. Herrera. Santos vs. PNOC Defendant in an Action in personam can be subject to courts jurisdiction (2008) The defendant did not file an answer within the reglementary period. The lawyer of the plaintiff did not move for publication of summons, but filed only a motion to allow him to present evidence ex parte. The judge rendered a decision in favor of the plaintiff. When defendant learned of the decision, he moved for reconsideration thereof. The Court then gained jurisdiction over the person of the defendant mad a voluntary appearance when the defendant filed his motion for reconsideration. Santos vs. PNOC Digest Facts: PNOC Exploration Corporation, respondent, filed a complaint for a sum of money against petitioner Pedro Santos Jr. in the RTC of Pasig. The amount sought to be collected was the petitioners unpaid balance of the car loan advanced to him by respondent when he was still a member of its board of directors. Personal service of summons were made to petitioner but failed because the latter cannot be located in his last known address despite earnest efforts to do so. Subsequently, on respondents motion, the trial court allowed service of summons by publication. Respondent caused the publication of the summons in Remate, a newspaper of general circulation in the Philippines. Thereafter, respondent submitted the affidavit of publication and the affidavit of service of respondents employee to the effect that he sent a copy of the summons by registered mail to petitioners last known address. Petitioner still failed to answer within the prescribed period despite the publication of summons. Hence, respondent filed a motion for the reception of its evidence ex parte. Trial court granted said motion and proceeded with the ex parte presentation and formal offer of its evidence. Petitioner filed an Omnibus Motion for Reconsideration and to Admit Attached Answer, alleging that the affidavit of service submitted by respondent failed to comply with Section 19, Rule 14 of the Rules of Court as it was not executed by the clerk of court. Trial court denied the said motion and held that the rules did not require such execution with the clerk of court. It also denied the motion to admit petitioners answer because the same was filed way beyond the reglementary period. Petitioner appeals to the CA via a petition for certiorari but failed and even sustained the trial courts decision and ordered the former to pay the amount plus legal interest and cost of suit. Hence, this petition. Issues: (1) Whether or not there is lack of jurisdiction over the petitioner due to improper service of summons. (2) Whether or not the rule on service by publication under Section 14, Rule 14 of the Rules of Court applies only to actions in rem, not actions in personam. (3) Whether or not the affidavit of service of the copy of the summons should have been prepared by the clerk of court and not respondents messenger. Held:

(1) Section 14, Rule 14 provides that in any action where the defendant is designated as an unknown owner or the like or when 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 times as the court may order. Since petitioner could not be personally served with summons despite diligent efforts to locate his whereabouts, respondent sought and was granted leave of court to effect the service of summons upon him by publication in a newspaper of general circulation. Thus, petitioner was proper served with summons by publication and that there is jurisdiction over his person. (2) The in rem/in personam distinction was significant under the old rule because it was silent as to the kind of action to which the rule was applicable but this has been changed, it now applies to any action . The present rule expressly states that it applies in any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. Hence, the petitioners contention that the complaint filed against him is not covered by the said rule because the action for recovery of sum of money is an action in personam is not applicable anymore. (3) The service of summons by publication is complemented by service of summons by registered mail to defendants last known address. This complementary service is evidenced by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage for prepaid, directed to the defendant by registered mail to his last known address. The rules, however, do not require that the affidavit of complementary service be executed by the clerk of court. While the trial court ordinarily does the mailing of copies of its orders and processes, the duty to make the complementary service by registered mail is imposed on the party who resorts to service by publication.

Since 2008, the lawyers have made use of Santos vs. PNOC as the authority to convince a trial court that there is no need for a publication of summons for the issuance of a writ of preliminary attachment before the court could acquire jurisdiction over the person of the defendant. In 2010, SC resolved another case, Palma vs. Galvez. In the case of Palma vs. Galvez, the SC held that we should literally apply what the Rules provides, particularly Section 16 of Rule 14. If you read Section 16, the defendant is a resident of RP temporarily out of RP. In relation to Section 14, if the whereabouts of the defendant is unknown, there could be publication of summons, and that would enable the court to acquire jurisdiction over the person of the defendant. Palma vs. Galvez (When the whereabouts of defendant is unknown, there is no need for publication of summons.) Reiterates Santos vs. PNOC there is no need , under Sections 14 to 16 in Rule 14, for the conversion of an action in personam to that in rem before a court could acquire jurisdiction over the person of the defendant. Now on the merits, the issue for resolution is whether there was a valid service of summons on private respondent. In civil cases, the trial court acquires jurisdiction over the person of the defendant either by the service of summons or by the latters voluntary appearance and submission to the authority of the former. Private respondent was a Filipino resident who was temporarily out of the Philippines at the time of the service of summons; thus, service of summons on her is governed by Section 16, Rule 14 of the Rules of Court, which provides: Sec. 16. Residents temporarily out of the Philippines. When an 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. (Emphasis supplied)

The preceding section referred to in the above provision is Section 15, which speaks of extraterritorial service, thus: 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. The RTC found that since private respondent was abroad at the time of the service of summons, she was a resident who was temporarily out of the country; thus, service of summons may be made only by publication. We do not agree. In Montefalcon v. Vasquez, we said that because Section 16 of Rule 14 uses the words may and also, it is not mandatory. Other methods of service of summons allowed under the Rules may also be availed of by the serving officer on a defendant-resident who is temporarily out of the Philippines. Thus, if a resident defendant is temporarily out of the country, any of the following modes of service may be resorted to: (1) substituted service set forth in section 7 ( formerly Section 8), Rule 14; (2) personal service outside the country, with leave of court; (3) service by publication, also with leave of court; or (4) in any other manner the court may deem sufficient. In Montalban v. Maximo, we held that substituted service of summons under the present Section 7, Rule 14 of the Rules of Court in a suit in personam against residents of the Philippines temporarily absent therefrom is the normal method of service of summons that will confer jurisdiction on the court over such defendant. In the same case, we expounded on the rationale in providing for substituted service as the normal mode of service for residents temporarily out of the Philippines. x x x A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up. If he does not do what is expected of him, and a case comes up in court against him, he cannot just raise his voice and say that he is not subject to the processes of our courts. He cannot stop a suit from being filed against him upon a claim that he cannot be summoned at his dwelling house or residence or his office or regular place of business. Not that he cannot be reached within a reasonable time to enable him to contest a suit against him. There are now advanced facilities of communication. Long distance telephone calls and cablegrams make it easy for one he left behind to communicate with him.

Considering that private respondent was temporarily out of the country, the summons and complaint may be validly served on her through substituted service under Section 7, Rule 14 of the Rules of Court which reads: SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the 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. We have held that a dwelling, house or residence refers to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. It is, thus, the service of the summons intended for the defendant that must be left with the person of suitable age and discretion residing in the house of the defendant. Compliance with the rules regarding the service of summons is as important as the issue of due process as that of jurisdiction. Section 7 also designates the persons with whom copies of the process may be left. The rule presupposes that such a relation of confidence exists between the person with whom the copy is left and the defendant and, therefore, assumes that such person will deliver the process to defendant or in some way give him notice thereof. In this case, the Sheriff's Return stated that private respondent was out of the country; thus, the service of summons was made at her residence with her husband, Alfredo P. Agudo, acknowledging receipt thereof. Alfredo was presumably of suitable age and discretion, who was residing in that place and, therefore, was competent to receive the summons on private respondent's behalf. Notably, private respondent makes no issue as to the fact that the place where the summons was served was her residence, though she was temporarily out of the country at that time, and that Alfredo is her husband. In fact, in the notice of appearance and motion for extension of time to file answer submitted by private respondent's counsel, he confirmed the Sheriff's Return by stating that private respondent was out of the country and that his service was engaged by respondent's husband. In his motion for another extension of time to file answer, private respondent's counsel stated that a draft of the answer had already been prepared, which would be submitted to private respondent, who was in Ireland for her clarification and/or verification before the Philippine Consulate there. These statements establish the fact that private respondent had knowledge of the case filed against her, and that her husband had told her about the case as Alfredo even engaged the services of her counsel. In addition, we agree with petitioner that the RTC had indeed acquired jurisdiction over the person of private respondent when the latter's counsel entered his appearance on private respondent's behalf, without qualification and without questioning the propriety of the service of summons, and even filed two Motions for Extension of Time to File Answer. In effect, private respondent, through counsel, had already invoked the RTCs jurisdiction over her person by praying that the motions for extension of time to file answer be granted. We have held that the filing of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the court. When private respondent earlier invoked the jurisdiction of the RTC to secure affirmative relief in her motions for additional time to file answer, she voluntarily submitted to the jurisdiction of the RTC and is thereby estopped from asserting otherwise. Considering the foregoing, we find that the RTC committed a grave abuse of discretion amounting to excess of jurisdiction in issuing its assailed Orders.

NOTE: It would seem that the principle adhered to for a long time since Citizens Surety vs. Herrera is no longer binding upon plaintiffs. They can ignore the requirement of prior attachment of personal properties of the defendant before availing of a publication of summons to enable a court to acquire jurisdiction over the person of the defendant. Read over Sections 14, 15 and 16, correlating them with the cases of Palma vs. Sanchez .There is really no need for an action in personam to be converted to an action in rem or quasi in rem, via a writ of preliminary attachment, in order for a court to be able to acquire jurisdiction over the person of the defendant. What is the advantage of using these principle in Citizens Surety vs. Herrera? (Actions in rem that is in personam at the same time) The advantage is that if the plaintiff first moves for preliminary attachment over properties of the defendant and then later ask the court for publication of summons, when compared to just the plaintiff asking for publication of summons without asking for preliminary attachment, is thatthere is a security enjoyed by the plaintiff when the property of the defendant is attached through a writ preliminary attachment. If you read Rule 57, that is precisely the purpose of preliminary attachment over the property of the defendant, to provide security to the applicant to whatever judgment rendered in favor of the plaintiff. But the present tendency of the court is not to apply anymore the principle in Citizens Surety vs. Herrera ins ofar as publication of summons is concerned. There is no more need for converting an action in personam to an action in rem or quasi-in rem. If there is a preliminary attachment of a property belonging to the defendant, the act of actual attachment of the property is the act which converts the case from in personam to that of in rem or quasi-in rem. This is because the property is now within the jurisdiction of the trial court.

MOTIONS Q: What is a motion? A: It is an application for relief other than by a pleading. (Sec. 1, Rule 15) Q: What shall the notice of hearing specify? A: It shall specify the time and date of the hearing which shall not be later than ten (10) days after the filing of the motion and it shall be addressed to the parties concerned (Sec. 5, Rule 15). Note: Failure to comply with the mandatory requirements of the rule regarding notice of hearing is pro forma and presents no question which merits the attention of the court (Bacelonia v. CA, G.R. No. 143440, Feb. 11, 2003). Q: What is the rule on hearing of motions? A: GR: Every written motion shall be set for hearing by the applicant. XPN: Motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 4, Rule 15). General Rule: If not made in open court, it must be reduced into writing. It must satisfy all the requirements in the Rules concerning motions. Requirements of a written motion: 1. service upon the adverse party 2. must be set for hearing Notice of Hearing is usually addressed by lawyers to the branch clerk of court. This is an error. The notice of hearing MUST be addressed to the adverse party or the counsel thereof. Remember that the SC has emphasized that a motion that does not comply with the requirements set down in the Rules shall be treated as a scrap of paper.

OMNIBUS MOTION RULE Omnibus Motion Rule all objections that are not included are deemed waived if not set up in the motion to dismiss. Correlate with: Non-waivable defenses: Res judicata; Prescription; Lack of jurisdiction over the subject matter and Litis pendencia In any civil proceeding, if there is an objection to any claim contained in the motion or in another pleading, and these objections are not set up in a motion or in another pleading, these objections are deemed waived, except for non-waivable defenses.

MOTION TO DISMISS Motion to dismiss is prohibited in certain proceedings, as set down by the Rules or based on circulars issued by the SC. Summary Procedure and some special proceedings prohibit the filing of a motion to dismiss. But in regular procedure, a motion to dismiss is allowed in civil cases. Motion to Dismiss under Rule 16 should be filed as a matter of general practice before an answer can be filed by defendant. Can the defendant properly file an answer and a motion to dismiss at the same time? Under Rule 16, it is allowed that the grounds for a motion to dismiss to be simply incorporated in the answer. Under Rule 16, if the defendant does submit his responsive pleading right away, he can incorporate in his answer the grounds in Rule as affirmative defenses. If a defendant files his answer with affirmative defenses enumerated under Rule 16 as grounds to dismiss, he being allowed to do that, once the answer is filed with the court, the defendant can ask to court to conduct a preliminary hearing on his affirmative defenses. The court can grant it as if the defendant has filed previously a motion to dismiss. If the defenses are those that are non-waivable grounds for dismissal, it is possible for the defendant to file motions to dismiss one after another without violation of the Omnibus Motion Rule. Theoretically: If the first motion to dismiss based on prescription is denied, the defendant is allowed to file a second motion to dismiss based on litis pendencia. If that is again denied, the defendant files his 3rd motion dismiss founded on lack of jurisdiction over the person of the defendant. If it is again denied, the defendant can file a motion to dismiss based on res judicata. Because of the application of these non-waivable defenses, it is conceivable and it is proper for the defendant to successively file motions to dismiss containing these non-waivable defenses. A motion to dismiss founded on a waivable defense shall preclude the filing of another motion to dismiss based on other grounds under Rule 16, except those nonwaivable defenses. There will be waiver of the other grounds because of the Omnibus Motion Rule, but not those defenses which are non-waivable. In the resolution of a motion to dismiss, Rule 16 gives to the court three choices: grant the motion, deny the motion, or order an amendment to the pleading. Currently, there are now 4 options for the court to resolve a motion to dismiss. The fourth option is by virtue of the law on alternative disputes resolution. 4 options of the court: 1. grant 2. deny 3. order the amendment of the pleadings 4. refer the matter to conciliation or mediation or arbitration, as the case may be, and suspend further hearings

Is there any procedural advantage if the defendant simply files an answer setting up as affirmative defenses those enumerated in Rule 16?

Yes there is. If the defendant files an answer with affirmative defenses based on grounds under Rule 16, and after preliminary hearing of the affirmative defenses, the court orders the dismissal of the case, the defendant will be given an opportunity to recover his claim for damages based on any counterclaims (compulsory or permissive) or whatever relief he may have sought in his answer (answer with affirmative defenses, permissive and compulsory counterclaims, and other relief). You will note that in Rule 16, the dismissal will not affect any counterclaim or cross-claim or any other claim submitted by the defendant in his answer. The defendant cannot file a Motion to Dismiss with a counterclaim or cross-claim or any other claim submitted by the defendant before the court. A motion to dismiss is not a pleading. It is only in an answer where we can have a cross-claim against a co-defendant or counterclaim against the plaintiff. In a motion to dismiss, we can use of any grounds under Rule 16. But if the motion is found on a ground that is waivable, the other grounds not cited are deemed waived, with exception to those non-waivable grounds. Thus, if the defendant filed a motion to dismiss solely on the ground of lack of jurisdiction over the person of the defendant, which is a waivable defense, and the motion was denied, the defendant is precluded from filing a motion to dismiss based on the ground of improper venue. What will be allowed would be the succeeding motions to dismiss are grounded on non-waivable defenses.

With respect to lack of jurisdiction over the subject matter or over the nature of the case, this ground is dealt with in Tijam vs. Sibonghanoy. TIJAM vs. SIBONGHANOY Digest January 08, 1963 5 days after the surety received notice of the decision, it filed a motion asking for extension of time within which to file a motion for reconsideration. Appellees action was filed in the Court of First Instance of Cebu, July 19, 1948 for the recovery of 1,908.00 Pesos. RA 296, Judiciary Act 1948 Section 88 of which placed within the jurisdiction of MTC all civil actions where the value of the subject matter or the amount of demand does not go beyond 2,000 Pesos, exclusive of interest and costs that the Court of First Instance of Cebu has no Jurisdiction. The Court is in Opinion that Surety is now barred by laches from invoking the plea at this late hour for the purpose of annulling everything done heretofore in the case with its active participation. Definition of Laches: Failure of neglect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been earlier, it is negligence or commission to assert a right within a reasonable time, warranting a presumption that the party entitle to assert it has abandoned it or declines to assert it. Tijam vs. Sibunghanoy In this case, the trial court did not have jurisdiction over the subject matter of the case, but the defendant kept silent about the issue of absence of jurisdiction, and allowed the case to proceed up to the CA.Upon receipt of the adverse decision in the CA, the appellee challenged the validity of the decision of the RTC and the CA, stating that the court had lacked jurisdiction from the start. SC held that there was estoppel by laches. The case has been pending for 15 years up to the appeal, the defendant appearing in the case for all those years. SC said that although the decision may be challenged by lack of jurisdiction over the subject matter even for the first time on appeal, the defendant is guilty of estoppel by laches, by his negligence to raise this issue as promptly as possible. He can no longer challenge the decision of the court. In Rule 9, there is no exception at all to non-waivable defenses, including lack of jurisdiction over the subject matter. In Rule 47 (Annulment of Judgment), the Tijam Doctrine was incorporated therein. Lack of jurisdiction over the subject matter is excepted by estoppel by laches as a defense.

Rule 47 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. This is an application of the Tijam Doctrine in our present Rules. So, we still have laches or estoppel as a defense against the non-waivable defense of lack of jurisdiction over the subject matter.

In other cases, the SC also used another kind of estoppel in order to bar the party from raising the issue of jurisdiction, although the trial court REALLY DID NOT HAVE jurisdiction over the subject matter. Soliven vs. Fast Forms2004(Estoppel in pais is a good defense although there is lack of jurisdiction over the subject matter) The aggregate sum to be recovered was 800k. A complaint for collection of money was filed in the RTC. The amount to be actually collected was less than the jurisdictional amount of the RTC based on BP 129 (exclude interest, damages, cost and Attorneys fees). There was an answer by defendant with a counterclaim. The court, unaware it lacked jurisdiction over the case, as nobody brought it up. The court rendered a judgment in favor of the plaintiff. The counsel for the defendant found that the court had no jurisdiction. The defendant filed motion for reconsideration and raised lack of jurisdiction, praying for dismissal of the case. RTC denied the motion, as the defendant was in estoppel to challenge the courts jurisdiction just because an adverse result was had. It reached the SC. SC held that the defendant cannot challenge any more the jurisdiction of the court. SC stated that there is estoppel in pais, the act of the defendant in actively participating in the case and seeking affirmative relief via a counterclaim renders defendant in estoppel to contest the jurisdiction of the RTC, although the court may not really have jurisdiction over the subject matter. Facts: Marie Antoinette R. Soliven, petitioner, filed a complaint for sum of money with damages against Fast-Forms Philippines, Inc., respondent. The complaint alleges that respondent, through its president Dr. Eduardo Escobar, obtained a loan from petitioner in the amount of PhP 170,000.00 payable within a period of 21 days, with an interest of 3%. On the same day, respondent issued a post-dated check in favor of petitioner in the amount of PhP 175,000.00. About three weeks later, respondent, through Dr. Escobar, advised petitioner not to deposit the postdated check as the account from where it was drawn has insufficient funds. Instead, respondent proposed to petitioner that the PhP 175,000.00 be rolled -over, with a monthly interest of 5% which petitioner agreed. Subsequently, respondent issued several checks in the total of PhP 76,250.00 in favor of petitioner as payment for interests corresponding to the months of June, August, September, October and December. Later, despite petitioner s repeated demands, respondent refused to pay its principal obligation and interests due. Respondent, in its answer with counterclaim, denied that it obtained a loan from petitioner, and that it did not authorize its then president, Dr. Eduardo Escobar, to secure any loan from petitioner or issue various checks as payment for interests. After trial on the merits, the court a quo rendered a decision in favor of petitioner. Respondent then filed a motion for reconsideration questioning for the first time the trial courts jurisdiction. It alleged that since the amount of petitioners principal demand (PhP 195,155.00) does not exceed PhP 200,000.00, the complaint should have been filed with the MTC pursuant to R.A. 7691. Issue: Whether the trial court has jurisdiction over the case Held: YES. While it is true that jurisdiction may be raised at any time, this rule presupposes that estoppel has not supervened. The Court has constantly upheld the doctrine that while jurisdiction may be assailed at any stage, a litigants participation in all stages of the case before the trial court, including the invocation of its authority in asking for affirmative relief, bars such party from challenging the courts jurisdiction. A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction. The Court frowns upon the undesirable practice of a party participating in the proceedings and

submitting his case for decision and then accepting judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse. Is the Soliven case applicable to criminal cases? No. Figueroa vs People 2009 The accused was arraigned for reckless imprudence resulting to homicide. This was filed in the RTC instead of MTC. The prosecutor was not aware of the RTCs lack of jurisdiction. The counsel of the accused also assumed the same. Nobody raised the issue of jurisdiction in the RTC, so the case went on. Trial was had, where both parties presented their respective evidence. The accused was found guilty. On appeal, the accused interposed the defense of lack of jurisdiction. The solicitor general cited Soliven vs. Fast Forms as defense. Active participation means that the litigant is in estoppel from challenging the validity of the proceedings. The CA agreed with the solicitor general. SC held that the judgment is void as estoppel in pais is inapplicable in a criminal case. Lack of jurisdiction in a criminal case can be cited as a defense even on appeal. The rights of the accused being at stake, estoppel in pais is inapplicable. When is a litigant estopped by laches from assailing the jurisdiction of a tribunal? This is the paramount issue raised in this petition for review of the February 28, 2001 Decision of the Court of Appeals (CA) in CA-G.R. CR No. 22697. ******* On July 8, 1994, an information for reckless imprudence resulting in homicide was filed against the petitioner before the Regional Trial Court (RTC) of Bulacan, Branch 18. The case was docketed as Criminal Case No. 2235-M-94. Trial on the merits ensued and on August 19, 1998, the trial court convicted the petitioner as charged. In his appeal before the CA, the petitioner questioned, among others, for the first time, the trial courts jurisdiction. The appellate court, however, in the challenged decision, considered the petitioner to have actively participated in the trial and to have belatedly attacked the jurisdiction of the RTC; thus, he was already estopped by laches from asserting the trial courts lack of jurisdiction. Finding no other ground to reverse the trial courts decision, the CA affirmed the petitioners conviction but modified the penalty imposed and the damages awarded. ********** The ruling in People v. Regalario that was based on the landmark doctrine enunciated in Tijam v. Sibonghanoy on the matter of jurisdiction by estoppel is the exception rather than the rule. Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in cases in which the factual milieu is analogous to that in the cited case.In such controversies, laches should have been clearly present; that is, lack of jurisdiction must have been raised so belatedly as to warrant the presumption that the party entitled to assert it had abandoned or declined to assert it. In Sibonghanoy, the defense of lack of jurisdiction was raised for the first time in a motion to dismiss filed by the Surety almost 15 years after the questioned ruling had been rendered. At several stages of the proceedings, in the court a quo as well as in the Court of Appeals, the Surety invoked the jurisdiction of the said courts to obtain affirmative relief and submitted its case for final adjudication on the merits. It was only when the adverse decision was rendered by the Court of Appeals that it finally woke up to raise the question of jurisdiction. Clearly, the factual settings attendant in Sibonghanoy are not present in the case at bar. Petitioner Atty. Regalado, after the receipt of the Court of Appeals resolution finding her guilty of contempt, promptly filed a Motion for Reconsideration assailing the said courts jurisdiction based on procedural infirmity in initiating the action. Her compliance with the appellate courts directive to show cause why she should not be cited for contempt and filing a single piece of pleading to that effect could not be considered as

an active participation in the judicial proceedings so as to take the case within the milieu of Sibonghanoy. Rather, it is the natural fear to disobey the mandate of the court that could lead to dire consequences that impelled her to comply. The Court, thus, wavered on when to apply the exceptional circumstance in Sibonghanoy and on when to apply the general rule enunciated as early as in De La Santa and expounded at length in Calimlim. The general rule should, however, be, as it has always been, that the issue of jurisdiction may be raised at any stage of the proceedings, even on appeal, and is not lost by waiver or by estoppel . Estoppel by laches, to bar a litigant from asserting the courts absence or lack of jurisdiction, only supervenes in exceptional cases similar to the factual milieu of Tijam v. Sibonghanoy . Indeed, the fact that a person attempts to invoke unauthorized jurisdiction of a court does not estop him from thereafter challenging its jurisdiction over the subject matter, since such jurisdiction must arise by law and not by mere consent of the parties. This is especially true where the person seeking to invoke unauthorized jurisdiction of the court does not thereby secure any advantage or the adverse party does not suffer any harm. Applying the said doctrine to the instant case, the petitioner is in no way estopped by laches in assailing the jurisdiction of the RTC, considering that he raised the lack thereof in his appeal before the appellate court. At that time, no considerable period had yet elapsed for laches to attach. True, delay alone, though unreasonable, will not sustain the defense of "estoppel by laches" unless it further appears that the party, knowing his rights, has not sought to enforce them until the condition of the party pleading laches has in good faith become so changed that he cannot be restored to his former state, if the rights be then enforced, due to loss of evidence, change of title, intervention of equities, and other causes. In applying the principle of estoppel by laches in the exceptional case of Sibonghanoy, the Court therein considered the patent and revolting inequity and unfairness of having the judgment creditors go up their Calvary once more after more or less 15 years. The same, however, does not obtain in the instant case. We note at this point that estoppel, being in the nature of a forfeiture, is not favored by law. It is to be applied rarelyonly from necessity, and only in extraordinary circumstances. The doctrine must be applied with great care and the equity must be strong in its favor. When misapplied, the doctrine of estoppel may be a most effective weapon for the accomplishment of injustice. Moreover, a judgment rendered without jurisdiction over the subject matter is void. Hence, the Revised Rules of Court provides for remedies in attacking judgments rendered by courts or tribunals that have no jurisdiction over the concerned cases. No laches will even attach when the judgment is null and void for want of jurisdiction. As we have stated in Heirs of Julian Dela Cruz and Leonora Talaro v. Heirs of Alberto Cruz, It is axiomatic that the jurisdiction of a tribunal, including a quasi-judicial officer or government agency, over the nature and subject matter of a petition or complaint is determined by the material allegations therein and the character of the relief prayed for, irrespective of whether the petitioner or complainant is entitled to any or all such reliefs. Jurisdiction over the nature and subject matter of an action is conferred by the Constitution and the law, and not by the consent or waiver of the parties where the court otherwise would have no jurisdiction over the nature or subject matter of the action.Nor can it be acquired through, or waived by, any act or omission of the parties. Moreover, estoppel does not apply to confer jurisdiction to a tribunal that has none over the cause of action. x x x Indeed, the jurisdiction of the court or tribunal is not affected by the defenses or theories set up by the defendant or respondent in his answer or motion to dismiss. Jurisdiction should be determined by considering not only the status or the relationship of the parties but also the nature of the issues or questions that is the subject of the controversy. x x x x The proceedings before a court or tribunal without jurisdiction, including its decision, are null and void, hence, susceptible to direct and collateral attacks. Note from Dean Jara: If you are confronted with a problem on lack of jurisdiction in a civil case, apply Soliven case. If it is a criminal case, adopt Figueroa.

NAPOCOR vs. Province of Quezon 2010 reiterated the validity of Soliven in civil cases. The NPC is estopped from questioning the CBAAs jurisdiction The assailed CTA en banc decision brushed aside the NPCs sin perjuicio arguments by declaring that: The court finds merit in [NPCs] claim that the Order of the LBAA of the Province of Quezon is a sin perjuicio decision. A perusal thereof shows that the assailed Order does not contain findings of facts in support of the dismissal of the case. It merely stated a finding of merit in the contention of the Municipality of Pagbilao xxx. However, on appeal before the CBAA, [NPC] assigned several errors, both in fact and in law, pertaining to the LBAAs decision. Thus, petitioner is bound by the appellate jurisdiction of the CBAA under the principle of equitable estoppel. In this regard, [NPC] is in no position to question the appellate jurisdiction of the CBAA as it is the same party which sought its jurisdiction and participated in the proceedings therein. [Emphasis supplied.] We agree that the NPC can no longer divest the CBAA of the power to decide the appeal after invoking and submitting itself to the boards jurisdiction. We note that even the NPC itself found nothing objectionable in the LBAAs sin perjuicio decision when it filed its appeal before the CBAA; the NPC did not cite this ground as basis for its appeal. What it cited were grounds that went into the merits of its case. In fact, its appeal contained no prayer for the remand of the case to the LBAA. A basic jurisdictional rule, essentially based on fairness, is that a party cannot invoke a courts jurisdiction to secure affirmative relief and, after failing to obtain the requested relief, repudiate or question that same jurisdiction. Moreover, a remand would be unnecessary, as we find the CBAAs and the CTA en bancs denial of NPCs claims entirely in accord with the law and with jurisprudence.

The defendant has a problem when a court issues a service of summons in violation of Rule 14. The defendant must file a Motion to Dismiss on ground of lack of jurisdiction over person of the defendant. If he does file such motion, does not the defendant admit that the court has jurisdiction over his person? No. The filing of a motion to dismiss on that ground is the only remedy available to him to tell the court that the court had not acquired jurisdiction over his person. In court cases, what the defendant can do is to tell that court right away that his appearance before the court in filing the motion to dismiss should be considered as a special appearance only for the purpose of telling the court that the court has no jurisdiction over his person. Problem: Defendant must file a motion to tell the court of this defense. Solution:Inform the court that his appearance is a Special appearance only. This Special Appearance Rule stems from another principle in the past that when a defendant files a motion to dismiss on ground that the court did not acquire jurisdiction over his person, when he adds another ground found in Rule 16 by virtue of the application of the Omnibus Motion Rule, the decisions of the SC then was then when another ground is added in the motion to dismiss aside from lack of jurisdiction over the person of the defendant, he waives the ground of lack of jurisdiction over his person. This has been changed in the present Rules. Under Omnibus Motion Rule, defendant who files motion to dismiss plus any other ground in rule 16 is NOW deemed not to be a person over whom the court did not acquire jurisdiction over his person. A defendant is free to file a motion to dismiss, citing as one of his grounds lack of jurisdiction over his person, he is not deemed to have waived his argument that the court has not gained jurisdiction over his person.

Let us say that the defendant who claims that the court has not acquired jurisdiction over his person does not respond to the summons, as filing of an answer is a waiver of his defense of lack of jurisdiction over his person. He received a copy of the order of the court, and then following the Rules, the defaulting defendant files a motion to lift the order of default. The filing of a motion to lift the order of default is acceptance by the defendant of jurisdiction of the court over his person. In another instance, the defendant receives the copy of the judgment of default, the defendant files a motion for reconsideration and a motion for new trial. The motion for reconsideration or new trial is a submission of the defendant to the jurisdiction of the court over his person. This is the reason why in Palma vs. Galvez, the defendant claims that the court did not acquire jurisdiction over his person, and filed a motion for new trial, he must qualify the motion must not be treated as a voluntary submission of the defendant to the jurisdiction of the court over his person. He must always qualify his motion with that ground. FAILURE TO STATE A CAUSE OF ACTION SC in recent cases has emphasize the difference of lack of a cause of action and failure to state a cause of action: Failure to state cause of action Lack of cause of action Insufficiency in the allegations of the complaint Failure to prove or establish by evidence ones stated cause of action As a ground for dismissal Raised in a motion to dismiss under Rule 16 before a Raised in a demurrer to evidence under Rule 33 after the responsive pleading is filed plaintiff has rested his case Determination Determined only from the allegations of the pleading and Resolved only on the basis of the evidence he has presented not from evidentiary matters in support of his claim Failure to state a cause of action will be a ground to dismiss because of immaturity. It assumes that the plaintiff really has a cause of action, and the fault will be due to the lawyer who crafted the complaint. If there is an accion reinvindicatoria filed in the RTC, but there is no stated assessed value of the property involved, then the defendant may file motion to dismiss for lack of jurisdiction for failure to state a cause of action. A hearing was had. The plaintiffs attorney failed to see what the motion was about. The court will resolve the motion purely on the allegations in the complaint. (There is no need to present evidence in this case, as no factual matter is in issue.) The court granted the motion. The plaintiffs lawyer received the order of dismissal, and then he finally understood what was wrong with his complaint. Can the lawyer for the plaintiff amend his complaint? Yes. The plaintiff can still amend his complaint in order to incorporate the allegation the assessed value of the property. This is because the order of dismissal will not be entered until after the lapse of 15 days , and the plaintiff can still amend and rectify the error committed by inserting the assessed value of the property . He can do so as a matter of right, because, according to SC, a motion to dismiss is not a responsive pleading, and as long as the amendment is the first amendment, under Rule 10, it is an amendment is a matter of right. The defendant will have to file an answer to the amended complaint. Note: In a hearing of a motion to dismiss grounded to lack of jurisdiction over the subject matter, the court will not allow presentation of evidence by the defendant. The reason is because lack of jurisdiction over the subject matter is a purely legal question and the only evidence to be taken into account is the complaint itself, applying the principle that the court acquires jurisdiction, under BP 129, based on the allegations contained in the complaint. In the hearing of a motion, the court will allow presentation of evidence ONLY if the question that will be raised is a factual issue like the obligation has been paid, waived or otherwise extinguished. Thus, in a motion to dismiss on the ground of lack of jurisdiction over the subject matter, the court will resolve the motion based on the complaint itself. The court can easily resolve the said motion based on the allegations in the pleading itself. Based on the above problem, if the dismissal became final and executory, what can the plaintiff do? Under Sec. 5 Rule 16, the rule makes a distinction of an Order of Dismissal under Rule 16 under letters f, h and i (in addition to laches under the NCC) compared to other grounds, the dismissal is subject to the right of appeal . The remedy of the plaintiff is to appeal the order of dismissal.

If the case was dismissed on grounds not on letters f, h and I, it means that we should not treat Rule 16 alone, but consult other Rules to arrive at the correct remedy.We consult Sec. 1 under Rule 41. The dismissal is without prejudice. Therefore, the dismissal should not be appealed. 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: (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. 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. Grounds recognized under the law that will render dismissal with prejudice under Sec. 5, Rule 16: Rule 16, f. Res judicata/statute of limitations Rule 16, h. paid, waived, abandoned, or otherwise extinguished Rule 16, i. unenforceable under statute of frauds (NCC) laches (Should be included here. Dean Jara) In analyzing Rule 16, 17, 18 and 33, we should always read these Rules in relation with Section 1 of Rule 41. 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. (i) Laches and any other means recognized under the NCC (Dean Jara) 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.

Why is it necessary to relate a motion to dismiss under Rule 16 with Rule 41, which is a rule on appeal? If you read Section 1 of Rule 41, there is an enumeration of orders where no appeal can be had, although they are final in character. In the enumeration under Section 1 of Rule 41, the last item is closely related to Rule 16, that it is a dismissal is without prejudice. In Rule 16, what the Rule tells us is that under items f, h and i of Sec. 5 Rule 16 are subject to appeal. That means the dismissal is with prejudice as the remedy thereof is to appeal. But when the dismissal on other grounds other than items f, h and i under Sec. 5 Rule 16, they are without prejudice. And Section 1(h)Rule 41 tells the plaintiff that one of the recourses available to him when the dismissal is without prejudice. Appeal is not a remedy available to him. The court issued an order of dismissal. What should the plaintiff do? The remedy available to the plaintiff is found under Sec. 1 of rule 41 in order to challenge the order of dismissal that are still appealable based on Sections 1 and 5 of Rule 16 (those not under items f, h and i). Since an order of dismissal is not appealable, then the plaintiff must file an appropriate petition under Rule 65. The plaintiff may filea petition for certiorari or prohibition with the CA or SC as the case may be. Why do we allow the plaintiff to file a petition under Rule 65 challenging the dismissal of his complaint for lack of jurisdiction, although the order of dismissal has already been entered after the lapse of 15 day period? Because under Rule 65, the period for filing the petition under this rule is 60 days, not 15 days. So if the 15-day period for entry of judgment has lapsed, the plaintiff has 45 days more to file a petition under Rule 65. But because the dismissal is without prejudice, the plaintiff can forget about going to a higher court. Because if the dismissal of his complaint was without prejudice, he has another alternative: he can just file a new complaint in the same court involving the same party with the complaint impleading the necessary allegations. If we compare this dismissal under Rule 16 based on lack of jurisdiction on the ground of f, h and i, we can understand why they are not appealable. The order of dismissal based on these items will be a judgment on the merits. If the claim of the plaintiff alleged in the complaint has really been paid, waived, abandoned or otherwise extinguished as provided in the NCC, then it would seem that he really has no claim at all with the defendant, and thus the complaint is dismissed with prejudice. If the allegation of the defendant is that the claim has been paid, waived, abandoned or otherwise extinguished, that motion presents a factual issue. During the hearing of that motion, the defendant will be given an opportunity to prove that the claim has really been paid, waived, abandoned or otherwise extinguished. The hearing will be as if the court was actually trying the case, the defendant being allowed to present witnesses, or present evidence of his allegation that the claim has been paid, waived, abandoned or otherwise extinguished based on grounds recognized under substantive law(enumerated in the NCC). In fact, the court said that the results enumerated under Section 16 is not exclusive. We should include laches. Under the NCC, laches could extinguish an obligation. Remember that procedurally, in a hearing on a motion to dismiss based on a question of law to a motion to dismiss founded on factual issue. If founded on a legal issue, the court will not allow presentation of evidence. The court will simply read the allegations in the complaint. If the issue is factual, the court will be forced to conduct a hearing for presentation of evidence therein.

Let us say that the defendants motion is founded on letter h. During the hearing, the defendant presents evide nce. Then, the motion was submitted for resolution. The court denies the motion. What is the next move for the defendant if the motion is denied? The defendant should file an answer during the remaining period to file, which should not be less than 5 days from the receipt of the order of denial.

The defendant files an answer. Can he incorporate the ground in the motion to dismiss that was denied as an affirmative defense? Yes, the defendant is allowed to do that. Under our rules, if there are objections or grounds not raised in the PLEADINGS, these grounds are deemed waived. Can the defendant, after filing his answer with his affirmative defense move for a preliminary hearing on his affirmative defense? No, the court will not allow such a hearing anymore as there had been a prior hearing for the same issue in the prior motion to dismiss that was denied. Thus, although a defendant is allowed to use his ground under Rule 16 in a motion to dismiss that was denied as an affirmative defense, he is not allowed to have another preliminary hearing as the said defenses had been already subject to a hearing when the said defenses were contained as a ground for dismissal in the prior motion that was denied. So, during the trial of the case, the defendant may be able to present to the court additional evidence in order to prove such ground under Rule 16 that he has relied upon.

RULE 41 SEC. 1 IN RELATION TO RULE 16 (DISMISSAL WITH OR WITHOUT PREJUDICE) Determine whether his dismissal is appropriate for remedy under Rule 65 or an appeal. Any dismissal by a court is a final order. But what matters is to find out if the dismissal is with or without prejudice so as to ascertain the remedy available. In dismissals under Rule 16, if the grounds are letter f, h or i, then the dismissal is with prejudice. The remedy of the plaintiff is to appeal from the judgment. Supposing the plaintiff commits an error in ascertaining the dismissal, the dismissal actually being that with prejudice, and plaintiff opts for Rule 65. The judgment became final after 15 days. 40 days after the judgment for dismissal was made, he files a petition for certiorari. The petition for certiorari will be dismissed as the proper remedy was to appeal. At this time, he cannot appeal anymore as the time to appeal was 15 days from receipt of the order of dismissal, it has long expired, and the judgment has been entered and had become final. Also, he cannot file another complaint, as the dismissal is with prejudice. If a dismissal is found under Rule 17, we follow the same principle. Rule 17 also states about a dismissal with and without prejudice. We follow the principle of dismissal under Rule 41 in relation to Section 16. A dismissal under Rule 18 (failure to attend pre-trial or to file pre-trial brief, tantamount to disobedience of court orders) is with prejudice, and thus plaintiff must appeal. A dismissal under Rule 33 (judgment on demurrer to evidence) is a dismissal with prejudice as this is an adjudication on the merits, and the remedy is to file an appeal from the order of dismissal. But if the dismissal is without prejudice, the plaintiff has not much to worry. He can forget about Rule 41. He can file a second complaint, but he must make sure it is properly crafted. If the plaintiff files a second complaint, but it was again dismissed, there is the probability under Rule 17 Section 1 that it will be a dismissal with prejudice under the two-dismissal rule. Thus, if a complaint has been dismissed twice, the second dismissal may operate as an adjudication of the merits. 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. Does it mean that a second dismissal is ALWAYS a dismissal with prejudice? No. The second dismissal will still be without prejudice as provided for in Rule 17, unless there is a statement of such dismissal being with prejudice in the notice of dismissal.

Dismissal under Rule 17, Sections 1, 2 and 3. Indispensable party has not been impleaded = Dismissal for failure to state a cause of action. The theory behind is that a complaint must implead an indispensable party at all times so as the court can have a final determination of the case. This will be resolved by the court under Rule 16, but availing of other modes of curing the defect aside from dismissing the case. In the resolution of a motion to dismiss, Rule 16 gives to the court three choices: grant the motion, deny the motion, or order an amendment to the pleading. If an indispensable party has not been impleaded, the court may simply order the plaintiff to amend his complaint to include the indispensable party. The plaintiff can then just file an amended complaint, and then the case can proceed until the final determination of the case. If the court ordered the amendment of the complaint to include the indispensible party, the plaintiff failed to do so, can the court dismiss the case? Yes, the court may do so under Rule 17, and the dismissal is with prejudice, under Section 3 of Rule 17, for failure to obey a lawful order of the court. The remedy is to appeal. Generally, the court is given discretion to state whether a dismissal is with or without prejudice. But if the dismissal is not qualified at all, Section 3 of Rule 17 is very clear, that dismissal is with prejudice. Therefore, the remedy is to appeal not to file a petition under Rule 65. Note: Grounds for dismissal under Section 3 of Rule 17: 1. the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, 2. failure to prosecute his action for an unreasonable length of time, 3. failure to comply with these Rules, 4. failure to comply with any order of the court Sections 1, 2 and 3 of Rule 17 provides grounds for dismissal, and these sections also provides for the consequences of the grounds of dismissal. Section 1 Rule 17 provides for a plaintiff to dismiss his own complaint. 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. If Plaintiff files complaint today. Plaintiff changed his mind and moved to dismiss the case. The summons had not been sent. What if the plaintiff dismissed his own complaint via a motion? The court will have the discretion whether to grant or deny the motion. The plaintiff should not dismiss his case via a motion. The means for a plaintiff to dismiss his case is provided for under Section 1, Rule 17. What if a notice of dismissal was given instead? The court is left without discretion as to what to do with the complaint but to dismiss it. Filing of a timely notice of dismissal will result in the dismissal of the case. The dismissal is without prejudice, unless plaintiff tells the court that the notice of dismissal is to be considered an adjudication on the merits. The case had been dismissed by the court because of the plaintiffs notice of dismissal. What if plaintiff changed his mind after the order of dismissal? What can he do? He needs to wait 15 days after the order of dismissal and ask for revival of the case. No new complaint need be filed, and no docket fees need be paid again. Supposing the defendant filed motion to dismiss, and subsequently the plaintiff filed notice of dismissal. How can this be resolved?

SC held that the court should confirm the notice of dismissal by the plaintiff. The plaintiffs notice of dismissal prevails over the motion to dismiss filed by defendant.

TWO-DISMISSAL RULE Plaintiff files a collection case for 500k against defendant. Defendant visits the plaintiff and asked the plaintiff for the dismissal of the case, promising payment. Plaintiff acquiesced and files notice of dismissal. Court dismisses the case. The defendant failed to pay. Can the plaintiff file another case against defendant? Yes, as the case was dismissed without prejudice. The defendant again approached plaintiff, asking again for time. Plaintiff again agrees, and files another notice of dismissal. It is again dismissed. What will be the effect? The dismissal is with prejudice this time. If plaintiff files a case for the same defendant for the same cause as the defendant again failed to pay, the case will be dismissed as the second dismissal is one with prejudice, and res judicata will lie. What if the defendant files motion to dismiss, but failed to allege res judicata, can the court proceed to dismiss? Yes, the court can do so, even if the defendant failed to allege it. It is a non-waivable ground of dismissal, and anytime the court discovers such fact, it will dismiss the case. Can the court say in its decision of dismissal that the second dismissal is without prejudice? No. The court cannot say the second dismissal is without prejudice as the law itself dictates that such dismissal is with prejudice, and the court will have no discretion as to such dismissal being with or without prejudice. As long as it is the second dismissal of the same case, it will always be with prejudice due to res judicata. When can second dismissal is without prejudice under Section 1 Rule 17? There can be two situations where dismissal under Section 1 Rule 17 is without prejudice? 1.If the first case was filed in a court which lacked jurisdiction thereto, then the 2nd one was filed in the competent court and there was a 2nd dismissal, the 2nd dismissal is not res judicata. The two-dismissal rule will be considered if the case had been filed in a court competent to hear it. 2. In Section 2 Rule 17, a plaintiff may dismiss his complaint via a motion to dismiss. Here, the defendant had already filed an answer. If the plaintiff seeks to dismiss the complaint, he must file a motion to dismiss his complaint, copy furnished to the defendant. The likelihood is that the defendant will not object. If the defendant does not object, and the court dismisses the case without prejudice, the plaintiff is allowed to file another case against the same defendant based on the same cause. The defendant, however, is given under Section 2 a chance to object. The defendant can insist that the dismissal be one with prejudice. This is allowed as the dismissal is upon the initiative of the plaintiff, and the defendant is given the opportunity to object. If you were the defendants counsel, advise the defendant to object, and state that the dismissal should be one with prejudice. (I have no opposition to the dismissal initiated by the plaintiff, as long as the dismissal is with prejudice.) If that is the tenor of the dismissal, that is res judicata. It will preclude the plaintiff from filing another case with the same claims against the same defendant. What if the defendant has a compulsory counterclaim? There can be a dismissal, but defendant can ask that the court should continue hearing on the counterclaim set up by defendant in his answer. In the alternative, the defendant can ask the court to try the compulsory counterclaim in a separate case. This is one of the rare instances wherein a compulsory counterclaim could survive without the principal action. The general rule is that if the complaint is dismissed, the compulsory counterclaim is also dismissed. But not in Section 2 Rule 17. The complaint could be dismissed, but the compulsory counterclaim could survive. In fact the survival of the compulsory counterclaim can even be threshed out in a separate complaint, wherein there can be another complaint filed by the former defendant against the former plaintiff. But this will be an independent action. The other alternative is that the plaintiff can ask the court for the dismissal of the complaint but the court will continue to exercise jurisdiction so that the court will continue to try the compulsory counterclaim.

Rule 17, Section 3, Grounds of dismissal ~the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, ~fails to prosecute his action for an unreasonable length of time (nolle prosequi), ~fails to comply with these Rules ~ fails to comply with any order of the court, Under this section, the initiative for the dismissal of the case comes from the defendant or the court itself. How can the court order a dismissal under Section 3 of Rule 17 upon the ground that the plaintiff failed to obey the provisions of the Rules of Court? A good example can be had under Rule 18 on Pre-Trial. In Rule 18, it is provided expressly that after the last pleading is filed, it is the duty of the plaintiff to set his complaint for pre-trial. He must file a motion to have the complaint set for pretrial. When the plaintiff fails to set the hearing for pre-trial for, let us say, one year ago up to the present, and there is a finding that the plaintiff failed to do so, the court can dismiss the case on the ground that the plaintiff failed to follow the provision set upon in the Rules. This has been affirmed by the SC. So, if it is the duty of the plaintiff to set the case for pretrial, and he neglects to do so for an unreasonable length of time, there is every reason for the court to make use of Rule 17, to order the dismissal of the case under Section 3 thereof. This is a dismissal with prejudice unless the court makes the necessary qualification that it is a dismissal without prejudice.

In most courts (RTC or MTC), if the court calls the case for trial on the merits, and plaintiff does not appear during trial, the lawyer for the defendant may ask for the dismissal under Section 3, Rule 17 for failure of the plaintiff to prosecute for an unreasonable length of time or for failure of the plaintiff to appear on the date of the presentation of his evidence in chief on the complaint. And usually, the trial court accommodates the defendants move because if a trial court dismisses the case, that is one case where the judge can present that he has been resolving speedily the cases that are assigned to him. Last year, the SC came out with a resolution concerning this particular provision in relation to Shimizu vs. Magsalin. Study this case as it would be a good problem in the bar. Shimizu vs. Magsalin 2008 revolutionary decision concerning dismissals with prejudice under Section 17 Order of dismissal with prejudice should comply with Rule 36 and the Constitution. Otherwise, it shall be open to collateral and direct attack. (A trial court should always specify the reasons for a complaints dismissal so that on appeal, the reviewing court can readily determine the prima facie justification for the dismissal) The Dismissal Order is Void The nullity of the dismissal order is patent on its face. It simply states its conclusion that the case should be dismissed for non prosequitur, a legal conclusion, but does not state the facts on which this conclusion is based. Dismissals of actions for failure of the plaintiff to prosecute is authorized under Section 3, Rule 17 of the Rules of Court. A plain examination of the December 16, 2003 dismissal order shows that it is an unqualified order and, as such, is deemed to be a dismissal with prejudice. Dismissals of actions (und er Section 3) which do not expressly state whether they are with or without prejudice are held to be with prejudice[.] As a prejudicial dismissal, the December 16, 2003 dismissal order is also deemed to be a judgment on the merits so that the petitioners complaint in Civil Case No. 02-488 can no longer be refiled on the principle of res judicata. Procedurally, when a complaint is dismissed for failure to prosecute and the dismissal is unqualified, the dismissal has the effect of an adjudication on the merits. As an adjudication on the merits, it is imperative that the dismissal order conform with Section 1, Rule 36 of the Rules of Court on the writing of valid judgments and final orders. The rule states: RULE 36 Judgments, Final Orders and Entry Thereof

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. The December 16, 2003 dismissal order clearly violates this rule for its failure to disclose how and why the petitioner failed to prosecute its complaint. Thus, neither the petitioner nor the reviewing court is able to know the particular facts that had prompted the prejudicial dismissal. Had the petitioner perhaps failed to appear at a scheduled trial date? Had it failed to take appropriate actions for the active prosecution of its complaint for an unreasonable length of time? Had it failed to comply with the rules or any order of the trial court? The December 16, 2003 dismissal order does not say. We have in the past admonished trial courts against issuing dismissal orders similar to that appealed in CA-G.R. CV No. 83096. A trial court should always specify the reasons for a complaints dismissal so that on appeal, the reviewing court can readily determine the prima facie justification for the dismissal. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark and is especially prejudicial to the losing party who is unable to point the assigned error in seeking a review by a higher tribunal. We thus agree with the petitioner that the dismissal of Civil Case No. 02-488 constituted a denial of due process. Elementary due process demands that the parties to a litigation be given information on how the case was decided, as well as an explanation of the factual and legal reasons that led to the conclusions of the court. Where the reasons are absent, a decision (such as the December 16, 2003 dismissal order) has absolutely nothing to support it and is thus a nullity. For this same reason, we are not moved by respondent FGU Insurances statement that the disposition of the present petition must be limited to the issue of whether the CA had correctly dismissed the appeal in CA-G.R. CV No. 83096. This statement implies that we cannot properly look into the validity of the December 16, 2003 dismissal order in this Rule 45 petition. A void decision, however, is open to collateral attack. While we note that the validity of the dismissal order with respect to Section 1, Rule 36 of the Rules of Court was never raised by the petitioner as an issue in the present petition, the Supreme Court is vested with ample authority to review an unassigned error if it finds that consideration and resolution are indispensable or necessary in arriving at a just decision in an appeal. In this case, the interests of substantial justice warrant the review of an obviously void dismissal order. A valid judgment must contain factual findings, it must have conclusions as to the law available . If the court simply says that the dismissal was for failure to prosecute for an unreasonable length of time, that is not a factual finding nor conclusion based on law, it is just a conclusion of the court. The SC said that for a trial court to render a valid judgment, the court should explain why and how the court came to the conclusion that the plaintiff is guilty of nolle prosequi. The court should give instances pertaining to the records of the case that enabled the court to conclude that the plaintiff has failed to prosecute for an unreasonable length of time. Without such explanation, even if the judgment is entered,it can be subjected to direct or collateral attack. If there is an adjudication upon the merits, when the order is simply an order of dismissal, under Rule 17 or even under Rule 16, for the validity of that final order of dismissal, there should be an explanation of how and why there is a dismissal of the case, the dismissal being a final adjudication of the case. An order of dismissal with prejudice under Rules 16, 17, 33 or even under any rule allowing dismissal of the action, the order of dismissal, if it is going to be considered an adjudication of the merits, must comply with the requirements of Section 1, Rule 36. Non-compliance thereto, the dismissal is an void judgment which can be subjected to direct or collateral attack.

RULE 18 PRE-TRIAL Mandatory in all cases, even in summary procedure, where it is called a preliminary conference. It is present even in small claims procedure, where there is a semblance of pre-trial in the preliminary conference under the Judicial Dispute Rule. It is the duty of the plaintiff to schedule his complaint for pre-trial after the last pleading has been filed. Failure to do so, the case may be dismissed with prejudice. But again, the order of dismissal should order why and how the court has arrived at the conclusion that the plaintiff has waived or not obeyed the RoC. This rule on pre-trial has been modified by the SC, applying the rules of mediation and conciliation. The Trial Court calls the parties to pre-trial. The parties are told to attend a mediation/conciliation process by accredited mediators/conciliators. The case might be terminated while in this process. The mediator/conciliator usually issues notices to the parties as to the schedule of the mediation/conciliation conference. If the plaintiff does not appear for mediation/conciliation, he repeatedly ignores such notices sent as to the schedule of the mediation/conciliation conference, the mediator/conciliator will submit a report thereof to the trial court. It can be a ground of dismissal with prejudice, according to SC Circulars. If a court orders that the parties should attend a mediation/conciliation conference, such conference is deemed part of the pre-trial process. It is tantamount to the plaintiff absenting himself from a hearing in the trial, and thus a violation of an order of the court. Thus, such disobedience by the plaintiff shall be a ground for dismissal with prejudice. If mediator/conciliator fails in the attempt to settle, they will file a report and recommend proceeding to a pre-trial proper. Parties will be ordered to submit pre-trial brief and attend the pre-trial conference. There are now several layers that the SC Circulars introduced that will enable a trial court to enforce the state policy in the NCC which encourages the parties to settle their case amicably, one of which is the mediation/conciliation conference as part of the pre-trial conference. Basing on Rule 18, the parties have a common duty for purposes of pre-trial: 1. submission of a pre-trial brief 2. attend the pre-trial conference If any one of them fails to submit a pre-trial brief, there are serious sanctions imposed. Even if they have timely submitted their pre-trial brief but if one party was absent in the pre-trial conference, there are serious consequences. Sanctions for failure to attend pre-trial conference or to file brief: Plaintiff = dismissal of complaint with prejudice; Defendant = plaintiff is allowed to present his evidence ex parte. We do not observe anymore the principle that if the defendant was unable to attend the pre-trial conference, or he fails to submit a pre-trial brief on time, the court can no longer issue an order declaring the defendant in default. What the court will do is order the plaintiff to present evidence ex-parte. The decision of the court will be based on such evidence.

EX-PARTE PRESENTATION OF EVIDENCE UNDER RULE 18 VS. EX PARTE EVIDENCE UNDER RULE 9 Ex Parte Evidence under Rule 18 Defendant has filed an answer but fails to submit pre-trial brief or did not attend pretrial conference, plaintiff can be ordered to present evidence ex parte, court will make an award according with the evidence presented by plaintiff (application of amendment to pleadings in order to conform to evidence). Ex Parte Evidence under Rule 9 Defendant is in default, ex parte evidence can be presented, and the court will only award those reliefs prayed for in the complaint. Note: Amendment of pleading to conform to evidence is not applied in an ex-parte presentation of evidence under Rule 9 when the defendant is in default.

Rules applicable to pre-trial conference in a civil vs. criminal case = usual Bar Q source Effect of pre-trial in civil case and criminal case about stipulations of facts. Civil case stipulations of facts can be had; joint stipulation of facts can be had; in pre-trial conferences, parties are encouraged to agree on existence of certain facts, making them part of the records of the case;Verbal stipulations of facts can be allowed and considered valid. These stipulations need not be presented in evidence, as the court will take judicial notice of these stipulations, and will be considered as judicial admissions. Criminal case stipulation of facts should be reduced into writing, signed by the counsel of the accused and accused himself, and approved in court. Otherwise, it will be inadmissible in court.

Pre-trial Order court are required to issues such order after the termination of the pre-trial conference, stating therein the matters to be taken up and will serve to control the proceedings in trial proper. The court is required to specify the issues that have not been stipulated upon and what should be the object of the trial whenever the court finds it necessary to conduct a trial. This is an important document in a civil case insofar as the triable issues are concerned. If we follow the decisions of the SC, the issues that are specified in a pre-trial order in a civil case, since they control the proceedings to be taken thereafter by the court, the court can even disregard the pleadings submitted by the parties after the pre-trial. Facts: The complaint was for collection of sums of money amounting to 1M. During pre-trial, the parties agree that the real issue is to recover possession and ownership from defendant a piece of land, instead of collection of 1M as stated in the complaint. That is the issue embodied in the pre-trial order. Is the pre-trial order valid? Yes. Although it is in conflict with pleadings, Rule 18 is very clear that it is the pre-trial order that will govern the proceedings, not the pleadings. Although we learn in Evidence that the issues are those found in the pleadings in a civil case, the triable issues for the purposes of a civil case are those found in the pre-trial order. There is nothing wrong in a civil case if we start with a collection of money case that is converted to a recovery of property case in pre-trial, even without amending the complaint. This is because what governs the course of the proceedings is the triable issue that is specified in the pre-trial order, as specified under the last section of Rule 18. Thus, in our last example, the court will simply ignore the issue as to the claim for a sum of money, as the issue to be tried will be the issue on the recovery of possession and ownership of a piece of land, the issue found in the pre-trial order. Why do we allow the trial court to change the issues without changing the pleadings? This is because, during the pre-trial hearings, the parties are present therein. And if they both agreed to the change of issues in open court, such as changing the issues of the complaint from collection for sums of money to that of recovery of possession and ownership of property, then the court will be simply following the desire of the litigants as to what issue to be tried during the trial. This is allowed in civil cases only. It is inapplicable in a criminal case. Let us say the court strictly follows the pre-trial order, and then reminds the parties that the issue in the trial will be the recovery by the plaintiff of possession and ownership of the property from the defendant. And during the trial, the plaintiff was able to show that he was indeed entitled to recover, then there is nothing wrong with that as the evidence is relevant and material. What if during the trial, the plaintiff also presented evidence that he is also entitled to recover 1M along with the property, will it be allowed? He cannot, if the defendant objects.But, if the defendant failed to object to such evidence, the plaintiff will be able to present evidence on an issue not raised in the pre-trial order.

Why do we allow the plaintiff to present evidence on an issue not raised in the pre-trial order, about his entitlement to recover from the defendant the amount of 1M? This is because of the rule of amendmentto conform to evidence. In a civil case, we can jump from one issue to another so long as parties agree. The issue in the pre-trial order could be different from that raised in the pleadings, and even issue tried during trial could be different from that raised in the pre-trial order. The parties are given much flexibility and allowance in a civil case to present evidence on any issue they so desire. The only limitation is that the other party might object to evidence presented that is not related to the issue found in the pre-trial order, that the evidence is irrelevant and immaterial. If evidence is allowed, the court shall issue judgment based on evidence presented, based on the rule of amendment to conform to evidence.

ALTERNATIVE DISPUTE RESOLUTION NCC Compromises and Arbitration NCC expresses the policy of the state that the courts should encourage litigants to settle disputes amicably or to submit to arbitration if they cannot voluntarily agree to settle the dispute by themselves. Domestic Arbitration Act RA 876 Law on ADR gave autonomy to contracting parties in submitting their disputes to alternative modes of dispute resolution, including prerogative to agree on the procedure to be followed in case they enter into any mode of ADR. There are 3 recent cases dealing with ADR. The principles formed in these 3 cases formed the circular on arbitration. Gonzales vs. RTC(2007 case) Thus, the main issue raised in the Petition for Certiorari is whether it was proper for the RTC, in the proceeding to compel arbitration under R.A. No. 876, to order the parties to arbitrate even though the defendant therein has raised the twin issues of validity and nullity of the Addendum Contract and, consequently, of the arbitration clause therein as well. The resolution of both Climax-Arimcos Motion for Partial Reconsideration and/or Clarification in G.R. No. 161957 and Gonzaless Petition for Certiorari in G.R. No. 167994 essentially turns on whether the question of validity of the Addendum Contract bears upon the applicability or enforceability of the arbitration clause contained therein. The two pending matters shall thus be jointly resolved. *** We address the Rule 65 petition in G.R. No. 167994 first from the remedial law perspective. It deserves to be dismissed on procedural grounds, as it was filed in lieu of appeal which is the prescribed remedy and at that far beyond the reglementary period. It is elementary in remedial law that the use of an erroneous mode of appeal is cause for dismissal of the petition for certiorari and it has been repeatedly stressed that a petition for certiorari is not a substitute for a lost appeal. As its nature, a petition for certiorari lies only where there is no appeal, and no plain, speedy and adequate remedy in the ordinary course of law. The Arbitration Law specifically provides for an appeal by certiorari, i.e., a petition for review under certiorari under Rule 45 of the Rules of Court that raises pure questions of law. There is no merit to Gonzaless argument that the use of the permissive term may in Sec. 29, R.A. No. 876 in the filing of appeals does not prohibit nor discount the filing of a petition for certiorari under Rule 65. Proper interpretation of the aforesaid provision of law shows that the term may refers only to the filing of an appeal, not to the mode of review to be employed. Indeed, the use of may merely reiterates the principle that the right to appeal is not part of due process of law but is a mere statutory privilege to be exercised only in the manner and in accordance with law. *** The situation in B.F. Corporation is not availing in the present petition. The disquisition in B.F. Corporation led to the conclusion that in order that the question of jurisdiction may be resolved, the appellate court had to deal first with a question of law which could be addressed in a certiorari proceeding. In the present case, Gonzaless petition raises a question of law, but not a question of jurisdiction. Judge Pimentel acted in accordance with the procedure prescribed in R.A. No. 876 when he ordered Gonzales to proceed with arbitration and appointed a sole arbitrator after making the determination that there was indeed an arbitration agreement. It has been held that as long as a court acts within its jurisdiction and does not gravely abuse its discretion in the exercise thereof, any supposed error committed by it will amount to nothing more than an error of judgment reviewable by a

timely appeal and not assailable by a special civil action of certiorari. Even if we overlook the employment of the wrong remedy in the broader interests of justice, the petition would nevertheless be dismissed for failure of Gonzalez to show grave abuse of discretion. *** Thus, we held in Manila Electric Co. v. Pasay Transportation Co. that a submission to arbitration is a contract. A clause in a contract providing that all matters in dispute between the parties shall be referred to arbitration is a contract, and in Del Monte Corporation-USA v. Court of Appeals that [t]he provision to submit to arbitration any dispute arising therefrom and the relationship of the parties is part of that contract and is itself a contract. As a rule, contracts are respected as the law between the contracting parties and produce effect as between them, their assigns and heirs. The special proceeding under Sec. 6 of R.A. No. 876 recognizes the contractual nature of arbitration clauses or agreements. It provides: SEC. 6. Hearing by court.A party aggrieved by the failure, neglect or refusal of another to perform under an agreement in writing providing for arbitration may petition the court for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days notice in writing of the hearing of such application shall be served either personally or by registered mail upon the party in default. The court shall hear the parties, and upon being satisfied that the making of the agreement or such failure to comply therewith is not in issue, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the agreement or default be in issue the court shall proceed to summarily hear such issue. If the finding be that no agreement in writing providing for arbitration was made, or that there is no default in the proceeding thereunder, the proceeding shall be dismissed. If the finding be that a written provision for arbitration was made and there is a default in proceeding thereunder, an order shall be made summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. The court shall decide all motions, petitions or applications filed under the provisions of this Act, within ten days after such motions, petitions, or applications have been heard by it. [Emphasis added.] *** Implicit in the summary nature of the judicial proceedings is the separable or independent character of the arbitration clause or agreement. This was highlighted in the cases of Manila Electric Co. v. Pasay Trans. Co. and Del Monte Corporation-USA v. Court of Appeals. The doctrine of separability, or severability as other writers call it, enunciates that an arbitration agreement is independent of the main contract. The arbitration agreement is to be treated as a separate agreement and the arbitration agreement does not automatically terminate when the contract of which it is part comes to an end. The separability of the arbitration agreement is especially significant to the determination of whether the invalidity of the main contract also nullifies the arbitration clause. Indeed, the doctrine denotes that the invalidity of the main contract, also referred to as the container contract, does not affect the validity of the arbitration agreement. Irrespective of the fact that the main contract is invalid, the arbitration clause/agreement still remains valid and enforceable. The separability of the arbitration clause is confirmed in Art. 16(1) of the UNCITRAL Model Law and Art. 21(2) of the UNCITRAL Arbitration Rules. The separability doctrine was dwelt upon at length in the U.S. case of Prima Paint Corp. v. Flood & Conklin Manufacturing Co. In that case, Prima Paint and Flood and Conklin (F & C) entered into a consulting agreement whereby F & C undertook to act as consultant to Prima Paint for six years, sold to Prima Paint a list of its customers and promised not to sell paint to these customers during the same period. XXX

XXXThe parties should be ordered to arbitration if, and only if, they have contracted to submit to arbitration. Prima Paint was not entitled to trial on the question of whether an arbitration agreement was made because its allegations of fraudulent inducement were not directed to the arbitration clause itself, but only to the consulting agreement which contained the arbitration agreement. Prima Paint held that arbitration clauses are separable from the contracts in which they are embedded, and that where no claim is made that fraud was directed to the arbitration clause itself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud. There is reason, therefore, to rule against Gonzales when he alleges that Judge Pimentel acted with grave abuse of discretion in ordering the parties to proceed with arbitration. Gonzaless argument that the Addendum Contract is null and void and, therefore the arbitration clause therein is void as well, is not tenable. First, the proceeding in a petition for arbitration under R.A. No. 876 is limited only to the resolution of the question of whether the arbitration agreement exists. Second, the separability of the arbitration clause from the Addendum Contract means that validity or invalidity of the Addendum Contract will not affect the enforceability of the agreement to arbitra te. Thus, Gonzaless petition for certiorari should be dismissed.

DOCTRINE OF SEPARABILITY OR SEVERABILITY The invalidity of the main contract, also referred to as the container contract, does not affect the validity of the arbitration agreement. Irrespective of the fact that the main contract is invalid, the arbitration clause/agreement still remains valid and enforceable. 2008 cases ABS-CBN Broadcasting Corporation v. World Interactive Network Systems (WINS) Japan Co., Ltd. (G.R. No. 169332) 11 February 2008 ABS-CBN Broadcasting Corporation (ABS-CBN), a domestic corporation, entered into a licensing agreement (Agreement) with World Interactive Network Systems (WINS) Japan Co., Ltd. (WINS), a foreign corporation licensed under the laws of Japan. Under the Agreement, ABS-CBN granted WINS an exclusive license to distribute and sublicense the television service known as The Filipino Channel (TFC) in Japan. Arbitration proceedings were commenced by WINS after ABS-CBN threatened to terminate the Agreement on the ground that WINS allegedly inserted, without authority, several episodes of WINS Weekly, a weekly 35-minute community news program for Filipinos in Japan, into the TFC programming. The arbitrator ruled in favor of WINS, finding that ABS-CBN had in fact given its approval for the airing of WINS Weekly and that it threatened to terminate the Agreement merely as a strategy to re-negotiate for higher fees. WINS filed a petition for the confirmation of the award before the Philippine trial court. ABS-CBN, on the other hand, questioned the arbitral award by filing with the Court of Appeals a petition for review under Rule 43 of the Rules of Court (a mode of appeal to question errors of fact and/or law) or, in the alternative, a petition for certiorari under Rule 65 (an original action based on grave abuse of discretion amounting to lack or excess of jurisdiction). The Court of Appeals dismissed ABS-CBNs petition for lack of jurisdiction, holding that it is the trial court which has jurisdiction over questions relating to arbitration. The Court of Appeals held that the only instance it can exercise jurisdiction over an arbitral award is an appeal from the trial court's decision confirming, vacating or modifying the arbitral award. On Appeal, the Supreme Court affirmed the Court of Appeals ruling but for a different reason. On the procedural issue, the Supreme Court that ABS-CBN cannot simultaneously avail of the alternative remedies under Rule 43 and Rule 65.

On the issue of the scope of judicial review, the Supreme Court disagreed with the Court of Appeals position that an aggrieved party cannot seek recourse against an arbitral award directly with the Court of Appeals. According to the Supreme Court, a party aggrieved by an arbitral award has three (3) remedies, to wit: (a) a petition in the proper trial court to issue an order to vacate the award under Republic Act No. 876 (which applies to domestic arbitration); (b) a petition for review with the Court of Appeals under Rule 43 of the Rules of Court on questions of fact, of law, or mixed questions of fact and law; and (c) a petition for certiorari with the Court of Appeals under Rule 65 of the Rules of Court if the arbitrator acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Section 24 of R.A. No. 876 The grounds to vacate under Section 24 are: (a) The award was procured by corruption, fraud, or other undue means; or (b) That there was evident partiality or corruption in the arbitrators or any of them; or (c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; that one or more of the arbitrators was disqualified to act as such under section nine hereof, and willfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; or (d) That the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted to them was not made. Rule 43 The Supreme Court noted that Rule 43 of the Rules of Court expressly applies to awards, judgments, final orders or resolutions of quasi-judicial agencies, including voluntary arbitrators authorized by law. Rule 65 As for the remedy under Rule 65, the Supreme Court stressed that it will not hesitate to review a voluntary arbitrators award where there is a showing of grave abuse of authority or discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy remedy in the course of law. It should be noted that the Philippine Alternative Dispute Resolution Act of 2004 (ADR Law) adopted and incorporated the provisions of the UNCITRAL Model Law on International Commercial Arbitration (Model Law), which limits recourse against an international arbitral award only to the grounds specified under Section 34 of the Model Law (e.g., incapacity of a party to the arbitration agreement or the invalidity of the arbitration agreement under the applicable law). Neither the Model Law, nor the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to which the Philippines acceded in 1967, recognize the setting aside of international/foreign on the broader grounds of errors of law and/or fact or grave abuse of discretion. Notably, the ruling in ABS-CBN treated the case as a domestic arbitration even though one of the parties, i.e., WINS, was a Japanese corporation and a substantial portion of the obligation, i.e., the distribution and sublicensing of the The Filipino Channel, was performed in Japan. Perhaps this may be explained by the fact that the arbitral award in this case was rendered prior to the enactment of the ADR Law. It was only under the ADR Law that a distinction was made between domestic arbitration and international arbitration. Under the ADR Law, international arbitration shall be governed by the Model Law, while domestic arbitration shall be governed by R.A. No, 876. The ADR Law adopts the definition of international arbitration under Article 1(3) of the Model Law. Domestic arbitration, on the other hand, defines domestic arbitration as arbitration that is not international.

Koreatec vs. Lerma January2008 Korea Technologies Co., Ltd., v. Hon. Alberto A. Lerma, et al. (G.R. No. 143581, 7 January 2008) , the Supreme Court held that the ADR Law, being a procedural law, may be given retroactive effective. Hence, there appears to be a conflict in this respect between ABS-CBN and Korea Technologies. For domestic arbitration proceedings, we have particular agencies to arbitrate disputes arising from contractual relations. In case a foreign arbitral body is chosen by the parties, the arbitration rules of our domestic arbitration bodies would not be applied. As signatory to the Arbitration Rules of the UNCITRAL Model Law on International Commercial Arbitration[41] of the United Nations Commission on International Trade Law (UNCITRAL) in the New York Convention on June 21, 1985, the Philippines committed itself to be bound by the Model Law. We have even incorporated the Model Law in Republic Act No. (RA) 9285, otherwise known as the Alternative Dispute Resolution Act of 2004 entitled An Act to Institutionalize the Use of an Alternative Dispute Resolution System in the Philippines and to Establish the Office for Alternative Dispute Resolution, and for Other Purposes, promulgated on April 2, 2004. Secs. 19 and 20 of Chapter 4 of the Model Law are the pertinent provisions: CHAPTER 4 - INTERNATIONAL COMMERCIAL ARBITRATION SEC. 19. Adoption of the Model Law on International Commercial Arbitration. International commercial arbitration shall be governed by the Model Law on International Commercial Arbitration (the Model Law) adopted by the United Nations Commission on International Trade Law on June 21, 1985 (United Nations Document A/40/17) and recommended for enactment by the General Assembly in Resolution No. 40/72 approved on December 11, 1985, copy of which is hereto attached as Appendix A. SEC. 20. Interpretation of Model Law.In interpreting the Model Law, regard shall be had to its international origin and to the need for uniformity in its interpretation and resort may be made to the travaux preparatories and the report of the Secretary General of the United Nations Commission on International Trade Law dated March 25, 1985 entitled, International Commercial Arbitration: Analytical Commentary on Draft Trade identified by reference number A/CN. 9/264. While RA 9285 was passed only in 2004, it nonetheless applies in the instant case since it is a procedural law which has a retroactive effect. Likewise, KOGIES filed its application for arbitration before the KCAB on July 1, 1998 and it is still pending because no arbitral award has yet been rendered. Thus, RA 9285 is applicable to the instant case. Well-settled is the rule that procedural laws are construed to be applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. As a general rule, the retroactive application of procedural laws does not violate any personal rights because no vested right has yet attached nor arisen from them.

There are certain principles to keep in mind concerning arbitration proceedings: 1. Domestic arbitration or a foreign arbitral body Domestic arbitration following RA 876 Foreign arbitration/commercial arbitration RA 9285, the ADR Law The parties submit to a panel of/an arbitrator/s. There is a need for an arbitration clause. Parties may agree later on to submit to arbitration if there is no arbitration clause in the contract. 2. Container Contract - the principal contract where we incorporate an arbitration clause.

Some Principles to familiarize in ADR: ~Principle of Separability emphasizes that whenever there is a container contract with an arbitration clause, from a legal viewpoint, the parties entered into two different contracts. ~Principle of Judicial Restraint ~Competence- Competence

Principle of Separability Arbitration clause is treated as an agreement independent of the other terms of the contract of which it forms part.A decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (Uncitral Model Law, Sec. 16(1); Special ADR Rules 2.2) If there is a judgment by a court that the container contract is unenforceable, that will not affect the arbitration clause as it is a separate contract by itself. This clause will still govern the relationship of parties concerning the filing of cases in court or arbitration board as the case may be. If the arbitration clause is still valid, and one of the parties filed a case in court, allegedly for the enforcement of his right, then the court, confronted with the arbitration clause/contract, will have to either dismiss the complaint or suspend the proceedings and compel the parties to go into arbitration. Under the decisions of the 3 cases, the court also emphasize that there could be a complaint to declare the unenforceability of or to declare void the arbitration contract. It is an RTC that has jurisdiction to do so. But even if there is a pendency of such a case to declare unenforceability of or to declare void the arbitration contract, it shall not serve to prevent the parties from proceeding to arbitration. In fact, these cases came out with a principle which the court called the Principle of AntiSuit Injunction. The Principle of Anti-Suit Injunction means that the court has no authority to issue a writ of injunction to prevent an arbitration from proceeding or an arbitration board to be constituted for the purpose of enforcing the arbitration clause.

Competence-Competence. What is the Competence-Competence Principle? Power of arbitral tribunal to initially rule on the question of its jurisdiction over a dispute including any objections with respect to the existence or validity of the arbitration agreement or any condition precedent to the filing of a request of arbitration. The Special ADR Rules recognize the principle of competence -competence, which means that the arbitral tribunal may initially rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement or any condition precedent to the filing of a request for arbitration. A.M. No. 07-11-08-SC Special Rules on ADR Restatement of the Rule: Before the arbitral tribunal is constituted, the regular courts have jurisdiction to determine the issue of competence of a tribunal. The moment the arbitral tribunal is constituted, the arbitral tribunal has jurisdiction. There arises a policy of judicial restraint, such that the finding of the court on the jurisdiction of the arbitral tribunal is at best prima facie. Note: There is a before Arbitration Tribunal, after Arbitration Tribunals finding, and after -after. Competence-competence means that the arbitral body has the authority to rule on the issue as to whether or not it has jurisdiction over the case and the enforceability and validity of its decisions . IT IS NOT EXCLUSIVELY GIVEN TO A COURT.

There could be a situation that an RTC will declare that the arbitration clause is unenforceable, but the arbitration board declared such clause enforceable, the decision of the board will prevail. The RTC may have the authority to entertain a petition to declare void or unenforceable an arbitration clause. But the decision of the RTC is merely prima facie. We will rely the findings later on of the arbitral tribunal. This is the principle of competence-competence. (Dean Jara) Does the prima facie finding of the court mean that the arbitral tribunal can still be formed? Yes. If the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed, a party may nevertheless commence arbitration and constitute the arbitral tribunal. So where does prima facie finding of the court come in? How is it prima facie? This means that the same issue may be passed upon by the arbitral tribunal, which has the effect of superseding the previous of the court. (This is the AFTER ruling.) What about the after-after ruling? The same issue may be passed upon in an action to vacate or set aside the arbitral award (Rule 3.11) In this case, it is no longer a prima facie determination of such issue or issues, but shall be a FULL REVIEW of such issue or issues with due regard, however, to the standard of review for arbitral awards. But how may arbitration commence if it the court has made a prima facie finding that the arbitration agreement is found null and void, inoperative or incapable of being performed? Will the other party who got the favorable ruling of the court participate / cooperate? Get an appointment of arbitrator - sole arbitrator, ad-hoc, institutional.

Principle of Judicial Restraint there should be least intervention by courts of courts of justice insofar as arbitration proceedings are concerned. So, if there is an ongoing arbitration, or even if there is a pending case there is a right to compel one of the parties to submit to arbitration , the court should not interfere in the constitution of the arbitral board . The reasoning behind is that when the parties crafted the arbitration clause, there is an implicit understanding between the parties is that an arbitral board, and not a court of justice, should resolve their dispute. The court deems this as a valid contract as it is the policy is to give autonomy to the parties in choosing the manner to adjudicate their disputes. They do not need to go to a court of justice. They can go to an arbitration body, which is a faster and practical means of settling their disputes. Rule 2.4. Policy implementing competence-competence principle.The arbitral tribunal shall be accorded the first opportunity or competence to rule on the issue of whether or not it has the competence or jurisdiction to decide a dispute submitted to it for decision, including any objection with respect to the existence or validity of the arbitration agreement.When a court is asked to rule upon issue/s affecting the competence or jurisdiction of an arbitral tribunal in a dispute brought before it, either before or after the arbitral tribunal is constituted, the court must exercise judicial restraint and defer to the competence or jurisdiction of the arbitral tribunal by allowing the arbitral tribunal the first opportunity to rule upon such issues. Where the court is asked to make a determination of whether the arbitration agreement is null and void, inoperative or incapable of being performed, under this policy of judicial restraint, the court must make no more than a prima facie determination of that issue. Unless the court, pursuant to such prima facie determination, concludes that the arbitration agreement is null and void, inoperative or incapable of being performed, the court must suspend the action before it and refer the parties to arbitration pursuant to the arbitration agreement. A.M. No. 07-11-08-SC Special Rules on ADR

Can an arbitral body or arbitrator grant provisional remedies? The circular on arbitration as well as jurisprudence states that yes, arbitration board can be allowed to grant provisional remedies or interim relief.Art. 17 J of UNCITRAL Model Law on ICA also grants courts power and jurisdiction to issue interim measures. Thus, a panel of arbitrators can issue a writ of preliminary injunction, a writ of preliminary attachment, they can appoint a receiver, and even can issue a protection order so that the property in dispute may be preserved. If a court of justice grants interim relief or provisional relief that is in conflict with the relief granted by the arbitral body, it is the relief granted by the arbitral body that shall prevail. This emanates from the principle of Anti-Suit Injunction and Principle of Judicial Restraint. Principle of Anti-Suit Injunction ~The remedial device available in common law systems to restrain a party from instituting or continuing with proceedings in a foreign court. ~Refers to an extraordinary procedure where a court issues an order to the effect that proceedings in a second jurisdiction should not precede. It is necessary to prevent an irreparable miscarriage of justice. The Complaint in the arbitration board must contain the evidence (attachments) and the legal brief, an argument supporting the partys stand as to why his claim must be given weight and granted. Defendant must file a response of similar composition to such complaint (with legal brief). The legal brief is similar to a memorandum (In ordinary civil procedure, when there is an appeal, then we require filing of a brief in the court.).In short, this is a short cut of the civil procedure. There is no summons issued by the arbitration board, just a notice for filing a response. Service thereof can be had by private courier. Because of the requirement of prior submission of evidence together with the filing of pleadings and legal brief, it is easy to appreciate how the arbitration board can easily grasp what the issues are all about and they can right away render an arbitral award. But it can require the submission of additional evidence if needed. There is a provision in the ADR rules which states that the technical rules of evidence will not govern proceedings therein. Let us say that the winning party wants the arbitral award to be treated like a judgment of the court, he simply files with the RTC to confirm arbitral award. He can do it at any time. If arbitral award is confirmed by the RTC, the arbitral award ceases to be such and is now a judgment that can be executed under Rule 39. Violation thereof can cause winning party to file motion for execution of judgment. In arbitration, an arbitral award is final and executory, especially if confirmed by the RTC. The losing party can file a petition with the same RTC which has authority to confirm the award for purpose of vacating, correcting or modifying said award. Supposing the RTC vacates award, setting it aside. Can the RTC make its own decision concerning the merits of the decision? Not possible. Although a court of justice can vacate, modify or correct an arbitral award, it has no authority to render its own judgment on the merits. The domestic arbitration law and the SC Circular said that if the courtdecides to vacate the award, the court does not have the authority to change the conclusions of law of the arbiter. The principle is a court cannot render its own decision on a case already submitted for arbitration. While it can vacate, modify or correct the award, and it does so, the court should return the decision to the arbitration panel for further study, or the parties can opt to have a new arbitration panel constituted. The court cannot impose its own judgment on the merits of the case. The court can review the case, and modify, vacate or correct the AWARD, but it cannot reverse the findings of facts and conclusions of the arbiter. Supposing the RTC affirms the arbitral award, does the losing party still have a recourse? The recourse of the losing party is to appeal in the CA via Petition for Review under Rule 43. The justification for this remedy is that in the enumeration of quasi-judicial bodies whose decision can be reviewed by the CA, it includes the review of an award made by arbitrators. From Rule 43, there can be an appeal to the SC via a Petition for Review under Rule 45.

There is a judicial review for reviewing arbitration cases. But the reviewing courts will have limited authority concerning the manner by which the judgment could be held. The court cannot change the factual findings of an arbitral body. In case of a review brought to the RTC, CA or SC involving arbitral award, there are few grounds mentioned. We cannot raise Questions of law or fact. We have to follow the grounds mentioned in RA 876. Grounds for justifying a court of justice in issuing an order to vacate the award: 1. arbitrator engages in corrupt practices 2. arbitrator resolved issues not brought before him 3. arbitrator exceeded his authority 4. failure to disclose his relationship to one of the parties within 6 degrees. Note :These are not the usual grounds of appeal in civil cases. The courts should see to it that causes should be founded on these grounds for granting the vacation of an award. With respect to International Commercial Arbitration, which can be held in RP or outside.A foreign arbitral award will be treated like a domestic arbitral award, not a foreign award. It is not considered a judgment rendered in a court of justice. Even if confirmed by a foreign court, the prevailing party must petition for the recognition of the award in the RTC. It can be enforced in RP by filing in RTC for a petition of recognition and enforcement of the arbitral award. Its execution will fall under RTC jurisdiction, under Rule 39. The last section of Rule 39 talks about the judgment rendered by the foreign court. Rule 39, SEC. 48. Effect of foreign judgments or final orders. The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order, is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title of 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. The remedy of a winning party in a case decided by a foreign court, for the enforcement thereof in RP, is to file a petition for the enforcement of the foreign judgment. There is no need to file a petition for recognition of a foreign judgment. Our laws do not recognize a foreign arbitral award as a judgment of a foreign court, it is just an arbitral award. Thus, the prevailing party in an arbitral award cannot make use of Section 48 under Rule 39. He must avail of another remedy provided by the SC Circular, which is a petition for recognition and enforcement of foreign arbitral award in the RTC. The court can refuse to resolve a petition for recognition and enforcement of a foreign arbitral award; unlike in the case of a foreign judgment rendered by a foreign court, where the decision is conclusive upon our courts, subject to the last paragraph of Sec. 48, Rule 39. But we do not apply Section 48, Rule 39 to a foreign arbitral award, as it is not a judgment rendered by a foreign court. Supreme Court has inserted in the rules remedies made available to the parties in ordinary cases. If a local court or an arbitral body makes a finding that the arbitration clause is valid and binding, it is inappealable. But if the arbitral body makes a finding that the clause is invalid, the decision is appealable to a trial court. If there is a finding that the arbitrator is qualified, the motion for reconsideration, appeal, or a petition under Rule 65 against such finding are all prohibited. This is to emphasize the policy of judicial restraint insofar as arbitration proceedings are concerned. If there is an appeal in the higher court for a petition for review of an arbitral award, the ADR law also provides that the appellant should file a bond equal to the award given by the panel of arbitrators ; whereas in ordinary appeal, there is no need to file an appeal bond. In ordinary court procedure, there is no need to file an appeal bond as it has been done away by BP 129 (requiring only the filing of the mode of appeal and docket fees). Read the SC Circular and the cases.

Intervention 4 kinds of intervention expressly recognized by the court: 1. Intervention upon courts discretion Rule 19 intervention upon courts discretion; a stranger to a case voluntarily introduces himself as a party, but must seek court permission to do so via Motion for Intervention. Motion for intervention should show: 1. intervenor had direct interest, or 2. he has a grievance against both parties in the pending case, or 3. he wants to side with one of the parties, or 4. is situated in a very unfortunate position wherein the judgment of the court could adversely affect his properties. In this situation, intervention is not a matter of right as he is required to file a motion subject to the courts decision. In the resolution of the motion, the court has the discretion to grant or deny the motion.If the motion is denied, the intervenor can file a separate case against any one, or both, parties. If his case is already filed, he can seek to have the cases consolidated, in the instance that consolidation is proper. If there is a consolidation, then the intervenors desire is also satisfied, as he can no participate in the proceedings. If motion is granted, intervenor is required to file a pleading (either a complaint- or an answer-in intervention). Complaint-in-intervention filed if the intervenor either wants to side with the complainant or is filing a complaint against both complainant and defendant in the main complaint. Answer-in-intervention filed if the intervenor wants to side with the defendant. The filing of these pleadings do not preclude the intervenor from availing of the other pleadings allowed in a civil case (counter-claim, cross-claim, third-party complaint, etc.). Do we recognize a motion to intervene as a matter of right on the part of the intervenor, wherein the intervenor can insist or compel the court to allow his intervention? Yes, this is found in a class suit, where any member of the class has the right to intervene, and can ask the court for the authority to intervene. The court has no option but to grant the intervention. 2. Court-mandated intervention court itself directly induces the party to intervene in an existing or pending litigation. (Rule 9, in marriage-related cases) In marriage related cases in Rule 9, if the defendant in a marriage-related case does not answer, the court has no authority to declare a non-answering defendant in default, but can direct the prosecutor to intervene in order to determine that there is no collusion between parties. 3. Forced intervention a person becomes an intervenor by operation of law, Rule 57 and Rule 39. Rule 39 when the court issues writ of execution and the properties of the losing party have been levied upon, and sheriff also issues the ancillary writ of garnishment. When the properties of a judgment debtor in the possession of a 3rd person are subjected to a writ of garnishment, that 3rd person becomes a forced intervenor in the proceedings. That person will have to obey the orders of the court issued in relation to the execution, whether the 3rd person likes it or not, he will be forced to act as an intervenor to the case. Rule 57 Preliminary attachment forced intervention; if there is a writ of preliminary attachment issued by the court, a supplemental writ of garnishment is issued, and the writs were enforced by the sheriff upon a 3rd person, that 3rd person becomes a forced intervenor in the proceedings. 4. Court-encouraged intervention

Writ of Kalikasan cases it is a court-encouraged intervention for NGOs and other parties to intervene whenever there is a petition filed under Kalikasan laws.. The court cannot compel the intervention of these bodies, only to encourage them. There are some cases whose positions it appears to be in conflict with one another in reference to the intervention under Rule 19. Before the court grants a motion for intervention, the principal case was dismissed with the motion unresolved. What happens to the motion for intervention? It will render the motion academic. The motion presupposes the presence of a principal action. Absent thereof, there can be no intervention allowed. Intervention is always ancillary to a principal action. Metrobank vs. CA (Dismissal of the main action will not render intervention moot and academic) A motion for intervention was filed while the case was pending. The court granted the intervention. After receipt of the order allowing him to intervene, the party filed a complaint-in-intervention against all the parties in the case. Intervenor did not realize that the parties of the case were settling. The parties did arrive at an amicable settlement. The parties sought for the dismissal of the case, which was allowed. The intervenor objected to idea of having his petition dismissed. The principal parties told the court that it is axiomatic in intervention that once the principal action has been terminated, the subsidiary action is dismissed also. SC Held that the intervention was already allowed. The principle that the contention of the parties was applicable only in the instance the motion to intervene was not yet granted. In this case, the court has already granted the motion to intervene. The interest of intervenor was not common with the interest against the other parties, having filed a complaintin-intervention against both parties. Thus, the intervention should be allowed to stand, the standing of which, the intervention is considered a separate case against the parties. Here, the intervention survived. The MetroBank case involves a situation where in the intervention will survive the dismissal of the main complaint. But, for the intervention to survive, the pleading to be filed must be a complaint-in-intervention against both parties to the case. This will not be applicable if the intervention was in the form of a complaint-in-intervention where the intervenor sides with the plaintiff or if the intervention was via an answer in intervention. Although the rule provides a time frame for an intervenor to be allowed to intervene, the SC has allowed intervention to take place, even if there is already a pending appeal before the CA. The Rule is very clear that intervention should be allowed before judgment is rendered by the trial court. After judgment is rendered by the trial court, intervention should be no longer allowed. But, the SC recognized the propriety of an intervention even if the case was already pending appeal in the CA or the SC. In the first instance where the court will allow an intervention, even on appeal, is when the intervenor is an indispensible party. If an intervenor attempts to intervene if the case is already on appeal, that will save the trial court, CA and SC from another procedural problem. We learned that if the trial court renders a decision in a case where an indispensable party is not impleaded, that decision will never be final and executory. So, if on appeal, if the indispensable party intervenes, then he should be allowed to do so, because if he is allowed, that will cure all the procedural effects that will be present in this particular case. That will solve the problem of whether or not there could be a final determination of the case or whether or not the decision can be finally be executed under the provisions of Rule 39. Another situation that the SC allowed an intervention to happen even if the case is already is on appeal is when the Republic of the Philippines intervenes in the case. If the Republic of the Philippines, via the Solicitor General, intervenes in a case that is already on appeal, the SC said that the intervention of the Solicitor General must be of national importance, since the Solicitor General intervenes only when the case is of paramount interest to the Republic of the Philippines.

MODES OF DISCOVERY The modes of appeal that we have in a civil procedure are also available in a criminal case. The SC in the WEBB CASE came out with the principle that the Modes of Discovery available in civil cases are also available in criminal cases. The only difference is that the use of the mode of discovery should not violate or derogate the constitutional right of the accused. For instance, in a civil case, there is nothing wrong if the plaintiff takes the deposition of the plaintiff, or the other way around. But in a criminal case, there is something wrong if the prosecutor takes the deposition of the accused. The prosecutor cannot take the deposition of the accused in a criminal case as this is a violation of the constitutional right of the accused. But prosecutor can takes thedeposition of a witness whom the accused wants to present in court, so long as the witness is not the spouse of the accused (due to marital privilege; the rule on evidence precludes a spouse being a witness against the other spouse). But in a civil case, there is nothing irregular about either the plaintiff or defendant being subject to deposition. This is even encouraged by the rules found in civil procedure. Do the rules compel litigants to avail modes of discovery? Refer to Rule 18 first on Pre-Trial In Rule 18, the plaintiff is asked to indicate if he desires to make use modes of discovery or use ADR. They are required to manifest that to the court. Let us say that Plaintiff asked for leave to use modes of discovery, but he failed to do so. Can the court compel the plaintiff to avail it? No, the court cannot compel, merely encourage the use of modes of discovery. Indirectly, the Rules to have instances where the law indirectly compels litigant to use modes of discovery. Otherwise he will suffer some sanctions given in the Rules. Examples of these Rules would be those under Rule 25 and Rule 26. Admission or interrogatories to parties. sanction under Rule 25 and 26 Whether admissions or interrogatories to parties, there are practically identical sanctions imposed by the Rules. In interrogatories to parties, the last section of Rule 25 (Section 6) provides that while a plaintiff can compel the defendant to testify during the trial of the case as a witness for the plaintiff, and also, the defendant can compel the defendant to testify as a witness during the trial, this cannot be done unless the plaintiff or defendant has previously served upon the party concerned an interrogatory. If the plaintiff serves a subpoena ad testificandum to the defendant, requiring the defendant to appear and testify in court on behalf of the plaintiff, the defendant can ask for that subpoena to be quashed for failure of the plaintiff to comply with requirements contained in Rule 25 Section 6. For the plaintiff can compel the defendant to testify, the plaintiff must have served a written interrogatories upon the defendant. If plaintiff cannot show that he was able to serve such written interrogatories, the defendant can move for the quashal of the subpoena, and defendant cannot be compelled to be a witness in the case. Rule 25 SEC. 6. Effect of failure to serve written interrogatories. Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Admission last section of Rule 26 The same rule on Rule 25 Section 6 is practically the same for admissions. In fact, these provisions of Sec. 5 Rule 26 and Sec. 6 Rule 25 pertain to competency of certain evidence. If an evidence is relevant, the general rule is that the evidence should be admissible, unless it is not competent under the provisions of our law or certain rules. In Sec. 5 Rule 26 and Sec. 6 Rule

25, certain relevant evidence may be rendered INADMISSIBLE or INCOMPETENT for failure of the party to follow the requirements given in these modes of discovery. Certain matters may not be proven by a party unless that party complied with the requirements given under Sec. 5 Rule 26 or Sec. 6 Rule 25. So the sanction that the Rules imposes so the party will be compelled to avail of the modes of discovery is that the evidence that the evidence sought to be presented by the proponent could become inadmissible, the otherwise relevant evidence will become incompetent by reason of the provisions of these Rules. That will compel the party to avail of the modes of discovery. Rule 26 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. Other than these, there is nothing in our Rules that requires a party to avail of the modes of discovery. Availment of a mode of discovery, as a general rule, is purely voluntary on the part of an interested party. Another basic principle in discovery measures is that after an answer is filed by the defendant, availment of the modes of discovery does not require permission of the court. The plaintiff or defendant is given the prerogative to avail of the modes of discoveries like taking of depositions or interrogatories to parties or admissions to parties. The other modes of discovery will ALWAYS require leave of court. Thus production and inspection of documents or things in court will always require leave of court, as does physical and mental examination of a person. But in the case of depositions pending trial, interrogatories or admissions, we do not need leave of court so long as the defendant has already filed an answer.

DEPOSITION BEFORE AN ACTION OR ON APPEAL. Deposition before action called in the past as perpetration of testimonies. Strictly, it is not a mode of discovery, as modes of discovery assumes that there is a pending case in court. A deposition before action does not require an action to be pending, and is thus treated as an independent action by itself. This is availed of by filing a Petition for Perpetration of Testimony, as there is no action filed yet. Since this is an independent proceeding, with what court should we file the petition? Petition to Perpetuate Testimony RTC.If we follow BP 129, that petition would be cognizable under the RTC since it is an independent action incapable of pecuniary estimation. Regardless of the contemplated action to which we are going to file, a Petition to Perpetuate Testimony is always cognizable by an RTC. If there is already a complaint that is filed and an answer has been filed by the defendant, the court will allow the use of the modes of discovery that will not require leave of court, such as the taking of a deposition. The court has allowed the use of these modes of discovery as a fishing expedition. Practically there is no limitation as to what matters can be inquired into insofar as availment of discovery measures are concerned. It is not required that the matters sought be discovered are relevant right away to the issues presented in the case. When the law says that the statutes of discovery allow a fishing expedition, it does not mean to say that the statutes of discovery are intended only to gather evidence on behalf of the interested party. He may want to obtain information only for tactical advantage during the course of the case. He does not have to present evidence in court information that is gathered by him via these modes of discovery. But, even if the party is allowed to gather information through the modes of discovery what the law limits is the use of evidence gathered. So, if the plaintiff was able to gather information, let us say, from a witness who, according to the pretrial brief of the defendant, would be principal witness for the defendant, it does not mean that the deposition given by such witness will readily be admissible in court in view of the testimony of this defendants witness. The fact that a party has taken the deposition of a potential witness does not mean to say that this potential witness will now be excused from going to court to give his testimony. The giving of deposition is different from the giving testimony in open court. A party may give his deposition, but it does not mean that he is excused from testifying in court. In fact, the Rules require that if the party has already given his deposition, he is still required to testify in court. His deposition will not take the place of his the testimony in court. This is because the taking of his deposition is only a discovery measure. The deponent does not appear

before the trial court to testify. He gives his deposition not before a trial judge, but before another person who is simply authorized to administer oaths. For instance, if the case is pending here in Manila, and there is a potential witness whose deposition is required by the plaintiff, and this witness is also a resident of Manila, can the plaintiff require this potential witness to give his deposition? Yes. After the potential witness has given his deposition, and later on, this witness receives a subpoena requiring him to give testimony in open court, can the potential witness file a motion to quash subpoena as he had given a deposition of his testimony? No, as the giving of a deposition cannot take the place of giving testimony in open court. The deponent can always be compelled to give his testimony in open court. Though his testimony may be a repetition of his deposition, it still does not matter. He still has to give his testimony in open court. If the witness has given testimony in open court, what is the use of the deposition he had previously given? Deposition previously given can be usedto impeach the witness or corroborate the witness statements in the testimony. This is the principle of evidence called Laying The Predicate. Laying the Predicate: Refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying Q: What are the elements of laying the predicate? A: 1. The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him; 2. He must be asked whether he made such statements and also to explain them if he admits making those statements (Riano, p. 327). Q: When is the rule on laying the predicate inapplicable? A: It is inapplicable if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached without laying the predicate as such prior statements are in the nature of admissions of said adverse party. (Regalado, Vol. II, p. 852, 2008 ed.) Q: What is the purpose of laying the predicate? A: The purpose of which is to allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same. Non-compliance with the foundational elements for this mode of impeachment will be a ground for an objection based on improper impeachment. Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible. (ibid) Is it possible the deposition can be the testimony of the witness? Yes, if the witness is more than 100 km from the court, and the witness invokes his viatory right, the deposition is allowed to take the deposition and the court can consider the deposition the testimony of the witness. If a deposition has already been given, is it possible that his deposition will be treated as his testimony in open court? That is also possible. If the deponent, if called upon by the court to testify, will invoke his Viatory Right. Where the witness resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, the witness may invoke that he be not allowed to testify (Viatory Right). The witness can ask the court that he be excused from giving his testimony in open court. Even if the court issues a subpoena, the witness may ignore such subpoena. He cannot be cited in contempt for disobedience thereof. The remedy of the court is to allow the taking of the deposition, and the court can then consider the deposition taken as his testimony. In other words, the fact that a deposition has already been taken from a person does not mean that the said person will be excused thereafter from going to court in order to be a witness. That is possible only in exceptional cases mentioned in Rules, one of them being when the witness invokes his Viatory right. Or even if there is no viatory right, if the witness/deponent is physically

incapable of going to court in order to testify, the court can consider the deposition previously given as his testimony in court. TRIAL Can a trial court decide a case properly and validly if the court does not conduct a pre-trial or a trial for that matter? Yes. Although pre-trial is mandatory and though trial must be had due to triable issues, the court can just skip these stages and render judgment. Ex. Judgment by default, judgment on the pleadings. Judgment by default it is a judgment on the merits, no trial and pre-trial is conducted. Under Rule 9, if the court declares defendant in default since he did not file an answer, one of the options is to immediately render a judgment without requiring plaintiff to present his evidence ex parte. Supposedly the defendant filed his answer, can we still do away with the trial? Yes, we follow the special kinds of judgments whenever an answer is filed as found under the rules. Special judgments where an answer is filed by defendant There can be a judgment on the pleadings if the answer does not raise any issue at all , or even admits the allegations in the pleadings. There need to be no pre-trial and trial. The plaintiff can move right away for a judgment on the pleadings. Judgment based upon a compromise. Parties entered into a compromise agreement during pre-trial, the court concurs the validity of the compromise agreement, the court will render a judgment based upon compromise. If you will notice that in the deliberation of the Rules on certain special kinds of judgments, like judgment on the pleadings, demurrer to evidence or summary judgment, the core element of these special kinds of judgments is that if there is a trial conducted by the court, it is not a full blown trial. Summary Judgment not a full-blown trial Demurrer to Evidence not a full-blown trial, only of the trial contemplated under Rule 30. Defendant does not present evidence. But in instances where there are genuine triable issues, and the parties cannot agreed to the facts that should be given to the court so it can decide the case properly, the court will have to conduct a trial. The parties are then given the opportunity to make use of evidentiary rules, which is not required before trial. There is no offer of evidence during pretrial. At most, if there is evidence presented during pre-trial, it is only for marking them as exhibits. In a pre-trial brief, the parties just identify the documental evidence, the real evidence and testimonial evidence in the form of affidavits. What the parties doe in pre-trial is to mark these as exhibits. The trial of the case shall govern the pre-trial order. Only the issues specified in the pre-trial order will be the order of trial. But this Rule is not strict as the Rules allow amendment to conform to evidence. If we follow strictly the Rules and we do not allow amendment to conform to evidence, then the only issues specified in the pre-trial order will be tried. If there are genuine triable issues, can the court do away with the trial? Yes. The parties can help the court avoid a trial if the parties stipulates on facts that are in dispute. If the parties submit to the court complete stipulation of facts, that the court need only review the law applicable, then the court can render a decision on the case. The court need not conduct a trial. Trial is only a trial of factual issues. It cannot be a trial of legal issues. This is because the court is presumed to know the law applicable to a given state of facts. The trial contemplated under Rule 30 is a trial of facts in dispute. But if the parties decide that these facts are no longer disputed, and they manifested to the court that they agree fully to the existence of these facts, then the trial may be avoided. The next stage will just be the rendition of judgment. In civil procedure, although there is a section in Rule 30 on written stipulation on facts, the court liberally allows verbal stipulations. Example, during the pre-trial conference, everything stipulated upon may be done verbally.But since the pre-

trial conference is part of the court proceedings, everything is recorded by the court stenographer. The stenographer will transcribe the records and what the court will readily decide that there has been a stipulation of facts between the parties. The order of trial in Rule 30 is the general rule. The order of trial follows the sequence of argumentation of pleadings. The affirmative side, the plaintiff, will first present his side, and then the negative side, the defendant, will set forth his defenses. Once the defendant is done presenting his evidence, then the court may allow parties to submit rebuttal evidence or even sur-rebuttal evidence. But the court does not allow the presentation of rebuttal evidence or sur-rebuttal evidence, the trial will end after the defendant has rest his case. Can the court terminate the case after the defendant rests? Rule 30 gives an option to the judge, to require the parties to submittheir respective memoranda to help the court in arriving at a decision. Does failure to submit memoranda when required to do so result in dismissal of the case? Yes, under Rule 17, for failure to obey lawful court orders.

The order of trial can be changed. If the court requires defendant to present evidence ahead, then the reversal of the order is had. If the defendant had set up the affirmative defense of, for example payment, then the order is reversed. Why is this only issue to be decided by the court? Should not the court first decide on whether or not the loan has really been extended by the plaintiff to the defendant?In our Rules, if the defendant sets up only an affirmative defense, that constitutes a hypothetical admission to the allegations contained in the complaint. That is found in Rule 6. So if the defendant hypothetically, for purposes of trial, that the defendant incurred a loan, then there really is no need for the plaintiff to prove the existence of the loan. It is now the duty of the defendant to show that the loan had been paid, so the order of trial is changed. Thus, the defendant is allowed to present his evidence first. Thereafter, the plaintiff does not find it necessary to file rebuttal evidence, the court will consider the case as submitted for decision.

Generally, when a trial is conducted by the court, it is the judge appointed in that sala that should sit in the proceedings. But, there are certain instances under Rule 30 when the judge may excuse himself from presiding the case. They are all mentioned in the rules. One is when the parties so agree, when the parties appoints a commissioner for presentation of evidence. Another is, when the branch clerk of court, upon delegation of the judge, may sit when the parties agree to an ex parte presentation of evidence. However, in these instances, it is still the judge who will have to write and sign the decision. There are 2 rules concerned with how a court in a civil case will conduct a trial. 1. Rule on consolidation and severance of cases 2. Trial by commissioner Distinguish consolidation from severance. A: Consolidation Involves several actions having a common question of law or fact which may be jointly tried (Sec.1, Rule 31).

Severance Contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried.

Consolidation: 1. several cases 2. similar issues, common question of fact 3. pending in the same court

What are the requisites for consolidation? A: 1. Actions involving a common question of law or fact; and 2. There must be at least 2 actions pending before the same court (Sec.1, Rule 31). Q: What are the ways of consolidating cases? A: Recasting the Cases Consolidation Proper Reshaping of the cases by amending It is a joint trial with joint decision, the the pleading, dismissing some cases cases retaining their original docket and retaining only one case. There numbers. must be joinder of causes of action and of parties.

Test-Case Method By hearing only the principal case and suspending the hearing on the other cases until judgment has been rendered in the principal case. The cases retain their original docket numbers (Riano, Civil Procedure, p. 96, 2009 ed.).

Q: What is the rule on consolidation of cases? A: GR: Consolidation is discretionary upon the court to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, and simplify the work of the trial court and save unnecessary costs and expenses. XPNs: Consolidation becomes a matter of duty when: 1. If two or more cases are pending before the same judge; or 2. If filed with the different branches of the same RTC and one of such cases has not been partially tried. (Raymundo v. Felipe, G.R. No. L-30887, Dec. 24, 1971) Q: When may civil actions be suspended? A: 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 (Sec. 8, Rule 30; Art. 2030, NCC). Let us say there are 3 cases involving different parties, but all involve a common question of fact or law, pending in the same court, the court can issue an order of consolidation of the cases. Consolidation of cases in different salas in a multi-sala court such as the Regional Trial Court of Manila:The internal rules of RTCs will be followed. The judge in one branch cannot issue an order directing the other judges to agree to the consolidation of cases, as there is a need to coordinate with each branch first. One judge cannot simply issue an order to be obeyed by another judge of the same level. The internal rules of the RTC, where there are cases to be consolidated but which are assigned to different branches, is that if there is a consolidation consented by the judges, it will be tried by the sala with the lowest docket number. If one case is in Manila RTC, the other in Bulacan RTC, both cases being those that can be validly consolidated, then the Supreme Court may order consolidation. The opposite of consolidation is severance of several issues contained in one complaint. A trial court is also given the authority to tell the parties that the trial to be conducted only for the purpose for hearing either a 3rd party complaint, a counterclaim or a crossclaim, depending upon the discretion of the court

Trial by Commissioners The language used in the Rule is not mandatory. This is upon discretion of the court.

Exceptional circumstances where there is mandatory appointment of commissioner: 1. expropriation proceedings, for determining just compensation 2. partition cases, where there is a need to determine how the property will be divided between co-owners 3. Rule 39, Sec. 36 and 37 When the judgment was not executed fully or no execution was had SEC. 36. Examination of judgment obligor when judgment unsatisfied SEC. 37. Examination of obligor of judgment obligor. (in case partial satisfaction was had) 4. Settlement of estates of deceased persons, in statute of non-claims, money claims will have to be submitted to the settlement court within the statute of non-claims, and will have to be responded to by the executor or administrator. If administrator of the estate can contest the validity of these claims, these claims will become contested claims, then the court may appoint a commissioner to determine these contested claims.

Q: What is the statute of non-claims? A: It is a period fixed by the courts for the filing of claims against the estate for examination and allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.) Q: When should claims be filed? A: GR: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Such period once fixed by the court is mandatory. Otherwise, the claims are barred forever. Note: Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, and mutual claims may be set off against each other in such action. (Sec. 5, Rule 86) XPN: Belated claims. Q: What is the rule on Belated Claims? A: Belated claims may be filed even beyond the period fixed by the court: 1. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for just causes, allow such claim to be filed not exceeding 1 month from the order allowing belated claims; or (Sec. 2 , Rule 86) 2. Where the estate filed a claim against the creditor or claimant who failed to present his claim against the estate within the period fixed by the probate court for the settlement of such claims, the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him. Note: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect.

JUDGMENTS Rule 36, Sec. 1 Formal Requisites of a valid judgment or final order: 1. written personally and directly by the judge 2. signed by the judge 3. given to the branch clerk of court 4. includes basis from factual findings and conclusions of law Shimizu vs. Magsalin A final order of dismissal under Rule 17, a dismissal with prejudice, is void if there is no explanation how and why the case was dismissed by failure to prosecute.

Q: What are the requisites of a valid judgment? A: 1. Authority of the court to hear and determine the case. 2. Jurisdiction over the parties and the subject matter 3. The parties must have been given an opportunity to adduce evidence. 4. The evidence must have been considered by the tribunal in deciding the case. 5. The judgment must be in writing, personally and directly prepared by the judge. 6. The judgment must state clearly the facts and the law on which it is based , signed by the judge and filed with the clerk of court. NOTE: Only for decisions and final orders on merits and does not apply to those resolved through incidental matters. Final order there should a adjudication upon the merits. A case is pending in RTC Bulacan under Judge A. He presided during the presentation of evidence by both parties. After presentation of evidence, Judge A retires. Who will decide the case? The successor judge takes over and decides the case. If the former judge makes the decision and turned it over to the clerk of court, who then promulgates it and sends the said decision by mail, that judgment is void. What if Judge A is transferred from RTC Bulacan to RTC Manila, can he pen the decision and send it to his former sala? Under the old judiciary act, that is a valid judgment. Under the old judiciary act, if the judge who fully tried the case is subsequently transferred, he retains authority to try the case and render a valid judgment thereon. What if Judge A is promoted to become a justice of the CA, can he validly pen the judgment? No. He can no longer decide the case. It is only when the trial judge who has heard the case is given a new assignment to a coordinate court shall the Judiciary Act of 1948 will give him authority to render a valid decision. Entry of judgment takes place by operation of law. Rule 36. This is a very important rule insofar as judgments are concerned. Now, we have a new concept of entry of judgment. Under Rule 36, Entry of Judgment takes place by operation of law. Even if there is no physical or actual entry of judgment, under Rule 36, the judgment is deemed entered upon the expiration of the period to appeal if no appeal is perfected. Hence, if no appeal is perfected, right after the expiration of the 15/30-day period, that judgment is AUTOMATICALLY entered, and becomes final and executory. Even if the clerk of court enters that in the records a year later, it is not the physical entry on the record by the clerk of court that will reckon the entry of judgment. Why do we consider entry of judgment as a very important procedural principle? The term entry of judgment is a role if we follow Rule 39, Execution of Judgments. In Rule 39, if a judgment has become final and executory, then the court has the ministerial duty to grant a motion for execution and to order execution of the judgment. In Rule 39 also, there is a period fixed for that judgment to be executed. The first five years from entry is the period to execute the judgment via a motion, and the second 5-year period is for the revival of the judgment. We are more interested in the first 5-year period within which to execute the judgment through a motion. If we reckon period under Rule 39, insofar as the first 5-year period is concerned, it is 5 years from entry of judgment. This is why the principle of entry of judgment is very important in implementing the succeeding procedural principles relating to execution of judgment, and also in determining if a particular remedy has been availed of on time. For instance, under Rule 38, Relief from Judgment. If you recall, relief of judgments has 2 periods to be taken into account, 60 days from notice and 6 months from ENTRY of judgment. The period speaks of availment of certain remedies they are all reckoned from entry of judgment. So, do not forget that entry of judgment under our present rules takes place by operation of law, upon the expiration of the period to appeal, if no appeal is perfected. The judgment is automatically entered under the provisions of Rule 36.

Q: What are those which are not considered as decisions? A: 1. Resolutions of Supreme Court denying the petitions to review decisions of Court of Appeals. 2. Minute Resolutions if issued by SC denying or dismissing a petition or a motion for reconsideration for lack of merit, it is understood that the challenged decision or order is deemed sustained. 3. Interlocutory Orders those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. E.g. Order denying a motion to dismiss, granting an extension of time or authorizing an amendment. Note: Appeal is not proper to question an interlocutory order. The proper remedy to question an interlocutory order is a petition for certiorari under Rule 65. Q: What is a judgment without trial? A: The theory of summary judgment is that although an answer may on its face appear to tender issues requiring trial yet if it is demonstrated by affidavits, depositions, or admissions that those issues are not genuine, but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff.The court is expected to act chiefly on the basis of the affidavits, depositions, admissions submitted by the movants, and those of the other party in opposition thereto. The hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence on the issues set up in the pleadings. A hearing is not thus de riguer. The matter may be resolved, and usually is, on the basis of affidavits, depositions, admissions . Under the circumstances of the case, a hearing would serve no purpose, and clearly unnecessary. The summary judgment here was justified, considering the absence of opposing affidavits to contradict the affidavits (Galicia vs. Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17, 1989).

The other sections of Rule 36 give us the certain classifications of judgments; summary judgment and several judgment. Separate judgment(Sec. 5, Rule 36) It is one rendered disposing of a claim among several others presented in a case, after 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 said claim. Several judgment(Sec. 4, Rule 36) It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. The need for this classification of judgment stems from the principle of civil actions that encourage joinder of courses of action. If there are several causes of action embodied in a complaint, it is proper for the court that after the trial of a particular cause of action, it should render a judgment for that particular cause of action. If there is joinder of parties, the court has also the prerogative to render a separate decision concerning a particular party if his claim has already been terminated when the presentation of evidence on his claim is finished. And what the court does is only to wait for the presentation of evidence concerning the claim of other parties, the court can also render a decision separately. These are decisions that are exceptional, in the sense that we expect a trial court to make only one judgment in one particular case. It is unusual for the court to render several decisions involving one particular case. That is why, even if Rule 36 authorizes the court to promulgate separate or several decisions, if you will go to Rule 41, Appeal From The RTCs, in Section 2, it is mentioned that if the court renders separate or several judgments, although we call these as judgments, they are not appealable. The parties will have to wait until the principal action is finally resolved before they can even think of appealing the case. So, although Rule 36 designates these as judgments, they are not appealable. The court will have to render a principal decision later on, after everything is concluded. So, if that is a separate judgment involving once cause of action, the winning party or losing party cannot appeal. These parties will have to wait until the court finally decides the case in its entirety, unless the court allows an appeal if the party is entitled. Usually, the court does not allow it, because that will lead to a situation where several appeals emanate from one case, which is also frowned upon by the SC. There should only be one decision in a particular case, and there should be one appeal if a party decides to appeal.

This is also the reason why the decisions that are classified in Rule 36, Separate Judgments and Several Judgments, are sometimes referred to as interlocutory judgments, because they cannot be appealed by express provision of Rule 41, although they can be rendered validly by the court. Interlocutory Orders those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. E.g. Order denying a motion to dismiss, granting an extension of time or authorizing an amendment. So if you come across that term in your examinations, interlocutory judgments, and you find the use of interlocutory and judgment to be in conflict with one another, you apply thefollowing view: Because a judgment cannot be interlocutory. A judgment by the very term should be a judgment of the merits. But if you characterize a judgment as interlocutory, that is only to emphasize that the judgment, although it resolves the merits of the case, cannot be appealed without the permission of the trial judge.

Rule 33 Rule 33 begins with an enumeration of special kinds of judgments: Judgment on Demurrer to Evidence, Judgment on the Pleadings and Summary Judgments. There are other kinds of judgments not found under Rules 33, 34 and 35. Several are mentioned in Rule 41, Section 1: Judgment by Consent, Judgment upon a Compromise, Judgment by Confession. There is another one in Rule 51, a Memorandum Decision. Memorandum decision is one in which the appellate court may adopt by reference, the findings of facts and conclusions of law contained in the decision appealed from. There are judgments by virtue of jurisprudence: Judgment nunc pro tunc, provisional judgment, etc.

Q: What are the kinds of judgment? A: 1. Judgment upon compromise It is one conferred on the basis of a compromise agreement entered into between the parties. 2. Judgment by confession It is one rendered by the court when a party expressly agrees to the other partys claim or acknowledges the validity of the claim against him. 3. Judgment upon the merits It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. 4. Clarificatory judgment It is rendered to clarify an ambiguous judgment or one difficult to comply with. 5. Judgment nunc pro tunc (Now for then) A judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or any material respect. 6. Judgment sin perjuicio Judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. This is not allowed. 7. Judgment by default (Sec. 3, Rule 9) Rendered by the court following a default order or after it received, ex parte, plaintiffs evidence.

8. Judgment on the pleadings (Rule 34) Proper when an answer fails to tender an issue because of a general or insufficient denial of the material allegations of the complaint or when the answer admits the material allegations of the adverse party's pleading. 9. Summary judgment (Rule 35) One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. 10. Several judgment (Sec. 4, Rule 36) It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. 11. Separate judgment (Sec. 5, Rule 36) It is one rendered disposing of a claim among several others presented in a case, after 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 said claim. 12. Special judgment (Sec. 11, Rule 39) One which can only be complied with by the judgment obligor because of his personal qualifications or circumstances or one that requires the performance of an act other than: a. Payment of money; and b. Sale of real and personal property. 13. Judgment for specific acts (Sec. 10, Rule 39) Applicable in cases of: 1. Conveyance, delivery of deeds, or other specific acts, vesting title ; 2. Sale of real or personal property; 3. Delivery or restitution of real property; 4. Removal of improvements on property subject of execution; or 5. Delivery of personal property. 14. Judgment on demurrer to evidence (Rule 33) A judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. 15. Conditional judgment It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. 16. Final judgment One which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done by the court but to enforce by execution what has been determined .

But the principal classification of judgments is the one given in the Rules, particularly these Rules which speak about Special Judgments. What is so special about these three decisions of the court? As we said earlier, they are special as they are rendered by the court without having conducted a full blown trial as conceived in Rule 30.

DEMURRER TO EVIDENCE IN CIVIL CASES Judgment on Demurrer to evidence only plaintiff presented evidence. (judgment of dismissal based on insufficiency of evidence to support the claim) If motion for demurrer to evidence is denied, defendant must present his evidence, judgment thereon will be an ordinary judgment.

When the Plaintiff rests his case, the Defendant, instead of presenting his evidence, files a Motion for Judgment on Demurrer to Evidence. The defendant asks the court for an order to dismiss the case based only on the ground of failure of the plaintiff to show right of relief, that there is insufficiency of the plaintiffs evidence. There is no preponderance of evidence to support the plaintiffs claim. The court will have to resolve the motion. The court will either grant or deny the motion. If the court denies the motion, the court in effect tells the defendant that the plaintiffs evidence is adequate. What the defendant has to do now is not to appeal, because the denial of a motion for judgment on demurrer to evidence is interlocutory. No appeal is allowed. Can the defendant resort to Rule 65 on the ground that the court has gravely abused its discretion amounting to lack or excess of jurisdiction? He can try. Under the Rules, if the defendants motion for judgment on demurrer to evidence is denied, it is the duty of the defendant to present now his own evidence. He cannot appeal it, he cannot even think about appealing, he just have to present his own evidence. Demurrer to Evidence (Rule 33) When to file Grounds If denied If granted After the plaintiff rests its case or after the completion of the presentation of evidence That upon the facts and the law, the plaintiff has shown no right to relief The defendant may present his evidence. The complaint may NOT be filed. The remedy of the plaintiff is to appeal from the dismissal.

Remember the rules of demurrer to evidence and the other principles that derive from the granting of demurrer to evidence in a civil case. You always compare them to demurrer in a criminal case. These topics are usually involved in Bar examination.

In a civil case, if a defendant files a motion for the dismissal of the complaint based on insufficiency of evidence, and that motion is denied, what the defendant will do is to go ahead with the trial and present his evidence. And after the defendant has rested, the court will render the decision. The decision, if the order for demurrer to evidence is denied, is just an ordinary judgment on the merits of the case under Rule 36. It is no longer a special type of a judgment. But if the trial court grants the motion, it means it will order the dismissal of the case. The dismissal is a final order, in fact a judgment on the merits of the case. The winning party is the defendant. The plaintiff can appeal the dismissal. Usually, the if the trial court is the RTC, it will be brought to the CA. So, it is brought to the CA. The CA will have to review the case based solely on the records transferred to it by the RTC. The records will show that the defendant has not presented any evidence at all. Right away, the defendant will be at a disadvantage when the case is reviewed by an appellate court. The court will review only the evidence presented by the plaintiff. There is a great possibility that the CA will not agree with the trial court, and will reverse the dismissal of the case. If the CA reverses the order of dismissal by demurrer to evidence and the CA tells the parties that the evidence submitted is adequate, CA simply render its own decision on the merits of the case, relying solely on the evidence submitted by the plaintiff. The defendant cannot ask the CA to present his evidence. It is not proper since the evidence should have been presented in the trial court. The CA, as a reviewing court, will only rely on the records transmitted to it by the RTC.

The defendant cannot argue that the CA is authorized to receive evidence under the provisions of BP 129. Under BP 129, the CA is allowed to receive evidence if it acts in exercise of its original jurisdiction, which is not the case in this instance as the CA is acting under is appellate jurisdiction. Although B.P. 129 also confers authority on the CA to receive evidence even in appeal of cases from the lower court, the conferment of authority while acting as an appellate court is only on one instance, only on grant of motion for new trial based on NDE. It will not apply to demurrer to evidence. The evidence the defendant will present is hardly NDE as the defendant had these pieces of evidence during the trial in the RTC. This is why in demurrer to evidence in civil cases, the defendant waives his right to present his evidence when the trial court grants his motion and the case is dismissed but the dismissal is reversed on appeal. Compare this to the demurrer to evidence present in a criminal case.

Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases. A: Civil Case Criminal Case Leave of court Not required With or Without If granted Judgment on the merits; The Plaintiff may appeal Judgment on the merits; The Plaintiff cannot make from the order of dismissal of the case an appeal from the order of dismissal due to the constitutional prohibition against double jeopardy If denied The Defendant may proceed to adduce his The Defendant may adduce his evidence only if the evidence demurrer is filed with leave of court. If there was no leave of court, accused can no longer present his evidence and submits the case for decision based on the prosecutions evidence If the plaintiff If the court finds plaintiffs evidence insufficient, it If the court finds the prosecutions evidence appeals from will grant the demurrer by dismissing the insufficient, it will grant the demurrer by rendering the order of complaint. The judgment of dismissal is appealable judgment acquitting the accused. Judgment of dismissal by the plaintiff. If plaintiff appeals and judgment is acquittal is not appealable; double jeopardy sets in reversed by the appellate court, it will decide the case on the basis of the plaintiffs evidence with the consequence that the defendant already loses his right to present evidence. No res judicata in dismissal due to demurrer How can The plaintiff files a motion to deny motion to The court may motu proprio deny the motion. demurrer be demurrer to evidence. denied?

After the prosecution has rested, the accused can also file a motion for judgment on demurrer to evidence. But there is one requirement in a criminal case not found in a civil case: the accused should get leave of court if the accused wants to preserve his right to present evidence once the motion is denied by the trial court. Failure to get leave of court before filing of the motion, and the motion is subsequently denied, then the accused has waived his right to present his evidence in the trial court. The trial court will not allow the accused to present his evidence, and the next phase will be a judgment of conviction, meaning that the evidence presented by the prosecution is adequate to convict the accused, that the evidence has met the quantum of evidence, which is proof beyond reasonable doubt. No leave of court is required in demurrer to evidence in civil cases. In a criminal case, demurrer can be initiated either by the accused or the court itself motu propio. The idea of demurrer to evidence can come from the court. So if the prosecution has rested, the court can even tell the accused to file a motion for judgment on demurrer to evidence. If the idea comes from the court, the accused should file because it is the court who already encourages you to file the motion. That means to say, even to the court, the prosecutions evidence failed to meet the quantum of evidence required to convict the accused. In a civil case, the court cannot initiate the idea as to demurrer to evidence. It should come from the mind of the defendants counsel.

If in a criminal case, the demurrer to evidence is granted, the information will be dismissed, which is tantamount to acquittal of the accused. The prosecution can no longer appeal, nor can Rule 65 be availing, both being due to prohibition against double jeopardy. Take note, there can be no appeal as to the dismissal of the information, but there can be an appeal as to the civil aspect of the case. In a civil case, if the court dismissed the civil action, the plaintiff may appeal the dismissal. If we allow the civil aspect of the criminal case already dismissed to be appealed, there is a chance that the appellate court will find merit in the appeal of the private complainant, and therefore the appellate court will allow damages to be awarded to the private complainant. The satisfaction of these damages will be directed against the accused, who has been acquitted from the crime. In a criminal case, an accused may be acquitted of the crime, but may be found civilly liable for any injury resulting therefrom. This is because, the conviction of the accused requires a higher degree of proof to be met (proof beyond reasonable doubt), whereas a lower degree of proof is required for proving liability for civil damages (mere preponderance of evidence).

JUDGMENT ON THE PLEADINGS Q: When is there a judgment based on pleadings? A: Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse partys pleading, the court may, on motion of that party, direct judgment on such pleading. Note: Judgment must be on motion of the claimant. It cannot be rendered by the court motu proprio. Q: What are cases where judgment on the pleadings will not apply? A: 1. Actions for the declaration of nullity of a marriage 2. Actions for annulment of marriage 3. Actions for legal separation Note: in the above cases, the material facts alleged in the complaint shall always be proved (Sec. 1, Rule 34) Judgment on the pleadings Judgment on the pleadings (Rule 34) Proper when an answer fails to tender an issue because of a general or insufficient denial of the material allegations of the complaint or when the answer admits the material allegations of the adverse party's pleading. Defendant filed a motion for judgment of the pleadings, although the answer was one without a counterclaim with meritorious defenses. What will be the effect thereof? SC held that if the movant defendant is asking for judgment on the pleadings, he is deemed to be admitting all the allegations in the complaint.

In Judgment on the pleadings, there is an answer filed by the defendant. But that answer admits the allegations in the complaint. Or, even if the answer in form denies the allegations in the complaint, the denial is not specific as required in the Rules. We are made familiar again with the principle in a civil case that when a general denial is made, that is deemed to be an admission, which is the reason why a court need not conduct a pre-trial nor a trial. If the plaintiff receives a copy of the answer which does not set up any defenses at all, but instead admits all the allegations in the complaint, what the plaintiff needs to do is to file a motion for a judgment on the pleadings. In other words, if we follow the inherent nature of a judgment of the pleadings, the movant should be the plaintiff in a complaint or a permissive counterclaim or cross-claim. There should be a motion initiated by the plaintiff asking the court for a judgment on the pleadings.

Is there any prohibition against the defendant who has filed an answer to also move for judgment on the pleadings? There is really nothing said in the Rules that says about a defendant, upon filing of his answer, being prohibited to file a motion for a judgment on the pleadings. But it seems to be a crazy idea for a defendant to himself move for a judgment on the pleadings. In a case brought to the SC where it was the defendant himself who moved for a judgment on the pleadings, although the answer was purely an answer without any counterclaim, cross-claim or third party complaint, but containing several meritorious defenses, the SC ruled that if a defendant is a movant for a judgment on the pleadings, the defendant is deemed to have admitted the allegations contained in the complaint. So it is really very risky for a defendant to be a movant for a judgment on the pleadings. Even if his answer is properly crafted, even if there is a specific denial, if it was the defendant that filed a motion for a judgment on the pleadings, the defendant will be considered to have admitted all the allegations in the complaint. So, the court will render a judgment in favor of the plaintiff. A judgment on the pleadings is also a judgment on the merits. It should comply with the essentials of a valid judgment under Rule 36.

SUMMARY JUDGMENTS Q: What is a summary judgment? A: A summary judgment or accelerated judgment is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, of for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial. Its object is to separate what is formal or pretended denial or averment from what is genuine and substantial so that only the latter may subject a party-in-interest to the burden of trial. Moreover, said summary judgment must be premised on the absence of any other triable genuine issues of fact. Otherwise, the movants cannot be allowed to obtain immediate relief. A genuine issue is such issue of fact which requires presentation of evidence as distinguished from a sham, fictitious, contrived or false claim (Monterey Foods Corp. vs. Eserjose, GR 153126, Sept. 11, 2003). Q: What are the requisites of summary judgments? A: 1. There must be no genuine issue as to any material fact, except for the amount of damages; and 2. The party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. Q: When is a claimant allowed to file for summary judgment? A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Sec. 1, Rule 35). Q: When is a defendant allowed to file for summary judgment? A: 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 (Sec. 2, Rule 35). JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS Judgment on the pleadings Summary judgments Plaintiff only Either plaintiff or defendant Answer does not tender an issue There is an issue tendered in the answer, but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to judgment as a matter of right Movants must give a 3-day notice of hearing Opposing party is given 10 days notice Entire case may be terminated May only be partial Only the plaintiff or the defendants as far as Either the plaintiff or the defendant may file it the counterclaim, cross-claim or third-party complaint is concerned can file the same

Movant Answer

Notice Termination Who can file

Basis of the judgment

Based only on the pleadings alone, hence, only on the complaint and the answer

Based on the pleadings,

If you compare the provisions of a judgment on the pleadings to that of a summary judgment, as contained in Rule 34, we will immediately notice that there is a section which talks about a Summary judgment by plaintiff and a Summary judgment by defendant. Unlike in judgment on the pleadings, where we expect the movant to be a plaintiff, in a summary judgment, the law gives either parties the option to file a motion for summary judgment. This motions are expressly recognized in the rules. Q: When is a claimant allowed to file for summary judgment? A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Sec. 1, Rule 35). Q: When is a defendant allowed to file for summary judgment? A: 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 (Sec. 2, Rule 35). Another term for summary judgment under American Rules is an accelerated judgment. It seems to be similar to that in acceleration clause. Why will the court render a summary judgment? The court will not conduct a full blown trial envisioned in Rule 30. In a summary judgment designed not to conduct fullblown trial, according to jurisprudence, there is an issue in the answer submitted by the defendant, but it turns out to be a sham issue. Therefore, there is no need for the court to conduct a full-blown trial on a sham issue. Whether or not the issue is genuine will depend upon the circumstances of the case. An instant example of a summary judgment rendered by a court is that where the court found that the issue is not really genuine although there is really an issue raised in the answer. A complaint was filed by the plaintiff for an unpaid loan. The complaint carried with it an actionable document attached to the complaint, a printed promissory note. The promissory note contained a blank as to the date of the maturity of the loan, which was unfortunately not accomplished. So, the promissory note is indeterminate as to the date of maturity. The defendant filed an answer and set up the defense that the filing of the complaint was premature because the debt has not matured, and the defendant pointed out that the blank wherein the date of maturity was supposed to be indicated has no entry. The defendant interposed that the court should first fix the maturity date of the complaint before the plaintiff can file a complaint for recovery of the loan. The plaintiff filed a motion for summary judgment. And the court agreed with the plaintiff that the defense set up by the defendant, that the maturity of the loan has not yet happened, is really a sham issue, as the issue is in conflict with the provisions of substantive law. The SC said that if that is a promissory note without a date fixed as to maturity, that is a note payable on demand, as provided in the NCC. If there is already a demand made by the creditor, and the debtor failed to comply with that demand, it means there is already a breach of the obligation by the debtor. In as similar case where the plaintiff moved for summary judgment because the answer of the defendant does not raise any issue, the court found merit in the motion. But when the court prepared the order granting the motion for summary judgment, the court mentioned that the motion is one that is asking for a judgment on the pleadings. The dispositive portion of the order called the judgment as on for judgment on the pleadings in favor of the plaintiff, directing the defendant to pay. The defendant challenged the validity of the judgment, saying that what the court should have rendered should be a summary judgment, because the court made a finding that the issue is not genuine, and yet the court issued a judgment on the pleadings, and therefore the judgment is void. SC held that whether it is called a summary judgment or judgment on the pleadings, it does not really matter at all, as there is an adjudication on the merits. The error was purely formal. SC said that the error in the determination whether the judgment was a summary judgment or a judgment on the pleadings will not prejudice the defendant, and therefore cannot be declared as void. After all, it is a judgment that complies with the

requirements of Rule 36. There is a determination of the rights and obligations of the parties involved in the cause of action. There is a summary judgment that is similar to separate judgment and several judgment as it is interlocutory. If you read the Rule on summary judgment, there is such a thing as partial summary judgment. If the summary judgment is a partial summary judgment, that is an interlocutory order, as it does not dispose of the case completely. It disposes only of the issue that was raised before the court. It cannot be appealed. In a summary judgment, unlike in a judgment on the pleadings, the court will conduct a summary hearing. In judgment on the pleadings, the court will not conduct a hearing at all, as the court will simply rely on the contents of the complaint and the answer. Since there is an issue raised by the defendant in summary judgment, the court will need to conduct a summary hearing in order to determine whether that is a sham issue or a genuine issue. There is need by the parties to present evidence in order to support their respective issues. The parties could present affidavits, depositions, or any other document that the parties may present. What the court will not allow is a full-blown hearing on the matter as to whether the issue is genuine or not. This issue will have to be proven only by documentary evidence, affidavits or evidence taken under modes of discovery. The SC has abandoned the old doctrine that summary judgments cannot be available in actions for recovery of property. SC has decided several cases which affirmed the availability of summary judgments involving recovery of title to or possession of real property. It is available in real or personal civil actions as long as the requisite that the issue is not a genuine issue is present.

JUDGMENT BASED ON COMPROMISE Aside from the special kinds of judgments provided for in the Rules, there is a special kind of judgment provided for in the NCC. There are several provisions in the NCC which encourage the parties to enter into an amicable settlement or compromise. The NCC considers a compromise as a contract between the parties, and therefore, if the parties entered into a contract where they signed a compromise agreement, they do not have to submit that agreement to a court for approval. According the SC, if there is a compromise agreement signed by the parties, since that is a contract, then that is the law binding between the parties. There is no need for court approval to validate the compromise agreement. For purposes of validity, we follow the provisions of the NCC, it will be treated just like any other contract. As long as the parties give their consent freely, their consent is not vitiated, their signatures appear in the agreement, that will be the contract between them, that will be the law between the parties. Approval by the court is not necessary for the validity of the compromise agreement. Approval of the court is necessary only for the execution of the compromise agreement. For instance, there is a case for recovery of 2M loan filed by the creditor against the debtor. They both agreed to settle their differences. They signed a compromise agreement to the effect that the debtor fully recognizes his obligation to the creditor, but they convert the payment of the loan to that of payment in installments every quarter, fixing the amount of installments. They do not submit the compromise agreement for approval. The parties jointly moved for the dismissal of the case, which the court complied. The debtor subsequently commits a breach in the payment of installments. After the breach, can the creditor go back to the court and ask for revival of the case? No. Can the creditor file a new case for collection against the debtor for recovery of the installment or of the whole account if in case there is an accelerator clause? Yes. It is not barred, as the cause of action of the creditor is now different from the previous case filed. His claim is now based on a compromise agreement, not a loan. In order to enforce payment as provided in the written compromise agreement, the creditor has to file a complaint against the defendant debtor. They will have to undergo the same process when the first case was filed concerning the loan. But that is one case of a compromise agreement which does not carry with it the approval of the court. The opposite is when there is a compromise agreement signed by the parties, but this time, the parties do not jointly move for the dismissal of the complaint, but instead they submit the compromise agreement to the court for approval. The court

renders a decision based on the compromise agreement. If the debtor commits a breach in the payment as agreed upon, what the creditor can do is to simply file a motion for execution in the court. The judgment based upon a compromise is a judgment on the merits. And under the NCC, a judgment based upon a compromise is immediately executory. There is no appeal. A judgment by the court based on a compromise agreement cannot be appealed. Does it mean to say that a party of a compromise agreement has no recourse at all to challenge the validity of the judgment based upon a compromise agreement? There is a remedy under Sec. 1 Rule 41. The defendant may file a motion to set aside the compromise agreement based on the ground of vitiated consent. That is the remedy in order a judgment based upon a compromise. Supposing the court does not set aside the judgment notwithstanding the motion, can the defendant appeal? No. Under the Rules, a judgment based upon a compromise agreement is inappealable. Also, the order denying the motion is in the nature of an interlocutory order which is inappealable. Q: What is the remedy in cases where appeal is not allowed? A: GR: In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65 (Sec. 1 Rule 41). There is a remedy given for such an order denying the motion to set aside the judgment under a compromise. Among those orders not appealable found under Section 1 of Rule 41 is 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, which can avail of the remedy provided in this section. Thus, what Rule 41 says is that there must be a Motion to Set Aside the Judgment of Compromise and there must be a denial of the motion before a Rule 65 petition can be availed of. If the proponent immediately files a Rule 65 petition assailing the validity of the judgment based on a compromise agreement as well as the compromise agreement itself, that petition will be dismissed for noncompliance with the requirement under Rule 65. There is still a plain, speedy and adequate remedy that can be had in the form of a Motion to Set Aside the Judgment of Compromise and the Compromise Agreement founded on vitiated consent.

REMEDIES TO ASSAIL A JUDGMENT Q: What are the available remedies to the aggrieved party after rendition of judgment? A: The remedies against a judgment may refer to those remedies before a judgment becomes final and executory and those remedies after the same becomes executory. 1. Before a judgment becomes final and executory, the aggrieved party may avail of the following remedies: a. Motion for Reconsideration; b. Motion for New Trial; and c. Appeal 2. After the judgment becomes executory, the losing party may avail of the following: a. Petition for relief from judgment; b. Action to annul judgment; c. Certiorari; and d. Collateral attack of a judgment. Compare the remedies available to a party in a civil case to that in a criminal case. The consequences of availing a remedy in a civil case might be different in criminal cases. Also, there are remedies which are applicable in civil cases which might not be applicable in a criminal case. Remedies in a Civil Case: The remedies would depend primarily on whether the judgment has been or has not been entered.

If judgment has not been entered, the period to appeal has not yet expired (15-30 days) Remedies available : Rule 37: ~Motion for New Trial ~Motion for Reconsideration ~Appeal If judgment has been entered: ~Rule 38 Motion for Relief From Judgment ~Rule 47 Motion for Annulment of judgment ~Rule 65 Certiorari, Prohibition and Mandamus (in certain instances) Remedies in a Criminal Case Before judgment of conviction becomes final ~Motion for New Trial ~Motion for Reconsideration ~Appeal ~Reopening of a case due to NDE Note: Reopening of a civil case is available but before judgment is rendered. If judgment is rendered, it is not available in a civil case. Jurisprudence requires no judgment yet handed down by the court, the time frame for availment of this remedy is dependent upon the termination of the trial. The termination of the trial starts the period to move for this remedy. As long as the judgment has not been rendered, any party can move for reopening of the case. Grounds for reopening civil cases: There are no grounds given specifically in the rules. It is not expressly recognized, it is just an accepted remedy in jurisprudence. It is a remedy availed of after trial has ended but before the judgment is rendered. The purpose is for allowing the movant to offer in evidence those that he may have forgotten to present during the trial, or additional evidence as the case may be. Reopening of a case in criminal cases: This is expressly recognized in criminal procedure. It can be had even after the judgment has been rendered, so long as judgment has not become final and executory. After judgment of conviction becomes final: Habeas Corpus Petition for Certiorari under Rule 65 in exercise of judiciary under its equity jurisdiction If the convict feels that his detention in prison, although supported by a judgment of final conviction, is unlawful, the remedy he may avail of is Habeas Corpus, not a petition to annul judgment. The SC has made this very clear. Rule 47 applies only to a civil case, it cannot apply to a criminal case. The equivalent remedy in a criminal case is a petition for habeas corpus. The SC in the exercise of its equity jurisdiction cold also entertain a Petition for Certiorari under Rule 65 even if the judgment of conviction has become final and executory

When can a petition for certiorari be had once the judgment had become final and executory long before? It can be had when the petition is applied in order for the judiciary to rectify a wrong under its equity jurisdiction. A situation that calls for a special remedy will always be answered by a petition for certiorari. A certiorari will always be entertained as part of its equity jurisdiction. Certiorari is a remedy in both a civil or criminal case in order to challenge a final and executory judgment if the situation calls for the SC to exercise its equity jurisdiction. That is why in the enumeration of remedies, in either criminal or civil case, we also include Certiorari under Rule 65.

RULE 37 NEW TRIAL OR RECONSIDERATION In criminal procedure, nothing is mentioned about a pro-forma motion for new trial or reconsideration. Q: What is a pro- forma motion? A: A pro- forma motion is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Marikina Development Corporation v. Flojo, 251 SCRA 87). In Rule 37, for civil cases, a motion for new trial or reconsideration must strictly comply with the requirements of a motion so that such motion will not fall under the concept of a pro-forma motion. Pro-forma motion for reconsideration in civil casesis almost always denied; it could result to an instance where a losing party moving that all remedies available will be unavailable as sanction. A pro-forma motion for reconsideration does not stop the running of the reglementary period to appeal, and if the denial of such motion comes after the expiration of the period to file an appeal, remember that entry of judgment takes place by operation of law under Rule 36. Upon entry of judgment, movant/losing party loses the remedy of appeal and is left only with the after judgment remedies of petition for relief from judgment, annulment from judgment or a petition under Rule 65 as remedies. A motion for new trial or motion for reconsideration in civil cases is always initiated by the losing party. There is no pro forma motion for new trial or reconsideration in a criminal case. The court cannot simply discard the motion for new trial or reconsideration for non-compliance, even if the motion does not comply with the requirements of a motion. The motion for reconsideration or new trial will always stop the running of the period to appeal. The idea for the accused to file motion for new trial or reconsideration could come from the court. The court can even initiate a new trial or reconsideration as long as the accused gives his consent. (Rule 37)Grounds for motion for new trial is completely different from grounds for reconsideration. This is the reason why these motions are distinct and different from one another. New Trial 1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against and by reason of which the rights of the aggrieved party was impaired; or 2. Newly discovered evidence, which could not with reasonable diligence, have been discovered and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37). Reconsideration 1. The damages awarded are excessive; 2. The evidence is insufficient to satisfy the decision or final order; or 3. The decisionor final order is contrary to law (Sec. 1, Rule 37).

Let us say that a losing defendant/accused is advised by his counsel that they have 3 remedies while the period of appeal was running, motion for reconsideration, motion for new trial and appeal. The defendant/accused told the counsel to avail of all three. Thus, the counsel filed a motion for new trial, a motion for reconsideration and lastly, an appeal. The trial court received all three. The appeal was duly perfected. What remedy will the court entertain? SC had held that if the aggrieved party files or perfects an appeal during the pendency of his motionsfor new trial and reconsideration, the motions shall be deemed abandoned. It is really inconsistent for an aggrieved party to file a motion for new trial or reconsideration, and while waiting for the resolution of his motion he perfects an appeal. It will render the motions academic. The court, upon perfection of the appeal and upon payment of the docket fee, will lose jurisdiction over the case, and what will remain with the court is residual jurisdiction.

The winning party, after receiving a copy of the decision, moved for the execution pending appeal. It is a matter of discretion to the court founded on special circumstances. The losing party filed a motion for new trial while the former motion was pending. Can the court grant the motion for execution pending appeal? No. The trial court should resolve the motion for new trial first before the motion pending appeal is resolved, even if the motion pending execution is for special reasons. Motion for reconsideration or motion for new trial of the aggrieved party should be given preference over any other motion by the prevailing party. Motion for new trial on ground of FAMEN. There must be an affidavit of merit. FAMEN must be the reason for which the motion for new trial is bound. Affidavits should show FAMEN. The affidavit should be executed by persons with personal knowledge surrounding the circumstances of FAMEN. It is not correct to say that in a motion for new trial, we always need an affidavit of merit. We need affidavit of merit only if the ground relied upon is FAMEN. Motion for new trial on ground of NDE will not need Affidavit of Merit, merely the affidavit of the new witness will give testimony, or an authentic copy of document or object evidence to be presented. Extrinsic fraud vs. Intrinsic Fraud in Motion for New Trial EXTRINSIC FRAUD INTRINSIC FRAUD Connotes any fraudulent scheme executed by the prevailing Refers to the acts of party during trial which does not affect party outside trial against the losing party who because of the presentation of the case such fraud was prevented from presenting his side of the case The principle in new trial in the case of fraud, the fraud committed must always be EXTRINSIC FRAUD. It cannot be intrinsic fraud. In Rule 37, there is a basis for the court to determine extrinsic fraud from intrinsic fraud for the trial to be properly resolved. If the fraud alleged in the motion is intrinsic, that motion will be denied. What should be proven should be an extrinsic fraud. Rule 37 could give a good basis for making a distinction between the two frauds.. There are 2 clauses to justify extrinsic fraud as a ground for new trial compared to extrinsic fraud: which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights. If we rely solely on Rule 37, in court cases, the court has allowed lawyers to cheat one another, so long as cheating is limited only of intrinsic fraud, which could be prevented through the use of ordinary diligence. For instance, the court has ruled that if a party wins the case because his cause of action is supported by a document which could serve as preponderant evidence which could show his title to recover from the defendant. But later on, the aggrieved party is able to prove that the document presented by the plaintiff, and which is the basis for the judgment in his favor, is a forged document. Forging a document is a crime. But in a trial, the admission of a forged document will not be a ground for a new trial, or even as NDE. This is because the presentation of a forged document by the plaintiff could easily be avoided by the defendant through the exercise of ordinary diligence. If confronted with such document, and the defendant is not sure as to its authenticity, the defendant could have called upon witnesses, such as an expert witness, to prove that such document was forged. His failure to do so is a waiver of this fact. Another instance of cheating duly proven by the movant in a motion for new trial based on extrinsic fraud which the SC did not consider as extrinsic is when the prevailing party presented witnesses who had perjured. But if the aggrieved party relies solely on the allegation that all the witnesses presented by the party all committed perjury, that is not a ground for new trial, that it is only intrinsic fraud. What the SC is telling the defendant is that he should also have cheated, that he should also have been dishonest. If the plaintiff presented 2 perjured witnesses, the defendant should have called 5. So the message given with respect to extrinsic and intrinsic fraud is that litigants, through their lawyers, can be dishonest during the course of a litigation. But they should see to it that the ;cheating will not amount to extrinsic fraud , that which will not deprive the other party of his day in court, that the other party will have the opportunity to present his side in court. That is the life of a lawyer, he is encouraged to be dishonest, he should be deceptive in his relationship with others lawyers. Anyway, lawyers will not go to heaven, that is a given fact. It is found in the Bible. But that is only a part of a passage in the

Bible. The additional passage is that lawyers do not go to hell. But that does not make the life of a lawyer less worthwhile. If a lawyer cannot go to heaven or to hell, where will the lawyer go after death? The implication is that a lawyer does not have a soul. That is how the SC looks at the situation. In fact the S in several cases said we should expect dishonesty in the course of a litigation. We cannot avoid that. The SC said that if they allow every act of dishonesty to be a ground for new trial, there will never be an end to a litigation, because a lawyer will always be able to point out to the court certain acts of dishonesty or cheating in a motion for new trial. Mistake The mistake of a lawyer is the mistake of the client. If the aggrieved party lost the case due to a serious mistake of the lawyer, the said party fires his lawyer and gets a new one, the new lawyer cannot capitalize on the mistake committed by the former lawyer. The is just applying the rule on agency. The act of the agent is the act of the principal. But, there is one situation where the SC relaxed the application of this principle. The SC said that while it is true the mistake of the lawyer will always be considered the mistake of the client. But if the mistake of the lawyer was tantamount to bad faith, there is an insinuation that the lawyer deliberately caused the loss of the case of the client, then that is a ground for new trial. The clients rights should be protected in this situation. But the general rule is that the mistake of a lawyer is the mistake of the client, and it cannot be a ground for new trial under FAMEN. Newly Discovered Evidence This is an adaptation of an American principle called the Berry Rule : 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 are the requisites of newly discovered evidence as a ground for New Trial? A: 1. The evidence was discovered after trial; 2. Such evidence could not have been discovered and produced at the trial with reasonable diligence; and 3. Such evidence ismaterial,not merely cumulative, corrobative or impeaching, and is of such weight that if admitted would probably change the judgment (BERRY RULE) (CIR v. A. Soriano Corporation, GR No. 113703 January 31, 1997). Because of the requirement, that the result of the case would probably be altered, we cannot consider cumulative, corroborative or impeaching evidence as NDE, as these cannot alter the result of the case. The recantation of a witness is not NDE. In fact, the SC has been emphatic in its ruling continuously that if a witness recants, the recantation should not even be given any attention at all. Because if we give attention to the recantation of a witness, you can expect lawyers to produce recantations by witnesses who already testified in court. So, the stand of the court is that the testimony of a witness given in open court reflects the truth, not the recantation. The recantation shall not be treated as NDE. In a motion for reconsideration under Rule 37, there are 3 grounds: damages awarded are excessive, the evidence is insufficient to justify the decision or final order, the decision or final order is contrary to law There is also a rule under Rule 37 allowing only one motion for reconsideration by the same party, either prevailing or aggrieved party. If that is denied, a second motion for reconsideration will not be allowed, even if the second motion for reconsideration is founded on a different ground. The rule against the filing of a second motion for reconsideration is almost absolute. Unlike in a motion for new trial, Rule 37 allows a movant to file second motion for new trial if founded on a ground different from the one used in the first motion for new trial.

But whether it is a motion for new trial or motion for reconsideration, there is another rule contained in other provisions where the court will not allow an extension of time to file motion for new trial or reconsideration (15-30 day period). The party must observe the 15/30-day period. If motion for reconsideration is favorably acted upon, the court will simply render an amended judgment. If the court feels that the judgment is contrary to law or the evidence does not fully support the judgment, the motion for reconsideration should be granted to reduce the liability of the aggrieved party, but the court will only amend the previous judgment in order to reduce the liability of the party aggrieved. If the motion for new trial in a civil case is granted, and such is not a partial motion for new trial, the judgment will be vacated. But the evidence presented during the trial will not be disturbed. There is no need for the witnesses who had testified in the trial to give their testimony again. If the Motion for new trial granted was that in a criminal case, the judgment will also be vacated, and all evidence taken during the trial need to be retaken and witnesses who testified will be recalled. The grounds for new trial in a criminal case are serious irregularities or errors committed by the trial court, not FAMEN. Even if the evidence taken in court will not be retaken, there will be a recalling of the witnesses who had testified during the trial. In Rule 37, it is clearly provided that if a motion for new trial or reconsideration is denied, the denial cannot be appealed or be subject to Rule 65 as the order of denial is interlocutory. What is to be appealed is the judgment rendered on the merits, not the order of denial. Note that Rule 65 is now unavailing in the amended Rules in Rule 41. The only remedy is an appeal from the judgment on the merits that is the subject of new trial or reconsideration. SC said that in appealing the judgment, the aggrieved party can assign as an error the denial of the trial court of the motion for new trial or motion for reconsideration. But, he is no longer allowed to file a petition under Rule 65 to challenge the denial of the motion and appeal at the same time, which was allowed prior to the amendment of Section1 of Rule 41. MNT or MR in Criminal Cases Either on motion of accused, or the court motu proprio with consent of the accused Grounds for MNT errors of law or irregularities committed during the trial, or newly discovered evidence Ground for MR error of law or fact Filed any time before judgment of conviction becomes final MNT or MR in Civil Cases Must be upon motion of a party, cannot be motu proprio Grounds for MNT FAME, or newly discovered evidence Grounds for MR Excessive damages, insufficient evidence, or decision is contrary to law Filed within the period for taking an appeal. Should include all the grounds then available and those not so included shall be deemed waived. There may be partial grant

When granted, the original judgment is always set aside or vacated and a new judgment rendered.

RULE 38 RELIEF FROM JUDGMENT This is a remedy available to the aggrieved party after the entry of judgment. There are 2 periods to be reckoned with: ~60 days from receipt of copy of judgment/notice thereof ~6 months from entry of judgment. There was one case when the aggrieved party, before entry, filed before the trial court a petition for relief from judgment founded on FAMEN. The filing of the petition was irregular because the judgment has not yet been entered. SC held that the trial court should not have simply denied and dismissed the motion. What the trial court should have done was to treat the motion for relief from judgment as a motion for new trial, because the grounds of both motions are similar. Even if a lawyer commits an error, and files a petition for relief from judgment founded on FAMEN before the judgment was entered, the court will consider the petition for relief as a motion for new trial, provided of course, that the petition will carry with it the requirements needed under Rule 37, an affidavit of merit that will prove the presence of FAMEN. The SC

has taken a liberal attitude on this kind of error by a lawyer. The court will ignore the error and just have to rule on the merits of that motion. Grounds for a motion for new trial is similar to a motion for relief from judgment. (FAMEN) 1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against and by reason of which the rights of the aggrieved party was impaired; or 2. Newly discovered evidence, which could not with reasonable diligence, have been discovered and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37). Is a petition for relief considered as one that is similar to that of an annulment of judgment? It is not so. A petition for relief is not an independent action. In fact, it is just a continuation of the original case. If we consider petition for relief a separate action from the original case, a petition for relief should be filed before an RTC because it is incapable of pecuniary estimation. But since it is not so, Rule 38 provides that it should be filed in the same court which issued the judgment deciding the case. So if the court that decided the case is an MTC, a petition for relief could be filed in the same court. If the respondent of a petition for relief challenged the jurisdiction of an MTC in deciding the petition for relief on the ground that such petition is incapable of pecuniary estimation, the reply to that argument is that a petition for relief is just a continuation of the original case, not an independent and separate action. Note that the old docket number is used in the title of the case in a petition for relief. We also do not pay docket fees. What is important is the timeframe in which to file a petition for relief from judgment. The SC has been very strict.Time to file should be observed. SC has been very strict the time frame because the judgment has been entered and has become final and executory. There is the likelihood that the winning party may already file a motion for execution under Rule 39 as a matter of right. It could happen that the aggrieved party filed a petition for relief from judgment and the prevailing party also file a motion for execution of the judgment. Should the court grant the motion for execution? Yes. The court has a ministerial duty to execute the judgment once the judgment has been entered and has become final and executory. Motion to execute should be granted once made. The prevailing party has the right to have the judgment in his favor enforced. If the court grants the motion for execution of judgment because it is a matter of right on the part of the prevailing party, will it not render academic the relief from judgment filed by the aggrieved party? Rule 38 will not result to making the petition for relief academic simply because of the granting a motion for execution as a matter of right. Rule 38 says that the executing court that granted motion for execution and subsequently entertained a petition for relief from judgment can issue a TRO or a preliminary injunction order to stop the enforcement of the writ of execution. You might say that in the rule on injunction, an injunctive relief should be granted by a court higher than the court which rendered the decision. In this case the court which decided the case and then subsequently granted the motion for execution of its judgment shall also issue the injunctive relief against the carrying out of the writ of execution. That is one of the peculiarities of Rule 38. The court which grants the execution of its judgment, as it really has no choice as it is a matter of right, is the same court which will issue an injunctive relief against the writ of execution it has previously issued. If there is no injunctive relief issued by the said court, its decision will be carried out until fully satisfied. This is an exception to the principle in injunction where the injunctive relief should come from a higher court. Here, the same court which decided the case shall be the one who will issue an injunctive relief against its own officer from executing the writ of execution the court has previously issued. That is allowed in Rule 38. If the petition for relief is granted, can the prevailing party appeal the order? No. The order granting relief is interlocutory, hence unappealable. If a petition for relief is denied, the order denying petition for relief is a final order. Can it be appealed? If not, what is the remedy? No, it is a final order which is not appealable under Section 1 of Rule 41. The remedy of the aggrieved party is to file a petition under Rule 65, a petition for certiorari or prohibition as the case may be.

APPEAL It could be a matter of right or a matter of discretion. Q: What is the remedy if the motion is denied? A: The remedy is to appeal from the judgment or final order itself subject of the motion for reconsideration or new trial (Sec. 9, Rule 37, Rules of Court). The movant has a fresh period of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. It is no longer assailable by certiorari. (Sec.9, Rule 37, A.M. No. 07-7-12-SC). Q: When does the fresh period rule apply? A: It applies to: 1. Rule 40 MTC to RTC 2. Rule 41 Appeals from RTC 3. Rule 42 Petition for Review from RTC to CA 4. Rule 43 Appeals from quasi-judicial agencies to CA 5. Rule 45 Appeals by certiorari to the SC Note: The fresh period rule does not refer to the period within which to appeal from the order denying the motion for reconsideration, but to the period within which to appeal from the judgment itself because an order denying a motion for reconsideration is not appealable. The aggrieved party has a right to appeal. It means when he has perfected the appeal within the period to do so, the appellate court has no other choice but entertain the appeal, review the decision and render its own decision. When we say that appeal is a matter of discretion wherein the appellate court will determine whether it should be entertained or not. If that discretion is given to the appellate court, it simply denies to the party the right to appeal to that court.

In civil cases, there are 3 modes of appeal given under Rule 41: Ordinary appeal Petition for Review in the CA Petition for Review on Certiorari under Rule 45 If the origin of the case is the MTC, the only mode of appeal is an ordinary appeal. Even if the only issue raised is a question of law, the appeal should be an ordinary appeal brought to the RTC. Note that the Rules does not divest the RTC or even the CA to hear appeals based purely on questions of law. In fact, the Rules expressly say that an appeal to the RTC from the MTC could either involve both questions of fact and law or just purely questions of law.

The procedure of appeal from the MTC to the RTC is given under Rule 40. Rule 40 procedure of appeal from MTC to appellate court (RTC) The party appealing in a civil case will need to file a Notice of Appeal and payment of appellate court docket fee. Cases involving special proceedings and other cases of multiple or separate appeals will also require submission of a Record on Appeal. Docket fee is a jurisdictional requirement. Hence, if not paid on time, SC said the appellate court does not acquire jurisdiction over the case. Let us say a case for Unlawful Detainer was filed. A Motion to dismiss was filed by defendant on the ground of lack of jurisdiction over the subject matter, which was granted. The order of dismissal, without prejudice, is not appealable, as provided for under Rule 41. He cannot appeal, but he can file petition under Rule 65. (Note that UD is a special proceeding covered by Rule 70, although cognizable by the MTC)

So, should we follow Rule 41 in appeals from the MTC to the RTC? No. Rule 40 does not follow Rule 41. In Section 3, Rule 40, when an MTC dismisses a case cognizable by it for lack of jurisdiction over the subject matter, even if the dismissal is without prejudice, the remedy of the plaintiff is to appeal,via an ordinary appeal, the order of dismissal rendered by the MTC. Why cannot we just follow Rule 41? It says that if a dismissal is without prejudice, the order is not appealable, and the remedy is a petition under Rule 65. Insofar as the MTC and the RTC are concerned, there is a good reason why Rule 40 says that the remedy of the plaintiff is to appeal via ordinary appeal, that is to file a notice of appeal in the appellate court and pay docket fees. This is because there is a provision under Rule 40 which says that if the matter is brought to the RTC, and the RTC affirms the decision of the MTC, it is the duty of the RTC to assume jurisdiction over the case as if that case originated with the RTC. If we tell the plaintiff to observe Rule 41, and then the plaintiff files a petition under Rule 65, the RTC will not have any authority to assume jurisdiction over the case, unlike when the remedy availed of by the plaintiff is an ordinary appeal. This is because an appeal is not a separate proceeding, it is just a continuation of the old case. A petition under Rule 65 is an independent proceeding, and not a continuation of the original case that has been resolved by the MTC. In cases of Unlawful Detainer decided by the MTC, there could be an appeal in the RTC involving factual and legal questions. Insofar as the RTC and insofar as the prevailing party, is the appeal by the losing party a matter of right? Yes. Whenever the mode of appeal is ordinary appeal, the appeal is one of a matter of right. The court has no discretion to outrightly dismiss the appeal. It has the duty to review the case and render its own decision. The RTC as an appellate court from a decision of an MTC in ID has no discretion to tell the appellant that an appeal is not given due course, which is allowed in petition for review and petition for review on certiorari. Since the appeal of the losing party in the RTC is a matter of right, can the RTC also order the dismissal of the appeal even without rendering its own decision as an appellate court because the appellant violated certain orders or provisions of the Rules? Yes. Although it is the right of the losing party to appeal to the RTC, the losing party, as an appellant, should also obey the orders that could be issued by the RTC in relation to the appeal. One such order is given in Rule 41 (Section 7[b]), the RTC acting as an appellate court can require the appellant/appellee to submit an appeal memorandum. If plaintiff does not submit an appeal memorandum as ordered, that will be a ground for the dismissal of the appeal by the RTC. Although appeal is a matter of right, it is still the duty of the appellant to obey the orders of the appellate court issued in relation to his appeal taken to the RTC. In Rule 41, the RTC can also order the dismissal on appeal if it can be shown that the docket fees have not been paid or that the appeal was taken out of time. If the appeal was taken out of time, the appellate court has no jurisdiction at all to review the judgment. If the RTC renders its own decision (affirm or reverse), can there be a second appeal? Yes, to the CA via a petition for review. The rule of thumb in the case of second appeals is that the appeal is a matter of discretion. The first appeal generally is a matter of right as to the appellant, as long as the mode of appeal is an ordinary appeal. But even if the appeal is a first appeal, but the mode is the one under Rule 45, that is a matter of discretion on the part of the SC. The second appeal from the RTC to the CA is a matter of discretion. The CA can either refuse or allow the appeal. In that appeal to the CA from the RTC in the exercise of its appellate jurisdiction, purely questions of law can only be raised before the CA. Before the CA, could there be a 3rd appeal? Yes, we can go to the SC under Rule 45, always a matter of discretion in the civil case. The SC enjoys the prerogative whether to entertain or not to entertain that appeal.

Final order vs. interlocutory order Final Order an order that completely disposes a case or a particular matter therein. (Remedy is an appeal.) Interlocutory Orders those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. (Remedy is a petition for certiorari under Rule 65) Question of fact vs. Question of law There is a question of law when the doubt or difference arises as to what the law is on a certain set of facts. A question of fact on the other hand is when the doubt or difference arises as to the truth or falsehood of the facts alleged. Memorandum decision on appeal (Rule 51) Memorandum decision is one in which the appellate court may adopt by reference, the findings of facts and conclusions of law contained in the decision appealed from (Sec. 24, Interim Rules and Guidelines) Rule on harmless error (Rule 51) 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. Harmful error that error or defect which affected the substantial rights of parties, being inconsistent with substantial justice. Material data rule an essential component for any mode of appeal whether an ordinary appeal, petition for review or petition for review on certiorari ; it simply tells appellant that regardless of mode of appeal chosen, he should see to it that he informs the court about the date he received the decision, the date of filing motion , and the date of denial by the court of motion for reconsideration/new trial, in order to help the court determine the timeliness of appeal, which is determinant of the jurisdiction of the appellate court. If an appeal is not perfected on time, the appellate court does not gain jurisdiction over the matter on appeal. Erroneous appeal vs. improper appeal Improper appeal the mode of appeal used is the correct mode, but the questions raised in the appeal should not be raised in the appeal (question of fact vs. question of law). Leads to dismissal of appeal. Ex. An RTC rendered a decision. The decision was appealed in the CA. The mode of appeal is an ordinary appeal via a notice of appeal. Eventually, the records are transmitted to the CA. Under the new rules, when there is an appeal by ordinary appeal via notice of appeal, both questions of fact and of law could be raised. But the rules said that if the only question raised is purely questions of law, the CA has no jurisdiction. So the CA can dismiss the appeal when purely questions of law are raised. This is the importance of knowing the term improper appeal. Erroneous appeal this is a situation wherein the mode of appeal used is the wrong mode. Ex. Under the rules, the correct mode is ordinary appeal, but the mode used was petition for review. Unlike in improper appeal, where it can lead to a dismissal of the appeal, there are certain cases where the appeal is erroneous, it will not lead to dismissal of the appeal. If the court of origin is an MTC, the mode of appeal is an ordinary appeal via a notice of appeal or a record on appeal (in certain cases) in the RTC. From the RTC, as an appellate court, there could be a second appeal in the CA, but this time, the mode of appeal is a petition for review.

From the MTC, supposing the mode of appeal used by the aggrieved party was a petition for review, can the appeal be dismissed by the RTC on the ground that the appellant has chosen the wrong mode of appeal? SC held that if the appellate court is an RTC, and appellant has chosen the mode of petition for review, RTC should disregard the error committed by the appellant. The SC reasoned that the contents of a petition for review meets, and even exceeds, the requirements of a notice of appeal. A petition for review is a very lengthy document, there is the application of the material data rule, there are errors that are assigned and there are arguments embodied in the petition for review. In a notice of appeal, it may compose of one paragraph where an appellant is simply telling the court he is appealing the decision rendered on such date, alleging the payment of docket fees. If the appellant wrongfully chooses a petition for review, the RTC should entertain the petition as the essentials for a notice of appeal are already contained in the petition for review. But if it is the other way around, where the RTC decides the case as an appellate court and an appeal of its decision was made by the appellant, and filed in the CA a notice of appeal instead of a petition for review, that appeal will be dismissed. The mode of appeal used is erroneous and will not confer jurisdiction anymore upon the RTC. In other words, there are instances where the wrong mode of appeal will lead to the dismissal of the appeal; and there are instances where the wrong choice will be disregarded by the court. Also under the Rules, the only mode of appeal allowed in civil cases to the SC is Rule 45 (appeal by certiorari/petition for review on certiorari).From the decision of the RTC in its original jurisdiction, there could be an appeal to the CA or SC. The appellant decides to go to the SC immediately. It filed a notice of appeal. SC will dismiss the appeal since the choice of mode of appeal is erroneous under the Rules. A notice of appeal will never satisfy the requirements of a petition for review on certiorari or appeal by certiorari under Rule 45. On the other hand, even if the Rules are very clear in saying that in civil cases, the mode of appeal to the SC is only through Rule 45 using a petition for review on certiorari or sometimes called appeal by certiorari, if the appellant inadvertently calls his petition simply a Petition for Certiorari under Rule 65, the SC will liberally consider that as a Petition for Review under Rule 45. The contents of Certiorari under Rule 45 and Rule 65 are essentially the same. But, the SC cautioned parties, the erroneous appeal must be filed within the period of appeal (15 days). If you should recall, the period for appeal by petition for certiorari provided under Rule 45 is 15 days, whereas under Rule 65, the period for filing a petition under this Rule is 60 days. In the CA, the decisions that could be appealed from the CA do not necessarily come from courts of justice. It could be penned by quasi-judicial bodies. There is just a common mode of appeal even for quasi-judicial (QJ) bodies, petition for review. Appealed decision comes from RTC vs. from QJ body There is no difference with respect to the content, but there is a great difference in the execution of the judgment appealed. If the decision comes from a trial court in the exercise of its appellate jurisdiction, being appealed in the CA, the decision of the trial court cannot be executed. There could be not execution. There could be an execution, but it should be an execution pending appeal (filed in the CA). There could be an execution on motion, supported by special reasons to convince the CA to order the execution of judgment. Generally, when there is an appeal to the CA from a court of justice like an RTC, the appealed decision cannot be the subject of execution. In case of QJ body decision, the appeal will not stay the execution of the decision. The decision of the QJ body will be enforced. There is only one way in which we can stop the execution of the decision rendered by a QJ body during the pendency of the appeal, that is to ask the CA to issue a writ of preliminary injunction. Why is execution allowed in QJ bodies? One reason given in the Rules is that quantum of evidence needed in QJ proceedings is only substantial evidence, while in trial courts, the quantum of evidence is preponderance of evidence. If we compare also the remedies available to the defeated party before the trial court and the appellate courts (CA and SC), the remedies available to the defeated party are considerably lessened as he goes higher in the hierarchy.

MTC Motion for reconsideration, Motion for new trial, appeal RTC Motion for reconsideration, Motion for new trial, appeal CA Motion for reconsideration, Motion for new trial but only on the ground of NDE SCMotion for reconsideration MOTION FOR NEW TRIAL BUT ONLY ON THE GROUND OF NDE IN THE CA Note: Under the Rules, it is not necessary for the appealing party to wait for the case to be decided by the CA. Even if the case has not yet been decided by the CA, the movant can already file a motion for new trial based on NDE. This is not possible if the case is in the MTC or even in the RTC acting in its appellate jurisdiction. In the RTC, we have to wait for the RTC to render a decision before we can file a motion for reconsideration or new trial. With respect to the CA, we also have to wait for the decision of the CA before we can move for reconsideration. But when it comes to a new trial, we can file a motion for new trial based on NDE even before the case is decided by the CA. This is clearly spelled out in the Rules. As long as the case is within the jurisdiction of the CA, even if before the CA had made a decision on the case appealed, a motion for new trial based only on NDE can be filed. The SC is generally not a trier of facts.A Motion for new trial will always involve a question of fact like NDE, and thus will be dismissed by the SC. The availability of a motion for new trial ends with the CA, but the availability thereof is based only on the ground of NDE.

RULE 45 APPEAL BY CERTIORARI TO THE SC In civil cases, this is the only mode used. We cannot use a notice of appeal or a petition for review if the SC strictly applies these rules on appeal. It does not mean to say that we cannot go up to the SC b simply filing a notice of appeal or an ordinary appeal. What the Rules prohibits is the filing of an ordinary appeal to the SC, that is a notice of appeal if the case is a civil case. If the case is a criminal case, there could be notice of appeal to the SC. It is applicable in case the penalty imposed is life imprisonment or reclusion perpetua. The appeal from that criminal case will be by notice of appeal not via a petition for certiorari. In a petition for review on certiorari filed in the CA, it is axiomatic that only questions of law can be raised. Raising questions of law with questions of fact before the SC does not necessarily disallow the appeal. The Rules say that if the issues raised in under Rule 45 are factual and legal, the SC has the discretion to remand the case to the CA. When the SC sends the case to the CA because the issues raised are both factual and legal, the CA will have the duty now to review the case and render its own decision. But, the opposite does not apply, such as when the CA is the appellate court. There is an appeal to the CA through ordinary appeal, the court of origin is an RTC, the mode of appeal is an ordinary appeal by filing a notice of appeal. It is in this mode of appeal where the appellant is required to submit his brief on appeal.

Brief on appeal required only if the appeal is an ordinary appeal, the trial court is an RTCand the appellate court is the CA. If the trial court is an MTC, and there is an appeal to the RTC, and an appeal is made on the RTC exercising its original jurisdiction, the mode of appeal is an ordinary appeal to the CA via a notice of appeal. During the pendency of that appeal, the CA will require parties to submit their briefs. The Rules provide for the brief of the appellant and the appellee. Failure of the appellant to submit his brief on time will be enough reason for the CA to dismiss the appeal. Even if he submits his brief on time, the appeal will be dismissed if the essentials of the brief are not complied with. 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. SEC. 8. Appellees briefWithin 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. 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. 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 C ounter-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.

Appellants brief contents divided into several chapters; lack of assignment of errors is fatal and will result in dismissal of the appeal. Why is the CA very much interested in the assignment of errors that must be contained in the brief, without which the appeal will have to be dismissed? The assignment of errors is essential in an ordinary appeal because insofar as the CA is concerned, the decision of the trial court is a correct decision.Remember that in our Rules of Evidence, there is a presumption that a decision of a trial court is correct; there is a presumption of regularity in the performance of official duties. The CA will always apply that disputable presumption whenever there is an appeal in the CA. That same attitude is also adopted by the SC. Whenever an appeal under Rule 45 is raised to the SC, the SC adopts the disputable presumption that the decision of the CA is correct. Since the CA adopts the presumption that the RTC decided on the case correctly, the appellant must destroy or overwhelm that presumption by convincing the CA that serious errors were committed by the RTC. The appellant cannot be allowed to present evidence thereon, appellant will have to rely on the records submitted from the RTC. The only way by which appellant can possibly convince that the RTC committed serious errors is through the assignment of errors. If the appellant cannot make an assignment of errors in the brief, it means the appellant finds nothing wrong with the decision of the RTC. Therefore, the disputable presumption stays, and this will be used by the CA. That is why the assignment of errors is essential to the brief of the appellant. Absence thereof is fatal to the appeal, and w ill cause the appeals dismissal. Distinguish a brief from a memorandum. A: Brief Ordinary appeals

Filed within 45 days Contents specified by rules

Memorandum Certiorari, prohibition, mandamus, quo warranto and habeas corpus cases Filed within 30 days Shorter, briefer, only one issue involved No subject index or assignment of errors, just facts and law applicable

Can the appellant assign as the only error in the brief that the RTC committed an error in deciding the case against the appellant? That is not an assignment of error that is expected by the CA. Assignment of errors should specify particular acts done by the RTC which could have affected his substantial rights. Harmless Errors in Appeal (Section 6, Rule 51) The trial court must have committed errors in the proceedings;it is expressly provided in Rule 51 that only errors of the court in admission of evidence and issuance of orders that affects substantially the rights of the appellantcould be considered by the appellate court. Otherwise, the court will disregard that error, even if made a part of the assignment of errors. In civil cases brought on appeal, the appellate court will resolve only issues raised in the assignment of errors. No other issue, generally, will be resolved by the court.The only exception is if the issue not raised in the assignment is closely related to the issue raised in the assignment of errors of the appellant. This rule applies to a civil case only.

In a criminal case, if there is an error committed by the trial court, whether mentioned or not in the assignment of errors, the CA or SC can take cognizance of such errors in resolving the appeal. The appellate courts are very flexible in a criminal case whose decision from the trial court was brought before it on appeal. GR: Only errors assigned in the brief may be considered on appeal XPNs: 1. Grounds not assigned as errors but affecting the jurisdiction over the subject matter 2. Matters not assigned as errors on appeal but are evidently plain or clerical errors within the contemplation of law; 3. Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice; 4. Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; 5. Matters not assigned as errors on appeal but closely related to an error assigned; and 6. Matters not assigned as errors on appeal but upon which the determination of a question properly assigned is dependent. (Riano, Civil Procedure: A Restatement for the Bar, pp. 445-446, 2009 ed.) What is the purpose of an appellants / appellees brief? A: To present to the court in a concise form the points and question in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion/ decision (De Liano v. CA (2006)). If it is the appellant case who does not submit his brief, the appeal is dismissed. If it is the appellee who does not submit his brief, then the court will simply decide the appeal without a brief coming from the appellee. The appellee can choose not to submit a brief. It is the brief of the appellant whose submission or non-submission could lead to the dismissal of the appeal. Although Rule 45 is explicitly saying that only questions of law could be raised in a petition on certiorari, The SC has recognized a number of exceptions. Exceptional issues where the SC allowed the appeal whereas factual issues were raised (see Rule 45). (MEMORIZE at least 5) Exceptions in which factual issues may be resolved by the Supreme Court: (a) When the findings are grounded entirely on speculation, surmises or conjectures ; (b) When the inference made is manifestly mistaken, absurd or impossible; (c) When there is grave abuse of discretion; (d) When the judgment is based on misapprehension of facts; (e) When the findings of facts are conflicting; (f) When in making its findings, the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (g) When the findings are contrary to the trial court; (h) When the findings are conclusions without citation of specific evidence on which they are based ; (i) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (j) When thefindings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, could justify a different conclusion . The following cases allow factual issues to be raised based on SC Circulars: 1. Kalikasan cases 2. Amparo 3. Habeas Data Both factual and legal questions can be raised under Rule 45 in these three situations.

SATISFACTION OF JUDGMENT (RULE 39) SATISFACTION OF A FINAL AND EXECUTORY JUDGMENT. Rule 39 has been described in jurisprudence as the one that gives life to the law. It does so in the sense that the winning party will be able to recover the award given in his favor through the use of Rule 39. So if the civil case is the recovery of money, and the court awards 2M to the prevailing party, the said party will not be satisfied until he sees the 2M given to him. It is not correct to assume that in order to satisfy a judgment, we should always make use of Rule 39. Satisfaction of judgment as conceived in Rule 39 is a forcible satisfaction of judgment. So if the award in favor the judgment creditor is for the payment of the judgment debtor of 2M, the judgment creditor does not even have to think about Rule 39 if the judgment debtor immediately pays the award of 2M. It is only in that situation where the judgment debtor refuses to pay that the only remedy of the judgment creditor to enforce payment is to make use of Rule 39, to force the debtor to pay by levying his properties and by selling his levied properties by public auction. In the ordinary course of things, if there is an appeal from the decision rendered by the trial court, and the case has reached the SC, even if the decision of the trial court has been affirmed, and the said decision of the SC has been entered, it is not correct for the prevailing party to ask for execution from the SC. The matter of execution is a duty of the court of origin, not the appellate court. If the court of origin is the MTC, it is the duty of the MTC to enforce the satisfaction of the judgment. So that,there is an indirect rule between the forcible execution of judgments by the MTC even if the case has been decided by higher courts. This is because higher courts do not usually issue an order for execution of judgment. What a lawyer for the judgment creditor should do is to wait for the records to be returned from the SC or CA to the court of origin. It could take time for the records to be returned to the court of origin. So, if a motion for execution was filed by the judgment creditor in the court of origin before the records are returned, there is likelihood that the court of origin will tell him they have not yet received the records so they cannot act on the motion until the records reach the court of origin. Although, the issuance of an order granting the motion for execution is a ministerial duty of the court. Rule 39 has provided for a remedy in this situation. The appellate court will simply issue a certified true copy of the entry of judgment. That certified true copy will be submitted to the court of origin in order to be a basis of the granting of the order of a motion for execution. That is enough proof that there really is a final and executory decision. Is there a need for the judgment creditor to file a motion for execution, or will the issuance of a writ of execution come as a matter of course? There is always a need to file a motion for execution. If the judgment creditor has not filed a motion for execution, the court has no business a writ of execution, because the court will not know whether there was voluntary satisfaction of judgment. Since the judgment has become final and executory and it has now become a ministerial duty of the court of origin to issue a writ of execution, then the motion for execution will be heard ex parte, without notice to the judgment debtor. This issue has been the subject of conflicting decisions by the SC. The latest jurisprudence said that a motion for execution of a judgment that has become final and executory can be heard ex parte by the trial court. But the other decisions are to the effect that the judgment debtor should also be given a copy of the motion for execution, because the judgment debtor will have grounds to oppose the issuance of the writ of for execution. In the old doctrine, a copy of the motion for execution should be furnished upon the judgment debtor, but the motion cannot be heard ex parte.

Within the Rules, there is a period fixed within which the court can grant a motion for execution as a ministerial duty. It is 5 years from the entry of judgment. After the 5 years from entry, there can be revival of judgment, no longer a motion, as this is an independent action to revive the judgment. But, the independent action to revive judgment must be filed within the second 5-year period after the entry of judgment. The Rules assume that the prescription period for the execution of a judgment is the 10-year period. Is this a correct assumption? This is correct, as this is also provided under the NCC. A prescriptive period of a final and executory judgment is really 1 years under the NCC. But what Rule 39 has provided was to divide the 10 years into two parts : the first five years, and the second five years. Meaning, the first five years, we can execute the judgment via a motion for execution. After the lapse of the first five year period, the judgment creditor cannot file a motion for execution. If he does so, the court will deny the motion as the court

will no longer have the authority to grant the motion of execution. The second 5-year period is designed to force the judgment creditor to file a separate independent action to revive the judgment. So the motion for execution should be filed within the first five years of the 10-year period. Is the first 5-year period strictly implemented by the rules? It is not. It can be extended according to the Rules. The SC has decided that if the institution of the judgment within the first five years is delayed, and the delays are equitable or are attributable solely to the conduct of the judgment debtor, then the 5-year period will be correspondingly be extended, that is equal the delay caused by the conduct of the judgment debtor. Lets say that the judgment creditor filed a motion for execution of the judgment on the 3rd year of the first 5 -year period. The court of origin is an RTC. The judgment debtor received a copy of the motion. After receiving the copy of the motion, the judgment debtor files a petition for the annulment of judgment before the CA under Rule 47 with prayer for a preliminary injunction. And the CA grants the preliminary injunction. Because of the preliminary injunction issued by the CA, we cannot expect the RTC to order the execution of the judgment. It took the CA 2 years to decide upon the petition of the judgment debtor. At the end, the CA orders the dismissal of the petition for annulment of judgment. There is a delay of 2 years. If the 5[-year period has already lapsed due to the delay, another 2 years will be added, the 5-year period will be automatically extended up to 7 years within which the judgment can be executed through the filing of a motion for execution of judgment. That is how the SC described how the first 5-year period and the second 5-year period should be interpreted. It is not a fixed period, it could be extended due to circumstances that might arise in the case there is a delay arising from the conduct of the judgment debtor. It simply means that the judgment debtor can legally delay the execution of the final judgment. In fact, he is even given 2 remedies under the Rules to prevent the execution of a final judgment. Rule 38 is one means of delaying the execution of judgment. In Rule 38, the court that decided the case can issue an injunction against the enforcement of the judgment. Rule 47 is another remedy for the judgment debtor, as long as in the petition for the annulment of judgment, there is a corresponding preliminary injunction that is issued by the higher court. In annulment of judgment, the court that will try the case will always be a higher court. Thus, if the higher court hearing the petition issues an order to stop the execution of the judgment (preliminary injunction), there is no way for the court of origin to disobey such order. If the motion for execution is granted, which is expected, as the judgment has become final and executory, can the judgment debtor file an appeal against the order granting the motion for execution? No. Under Section 1 Rule 41, an order granting motion for execution is not appealable. Also, the order will be treated as a final order. The remedy is to file a petition under Rule 65, a petition for prohibition. Supposed the trial court denies a motion for execution of judgment that has already been entered, is appeal the remedy of a judgment creditor? No, it does not seem so, based also under Section 1 Rule 41. The creditor should also resort to Rule 65. The petition that he should file is a petition for mandamus. Mandamus is proper as there is a ministerial duty for the court to perform. Under Rule 39, as long as the judgment has been entered, it has become a ministerial duty of the court to grant a motion for execution. That is an act that can be compelled by a writ of mandamus. Can the trial court promptly deny a motion for execution of a judgment that has been entered, or can the trial court rightly quash the writ of execution it has issued because the judgment has become final and executory? The general rule is that the trial court cannot quash or rightly deny a motion for execution if the judgment has already been entered. But, there are certain exceptions that the SC has recognized. First is if the judgment sought to be enforced has already been novated. The judgment has become dormant. This means that the execution of the final judgment cannot be granted via a motion for execution. Judgment creditor must avail of the independent action of revival of judgment to revive a dormant judgment. The second is when the parties enter into a compromise agreement after the judgment has become final and executory. If there is a compromise agreement signed by both parties whose terms are not consistent with the award given, the effect being that the award will be novating the judgment. The court will no longer grant a motion for execution of the judgment of the award that has been given in the dispositive portion of the duly entered judgment. The agreement of the parties can

change the terms of the dispositive portion of the judgment. This is an application of novation being a mode of extinguishment of an obligation under the NCC. Q: Is a writ of execution subject to a motion to quash? A: A writ of execution may be quashed on certain grounds: 1. When the writ of execution varies the judgment; 2. When there has been a change in the situation of the parties making the execution inequitable or unjust; 3. When execution is sought to be enforced against a property exempt from execution; 4. When it appears that the controversy has never been submitted to the judgment of the court; 5. When the terms of the judgment are not clear enough and there remains room for interpretation thereof; 6. When it appears that the writ of execution has been improvidently issued; 7. When it appears that the writ of execution is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied or the writ is issued without authority ( Reburiano v. CA, 301 SCRA 342). Suppose within the first 5-year period, the court grants a motion for execution, and then issues a writ of execution. The writ of execution is carried out by virtue of a levy on execution of the properties of the judgment debtor. But the properties levied upon were not sold during the first 5-year period. On the 6th year, can the properties levied upon be sold at public auction? Yes. According to the SC, the 1st 5-year period does not require that the execution of the judgment, the actual levy and the sale of the property on public auction must be done within the first 5 years. What is important is that within the first 5 years, there must be an actual levy of the properties of the judgment debtor, even if the auction sale was conducted in the 6th year. Levy is the actual act of carrying out the judgment. In another case, in year 7 of the 10-year period, the judgment creditor who neglected to file a motion for execution filed a motion for execution in year 7. When the judgment creditor served a copy of the motion to the judgment debtor, the judgment creditor convinced the judgment debtor not to oppose the granting the motion. The judgment debtor, accommodating the judgment creditor, even filed his position paper stating that he is not objecting to the granting of the motion of execution. Due to such manifestation by the judgment debtor, although it was already year 7, the court granted the motion for execution. The writ was issued, and the properties of the judgment debtor were levied upon. It was at this point that the judgment debtor challenged the validity of the levying of his properties by way of a motion for execution beyond the first 5-year period. The SC sustained the stand of the judgment debtor. The SC said that after the first 5-year period, the court loses jurisdiction to execute the judgment through a mere motion. The fact that the judgment debtor did not oppose the said motion does not matter because the issue now is one of jurisdiction. Jurisdiction will not be vested upon the court simply by inaction on the part of a party. Thus, the proceedings taken by the court in granting the motion for execution beyond the first 5-year period was held to be irregular, it will be void. The issuance of the writ of execution will also be void, and therefore the writ can be quashed for lack of jurisdiction. With respect to the revival mentioned in the Rules pertaining to the 2nd 5-year period, this is an independent action. Since this is an independent action, if the original action was a real action, but this is now simply a revival, can we still consider the revival action still as a real action? The SC held yes. If the original action is a real action, the action to revive that judgment will also be a real action. And therefore, the venue in Rule 4 will still be followed. In Rule 4, the venue will be determined by the place where the property is located. Thus, the revival of action will be field in the court having jurisdiction over the place where the property is situated. The case will be cognizable by the RTC because it is incapable of pecuniary estimation.

REVIVAL OF JUDGMENT UNDER RULE 39 There is another revival of judgment, this time under Section 34 Rule 39. 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 reserved 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. The revival of judgment in Section 34 Rule 39 is not the revival of a dormant judgment, but refers to a judgment already executed. The situation contemplated in Section 34 Rule 39 is that judgment is executed, properties are levied upon, and these properties have been sold at public auction, but the highest bidder,or anybody who thereafter acquire the property, is not able to get possession of the property because of opposition or legal complications that are related to the execution of judgment. According to Section 34, the revival of judgment could be had through a motion or through an independent action. Thus, there is a difference between a revival of judgment under Section 34 Rule 39 where it is a revival of a judgment already executed via a motion or via an independent action, and the revival of a dormant judgment where there has been no execution within the first 5-year period prescriptive period of a judgment under Section 6 Rule 39. Take note of the differences between the two kinds of revival of judgments in Rule 39, under Section 6 and Section 34. The improvement given by Rule 39 under the 1997 Rules, insofar as the judgment creditor is concerned, is that under the present Rules, the writ of execution issued by the court has a life of 5 years. So, the judgment creditor does not need to file one motion for execution after another, which was the prior practice when the life of the writ of execution was 60 days. At any time during that 5-year period, the sheriff could enforce the writ, he may make levy the properties of the judgment debtor. The only limitation imposed by the Rules is that the sheriff must file periodic reports to the court as to the progress of the process of execution. How does the court enforce a duly entered judgment? Through the granting of a motion for execution and through the issuance of a writ of execution. It all depends on the tenor of the judgment. If the judgment awards money, there will be a levy of properties. If the award involves delivery of properties or documents, there will be no levy on execution of properties, the property to be delivered will just be seized from the judgment debtor, and there is a delivery of possession to the judgment creditor. If the judgment directs the judgment debtor to sign a deed of conveyance or a deed of sale in favor of the judgment creditor, and the judgment debtor refuses, the court can appoint another person, usually the clerk of court, to sign the document on behalf of the judgment debtor. That document cannot be considered a spurious document, but one that is signed effectively by the judgment debtor following a lawful order of the court. If the judgment directs the judgment debtor to vacate a piece of land or building, the court, through the sheriff, will forcibly oust him from the building. The court will throw out the things belonging to the occupants. In a writ of execution, the writ will be directed to the sheriff. But the writ will contain verbatim the dispositive portion of the decision. The writ of execution directs the sheriff to carry out the duty of executing the dispositive portion of the judgment of execution. Can the court cite a judgment debtor for refusing to obey a lawful order of the court in compliance with the judgment to be executed? No. Citation for contempt is generally not a remedy in enforcing a judgment in Rule 39. This is because Rule 39 contemplates enforcement of a judgment by the sheriff of the court making use of the processes in Rule 39. So if the judgment debtor refuses to obey, a court cannot go to another court to cite the judgment debtor in contempt. That is not contempt of court. This is because, according to the SC, the writ is not addressed to the judgment debtor. The writ is addressed to the sheriff of the court, and hence the sheriff has the duty to carry out the dispositive portion of the judgment. Can there be contempt in collection of money cases by way of exception? Generally, no, but it can be had in support cases. Failure to give support can result with the disobeying person being cited in contempt, as well as being subjected to a criminal case for failure to give support.

Generally, a judgment debtor who refuses to obey the writ of execution cannot be cited in contempt. There are other more effective remedies under Rule 39 in order to carry out the possible satisfaction of the judgment. The more effective remedy under Rule 39 is to levy the properties of the judgment debtor, seizure thereof and sell them at public auction. Levy of properties under Rule 39 does not automatically mean that possession of the levied properties will be in the hands of the sheriff or the court. If properties of the judgment debtor that are levied upon are real properties, the judgment debtor will have continued possession thereof, he will not be ousted. The court will simply submit a copy of the levy of execution to the RoD and ask the RoD to annotate the fact that the real property is subject to a lien via a levy on execution. What is important to know in the levy of real properties is that the judgment debtor will not be ousted from his physical possession of the real property. He will continue to be in possession of the real property although it is already subject of a levy. But when the property levied upon is personal property, that is, where the physical possession of the property will be turned over to the sheriff. In fact, the properties will literally be placed in custodia legis. What happens after the levy is implemented by the court? Levy of properties under Rule 39 should always be followed by sale by public auction. We will not have an execution if we stop at levying of properties. The levy must always be accompanied by a sale by auction. If there is only a levy without a sale by auction, then that levy can be nullified by the court. It is the duty of the court to see to it that an actual levy of properties should be followed by a public auction sale. Under Rule 39 and under certain special laws, there are certain properties of a judgment debtor that is exempt from levy. If the property of the debtor that is exempt from execution is levied upon, the levy is void, nor the sale of such levied items be valid. If the levy is void, the sale thereof is also be void. The validity of an auction sale shall always stem from the validity of a prior levy. Even if there is valid levy, but if there are requirements not complied with before, during or after auction sale, the sale willbe void, and the buyer will not acquire title to the property sold.

THIRD PARTY CLAIM ON PROPERTY LEVIED UPON FOR PURPOSE OF EXECUTION The principles in Rule 39 and Rule 16 are practically identical. Terceria is predicated on the premise that the property levied upon by the sheriff for the purpose of executing of the duly entered judgment does not belong to the judgment debtor. (Terceria is a 3rd party claim filed with the sheriff.) If the property levied upon belongs to another person, the levy is not valid. The levy not being valid, the sale is not valid. Rule 39 expects that the property levied upon by the sheriff belongs to a judgment debtor, because Rule 39 is for the satisfaction of a judgment against a judgment debtor. If the sheriff makes a levy on properties which do not belong to the judgment debtor, you can expect the true owner to complain. Such owner can file a complaint for the recovery of the real property from the sheriff. The filing of such complaint of the owner is just one of the several remedies which the owner can avail of. In Rule 39, the remedy refers to the filing of a 3rd party claim (Terceria). The other remedies which are expressly acknowledged in Section 16 Rule 39. What are the remedies available to a third-party claimant in levy of real property? A: 1. Summary hearing before the court which authorized the execution; 2. Terceria or third party claim filed with the sheriff; 3. Action for damages on the bond posted by judgment creditors; or 4. Independent reinvindicatory action. (Sec. 16, Rule 39) The remedies are cumulative and may be resorted to by the third party claimant independently of or separately from the others. Note: The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if there is a bond filed by the winning party. If there is no bond, the sale cannot proceed. However, the judgment obligee can

claim damages against a third-party claimant who filed a frivolous or plainly spurious claim, and such judgment obligee can institute proceedings therefor in the same or separate action (Sec. 16, Rule 39). Replevin remedy of the true owner of the personal property if it was improperly levied and sold If the property is a real property, the true owner/3rd party claimant can file an independent action to prevent the sheriff from selling the property. The 3rd party claimant, under Section 16 Rule 39, can make use of these remedies successively. Thus, if he was unsuccessful in recovering the property under one remedy, he can make use of the other remedies. The easiest and most practical remedy available right away to the 3rd party claimant is a Third Party Claim. It does not require the filing of a complaint, just the submission of an affidavit to the sheriff and to the court, setting forth his ownership and entitlement to the possession, and that the property should not be levied upon as this is not a property of the judgment debtor. Evidence appurtenant thereto must be attached. Can the court render a judgment that will tell the sheriff that the property is not the third party claimants but that of the judgment debtor? No. The third party claim is an incident to the execution process, the trial proceedings are over insofar the court is concerned. The court has no power to resolve an issue of ownership involving the property levied upon. It should be threshed out in a separate complaint. Regardless of a finding by the execution court that the true owner is the judgment debtor, that will have no bearing on the third party claimant. That order will not be entered, it will not be considered a judgment on the merits and will not constitute res judicata insofar as a 3rd party claimant. If at all, the consequence of the finding of the court is that the sheriff can go ahead with the sale of the property. If the sheriff schedules the sale, can third party file an independent action to stop the sale of real property? Yes, he can file the complaint in another court, RTC, for injunction with claims for damages, if any. If property levied upon is a personal property of a 3rd party claimant, can 3rd party file complaint for replevin? Yes. The claimant must implead the sheriff and the judgment creditor (prevailing party). If the executing court is an RTC, and 3rd party claimant files a case for replevin, can he file it in the MTC? Yes, as replevin is cognizable by the MTC depending upon the value of the thing subject to the auction sale. Is this interference with the other court? Can the sheriff in the other court claim that the seizure is interfering with the proceedings of the other court? No. The sheriff of the MTC can seize the personal property from the sheriff of the other court. Cannot the sheriff of the MTC capitalize on the provisions of Rule 60 on replevin that the writ of replevin cannot be enforced when the property is subject to attachment? If you go to Rule 60, it is really a requisite in the issuance of a writ of replevin. The issuing court can issue a writ of replevin validly if the property to be seized is not under custodia legis, not under a levy of execution or attachment. If the property is subject of a levy on execution, it is under custodia legis. But notwithstanding that provision in Rule 60, the SC said that a writ of replevin issued by the MTC will prevail over the levy on execution writ by the sheriff, because the writ of execution by the sheriff is void. What is required under Rule 60 to is that a property should be under custodia legis to prevent enforcement of a writ of replevin, it assumes that there was a prior VALID LEVY ON EXECUTION. For a property to be validly levied upon, the property must be owned by the judgment debtor. Otherwise, the levy is void. Therefore, the property can be the subject of a seizure by another sheriff in compliance with a writ of replevin issued by another court, even if it is an MTC. It is proper for the MTC to issue a writ of preliminary mandatory injunction directed against the sheriff to prevent the sheriff from going ahead with the sale.

In Rule 39, if the property of judgment debtor has been subjected to levy on execution, can it be subjected to another levy on execution? Yes. If there are several cases where the property is subject to levy, it is possible the same property can be subject to levy on execution. The debtor remains to be the owner of the land, and the levy creates a lien only over the property. The first levy annotated on the title of the property shall be superior to the subsequent levies following the principle of seniority. The SC has held that if the property is the subject of different levies, and the judgment debtor sells the property, the sale is valid, as the judgment debtor is still the owner of the property at the time of the sale. But the buyer must respect the annotations of levies in the title as to the liens imposed. So, if the property is sold at public auction sale later on in execution of the first judgment, the person who bought it from the judgment debtor stands to lose the property. Buyer is not considered a buyer in good faith due to the said annotation of the levies in the title. If the property was mortgaged to a bank that is still existing, can the sheriff subsequently levy the property? Yes, as the levy will not affect the ownership of the property by the judgment debtor. It only creates a lien. He loses ownership if there was a public auction sale thereon. But ownership shall not immediately be lost, so long as judgment debtor still has the right of redemption. If in cases where there are two different levies over the same piece of land of the judgment debtor, usually, the property will be sold as a result of the first levy of the property. If the property is later on sold at public auction, and as the law gives to the judgment the right of redemption, this right of redemption will also be enjoyed by the buyer. Rule 39 in defining the redemptioner names a judgment debtor, his successors in interest or any creditor who holds another levy or lien subsequent to that of the levying creditor who has caused the sale of the property. The right of the first levy holder to redeem is distinct right from the 2nd levy holder to redeem the property. If it is the 2nd holder who redeems the property, there could be another redemption by the first judgment debtor. Under Rule 39, when it is the judgment debtorwho redeems the property from the highest bidder, other rights of redemption are cut off by virtue of the redemption by the judgment debtor. So we can speak of successive redemptions only if the redemptioner is not the judgment debtor himself. If the one who redeems the property is another lien holder, we can apply the rule of successive redemption which says that another redemption can be had within 60 days from the efficacy of the first redemption, even if the 1-year period for redemption has already expired. For example, there are 3 redemptioners, one being the judgment debtor. If the redemption is carried out by the judgment debtor, the rights of redemption of the other 2 are cut off. Redemption for all of them is 1 year from the registration of the sale in the certificate of title. So we have to assume that a redemption made should be within 1 year of the registration of the certificate of sale in the certificate of title. If the 2nd levy holder redeems the property, then the 3rd levy holder can also further redeem the property within 60 days of the last redemption. But within the 1-year period, the judgment debtor can redeem the property, who upon his exercise of his right of redemption, the rights of the others to redeem will be cut off. Will this not cause prejudice to the other levy holders if we cut off the right to redemption? No, it will not. The levy holders will simply enforce their levy since the property in in the hands of the judgment debtor. They can have another public auction sale of that levied property. In civil law, as well as in Rule 39, the SC has accepted the principle that whenever there is a doubt in the interpretation of redemption rules and laws, the interpretation should always be in favor of the redemptioner, the judgment debtor. Rule 39 is also very clear in saying that right of redemption will exist only when the property sold at public auction is a real property. When the property levied upon and sold at public auction is a personal property, there is no right of redemption. SC has come up with these principles that are applicable to redemption of real property and principles applicable because there is no redemption allowed in personal property: 1.Personal property is sold in auction, and the price generated is inequitably low, the sale is void.The highest bidder does not acquire ownership of the property. The court will issue an order declaring the sale as ineffectual. Sheriff must schedule another auction sale until the price generated is not inequitably low.

2.Real property is sold at publicauction,it does not matter as to price even if inequitably low, the sale will be valid. The low price will not render the sale void because of the existence of the right to redeem by the judgment debtor. If the price is very low, that is advantageous to the judgment debtor, because if he decides to redeem the property, he need only to match the auction sale price. Due to the above principle, there could arise a situation where the levy and public auction sale of a real property would result that the price generated will be insufficient to pay the lien of the judgment creditor. Let us say that the judgment creditor has a lien of 1M, and a piece of land owned by the judgment debtor was sold at public auction, but generated only 500K. It is not enough to pay in full the award given to the judgment creditor. The 500k will go to the judgment creditor, but there is still a residue of 500k. When the judgment debtor redeems the property, should he deliver to the sheriff 500k or 1M? The judgment debtor should deliver only 500k. He need not deliver 1M because the price paid by the highest bidder was only 500k. So, if the judgment debtor was able to redeem the property by producing 500k, but the judgment creditor was not yet fully paid, the judgment creditor will be tempted to have another levy on the property. The judgment creditor could really entertain that idea because he has not yet been fully paid. In Rule 39, there must be full satisfaction of the award to put an end to the litigation. If the judgment creditor decides to have another levy on the same property previously levied upon, but the property had been redeemed by the judgment debtor, can the same levying creditor carry out another levy on the same property? SC held that in this situation, the same levying creditor cannot impose another levy on the same property. If the levying creditor wants to have full satisfaction of his lien, he should make another lien on another property owned by the judgment debtor. Or, he could avail of the other remedies provided for in Rule 39 if he cannot get full satisfaction of the judgment. 3. If there is still a residue on the lien of the judgment creditor, he can levy other properties owned by the judgment debtor, but the judgment creditor cannot levy the same property that the judgment debtor has redeemed. This principle does not prevent other creditors from levying the property that was already redeemed.

With respect to the issue as to who is entitled to the fruits earned during the pendency of the levy and during the 1-year period of redemption, Rule 39 settled that issue. The fruits of the property sold at public auction during the period of redemption shall redound to the benefit of the judgment debtor when the redemption period is still running. The basis is that the judgment debtor retains ownership of the property while the period of redemption is still running. If the judgment debtor is unable to redeem the property within the period of redemption, then the title will be consolidated in favor of the highest bidder. Q: What are the rights of a judgment debtor during the period of redemption? A: 1. To remain in possession of the property until the expiration of period of redemption; 2. To collect rents and profits until the expiration of period of redemption (Sec. 32); 3. To use the property in the same manner it was previously used; 4. To make necessary repairs; and 5. Use it in the ordinary course of husbandry (Sec. 31).

In the auction sale, anybody can bid, even the judgment creditor. It is usually the judgment creditor who will be offering the highest bid because the judgment creditor can give an amount equivalent to the award given by the court. If the award given by the court is 1M, then the judgment creditor can give an amount as high as 1M. He need not turn over any cash to the sheriff, because he will just tell the sheriff that he will consider the 1M lien as fulfillment of his claim. Whereas if a stranger is the highest bidder, this stranger is expected to give the 1M to the sheriff.

Can the judgment creditor be forced to shell out the equivalent of the highest bid even if the highest bid is exactly equivalent to the amount of his claim? Generally, no. But if there is a 3rd party claim, a terceria, and the highest bid was that of the judgment creditor, the judgment creditor must still shell out cash in order to be treated by the sheriff and the court as the highest bidder. If the judgment creditor is not fully paid, there are other options given in the rules in order to fully satisfy the claim: 1. File a motion in the court for an examination of the judgment debtor. 2. File a motion in the executing court for the examination of a debtor of the judgment debtor. 3. File a motion for the appointment of a receiver for the remaining properties of the judgment debtor. A receiver is one of the provisional remedies in the RoC. Receivership is allowed by the court, although the case has already been terminated, being already in the execution stage of the judgment. This is one instance where a provisional remedy can be used even after a case has been decided by the court. The usual concept of a provisional remedy is that they are availed of during the pendency of the case, before entry of judgment. But in the case of receivership, this remedy can be availed of under Rule 39 even if the case has already been decided, the judgment has been entered and is now subject to execution.

THE PRINCIPLE OF RES JUDICATA Res judicata under Section 39 consists of 2 sections, Sections 47 and 48. Section 47 is concerned with the effect of local judgment after it is entered, and Section 48 is the effect of a foreign judgments. In our study of res judicata, there are 3 essential elements: 1. identity of parties 2. identity of causes of action 3. identity of subject matter The effect of res judicata under section 47 depends upon the nature of the action: Judgment in rem (letter a of Section 47) Judgment in personam (letter b Section 47) Conclusiveness of judgment (letter c Section 47) Rule 39SEC. 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 of 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)

Conclusiveness of judgment Letter a and b speaks of conclusiveness in both instances. In letter a, the law says the judgment is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person. In letter b, the law says the judgment is 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. This is the reason why a cadastral proceeding is considered as an action in rem, because the judgment in that litigation is conclusive upon the title, it is not conclusive upon the plaintiff or defendant. Since the judgment in a cadastral proceeding is conclusive upon the title of the property, that judgment will have to be binding against the litigants as well as anybody who has an interest over the property, although these persons might have not been involved in the litigation. In the probate of a will, which is another procedure in rem, when there is a decision of the court admitting the will to probate, it is conclusive upon the will or administration. Therefore, anybody who have an interest in the will must respect the decision of the court. But you will notice that there is a caveat when it comes to a probate of a will: it is not conclusive as to the fact that the testator is dead. There is only a disputable presumption, unless proof thereof is presented. The reason for this is that in civil law as well as in the Rules, the probate of the will can be commenced even when the testator is still alive, provided that it is initiated by the testator himself.

If a person has been issued a decree of adoption of a child named Juan dela Cruz, the decree is conclusive upon the personal status of that adoptee. Therefore, anyone who meets the adoptee and transacts with him shall be bound by the issued decree of adoption. In letter b, when the law says that judgment is conclusive upon the parties and their successors in interest as to matters directly adjudged or as to matters that could have been adjudged, that phrase litigating for the same thing and under the same title and in the same capacity will refer, for instance, to a compulsory counterclaim or a cross -claim. This is because we learned that a compulsory counterclaim or a cross-claim that is not raised in the same action shall be barred. The reason they will be barred is because they are matters that could have been raised in relation to the principal action. So, in a judgment in personam, the judgment is conclusive only on the matter directly adjudged. An example of an action in personam could be an action involving reconveyance of property. If the action is only an action for reconveyance or an accion reinvindicatoria, it is an action in personam. Although real property is involved, still it is an action in personam. Plaintiff won the case with attachment of property. Judgment is entered. The plaintiff is now the owner of the property insofar as the judgment is concerned. However, X, the true owner of the property, filed a case for recovery of the property. Is there res judicata? No. There is no identity of parties between the first and second case.There also there may be no identity in cause of action, although there is identity in the subject matter to recover. If there is identity in the subject matter, does it not follow that there will be identity in the causes of action? No. That would not be the correct assumption. There could be identity as to the subject matter, but the causes of action could still be different. For instance, in accion reinvindicatoria, the subject matter involves a piece of land. The case involves title to a piece of land. If there was another complaint filed involving the same piece of land, the cause of action could be different, although they are referring to the same land. For instance, there could be a case for unlawful detainer filed involving the same property. Again, though involving the same subject matter, the causes of action for accion reinvindicatoria and unlawful detainer are different. Accion reinvindicatoria involves recovery of title to the property, while unlawful detainer involves recovery of

physical possession of the property. In this case, the second case cannot be dismissed by reason of res judicata as there is no identity of causes of action. General Rule on Res Judicata under Section 47 Rule 39 When the judgment is entered as contemplated in Section 47, Rule 39, then the effect of the judgment is similar to a judgment in rem or judgment in personam. The collateral principle that we adopt from this rule on res judicata is that the judgment that has been entered shall become immutable, it cannot be changed or modified, even by the SC itself. Everybody will have to respect res judicata applicable to this judgment. Exception: 1. Propriety of petition to annul judgment (it is an attempt to change or modify a judgment, one ground being lack of jurisdiction of the court over the subject matter or over the person of the party) 2. Relief from judgment on ground of FAMEN under Rule 38 FGU Insurance Case and a 2007 case In that case, the SC gave 5 instances where a final judgment can be modified or set aside. 1. Clerical errors; 2. Judgment nunc pro tunc; 3. The judgment is void; and 4. When supervening circumstances intervene after finality of judgment to render execution of judgment unjust and inequitable. 5. SC held that it has the inherent power to change and modify final and executory judgments if substantial justice so require. (2007 case) Judgment nunc pro tunc (Now for then) A judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or any material respect.

Conclusiveness of judgment (c) In any other litigation between the same parties of 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 This is a kind of res judicata with limited application. There could be identity of parties and subject matter, but there is no identity of causes of action. Thus, subsequent cases may prosper due to absence of res judicata. The debt based on a promissory note was 1M payable in 2 installments. The debtor defaulted in the 1st installment. The creditor filed a case where creditor stated that the PNs signature was forged. Court held that the signature on the note was genuine. Then, the second installment became due. Can another complaint be had? Yes. Each installment gives rise to a separate cause of action. Can forgery be raised again on the promissory note? No. Judgment on the first case is conclusive insofar as the genuineness of the note is concerned.

Sec. 48 Rule 39Foreign judgments in rem and in personam Judgment in rem conclusive upon the title of the thing; Judgment in personam there isonly the presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. There is a foreign judgment rendered by the Japanese Court. The relief which the creditor stated in the Japanese court is the fulfillment of an unpaid loan of 100k. The Japanese court decides the case in favor of the debtor. The debtor is required to pay the 100k in the Japanese court. The Japanese court had not executed the judgment. But somehow, the debtor and

creditor were now living in the Philippines. The judgment debtor has accumulated certain propertied in the Philippines . Can the judgment creditor in that Japan case file a motion for execution in the Philippine courts? No. The Philippine court cannot entertain the motion as it knows nothing about the claim of the judgment creditor against the judgment debtor in the Japan case. Is there a remedy available to the judgment creditor to enforce the judgment of the Japan court in the Philippines? Yes, the remedy is found in Section 48 (b) Rule 39. The judgment from the Japanese court is a presumptive evidence of the judgment creditors right against the judgment debtor. How does the judgment creditor make use of that rule that the decision of the Japan court is presumptive evidence of his right against the judgment debtor? The creditor should file an independent complaint for the enforcement of the decision of the Japan court. And the only evidence that he needs to convince the court as to the preponderance of evidence needed to prove his right is to present to the Philippine court a certified true copy of the decision rendered by the Japan court. If he is able to present a certified true copy of the decision to the Philippine court, the court will then apply the presumption given under Section 48(b) Rule 39, that the decision of the Japan court is presumptive evidence of the rights between the parties.

In Section 48, there is a last paragraph talking about repelling of a foreign judgment. A judgment of a foreign court can be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact committed by the foreign court.Hence, if the creditor files a case for the enforcement of the decision of the Japan court, the judgment debtor can present evidence that will repel the foreign decision, such as want of jurisdiction over his person. Can theseall grounds repel a local judgment? No. The defenses available for repelling the execution of a foreign judgment is not availing. Why cannot the defendant oppose the execution of a local judgment using the grounds to repel a foreign judgment? We do not allow a motion for execution to be denied on the argument did based on want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact committed by the court because that will be a collateral attack on the judgment, which is generally not allowed under the Rules. We can only allow a direct attack on the judgment by filing a petition to annul that judgment, on the ground of lack of jurisdiction over the subject matter, lack of jurisdiction over the person of the defendant or extrinsic fraud. We cannot use these grounds to collaterally attack the judgment in our system. When we say collateral attack, the person attacking the judgment does not file a separate complaint for the purpose of having that judgment set aside. If he only opposes a motion for execution, and the ground is that of lack of jurisdiction over the case, it is not allowed since that is a collateral attack on the judgment. Section 48 allows collateral attacks only against a foreign judgment, which cannot be allowed insofar as local judgments are concerned. With respect to collusion and fraud, they are also grounds to attack directly the judgment under Rule 47 (Annulment of Judgments), and then under Rule 38 (Petition for Relief from Judgments). What cannot be done under our system is a collateral attack against a final and executory judgment. When can a collateral attack be had against a judgment? When the judgment is patently void on its face, it is vulnerable to collateral attacks. Ex. The judgment contains only the dispositive portion. This kind of judgment is void on its face. (Shimizu vs. Magsalin)

PETITION TO REVIVE JUDGMENT - It is an independent action available to a judgment creditor who has not executed the case via a motion in the first 5 years from entry of judgment; Within the 2nd 5-year period from entry of judgment, the judgment debtor cannot oppose an action to revive judgment by setting up the defense that the judgment is void due to lack of jurisdiction over the person of the defendant, as this is a collateral attack on the judgment rendered. If the ground that the judgment is void is used as a defense other than an independent complaint for annulment of judgment, that is a collateral attack on the judgment.

PROVISIONAL REMEDIES - Also called as Interim relief and provisional order Q: What are the Provisional Remedies under the Rules of Court? A: 1. Preliminary Attachment (Rule 57) 2. Preliminary Injunction (Rule 58) 3. Receivership (Rule 59) 4. Replevin (Rule 60) 5. Support Pendente Lite (Rule 61) Q: What are the Other Provisional Remedies available? A: 1. Temporary custody over a minor 2. Deposit in Actions for Annulment of Sale (Reyes v. Lim) 3. Restraining order against the accused in cases of violence among immediate family members living in the same domicile and household 4. Hold departure orders issued by Regional Trial Courts in criminal cases 5. Interim reliefs under Writ of Amparo: a. Temporary Protection Order b. Witness Protection Order c. Inspection Order d. Production Order (Riano, Civil Procedure: A Restatement for the Bar, p. 534-536, 2009 ed.) Rule 57 to Rule 61 as well as Separate circulars of the SC on WHD and WA. Writ of Habeas Data under certain circumstances, it functions as a provisional remedy Writ of Amparo under certain circumstances, it functions as a provisional remedy Amparo ProvisionalRemedies Protection order Production Order Witness Protection Order Inspection Order Writ of Amparo Writ of Habeas Data

Provisional Remedies in Marriage-Related Cases: Spousal support Child support Visitation Temporary Custody of minor/s Hold Departure Order Protection order Appointment of administrator of co-owned propertied of spouses (owned in common or forming part of the conjugal partnership of gains) Writ of Kalikasan Temporary Environmental Protection Order (TEPO) Discovery measures that appears to be considered as provisional remedies:

Ocular Inspection Order Production order Writ of Amparo Writ of Habeas Data Writ of Kalikasan

Common element: There is a pending principal action, except when the provisional remedy by itself is or can be treated as a principal action, such as Replevin, Writ of Amparo and Writ of Habeas Data. We cannot file an independent action solely for the purpose of obtaining as a principal relief any of these provisional remedies. Example, a creditor cannot file a case solely for the purpose of obtaining a preliminary attachment. Preliminary attachment should be a relief prayed for in an independent case. Note: Rule 57 Preliminary Attachment is a provisional remedy because of the word preliminary. Final attachment is not a provisional remedy. It is now part of the execution process under Rule 39. Note: Levy on execution refers to levy on final attachment. But we use the term levy on execution to differentiate it on levy on attachment. Levy on attachment is a provisional remedy. The enumeration of provisional remedies in the rules is no longer exclusive. The new rules/circulars issued by the SC used the following terms: 1. Provisional Order related to marriage-related cases 2. Interim Relief Amparo 3. Provisional Order or Provisional Remedy - Kalikasan Provisional remedies cannot be the principal action itself, subject to the exception of Replevin. Provisional remedy of a writ of replevin is an application for recovery of personal property in the main case. Support pendente lite cannot be a principal action, as the principal action should be a complaint for support, with application of the provisional remedy of support pendente lite. Writ of Amparo and Writ of Habeas Data are actions in themselves, but are treated as provisional remedies. If there is a criminal case already filed involving the disappearance of a person, that criminal action being the principal case, there can be an application for a writ of Amparo or a writ of Habeas Data as a provisional remedy.

In the circular of Kalikasan, Production and inspection orders, formerly modes of discovery, were elevated as provisional remedies in Amparo and Kalikasan writs. Also included were TEPO, preliminary attachment, ocular inspection order, cease and desist order (Sec. 15a) and production and inspection order. In these new circulars, the SC has elevated several Modes of Discovery as provisional remedies like production of documents and inspection of things, they are now treated as provisional remedies. The Kalikasan court can issue a production and inspection order or an ocular inspection order.

The same is true with the Amparo circular. There is a production order and inspection order, although they are substantially of the same nature of the production and inspection in the Modes of Discovery. Although we have several provisional reliefs, interim reliefs or provisional orders, it is incorrect to assume that there are commonalities. These different circulars have not adopted the provisions in the Rules (Rules 57 up to 61). If you will notice under Rules 57 to 61, one of the common requirementsis the posting of bond by the applicant (except support pendente lite). We have an attachment bond, receivers bond, production bond, and the like. But in the circular on marriage-related cases, the family court can grant these provisional orders with or without bond at the discretion of the family court. Also, in the same circular, the family courtcan grant these provisional orders with or without a hearing, which is similar to some provision in the Rules that some remedies can be granted ex parte, or some provisional remedies require a summary hearing before issuance.

In the Amparo circular, when it comes to the provisional relief of a PO and IO, there must be a motion filed by the applicant and a must be hearing conducted. In the case of WPO and PO,they can be issued ex parte. In the Amparo circular, there is nothing mentioned about the posting of a bond by the applicant. This is similar to that in circular on marriage-related cases, where no bond is required In the circular for the Writ of Kalikasan, the issuance of Temporary Environmental Protection Order does not require a bond. Just like preliminary injunction, there can be TRO good for 72 hours, but can be extended until the end of the case. What is peculiar is that the party required to post a bond in a TEPO is not the applicant but the adverse party who will apply the lifting of the TEPO.When the adverse party moves for the lifting of the TEPO, the adverse party is required to file a bond to protect the other party. In most preliminary reliefs, it is the applicant who files a bond. The filing of a counterbond will lift the preliminary relief. The same is true with a TEPO. But the applicant does not have to file a bond. If the TEPO is issued, the adverse party wants to have the bond lifted, then he will be required to post a bond to protect the interest of the applicants. Another rule of interim relief or provisional remedies that is applicable to the issuance of the interim reliefs is that the interim relief or provisional order is always interlocutory, it is not a final order and has nothing to do with the merits of the case. Appeal is not allowed. The accepted remedy to challenge the issuance of a provisional remedy or interim relief or a provisional order is Rule 65, but in some circulars, that has also been changed substantially. For instance, in summary procedure, in cases in the MTC, when it grants a provisional order, it is not appealable, and the adverse party cannot file a petition under Rule 65. The reason is that the application of availment of Rule 65 in order to challenge an interlocutory order is prohibited under summary proceedings. Likewise in Amparo, there is a similar provision stating that grant of provisional order is interlocutory, and Rule 65 is not available, being an expressly prohibited pleading (See Section 11l of the The Rule on The Writ of Amparo). In the circular of Kalikasan, the issuance of TEPO is also interlocutory. Although it can be challenged, the problem is the challenge on a TEPO can only be filed before the SC under Rule 65.It is only the SC that can entertain a petition assailing the issuance of a TEPO. So, do not be of the impression that all of these remedies being provisional in character, they are governed by the same set of rules. They are governed by a different set of rules, depending upon the circular of the SC applicable to each one of them. With respect to the authority of the MTC being able to grant interim relief, it has been settled under BP 129. Under Sec. 33 of BP 129, it is clearly provided therein that MTCs have authority to grant provisional remedies so long as it has jurisdiction over the principal case.In case of support pendente lite, there could be instances where MTC can grant for support pendente lite, but we must keep in mind that so long as that principal case is cognizable by the MTC, support as a provisional remedy can be had.

PRELIMINARY ATTACHMENT Rule 57. SECTION 1. Grounds upon which attachment may issue.At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.

You will notice in Section 1 that there are 6 instances where one can file for the relief of preliminary attachment. In the first five, there is a common denominator, intent to defraud the applicant. The last is closely related to Rule 14 (Summons), in gaining jurisdiction over the person of the party. The applicant is moving for an interim relief in order to enable him to secure for himself a judgment in court by attachment of the properties of the party who could not be served with summons in any manner, including by publication. When the property of the absent party is attached, the action in personam will be converted to an action in rem or quasi in rem by virtue of a preliminary attachment issued by the court and actually implemented by the sheriff. Except for the last part of Section 1, the only purpose of the applicant in moving for the issuance of a writ of preliminary attachment is to enable him to obtain a security for any judgment that may be rendered later on by the trial court in his favor. If we will note in the cases enumerated in Section 1, mainly, the conduct of the adverse party is criminal in character. It is a common saying in preliminary attachment that the fraud committed could be a criminal fraud or wholly a civil fraud (an act of fraud that has not reached the level of a crime) that will justify issuance of preliminary attachment. The conduct should fall in any one of the instances under Section 1 of Rule 57. Thus, the issuance of a bouncing check can cause the filing of an information as well as an application for attachment of properties of the drawer. There is fraud in the performance of an obligation. In the NCC, if there is fraud in performance of an obligation (dolo incidente), or a fraud in contracting (dolo causante, a deception employed by one party prior to or simultaneous to the contract in order to secure the consent of the other). In both instances, they are justification for the issuance of preliminary relief. Supposing the plaintiff has a creditor that holds collateral. If there is default in payment of indebtedness, and there is a case of collection with allegation of intent to defraud, can the creditor move for preliminary attachment over the collateral? Yes. Although applicant may have a security already in hand, the court may still grant such preliminary attachment if the applicant proves such collateral/security is insufficient to satisfy the debt. Thus, creditor can look for other properties of the debtor sufficient to secure the obligation due once the court grants preliminary attachment.

In preliminary attachment, there are 2 rules that are applicable to preliminary attachment as well as other provisional remedies in the Rules when they are granted ex parte: 1. Prior and/or contemporaneous service of summons 2. Principle under Section 20 Rule 57 Prior and/or contemporaneous service of summons there is an application filed after the commencement of the action, and even before the court acquires jurisdiction over the person of the defendant via summons, the court may already have approved the application for attachment. For a court to act validly, the court must acquire jurisdiction over the cause of action, the person of the plaintiff and the person of the defendant. This remedy is available even before jurisdiction over the defendant can be had via a verified application for preliminary attachment filed by the plaintiff. But, issuance of preliminary attachment at pre-stage proceeding requires a hearing and the court will require theposting of an attachment bond before the writ is issued; as long as all the conditions have been met, there is only the carrying out the writ. The sheriff must first serve the summons and then the notice of attachment, or serve them contemporaneously. This will remedy the lack of jurisdiction by the court over the person of the defendant.This is applicable in all provisional remedies that the court can grant ex parte even before the court has gained jurisdiction over the person of the defendant. This can be applied in preliminary injunction and in preliminary relief of replevin. Since preliminary attachment, if carried out, is a derogation on the right of ownership of the adverse party, the rule on attachment should be strictly construed in order to protect the right of ownership of the adverse party. If the properties of the defendant are going to be subject to attachment, and these properties are those capable of delivery, like a car, they will be seized in custodia legis so long as the preliminary attachment is not lifted. But the property will not be delivered to the plaintiff, nor used by the defendant. It will be in the custody of the court. If the court takes 3 years to decide the case, the property will be under custody of the court for 3 years. In case of real property, the title will be annotated with a lien. He does not lose ownership. He can sell it, but the buyer will be notified via the annotation on the title, and he must recognize that fact, that the property can be subject to auction sale later on. The buyer could stand to lose his title on the property. The buyer cannot be considered a buyer in good faith. He will always be a buyer with notice of the existence of the preliminary attachment. If the defendant has a sizable bank account, the sheriff will simply prepare a writ of garnishment and serve it upon the bank. When the bank receives the writ, the bank will freeze the account up to the amount of the claim. And if the bank account is frozen, the defendant cannot use these funds anymore. The bank will not allow him to withdraw. If it is a checking account and the defendant issued checks thereon, the bank will dishonor the checks that are presented to it. Thus, a preliminary attachment is a serious derogation of the rights of ownership of the defendant. In that writ of garnishment, which is also applicable to Rule 39 (Execution of Judgment), there will be a new relationship created as an incident to the case, which we called Forced intervention the judgment debtor/defendant, whether he likes it or not, will be subject to further orders of the court. So if a bank account is garnished, whether the bank likes it or not, the bank will be forced to follow the orders of the court, in the sense that the bank will have to follow the orders of the court after the garnishment of the bank account of the defendant. The remedies under Rule 57 can be lifted. How preliminary attachment is lifted: 1. File a cash deposit with the court equal to the attachment bond or 2. File a counterbond via surety authorized by the court (The filing of such counterbond will make a ministerial duty of the court to lift the preliminary attachment.) 3. Motion for lifting preliminary attachment due to being improper or irregular a motion must be filed by the defendant, with notice of hearing. If the defendant has already posted a counterbond and the preliminary attachment has already lifted. Can he apply for reversal of the order granting preliminary attachment?

Yes. Even if the defendant has caused the lifting of the preliminary attachment by payment of cash deposit or by counterbond, he can still file a motion to lift the preliminary attachment. This is because he has put up counterbond or cash deposit enough to secure the satisfaction of the claim of the plaintiff, and there is no need for the attachment anymore.

Principle under Section 20 Rule 57 SEC. 20. Claim for damages on account of improper, irregular or excessive attachment. An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case. If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court. Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award. In an action where a writ of attachment has been issued by the court, the writ will only be lifted if there is a cash deposit or counterbond filed in the court, and the court will withdraw the order. The court will then decide the merits of the case. If the applicant wins, there is now a judgment on the merits in favor of the applicant. Can the defendant hold the applicant liable for improper or irregular attachment even if he lost the case? Yes. If the applicant eventually wins the case, it means the applicant has a cause of action against the defendant. But, it does not necessarily follow that the cause of action falls under Sec. 1 of Rule 57 . He may not have been able to prove dishonesty or intent to defraud.So, if the applicant failed to prove that his case falls under the cases mentioned in Section 1 of Rule 57, it means that the issuance of the court of the writ of preliminary attachment was irregular and improper. The only instance the court should grant preliminary attachment are the instances mentioned in Sec. 1 Rule 57. If the defendant wins the case, the applicant shall be liable for damages as a matter of course. But Section 20 is the procedure to be followed in rendering the applicant liable for damages for a wrongful or improper issuance of a writ of preliminary attachment. Note:If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award: Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. 9, Rule 59; Sec. 10, Rule 60). Note: Any award of damages for the wrongful issuance of a provisional remedy should be recovered in the same case. The recovery of damages cannot be had in a separate action. The first principle under Section 20 Rule 57 is that the recovery of damages should be had in the same case, not in an independent action. Adverse party must already submit an application for damages for improper issuance of writ of preliminary attachment. The most practical way of informing the court right away is to set up in his answer a compulsory counterclaim for recovery of damages.If the defendant did set up a counterclaim for recovery of damages, and then the defendant eventually wins, he will just file an application through a motion to conduct a hearing on the extent of liability to which the defendant is entitled to recover. What Rule 57 tells us is that it is not possible for the defendant who has won the case to file a separate complaint for recovery of damages arising out of a wrongful attachment. If he did so, that independent case will be dismissed, even motu propio by the court, due to res judicata.

In Section 20, Rule 57, it is very clear that the extent of damages to be recovered need not be equivalent to the attachment bond filed in court. Sec. 20 Rule 57 provides that if the attachment bond is insufficient, there could be an availment of a levy of execution under Rule 39 by the defendant. (This section is similar to other provisional remedies in the Rules) Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award. Thus, the defendant can ask for a writ of execution against the applicant under Rule 39. There can now be a levy on execution against the applicant. Remember that Rule 20 is a provision that is followed by other provisional remedies where there is a bond required (preliminary injunction, receivership and replevin) before the court will issue the preliminary relief prayed for.

RULE 58 PRELIMINARY INJUNCTION (PI) The principal action could be any action coupled with an application for a TRO or a writ of Preliminary Injunction. A special action for certiorari under Rule 65 is usually accompanied by a verified application for TRO and writ for PI. The relief usually asked for in Rule 65 is for a writ to prevent or prohibit the respondent court from going ahead with the case pending before the court, or in case of a certiorari, to set aside the decision or interlocutory order of the respondent court. Preliminary injunction and TRO can be availed of in any civil proceeding where the principal relief sought by the applicant or petitioner is to prevent an act or compel performance of an act. PI can also be had in criminal cases or special proceedings, as long the principal relief is to compel or to prevent the performance of an act. In PI, there are 2 provisional remedies contemplated: 1. TRO 2. Writ of Preliminary Injunction Both require an injunction bond. TRO, in exceptional cases, can be granted ex parte. A bond must be paid. Generally, a court cannot grant TRO without a hearing.When there is grave and irreparable injury, The general rule is that a court cannot grant a TRO or a writ of PI without a hearing, unlike preliminary attachment. Always expect a summary hearing, with notice to both parties, to be conducted. TRO can be granted ex parte, by way of exception, in instances when there is grave and irreparable injury that will be caused to the applicant, and in no way shall the total period of the TRO be longer than 20 days. The court will still fix a TRO bond. During the 20-day period, the court will then conduct a hearing to determine whether or not a writ of PI will be needed. (if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury , the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein. 2nd Par. Sec. 5 Rule 58) , PI ABSOLUTELY requires a summary hearing. A court cannot grant a PI without a hearing. There is no exception. It is only in the issuance of a TRO where there is an exception to the general rule where it can be issued ex parte. In multi-sala courts, the executive judge can issue a TRO ex parte, but it shall be good only for 72 hours. And then, in a multi-sala court, what the petitioner files with the court is motion for a special raffle. If granted, there will be such special raffle in the meantime that the executive judge has issued the ex parte TRO. After the raffle is completed, the judge sala in which the action has been assigned has the duty to conduct a hearing to determine whether or not it will have to issue a writ of PI. Do not forget the modifications of the 2007 circular to Rule 58. The modification is that if a court has issued a writ of PI which has no term (not lifted until finally decided or until ordered), the court that issued such writ of PI must decide the principal action within a period of 6 months. This is the modification in the 2007 circular. If the court does not place a limit

of 6 months to decide the principal action, the writ will be effectively be a perpetual injunction, because it is effective until the case has finally been decided. If the court grants the PI today, it has only 6 months within which to decide the case.In deciding the principal case, the court could rule in favor of the plaintiff or defendant. If ruled in favor of the defendant, the PI is automatically lifted, meaning the plaintiff has no right at all to ask for the writ of PI. Although the authority of the court is very broad in the issuance of a writ of PI, there are instances where a court cannot grant a writ of PI or TRO. Instances where a court cannot grant PI or TRO: 1. in the enforcement of Kalikasan statutes (except the SC, as only SC is authorized to issue TRO or PI in Kalikasan cases) 2. if there is a TEPO issued by any court (it is only the SC that can prevent the carrying out of the TEPO) 3. In the case of infrastructure projects of the national government (only the SC that can prevent the carrying out of the project) 4. When it is a government bank that forecloses the mortgage (only the SC that can prevent the carrying out of the foreclosure, either judicial or extra-judicial) 5. court has no authority to grant injunctive relief against the BoC. (violation of separation of powers) 6. court cannot grant injunctive relief against deportation of aliens (violation of separation of powers) If we compare the remedies available to a defendant against whom an injunctive writ has been issued to that of which a Preliminary Attachment has been issued, in Rule 57, in PA, if the adverse part/defendant files with the court a counterbond, the lifting of the PA is ministerial to the court. The properties will be returned. PI cannot be lifted without a hearing despite posting of counterbond. The court cannot rely on the filing of a counterbond to lift the PI, as it has to study the merit of the lifting of the injunction. It is not a matter of right of the adverse party to expect the injunction court to lift the PI just because of the filing of a counterbond. The reason why the Rules do not make it a ministerial duty of the court to lift the PI simply because there is a counterbond is due to the ground of grave and irreparable injury. The injury cannot be measured exactly, there is no mathematical formula to determine extent of damages that applicant can suffer in injunction cases. In Preliminary Injunction (PI) and Preliminary Mandatory Injunction (PMI), we should always relate these to the summary proceedings. Relate these in relation to Forcible Entry and Unlawful Detainer in the NCC. The MTC can grant PA or PMI. The NCC contains some procedures in the matters pertaining to Forcible Entry or Unlawful Detainer. In the NCC, which is copied by Rule 70, it is provided that the court can grant PI or PMI in cases of ejectment. If the MTC grants PI or PMI, that cannot be appealed or challenged by a petition under Rule 65. Under the rule on summary proceedings, Rule 65 is a prohibited pleading in summary proceedings in challenging an interlocutory order. This is the Rule found in Rule 70, as well as in some articles of the NCC. But when that ejectment case is appealed in the RTC, in the exercise of its appellate jurisdiction, the NCC, as well as the Rules, provides that the RTC can grant PMI or PI if applied by the plaintiff/applicant. PI or PMI granted by the RTC as an appellate court remains unappealable as it remains to be interlocutory, but this can now be challenged under Rule 65. This is because summary procedure is in effect while the case is in the MTC, whereason appeal in the RTC, the regular procedure applies, and challenge under Rule 65 is allowed.

RULE 59 RECEIVERSHIP It has a feature not present in other provisional remedies. Provisional remedies are contemplated to be used during the pendency of the case. In receivership, the court can appoint a receiver during pendency of a case. Under the Rules, the court can also appoint a receiver after the judgment or in the process of execution of said judgment. This feature makes this remedy unique. There is no fixed time in which a court can appoint a receiver. Relate this to the remedies of a judgment creditor in Rule 39 when he is unable to recover full satisfaction of his account. Under Rule 39, the judgment creditor can ask for examination of the judgment debtor for any properties. If there are properties present, judgment creditor can apply that such properties be placed in receivership. There has to be a summary hearing, no ex parte appointment of a receiver is allowed.

The grounds for appointment of receiver are quite broad. Whenever the court feels there is a need for the appointment of a receiver to preserve the property in litigation, it shall do so. The Rules also provide in foreclosure of a mortgage, the mortgagee can move for the court to have the mortgaged property placed under receivership, even if there is no proof that the collateral will be lost or deteriorate. This can be done whenever the deed of mortgage contains a stipulation authorizing the mortgagee to move for the appointment of a receiver. But generally, the purpose of receivership is to preserve the property under litigation from loss or deterioration. SC held that the receiver is not a representative of either party. It classified the receiver as a representative and an officer of the court. Thus, thee receiver cannot file a case as a receiver without the consent of the court. If a receiver needs to file a case to recover certain properties under receivership, he needs permission from the court to do so. On the other hand, if a 3rd person has a grievance against the receiver in his capacity as a receiver, the 3rd person cannot simply file a case against such receiver as the 3rd person must seek permission of the court first. We find here a situation that the filing of a case will need permission of the court. If not granted, that action will fail. Practically every issue is left to the court. The court determines how much compensation to give to the receiver, the qualifications of a receiver, how many receivers may be needed. The court can appoint a receiver, it can also fire said receiver and appoint a new one, whenever there is a need to preserve the property. The competence in the determination of such matters is in the receivership court. There is another feature in receivership that is not found in the other provisional remedies. In receivership, there are two bonds : 1. Bond of the applicant 2. Bond of the receiver The applicant should manifest that he is able to post bond. Once the court appoints the receiver, the receiver shall also post a bond. The receivers bond is designed to protect the parties to the litigation from any abuse or mischief by the receiver in the performance of his duty.

RULE 60 REPLEVIN By jurisprudence, it is accepted as a main action and as a provisional remedy at the same time. Recovery of possession of property capable of manual remedy is termed as a complaint for replevin. It automatically rules out a real action. In personal action for recovery of possession of personal property, it involves warrant of seizure or writ of replevin to enable applicant to gain possession of the specified personal property. In replevin cases, without an application of a provisional remedy of a writ of replevin, the plaintiff recovers possession of a personal property only after the case has been decided in his favor. So, if plaintiff filed the case today for recovery of a car without an application for the provisional remedy of a writ of replevin, and the case was decided 5 years later, the car shall remain under the possession of the defendant during those 5 years. Chances are, by the time the case is decided, the car might already be in a bad condition. That is the role of a writ of replevin. So if a plaintiff files a complaint today for the recovery of a car, if he wants to gain possession of the car right away, he should file an application for a writ of replevin in order for him to immediately gain possession of the car. Writ of replevin is tilted always in favor of the applicant. The court can grant the motion or application ex parte. This is one provisional remedy which cannot be granted by an appellate court. Only the court of original jurisdiction can grant it, as this can be granted ONLY before the defendant answers (thus, it will be improper for the court to grant it once the defendant already filed an answer) . But, there must be prior/contemporaneous service of summons to cure defect in jurisdiction over the person of the defendant. Once served, the sheriff will seize the personal property. Sheriff has a 5 day holding period after seizure. If there is no challenge on sufficiency of the replevin bond and no counterbond, the sheriff shall turn over possession to the plaintiff. This is the advantage of replevin, it immediately enables the plaintiff to recover possession of the personal property that is the subject of litigation..

Problems in the service of the writ of replevin.:

1. Jurisdiction is either RTC or MTC depending on the value of the property alleged in the complaint. As long as the court has jurisdiction over the complaint based on the alleged value of the personal property, the court can issue the provisional remedy of a writ of replevin. Note: Value of the property = jurisdictional 2. The bond required is different than the other provisional remedies. The bond is DOUBLE THE VALUE of the property subject to seizure AS ALLEGED in the complaint. The court has not further authority to increase or decrease the bond. IT will be based solely on the value of the property as alleged in the complaint. 3. In the service of writ of replevin, when the sheriff finds the property is not in possession of the defendant but a 3rd person who is not a litigant, and said person claims ownership of the property, sheriff will not seize the property . (Note: The solution to this is to advise your client that complaint should implead 2 defendants, one who was known by the plaintiff to possess the thing subject to the complaint and an UNKNOWN defendant. Thus, sheriff can rightfully seize the car from anybody who might be in possession, as long as an unknown defendant is impleaded in the complaint.) 4. Within the holding period of 5 days, the defendant can file motion to challenge sufficiency of the bond (undervaluing) or a 3rd party claim, wherein a 3rd person claims to be a true owner of the thing (like in Rule 57 and Rule 39). But in Rule 60, Replevin, the 3rd party claim must be filed within the 5-day holding period, otherwise, the 3rd party claim is useless. This is because after the 5-day holding period, the sheriff shall deliver the car to the applicant. A complaint for replevin was filed by X for recovery of a car. The court issued the writ but the sheriff submitted a return saying he cannot enforce the writ as the car can no longer be found. What the plaintiff did after receiving the return was to file another application for Preliminary Attachment of the properties of the defendant based on the same complaint on the ground that the defendant has gotten hold of the property fraudulently and that he has hidden the car so it cannot be found and be subject to seizure. Is this proper? The conversion of application for a writ of replevin into one for an issuance for PA is not proper. SC held that if plaintiff does not succeed via replevin, he cannot use PA. If he desires to use PA, he should overhaul his complaint. The allegations for the application for a writ of replevin is different from that for issuance of a writ of PA. In application for issuance of a writ of replevin, the plaintiff alleges he is the owner or entitled to possession. PA is for security purposes, the ownership of the property subject to it belongs to the defendant, not a property of the plaintiff. 5 The decision of the court can be in the alternative. If the property itself cannot be delivered, the value of such property can be delivered to the prevailing party.

RULE 61 SUPPORT PENDENTE LITE This is found under the Rules and also mentioned in the SC Circular on Provisional Remedies in Marriage-Related Cases. In fact, the circular of the court is more expansive. This is because, it does not only mention support pendente lite, it classifies it into spousal support and child support,and are treated differently. In the circular Family Court, which has jurisdiction over a complaint for support, can grant both spousal support and child support even without hearing and without requiring the filing of a bond.This is also provided in the Rules on Support pendente lite. We follow that provision provided for in the circular. A Family Court can grant spousal and child support even without filing of a bond and without need for a hearing. This is different in trial in courts that are not functioning as family court. This is because in the Rules of Court, it is not proper for an ordinary court to grant an application of support pendente lite without conducting a hearing.In the Rules, in Provisional Remedies, support pendente lite can only be allowed only after a hearing is heard, and the applicant and respondent are given the chance to explain. The reason why this is required in the Rules is that a court cannot conceivably issue an order granting support pendente lite unless the court is able to determine first that the petitioner needs support, and even if the petitioner does need support, to determine that the respondent is capable of grant such support. This is because if the court simply grants an application for support pendente lite without examining the financial ability of the respondent, that provisional remedy will be useless. If the respondent cannot comply, as he had no means to give support,

he could be jailed. This is one action where the court can imprison a respondent who does not comply with its order to give support, although the respondent really may not have the ability to really do so. Remedies in case of violation against giving of support under substantive law: (Dean Jara: This probably violates the equal protection clause as they are relatively unfavorable to us men.) 1. Imprisonment for commission of a crime 2. Citation for contempt and imprisonment 3. Issuance of an order of execution against violator under Rule 39 In the Rules of Court on Support Pendente Lite, you will notice that the principlein Section 20 Rule 57 is not followed at all. A remedy to recover damages in wrongful issuance of provisional remedies should be in the same case. There must be no separate action to recover damages. But if you read the provisions for Support Pendente Lite, it is expressly provided that there could be an independent action for recovery of money given as support in compliance with an order of the court. There is no need for respondent to file a claim for damages in the same action.

If you are asked why a Family Court can order spousal support without a hearing, just state that there is no need for a Family Court to determine the needs of the spouse or of the minor children, there is no need for the court to determine the financial ability of the defendant. This is because in family-related cases, there is a need for an inventory of properties submitted to the Family Court by the petitioner. Based on the inventory, the court can conclude how much the spouse is entitled and how much the minors are entitled to support. Also, with respect to the Provisional Orders granted by a Family Court in marriage-related cases, although the provisional orders are called by some other name, these partake in the nature of an injunction. TPO in a marriage-related case is actually a prohibitory injunction and a mandatory injunction at the same time.This is because in the protection order, the Family Court prohibits respondent from certain acts,, which is a prohibitory injunction. Also, the Family Court can tell the respondent not to enter the former conjugal dwelling and to remove his personal properties from the house. Thus, it partakes of a mandatory injunction.

RECEIVERSHIP IN MARRIAGE-RELATED CASES We also have receivership in marriage-related cases where the court may appoint an administrator of the properties. He is effectively a receiver of properties owned in common. With respect to interim reliefs in Amparo, there is nothing mentioned in the circular about filing of a bond. With respect to Kalikasan circular, the applicant is not required to post a bond. It is the adverse party who will have to post a bond in order to lift or dissolve the writ of Kalikasan as security to protect the interest of the applicant. Read the Circulars on the Writs. Center your attention on the procedures required in civil and criminal cases given in the Writs: Kalikasan cases - Commenced in RTC, MTC, CA, SC - Continuing mandamus is only cognizable only in SC and CA - Party complaining/answering must have attached documentary and/or object evidence available - If the defendant does not file an answer, there is no need for a motion do declare defendant in default, it being a prohibited pleading. - If the defendant does not answer, it is the duty of the court to declare the defendant in default, no motion need be had, andthe plaintiffs evidence can be received ex parte. - Compromise of the civil action is encouraged. The judgment is not called a judgment based upon a compromise but is called a Consent Decree.

Rules on Evidence are not necessarily followed. Quantum of evidence in civil cases is mere preponderance of evidence. However, there are several instances in Kalikasan cases that mere substantial evidence is enough, which is also now followed in Amparo cases. In Amparo cases, only substantial evidence is required, which is the same quantum of evidence in quasi-judicial proceedings. In Amparo cases, the rule on quantum of evidence is exclusively determined by the SC. If substantial evidence is required in Amparo cases, then that is the quantum required. An administrative body cannot change the quantum of evidence required.

Special Civil Actions 1. Interpleader (Rule 62) 2. Declaratory relief and similar remedies (Rule 63) 3. Review of judgments and final orders of the COMELEC and the Commission on Audit (Rule 64) 4. Certiorari, prohibition and mandamus (Rule 65) 5. Quo warranto(Rule 66) 6. Expropriation (Rule 67) 7. Foreclosure of real estate mortgage(Rule 68) 8. Partition (Rule 69) 9. Forcible entry and unlawful detainer (Rule 70) 10. Contempt (Rule 71) 11. Petition for Writ of Kalikasan 12. Petition for Continuing Mandamus Q: What special civil actions are initiated by complaints and initiated by petitions? A: 1. by complaint a. interpleader b. expropriation c. foreclosure of real estate mortgage d. partition e. forcible entry and unlawful detainer 2. by petition a. declaratory relief b. review of judgments and final orders or resolutions of the COMELEC / COA c. Certiorari d. Prohibition e. Mandamus f. Quo Warranto g. Contempt h. Petition for Writ of Kalikasan i. Petition for Continuing Mandamus

To properly appreciate why a civil action is further classified into a special civil action, all that we have to do is to check Rule 1. In Rule 1, a special civil action is inherently a civil action. What makes it special is that the Rules require additional procedure for each and every special civil action that is not followed in ordinary civil proceedings. Unless there is a special rule specifically devoted to a certain special civil action, we will still apply ordinary rules of civil procedure. RULE 62 INTERPLEADER What is so special about interpleader? In ordinary civil cases, an action is commenced by the filing of a complaint, petition or something equivalent to a complaint. In an interpleader, it can be commenced by the filing of an answer with a counterclaim for interpleader.

Since we are following the rules in ordinary civil action, there is need of a plaintiff and a defendant. In an interpleader, there is a plaintiff and there can two or more defendants. One of the features of interpleader which is not possessed by ordinary civil actions is the absence of a cause of action. In ordinary civil actions, if there is no cause of action, the complaint will be dismissed. In a complaint for interpleader or a counterclaim for interpleader, the plaintiff does not aver a cause of action. The plaintiff in interpleader cannot say that he has a cause of action because it is an essential requirements in an action for interpleader that the plaintiff does not allege a right at all; or if he alleges a right, nobody has violated the right, the defendants agree he has a right or does not contest the right. Since we are going to follow the rules of ordinary civil actions unless otherwise provided in the Rules, does it mean to say that we should submit a controversy of interpleader involving at least two or more defendants, should there be prior barangay conciliation before we go to court? Yes. Generally, that is a rule that is applicable to all civil actions, and thus will include special civil actions, so long as the parties are natural persons residing in the same city or municipality. Since we are going to follow the rules of ordinary civil actions unless otherwise provided in the Rules, does it mean to say that we should summons? Yes. That is the means by which the court will acquire jurisdiction over the defendant. In interpleader, a summoned defendant who failed to file an answer shall be declared in default. In Rule 9, when there is a complaint against several defendants, and one or two of these defendants failed to file an answer while the others filed an answer, Rule 9 says that the non-answering defendant will be declared in default, but the nonanswering defendant will be tried based on the answer filed by the other answering defendants. Hence, if theanswering defendant wins, the defaulting defendant automatically wins. This is because both answering and non-answering defendants are sued under a common cause of action. We do not apply Rule 9 to an interpleader. In interpleader, when one defendant files an answer and the other did not file an answer and was declared in default, the defaulting defendant automatically loses the case. This is because the Rules provide, that in addition to being declared in default, the non-answering defendant will lose his claim. Although in reality the defaulting defendant has a claim, his being declared in default will make him lose his right to the claim. Thus, if there are only two defendants and one of them was declared in default, since the defaulting defendant has already lost the case, the remaining defendant will have a great chance of being declared as the one with the right to the subject of the interpleader. This is because the plaintiff in the interpleader does not have any right or interest to the claim of either defendants. The remaining defendant will be declared as the one with the right to the claim that is the subject of the interpleader. Q: What are the three special civil actions which are within the jurisdiction of MTCs? A: 1. Interpleader, provided that the amount is within the jurisdiction of such MTC 2. Ejectment suits 3. Contempt Q: What is an interpleader? A: It is a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their conflicting claims among themselves. (Sec. 1, Rule 62). Q: What are the requisites in order that the remedy of interpleader may be availed of? A: 1. Plaintiff claims no interest in the subject matter or his claim is not disputed 2. Two or more claimants asserting conflicting claims

3. The subject matter must be one and the same 4. Person in possession or obliged files a complaint. 5. The parties to be interpleaded must make effective claims. 6. Payment of docket and other lawful fees. Note: Upon filing of complaint, the court shall issue an order requiring conflicting claimants to interplead. (Sec. 2, Rule 62) Rule 63 Enumerates 4 special civil actions ~Declaratory Relief and other similar remedies: ~Reformation of instrument ~Quieting of title ~Consolidation of title Although in the same Rule, they are governed by different procedures.

DECLARATORY RELIEF RULE 63 The obvious nature of declaratory relief, which makes it a special civil action, is that the petition must be filed before a breach or violation of a right. (If we would follow ordinary rules of procedure, the complaint would have been dismissed outright because of lack of a cause of action.) There is no allegation that there is a right violated by another. If there is such an allegation, then the action ceases to be a special civil action for declaratory relief, it becomes an ordinary action. Declarative relief is a preventive mechanism to prevent parties from getting involved in an ordinary civil case. In Declarative relief , the petitioner does not allege he has a right, or if he has, it has not been violated, and therefore, there is really no cause of action. The petitioner seeks from the court a determination of what his rights are. Petitioner is not absolutely certain if he has rights under a certain instrument, so he asks the court to declare what his rights are. The actual remedy is that the court declares what his rights are. If the remedy is the declaration of the rights of the petitioner, then a prayer for damages in declaratory relief negates the nature of such special civil action. Damages connote the fact that a breach or violation of a right has occurred. There is an enumeration under Rule 63 (Section 1) as to the instruments which could be subjects of a petition for declaratory relief; deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation. With respect to statute or ordinance, the same principle applies, we cannot apply for a petition for declaratory relief if there is already a violation. If there is a violation already, the petition will not be proper. Declaratory relief must be had before such ordinance or statute has become effective. This is one of the reasons of the 30 day period (date of effectivity; after publication) before a law that has been enacted by Congress has effect. The said time before such statute or ordinance takes effect is the time for it to be subject to petition for declaratory relief, determining whether that statute or ordinance is constitutional or unconstitutional. You will meet decisions of the SC concerning declaratory relief to the effect that you cannot file a motion for execution in order to carry out the declaratory judgment (the judgment in a case for declaratory relief), in order to differentiate it from what the court usually renders after a judgment has been entered in order to clarify the judgment. The latter is what we a clarificatory judgment. In a clarificatory judgment, that is where a judgment that has become final and executory but has certain ambiguities with that judgment. The remedy of the interested party is to file a motion for the rendition of a clarificatory judgment. This clarificatory judgment is different from a declaratory judgment. In declaratory judgment the court will only tell the petitioner what his rights and duties are under a certain will or contract. But in the case of a statute or ordinance, the court will tell the petitioner whether or not the statute or ordinance is unconstitutional or not. So after the court has done its duty, there is no more need for the prevailing party to return to the court in order to move for the execution. We do not apply Rule 39 to a petition for declaratory relief.

So, that is the nature of a declaratory relief that makes it a special civil action. There is really no cause of action as contemplated in ordinary civil actions where there is a right violated by the defendant. Distinguish declaratory judgment from ordinary judgment. A: DECLARATORY JUDGMENT Declaratory judgment stands by itself and no executory process follows Intended to determine any question of construction or validity prior to breach or violation

ORDINARY JUDGMENT Ordinary judgment involves executor or coercive relief Intended to remedy or compensate injuries already suffered

What are the requisites of an action for declaratory relief? A: 1. Filing of Petition before there is a breach or violation 2. Subject matter is a deed, will, contract, written instrument, statute, executive order, regulation or ordinance Note: The enumeration of the subject matter is exclusive, hence, an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. (Riano, Civil Procedure: A Restatement for the Bar, p. 613, 2009 ed.) 3. There is justiciable controversy 4. Issue is ripe for judicial determination (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005), i.e. litigation is imminent and inevitable (Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951) 5. Adequate relief is not available through other means or other forms of action or proceedings ( Ollada v. Central Bank, G.R. No. L-11357, May 31, 1962) 6. The controversy is between persons whose interests are adverse. Q: When may an action for declaratory relief be converted into an ordinary action? A: After filing of petition for declaratory relief but before the final termination of the case or rendition of judgment, a breach or violation of an instrument, statute, executive order, regulation or ordinance takes place. ( Sec. 6, Rule 63) Q: Distinguish Ordinary Civil Action from Special Civil Action for Declaratory Relief. A: 1. Ordinary civil action plaintiff alleges that his right has been violated by the defendant; judgment rendered is coercive in character; a writ of execution may be executed against the defeated party. 2. Special civil action of declaratory relief an impending violation is sufficient to file a declaratory relief; no execution may be issued; the court merely makes a declaration. The second procedural rule that we apply to declaratory relief which is not followed in other special civil actions or in other ordinary civil actions is the authority of the court not to entertain a petition for declaratory relief. The court can refuse to make a declaration of the rights of petitioner and respondents on a deed or a contract on the ground that the judgment will not bind the parties not impleaded in the petition for declaratory relief. This shows that declaratory relief is not in rem. It is purely a petition in personam. It cannot bind other parties who had not been impleaded, although these parties not so impleaded may be parties to the contract or matter under litigation. When may a court refuse to make a judicial declaration? A: Court may motupropio or upon motion refuse based on the following grounds: 1. A decision will not terminate the uncertainty or controversy which gave rise to the action 2. Declaration or construction is not necessary and proper under the circumstances Note: Discretion to refuse does not extend to actions for reformation of an instrument quiet title or remove clouds or to consolidated ownership in a pacto de retro sale. (Regalado, Remedial Law Compendium, Vol. I, p. 769, 2005 ed.)

Q: Can the court exercise discretion in application for declaratory relief? A: 1. In declaratory relief, the court is given the discretion to act or not to act on the petition. It may therefore choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare rights or construe an instrument is actually the functional equivalent of the dismissal of the petition. 2. On the other hand, the court does not have the discretion to refuse to act with respect to actions described as similar remedies. Thus, in an action for reformation of an instrument, to quiet or to consolidate ownership, the court cannot refuse to render a judgment (Sec. 5, Rule 63). Q: Is a third-party complaint proper in an action for declaratory relief? A: No. Because in a third-party complaint, such person seeks to obtain contribution, indemnity, subrogation or other reliefs and a declaratory relief is confined merely to the interpretation of the terms of a contract. (Commission of Customs v. Cloribel, G.R. No. 21036, June 30, 1977). Q: What are the instances wherein a declaratory relief is unavailable? A: 1. To obtain judicial declaration of citizenship; 2. To establish illegitimate filiation and determine hereditary rights; 3. The subject of the action is a court decision; 4. Actions to resolve political questions; 5. Those determinative of the issues rather than a construction of definite status, rights and relations; 6. Terms of assailed ordinances are not ambiguous or of doubtful meaning; 7. In a petition to seek relief from a moot and academic question; 8. Where the contract or statute on which action is based has been breached; 9. When the petition is based on the happening of a contingent event; 10. When the petitioner is not the real party in interest; and 11. Where the administrative remedies have not yet been exhausted. What is the competent court in a petition for declaratory relief? Petition for declaratory relief is an action incapable of pecuniary estimation; hence RTC is the proper venue. However, as to who is the competent court in other similar remedies, take into account the provisions under BP 129: ~Reformation of instrument is cognizable solely by RTC as it is incapable of pecuniary estimation. ~Quieting of Title is not necessarily under the RTC. Actions involving title to property will depend on the value of the property. Under BP 129, actions involving title to or possession of the propertymay be cognizable by an RTC or MTC depending upon the assessed value of the property involved. ~Consolidation of title involves real property, hence, assessed value must be alleged to vest jurisdiction.

Q: What is an action for quieting title to real property? A: This action is brought to remove a cloud on title to real property or any interest therein. The action contemplates a situation where the instrument or a record is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title to real property. This action is then brought to remove a cloud on title to real property or any interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. 476, Civil Code). Q: Is it required that the plaintiff be in the possession of the property before an action is brought? A: The plaintiff need not be in possession of the real property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action (Art. 477, Civil Code).

Why do we need to file a special civil action for consolidation of title? In execution of judgment under Rule 39, if a real property is sold at public auction by virtue of a levy on execution, the highest bidder will not automatically get a title in his own name, merely a certificate of sale from the sheriff, which bidder must register such encumbrance in the RoD for annotation to the title of the property. He must wait one year. If there is no redemption after one year from registration in the RoD, the sheriff will issue a final deed of sale to the highest bidder and the highest bidder will have the final deed of sale recorded in the RoD. The RoD will determine whether the 1-year period has been met, and if there is no redemption, the highest bidder will naturally be interested in securing the title to the property in his name. The old title (still in the name of the judgment debtor) will be cancelled, and a new title will be issued in the name of the highest bidder. The highest bidder does not have to file an action for consolidation of title. The highest bidder will only secure from the sheriff the final deed of sale. The RoD will simply cancel the old title and issue a new title in the name of the highest bidder. So, in Rule 39, there is no such thing as consolidation of title as a special civil action. This is also the procedure that is followed when a mortgage is foreclosed. Once the mortgage is foreclosed, the property is sold under auction to the highest bidder. The sheriff will issue a certificate of sale to be registered in the RoD, and then wait for the 1-year redemption period to expire. If there is no redemption, the sheriff will again issue a final deed of sale. And on the basis of that final deed of sale, the RoD will cancel the title of the judgment mortgagor and issue a new title in the name of the highest bidder. So you will notice that under Rule 39 and even in the Mortgage Law, in order to consolidate title, we do not require a special civil action to consolidate title to be filed in court. The only public officer who is going to deal with the interested party is the RoD, who has the ministerial duty to issue a title if the papers are in order, in this case a final deed of sale. Why do we require an action to consolidate under Article 1607 of the NCC? NCC Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. NCC Art. 1616. The vendor cannot avail himself of the right of repurchase without returning to the vendee the price of the sale, and in addition: (1) The expenses of the contract, and any other legitimate payments made by reason of the sale; (2) The necessary and useful expenses made on the thing sold. This is to obtain an order from the court for the RoD to consolidate the title of a property subject to sale with right to redeem, although the factual antecedents are the same.In the NCC Art. 1607, if there is a right to redemption, it is called conventional redemption, not a legal redemption as that in Rule 39 and in foreclosure of mortgage. It is that classification of redemption to conventional that makes the difference. A conventional redemption has also a period for 1 year. When the 1-year period expires, the buyer of the property cannot deal directly with the RoD. The reason why there is a need to go to court in conventional redemption is that there is a provision in the NCC requiring it. It is explicitly stated in the NCC that sale with the right to redeem is not a sale but an equitable mortgage.So, insofar as the courts are concerned, if the contract entered by the parties is a sale with right to redeem by way of conventional redemption, the NCC assumes (a disputable presumption) that the real agreement between the parties is not really a sale but an equitable mortgage. Insofar as the NCC is concerned, the seller is not a genuine seller, only a mortgagor, and the buyer is the mortgagee of the property, notwithstanding the clear tone of the deed of sale with right of redemption. Even the RoD will have to observe the disputable presumption given by the NCC that the deed of sale with right of redemption is one of an equitable mortgage. So if we go to the RoD for consolidation of title, the RoD will simply tell the buyer of the property that the contract is one of equitable mortgage, not of sale, so there is a need to get a decision from the court declaring that contract is really a genuine contract of sale with right of redemption. That is the only purpose of this special civil action of consolidating of title under Art. 1607 NCC, to give to the buyer in sale with right of redemption a chance to present evidence to defeat that disputable presumption contained in the NCC. If he is able to convince the court that the sale is a genuine sale, the court will issue an order directing the RoD to cancel the title of the seller and issue a new title in the name of the buyer. But if the petitioner/buyer fails to defeat the disputable presumption that the contract is one of equitable mortgage, he can still obtain a title, but he must file another special civil action. This time, the buyer must file an action for judicial foreclosure of mortgage. Even if he is not able to obtain a decision under Rule 63 in order to consolidate title under Article

1607 NCC, that is not the end insofar as the buyer is concerned since he is an equitable mortgagee, so he still has the right to foreclose the property. The only means where he can foreclose the property is by availing of another special civil action, which is called foreclosure of real estate mortgage under Rule 68. But the procedure for judicial foreclosure of mortgage is quite lengthy, requiring 3 final orders of the foreclosure court, a sale via public auction for the property, and even if we assume that the mortgagee will become the highest bidder, he will get the title in his own name only after the confirmation by the foreclosure court of the sale in his favor is duly entered. As we will see later, judicial foreclosure of mortgage, as a complement to a special civil action for consolidation of title, is a 3-stage special civil action. Meaning to say, that the foreclosure court is expected to make three decisions/orders before the mortgagee can obtain a title in his name.

Q: What is the purpose of an action brought to consolidate ownership? A: The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. The lapse of the redemption period without the seller a retro exercising his right of redemption consolidates ownership or title upon the person of the vendee by operation of law. Art. 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without judicial order (Cruz vs. Leis, 327 SCRA 570). Note: The concept of consolidation of ownership under Art. 1607, Civil Code, has its origin in the substantive provisions of the law on sales. Under the law, a contract of sale may be extinguished either by legal redemption (Art. 1619) or conventional redemption (Art. 1601). Legal redemption (retracto legal) is a statutory mandated redemption of a property previously sold. For instance, a co-owner of a property may exercise the right of redemption in case the shares of all the other co-owners or any of them are sold to a third person (Art. 1620). The owners of adjoining lands shall have the right of redemption when a piece of rural land with a size of one hectare or less is alienated (Art. 1621). Conventional redemption (pacto de retro) sale is one that is not mandated by the statute but one which takes place because of the stipulation of the parties to the sale. The period of redemption may be fixed by the parties in which case the period cannot exceed ten (10) years from the date of the contract. In the absence of any agreement, the redemption period shall be four (4) years from the date of the contract (Art. 1606). When the redemption is not made within the period agreed upon, in case the subject matter of the sale is a real property, Art. 1607 provides that the consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard.

If we compare this procedure governing the other similar remedies in Rule 63, you will notice right away that while the court can outrightly refuse to entertain a petition for declaratory relief, the court cannot outrightly refuse a petition for consolidation of title, reformation of instrument or quieting of title. This is expressly provided in Rule 63. So, if the complaint is for the consolidation of title, the court will have to follow the procedure outlined in ordinary civil cases, which is not followed in declaratory relief. In declaratory relief, if the court notices that not all contracting parties are impleaded in the case, it can refuse to entertain the petition as the judgment will not resolve the lawsuits which may be filed as a result of this mistake. If the court decides to entertain a petition for declaratory relief, and during the pendency of the petition, the law took effect or there is a violation committed as to the terms of the contract, the court shall order the conversion of declaratory relief into an ordinary civil action. Petitioner will have to amend his complaint, as he will now allege that he has a right and that right has been violated. The declaratory relief will cease to be a special civil action. An ordinary civil action takes its place, which is not possible in the actions covered by other similar remedies. The court does not enjoy discretion to outrightly dismiss a petition for consolidation of title, reformation of instrument or quieting of title.

It is settled when a person doubts his citizenship, he cannot file a petition for declaratory relief. He can decide for himself right away. He needs not go to court. He can register as a voter, which then shall be tantamount to his recognition as a Filipino.Or, he may opt to go through naturalization. If he files a petition for declaratory relief as to his citizenship, the court will dismiss outrightly the petition. This is because declaratory relief is interested only in declaration of rights and duties under a deed, will, contract or any other instrument. There is no deed, contract or other instrument which will be involved in determining whether a person is a Filipino or not. If he is not a Filipino citizen, then he may need to go through naturalization or administrative way of acquiring citizenship, not through a petition for declaratory relief to be filed before the RTC.

RULE 64 VS. 65 AND SPECIAL CIVIL ACTIONS IN WRIT OF KALIKASAN Rule 64 is always related to Rule 65. Although Rule 64 is a mode of review, and the period to file for Rule 64 is different from that in Rule 65, Rule 64 itself provides that in availing of the mode of review provided in Rule 64, the petitioner should adopt the pleading in Rule 65, a special civil action for certiorari, prohibition and mandamus. We have a review process from the COMELEC and COA, it is not strictly a special civil action that will be filed, it is still a mode of review, but using the pleadings outlined in Rule 65. Rule 64 speaks of a mode of appeal from a judgment or final order of COMELEC and CoA. Although a mode of review, Rule 64 provides that petitioner should adopt the pleading in Rule 65. Rule 65 is about a special civil action for certiorari, prohibition and mandamus. Q: What is the mode of review for judgments and final orders of the COMELEC and COA? A: The petition may be brought by the aggrieved party to the Supreme Court on Certiorari under Rule 65, except otherwise provided. Note: Rule 65 applies to the mode of review under Rule 64.Said mode of review is based on Article IX-A of the 1987 Constitution providing that the proper mode of review is certiorari under Rule 65 to be filed before the Supreme Court. Under R.A. 7902 the Court of Appeals has jurisdiction over all adjudications of the Civil Service Commission. Note: The order to comment under Sec. 6, Rule 64 in case the Supreme Court finds the petition sufficient in form and substance is equivalent to summons in ordinary civil action. Q: What is the period for filing certiorari as referred to in Rule 64? A: The petition for certiorari referred to in Rule 64 shall be filed within 30 days from notice of the judgment, final order or resolution of the COMELEC and the COA sought to be reviewed (Sec. 3, Rule 64). Note: While Rule 64 makes reference to the certiorari under Rule 65, the period for the filing of the petition for certiorari assailing the judgment of the COMELEC and COA is shorter than that provided under Rule 65 Petitioner should not move for an extension for a petition under Rule 65. It is inextensible. Cite some distinctions between certiorari in Rule 45, 64 and 65. Rule 45 is appeal by certiorari Rule 64 is appeal to SC with reference to Rule 65 pertaining to final orders, resolutions or decisions rendered by CoA or COMELEC acting as quasi-judicial bodies. Rule 65 is a special civil action of certiorari, prohibition and mandamus. Rule 65 competent court is RTC, CA or SC Under COMELEC CODE, COMELEC has certiorari jurisdiction under Rule 65. Sandiganbayan has certiorari jurisdiction under Rule 65. Q: Distinguish Rule 64 from Rule 65. A: Rule 64 Directed only to the judgments, final orders or resolutions of the COMELEC and COA; Must be filed within 30 days from notice of judgment or resolution If MR is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days.

Rule 65 Directed to any tribunal, board or officers exercising judicial or quasi-judicial functions; Must be filed within 60 days from notice of judgment or resolution If MR is denied, the aggrieved party will have another 60 days within which to file the petition counted from the notice of denial.

Distinguish certiorari under Rule 65 and certiorari under Rule 45. A: Rule 65 Rule 45 Findings of fact of Court of Appeals are not conclusive or GR: Findings of fact of CA are conclusive binding upon SC Involves question of jurisdiction Involves question of law Mode of appeal Mode of review Directed against an interlocutory order of a court or where Involves the review of the judgment final orders or there is no appeal or any other plain, speedy or adequate resolutions of the CA, Sandiganbayan, CTA, RTC or other remedy courts Filed not later than 60 days from notice of judgment, order Filed within 15 days from notice of judgment, final order or or resolution appealed from resolution appealed from Unless a writ of preliminary injunction or temporary Stays the judgment or order appealed from restraining order is issued, it does not stay the challenged proceeding The judge, court, quasi-judicial agency, tribunal, The appellant and the appellee are the original parties to corporation, board, officer or person shall be public the action, and the lower court or quasi-judicial agency is respondents who are impleaded in the action not impleaded Motion for reconsideration or for new trial is required. Motion for reconsideration is not required If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 02-03-SC) Court exercises original jurisdiction Filed with the RTC, CA, Sandiganbayan or COMELEC The court is in the exercise of its appellate jurisdiction and power of review. Filed with the SC

Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. The antithetic character of appeal and certiorari has been generally recognized and observed save only on those rare instances when appeal is satisfactorily shown to be an inadequate remedy. Thus, a petitioner must show valid reasons why the issues raised in his petition for certiorari could not have been raised on appeal (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305). Certiorari as a Mode of Appeal (Rule 45) Called petition for review on certiorari, is a mode of appeal, which is but a continuation of the appellate process over the original case; Seeks to review final judgments or final orders; Certiorari as a Special Civil Action (Rule 65) A special civil action that is an original action and not a mode of appeal, and not a part of the appellate process but an independent action. May be directed against an interlocutory order of the court or where not appeal or plain or speedy remedy available in the ordinary course of law

DISTINCTIONS BETWEEN CERTIORARI UNDER RULES 45, 64, AND 65 Rule 65 Rule 64 for COMELEC and COA Review of judgment, final orders or resolutions of other tribunals, persons Certiorari, Prohibition and Mandamus and officer (Rule 45) Special civil action for certiorari, Appeal to the SC using Rule 65 from Petition for Review or Appeal by prohibition and mandamus; the COMELEC En Banc Certiorari; A special civil action that is an original action and not a mode of appeal, and not a part of the appellate process but an independent action. May be directed against an Called petition for review on certiorari, is a mode of appeal, which is but a continuation of the appellate process over the original case; Review of judgment, final orders or

Directed only to the judgments, final

interlocutory order of the court or where not appeal or plain or speedy remedy available in the ordinary course of law

orders or resolutions of the COMELEC and COA; Rules of the COMELEC states that only decisions of the En Banc shall be appealable in the SC) and CoA acting as quasi-judicial bodies (final orders or judgments SC

resolutionsof the CA, Sandiganbayan, CTA, RTC or other courts

Under BP 129: RTC, CA or SC has concurrent and original jurisdiction; under special laws: COMELEC and Sandiganbayan has special certiorari jurisdiction BP 129: Original and Concurrent Jurisdiction (RTC, CA and SC) The petitioner has a choice to file in the RTC, and if an adverse decision is given, he can elevate it to the CA, and then the SC. If directly filed in the SC, SC has thediscretion whether to outrightly dismiss the petition or remand it to the CA because of insufficiency in form and/or substance in accordance with the principle of hierarchy of courts. Raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; Filed not later than 60 days from notice of judgment, order or resolution appealed from Extension no longer allowed; (Motion for extension of period to file is not allowed) Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (Fresh Period Rule/Neypes Doctrine) (A.M. No. 0203-SC) Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action Court exercises original jurisdiction

CA, SC

Appellate Failure of petitioner to comply with the formal requirements under Sec. 5 Rule 64 will cause the petition to be dismissed.

Appellate SC may deny the decision motu propio on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Petition is based on questions of law

Petition is based on questions of law

Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed No extension of period mentioned in Rule 64 The filing of Motion for reconsideration or for new trial, if allowed under the procedural rules of the Commission, shall interrupt period fixed

Filed within 15 days from notice of judgment, final order or resolution appealed from Extension of 30 days may be granted for justifiable reasons Motion for reconsideration is not required

Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just The COMELEC and COA shall be public respondents who are impleaded in the action The court is in the exercise of its

Stays the judgment or order appealed from

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded The court is in the exercise of its

appellate jurisdiction and power of review

appellate jurisdiction and power of review

SC, CA and RTC have original jurisdiction over petitions under Rule 65. Thus, there is concurrence of jurisdiction among these three courts. Theoretically, petitioner has a choice as to where to file. The law does not compel him to file a petition first in the RTC, then the CA, and finally in the SC. There is no such provision in BP 129 and the Constitution. However, SC had sought to prevent being swamped by petitions under Rule 65. To remedy the abuse by petitioners, SC devised the principle of hierarchy of courts under Section 4 of Rule 65. This will limit the choice that theoretically a petitioner has. Effectively, petitioners are prohibited from going directly to the SC under Rule 65. Petitioner must file first in the RTC or in the CA. If a petition was filed directly in SC, it will outrightly dismiss a petition if such petition is insufficient in form or substance. Even if the petition is well-crafted, a single omission, such as the PTR number, shall dismiss it for being insufficient in form. Q: What are the grounds for the outright dismissal of the petition? A: (Sec. 6, Rule 64) 1. Petition is not sufficient in form and substance ( Sec. 5, Rule 64) 2. Petition was filed for purpose of delay 3. Issue is unsubstantial Q: What are the grounds for the filing of a petition for certiorari? A: That a tribunal, board or officer exercising judicial or quasi-judicial functions acted: 1. Without or in excess of jurisdiction 2. In grave abuse of discretion amounting to lack or excess of jurisdiction Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping. (Sec. 1, Rule 65). Q: When is certiorari under Rule 65 unavailable? A: 1. Summary procedure 2. Writ of Amparo 3. Writ of Habeas Data 4. Small claims cases (Riano, Civil Procedure: A Restatement for the Bar, p. 629, 2009 ed .) Q: When is prohibition issued? A: GR: Prohibition does not ordinarily lie to restrain an act which is already fait accompli. XPN: It will lie to prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality. (Tan v. COMELEC, G.R. No. 73155, July 11, 1986) Note: Prohibition and not mandamus, is the remedy where a motion to dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30, 1949) Is it fatal for a petitioner to file a petition for certiorari, although the true remedy is a petition for prohibition? For instance, where a motion to dismiss is filed by the defendant on the ground of absence of jurisdiction over the subject matter of the case. Said motion was denied. The defendant could appeal to the higher court via a petition under Rule 65.

We do not follow Rule 16 which tells the defendant that when his motion to dismiss is denied, he has to file an answer within the remaining period. The SC has recognized the propriety of filing a petition for certiorari, prohibition or mandamus if a motion to dismiss founded on lack of jurisdiction over the subject matter has been denied. The petitioner files a petition for certiorari in the CA or SC. The true remedy, according to the SC, is a petition for prohibition, not a certiorari. From the facts stated above, a prohibition is the correct remedy. As the petitioner/defendant had filed a petition for certiorari, can CA/SC outrightly deny the petition because it is the wrong remedy? SC said no. The petition for certiorari should instead be treated as a petition for prohibition. So it seems under this attitude of liberal interpretation of statutes, it is not fatal for a petitioner to choose the remedy provided under Rule 65. Remember that certiorari is different from prohibition and mandamus, although they are all contained in one Rule. The SC will simply treat the petition for certiorari as a petition for prohibition. If you will analyze the requisites of a petition for certiorari and prohibition, they are practically the same. There is not much difference between the concept given in Section 1 Rule 65 (Certiorari) and Section 2 Rule 65 (Prohibition). The only differences is that in certiorari, the petitioner asks that the judgment or interlocutory order be annulled or set aside; in prohibition, the petitioner simply asks the prohibition court to prevent the respondent court from going ahead with the proceedings, and in prohibiting the respondent court, the prohibition court will be effectively telling the respondent court that the denial, the interlocutory order or the judgment rendered therein should be set aside and annulled because it is a wrong final order or wrong interlocutory order.

CERTIORARI That the petition is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; The tribunal, board or officer has acted without, or in excess of jurisdiction or with abuse of discretion amounting to lack or excess or jurisdiction There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. Accompanied by a certified true copy of the judgment or order subject of the petition, copies of all pleadings and documents relevant and pertinent thereto, and sworn certification of non-forum shopping under Rule 46. Prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising judicial, quasi-judicial or ministerial functions, to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 2, Rule 65).

Special civil action To prevent an encroachment, excess,

PROHIBITION The petition is directed against a tribunal, corporation, board or person exercising judicial, quasi-judicial, or ministerial functions; The tribunal, corporation, board or person must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. Accompanied by a certified true copy of the judgment or order subject of the petition, copies of all pleadings and documents relevant and pertinent thereto, and sworn certification of non-forum shopping under Rule 46. Mandamus is an extraordinary writ commanding a tribunal, corporation, board or person, to do an act required to be done: (a) When he unlawfully neglects the performance of an act which the law specifically enjoins as a duty, and there is no other plain, speedy and adequate remedy in the ordinary course of law; or (b) When one unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3, Rule 65). Special civil action To compel the performance of a

MANDAMUS The plaintiff has a clear legal right to the act demanded;

It must be the duty of the defendant to perform the act, which is ministerial and not discretionary, because the same is mandated by law; The defendant unlawfully neglects the performance of the duty enjoined by law; There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

Main action for injunction seeks to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant. Preliminary injunction is a provisional remedy to preserve the status quo and prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of an action.

Ordinary civil action For the defendant either to refrain

usurpation or assumption of jurisdiction; May be directed against entities exercising judicial or quasi-judicial, or ministerial functions Extends to discretionary functions

ministerial and legal duty; May be directed against judicial and non-judicial entities Extends only to ministerial functions

from an act or to perform not necessarily a legal and ministerial duty; Directed against a party

Always the main action May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

Always the main action May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

Does not necessarily extend to ministerial, discretionary or legal functions; May be the main action or just a provisional remedy May be brought in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

But in our example, when a motion to dismiss founded on lack of jurisdiction is denied, it is also correct for the petitioner to make use right away of Rule 65. If he immediately files a petition for certiorari either in the CA or SC, that petition for certiorari will not be denied because it is not compliant with the requirements of Sections 1 and 2 Rule 65, that there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. This p hrase serves as an essential requisite before we can properly file a petition under Rule 65. In fact, it is this phrase which is the source of the principle that we learned that in Rule 65, a motion for reconsideration is a MUST. This is not expressly mentioned in Rule 65. Motion for reconsideration is not even mentioned in Rule 65. A motion for reconsideration is always a plain, speedy and adequate remedy in the ordinary course of law. Note: General Rule: Motion for reconsideration is a condition precedent in the filing of a petition for certiorari under Rule 65. Motion for reconsideration is a plain and speedy remedy available prior to petition under Rule 65. In Rule 65, if we examine the caption of a petition under Rule 65, we will discover that there are at least 2 respondents, one is the private respondent, the other is the public respondent. The public respondent is the agency, court or officer/person who exercises judicial or quasi-judicial functions (in case of prohibition, public respondent is the agency, court or officer/person who exercises judicial , quasi-judicial or ministerial functions). In other words, we always involve a public officer or agency or court on or officer/person who exercises judicial , quasi-judicial or ministerial functions under Rule 65. We cannot get a petition for certiorari under Rule 65 with only the private respondent. We must implead the public respondent. Although the rules describe the public respondent as a nominal party, it is in fact an indispensible party under Rule 65, because it is the final order or judgment that it had issued that is being assailed or challenged. The reason why Rule 65 calls the public respondent only as a nominal party is because in Rule 65 itself, it is provided that the public respondent is not authorized to enter his appearance and to defend himself before the certiorari court. The fate of the public respondent lies in the hands of the private respondent. It is the private respondent who will argue before the higher court and explain the correctness of the interlocutory order or judgment that is being assailed under Rule 65. It is only in rare instances where the higher court will allow the public respondent to argue on his own behalf or submit his own papers in the certiorari court. He should always rely on the papers and pleadings that are submitted by the private respondent. Because of the inherent nature of the petition under Rule 65, that there is always a public respondent, the petition under Rule 65 does not have to comply with that condition precedent of prior barangay conciliation. This is one of the exceptions given in the LGC, where the action involves a government officer or employee in the performance of his duty. And the grounds of course are very strictly interpreted. In Rule 65 Sections 1 and 2, the ground is that the public respondent has acted without jurisdiction, in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.

The definition of Grave abuse of discretion amounting to lack or excess of jurisdiction is a very simple definition given by the SC, when the public respondent acts whimsically, despoticand/or arbitrarily. The SC did not elaborate on whimsical, despotic or arbitrary, so it would have to be resolved on a case-to-case basis. For instance, a case is pending in the RTC for the collection of an indebtedness. The plaintiff applies for the issuance of a writ of preliminary attachment. The court grants and issues the writ. Does the RTC act arbitrarily, acting gravely in abuse of its discretion if it grants and issues the writ of preliminary attachment? Yes, if that complaint does not fall any one of the cases mentioned in Rule 57: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. No, if the case does not fall under the above-mentioned cases under Rule 57 Section 1. Thus, the court would have acted in grave abuse of its discretion amounting to lack or excess of jurisdiction. Hence, in the issuance of provisionary remedies or orders, it could happen that a court will gravely abuse its discretion amounting to lack or excess of jurisdiction, a very despotic and arbitrary act of a court. For instance, the defendant files an answer containing a negative defense properly crafted. Then the court grants a summary judgment or rendered a judgment on the pleadings. That is an arbitrary act of the court. But if the decision rendered is a summary judgment or judgment on the pleadings, Rule 65 may not be a correct remedy. This is because under our Rules, because from a judgment, the remedy is to appeal from the judgment. Whenever there is an appeal available, you better forget Rule 65, because it is available only when there is no appeal or other plain, speedy and adequate remedy available in the ordinary course of law. This is the rule that we must always follow. Although, there are rare instances that the SC allowed a petition for Rule 65 although appeal is still available. If you will remember, there are certain exceptions to the general rule that a motion for reconsideration is a must before making use of Rule 65. There are also rare instances where the court allowed a petition under Rule 65 even if appeal was still available, the reason being that in certain instances, appeal is not a plain, speedy and adequate remedy available in the ordinary course of law. Q: Is it an absolute rule that before recourse to certiorari is taken a motion for reconsideration must be filed? A: GR: Petition for certiorari will not be entertained unless the public respondent has been given first the opportunity through a motion for reconsideration to correct the error being imputed to him. XPNs: A prior motion for reconsideration is not necessary to entertain a petition for certiorari where: 1. Order is a patent nullity, as where the court a quo has no jurisdiction; 2. Questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; 3. Urgent necessity for the resolution of the question, and any further delay would prejudice the interests of the Government or of the petitioner, or the subject matter of the action is perishable; 4. Under the circumstances, a motion for reconsideration would be useless;

5. Petitioner was deprived of due process and there is extreme urgency for relief; 6. In a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; 7. Proceedings in the lower court are a nullity for lack of due process; 8. Proceedings were ex parte or in which the petitioner had no opportunity to object; and 9. Issue raised is one purely of law or where public interest is involved.

Can a petition under Rule 65 that is filed to challenge an interlocutory order or judgment be enough to suspend all proceedings in the lower court and await the decision of the certiorari court on the petition for certiorari? If the litigant is aggrieved by an order or judgment that is inappealable, it is not allowed under Rule 65 for the trial court to suspend proceedings in the case pending before it. Proceedings will only be suspended if the higher court issues TRO or writ of PI. Thus, it is practical to ask along with the petition for an issuance of TRO or writ of PI. Take note of the modifications in Rule 65 concerning the abuse of parties and lawyers in using petition for certiorari, prohibition or mandamus. It is under the principle of res ipsa loquitur. In the past, lawyers usually file such petitions whenever motions are denied, citing abuse of discretion whereas under Rule 65, the required ground is GRAVE ABUSE of discretion. In order to prevent this practice, SC incorporated in Rule 65 the application of the civil law principle of res ipsa loquitur. If a lawyer and his client will go up to CA or SC under Rule 65, and the court resolves that the petition was manifestly without merit or for purposes of delay, the lawyer and client will be held in contempt of court for filing such manifestly unmeritorious petition or to pay a solidary debtor treble costs, and there may be administrative sanctions against the lawyer. If the writ of mandamus is issued as requested, there is propriety of awarding damages in favor of the petitioner, so it is automatically awarded under Section 3 of Rule 65.In petitions for certiorari, petitioner may include petition for award of damages. If proven, SC may award such damages. SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. Rule 65 does not specifically provide for award of damages under Sections 1 and 2 (Certiorari and Prohibition respectively). But the SC resolved that in proper instances, if there is a prayer for damages incorporated in a petition for certiorari or prohibition, there is nothing wrong if the court grants the writ of certiorari or mandamus and award damages in favor of the petitioner, although none is provided for it in Sections 1 and 2. The justification given by the SC is that in a petition for certiorari or prohibition, there is always that prayer for any additional relief which the court will deem just and equitable. SC said that is enough justification for the award of damages, so long as the petitioner is able to present proof of damages. Why do we consider Rule 65 as a special civil action? 1. Procedurally, the court can dismiss the petition for insufficiency in form and substance, which has a very broad in interpretation. So even if the SC has jurisdiction, it can outrightly dismiss the petition . 2.If the court did not dismiss the petition outrightly, the court may not issue summons. It may instead issue an order to comment.Once a comment is submitted, the court acquires jurisdiction over that party. (Similarly, no summons is issued in cases of interpleader and declaratory relief and other similar remedies.)

3. Since the court does not issue summons, issuing instead a plain order to comment within a fixed period, if no comment is submitted, the court cannot declare respondent in default. 4. Under Rule 65, the court will not conduct a pre-trial or a trial. The issue is a very limited issue. It is not only a mere question of law raised in Rule 65. That question of law is one of law that it is limited to the issue of jurisdiction (without or in excess with grave abuse of discretion). There could be several questions of law that could be raised. But, that question of law may not involve jurisdiction at all. But in Rule 65, the issue is one of law and it is limited to the issue of jurisdiction, whether or not the respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction. Also , the submission of the petition or Order to comment requires parties to submit the pleadings already submitted in the lower courts. So, the court will just analyze the documents presented before it via the documents attached to the petition or the comment, and thus there is no need for a trial. What is the remedy of the aggrieved party in a petition for certiorari? The remedy is appeal, either by petition for review or petition on certiorari (Rule 45).

TABLE OF COMPARISON FOR THE WRITS OF HABEAS CORPUS, AMPARO, HABEAS DATA AND KALIKASAN
HABEAS CORPUS You have the body HABEAS DATA Literal interpretation To protect You have the data Governing Rule A.M. No. 08-1-16-SC AMPARO KALIKASAN It is a Filipino word which means nature in English A.M. No. 09-6-8-SC Special remedy available to a natural or juridical person, entity authorized by law, peoples organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Constitutional right to a balanced and healthful ecology.

Rule 102 Writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

A.M. No. 07-9-12-SC

Description Remedy available to any person Remedy available to any person whose right to life, liberty, and whose right to privacy in life, security is violated or liberty or security is violated or threatened with violation by an threatened by an unlawful act unlawful act or omission of a or omission of a public official public official or employee, or or employee, or of a private of a private individual or entity. individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Coverage Involves the right to liberty of and rightful custody by the aggrieved party. Involves the right to life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances. Involves the right to privacy in life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances.

There is an actual violation of the aggrieved partys right.

Rights violated There is an actual or threatened There is an actual or threatened violation of the aggrieved violation of the aggrieved partys right. partys right.

There is an actual or threatened violation of ones right to a healthful and balanced ecology involving environmental damage. In SC or any stations of the CA.

Where to file RTC or any judge thereof, CA or any member thereof in instances authorized by law; or SC or any member thereof. RTC of the place where the threat, act or omission was committed or any of its elements occurred; SB or any justice thereof; CA or any justice thereof; SC or any justice thereof. RTC where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner; or with SC, CA or SB when the action concerns public data files or government offices.

1. Party for whose relief it is intended; or 2. Any person on his behalf

Who may file a petition In the following order: In the following order: 1. Any member of the 1. Any aggrieved party; immediate family 2. However, in cases of 2. Any ascendant, descendant, extralegal killings and enforced or collateral relative of the disappearances: aggrieved party within the 4th a. Any member of the civil degree of consanguinity or immediate family affinity b. Any ascendant, descendant,

A natural or juridical person, entity authorized by law, peoples organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency.

3. Any concerned citizen, organization, association or institution

or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity Public official or employee, private individual or entity.

May or may not be an officer.

HABEAS CORPUS

Respondent Public official or employee or a Public official or employee or a private individual or entity. private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. AMPARO HABEAS DATA Enforceability of the writ Enforceable anywhere in the Philippines regardless of who issued the same

KALIKASAN

If granted by SC or CA: enforceable anywhere In the Philippines; If granted by RTC: enforceable only within the judicial district Payment is required Note: Rule on indigent petitioner applies. Served upon the person to whom it is directed, and if not found or has not the prisoner in his custody, to the other person having or exercising such custody Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found On the day specified in the writ

Enforceable anywhere in the Philippines

Docket fees Petitioner is exempted from payment Payment is required. Note: Rule on indigent petitioner applies. Petitioner is exempted from payment

Service of writ Served upon the respondent Served upon the respondent personally; or substituted personally; or substituted service service

Served upon the respondent personally; or substituted service.

Person who makes the return Respondent Respondent Respondent

When to file a return Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits. The respondent shall file a verified written return together with supporting affidavits within 5 working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. Return If issued by RTC: returnable before such court; If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored; If issued by SC or any of its justices: returnable before such court, or before SB, CA, or to any RTC of the place where the Within non- extendible period of 10 days after the service of writ.

If granted by the SC or CA: returnable before the court or any member or before RTC or any judge thereof; If granted by RTC: returnable before such court

If issued by RTC: returnable before such court; If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred; If issued by SC or any of its justices: returnable before such court, or before SB, CA, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

If issued by SC, returnable before such court or CA.

petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored Not prohibited. HABEAS CORPUS Not allowed. General denial Not allowed. Not allowed.

AMPARO HABEAS DATA KALIKASAN Liability of the person to whom the writ is directed if he refuses to make a return Forfeit to the aggrieved party Imprisonment or fine for Imprisonment or fine for Indirect contempt. the sum of P1000, and may also committing contempt. committing contempt. be punished for contempt. Date and time of hearing is specified in the writ. Hearing Summary hearing shall be Summary hearing shall be conducted not later than 7 days conducted not later than 10 from the date of issuance of the working days from the date of writ. issuance of the writ. The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data. Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration. 1. Motion to dismiss; 2. Motion for extension of time to file return; 3. Motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross-claim; 6. Third-party complaint; 7. Reply; and 8. Motion to declare respondent in default.

Period of appeal Within 48 hours from notice of the judgment or final order appealed from. 5 working days from the date of notice of the adverse judgment. 5 working days from the date of notice of the judgment or final order.

None

Prohibited pleadings 1. Motion to dismiss; 2. Motion for extension of time to file opposition, affidavit, position paper and other pleadings; 3. Dilatory motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross - claim; 6. Third - party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10. Memorandum; 11. Motion for reconsideration of interlocutory orders or interim relief orders; and 12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

SPECIAL CIVIL ACTIONS IN THE KALIKASAN CIRCULAR The Writ of Kalikasan is a mini RoC for environmental cases. By itself, the circular appears to contain all rules pertaining to civil cases arising out of Kalikasan laws as well as criminal procedures. 2 special civil actions: ~Writ of Kalikasan ~Petition for Continuing Mandamus Why does the Kalikasan circular consider a petition for a writ of kalikasan and continuing mandamus as a special civil action? It is because of the fact that although these are governed by ordinary rules of procedure, there are instances where there is a special procedure which has to be followed in hearing said special proceeding. A Petition of a Writ of Kalikasan as a special civil action is entirely different from ordinary civil cases. The sheer number of parties,as well as the magnitude of the prejudice that could be suffered by the petitioners (the threat to their life, liberty and property),is such that they are the inhabitants of at least 2 or more provinces or cities. If we talk about numbers, the actual number of inhabitants in a typical province could number in the hundreds of thousands. This is a perfect example of a class suit.They stand to be prejudiced in their right to their life, liberty and property by a violation or a threat to violate environmental laws by a natural person or juridical entity.Even if there is just a petitioner, a juridical entity, an NGO or an accredited public interest group, they can file a petition on behalf of two or more provinces or cities. The parties are so numerous that it will be impractical for all of them to be brought before the court. To make matters simple procedurally, take note that the procedures in Habeas Corpus and Amparo as special proceedings are practically the same procedures followed in Kalikasan cases. Upon the filing of the petition, and the court analyzes the petition, and the court is convinced of the need for the writ to be issued, the writ will be immediately issued without need of hearing the side of the respondents. The writ can be issued right away by the court as long as the allegations in the petition are complete, that petition is meritorious by itself. The court may issue also an order requiring respondents to file a VERIFIED RETURN (not an answer). In writ of HC and Amparo, return is also required to be filed by respondents. The Return must contain the respondents explanation as to his side. The writ is a special civil action in this contest because the writ is issued right away, even before the respondent is given the chance to give his side, even before the respondent can file his return. The Kalikasan circular has lots of sections as to the use of discovery measures. But, they are treated not as discovery measures, but as provisional orders in the Kalikasan circular. After the issuance of the writ of Kalikasan, even without hearing the respondent, the Kalikasan court can issue a provisional remedy called cease and desist order, which is similar to a TRO in civil cases. But, it does not have an expiration date, unlike a TRO in ordinary procedure, the duration depends upon the discretion of the Kalikasan court. Also, there are only 2 courts that can take cognizance of a petition for a writ of Kalikasan, the SC and the CA. Since there is no answer that is required to be filed by the respondent, failure by the respondent to file a verified return does not result in default. In ordinary civil actions involving environmental laws, we follow a different procedure. If the defendant in an ordinary civil procedure does not file an answer, the defendant will be declared in default even if there is no motion initiated by a plaintiff. That is in an ordinary civil action involving environmental laws which is not a special civil action of Kalikasan filed only in the CA or SC. So if the respondents do not submit a verified return,the court will go ahead with analyzing the merit of the petition for a writ of Kalikasan. A decision of the Kalikasan court in a special civil action of Kalikasan is immediately executory, although there could be an appeal. If the Circular says that the decision is immediately executory, it does not mean that appeal is no longer available. A decision could be executed as a matter of right even if the aggrieved party still has the right to appeal. This is an example of a judgment that is immediately executory, but the aggrieved party enjoys the right of appeal.

In a special civil action for a writ of kalikasan, an appeal under Rule 45 is filed in the SC. Questions of fact could be raised therein, as an exception to the general rule in Rule 45 that only questions of law could be raised before the SC. Judgment in favor of petitioner, aside from being immediately executory, partakes of a permanent prohibitory mandatory injunction and at the same time a permanent mandatory injunction. That is the tenor of a judgment in Kalikasan cases.The judgment will always contain a provision in which respondent is permanently prohibited from violating or from doing an act that will violate environmental laws, and the permanently mandatory part is that the LGU is given a mandate to enforce environmental laws.

Writ of Continuing Mandamus in Kalikasan Cases It is patterned after the mandamus contained in Rule 65. If you will compare the definition of mandamus in Rule 65 to the definition of continuing mandamus in the Kalikasan Circular, there is only the inclusion in continuing mandamus of the clause pertaining to the enforcement of environmental laws (in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, Section 1 Rule 8 Rules of Procedure on Environmental Cases). MCQ The idea or concept of continuing mandamus. What is the source of this writ of continuing mandamus? 1. an invention of the SC 2. it was taken from India 3. It was taken from USA 4. it is adopted from Latin American Countries just like Amparo. Answer 2. it came from the SC of India, which seems to have a good experience in enforcing environmental laws. Why do we have a writ of continuing mandamus when we already have mandamus under Rule 65? Cannot the writ of Mandamus under Rule 65 satisfy the requirements of a continuing mandamus? Mandamus under Rule 65 under Sec. 3 cannot satisfy the requirement of a continuing mandamus. It will negate the state policy of enforcing strictly environmental laws. A final and executory judgment under Rule 39 can only be enforced through a motion in the first five years. After that, the next five years, a case for revival of judgment must be had. In continuing mandamus, it is designed to avoid the process of motion and then filing a case for revival of judgment. The continuing mandamus requires continuous enforcement of the judgment. Via the continuing mandamus, the government is given a duty until the objective sought in achieved .

MMDA vs. Concerned Citizens Writ of Kalikasan and Continuing Mandamus petition to clean Manila Bay 2011 MMDA and various agencies were ordered by SC to clean Manila Bay until it is returned to its pristine condition. (Without Continuing Mandamus, MMDA will not be compelled to execute the judgment.) MMDA v. Concerned Residents of Manila Bay The Cleaning or Rehabilitation of Manila BayCan be Compelled by Mandamus Generally, the writ of mandamus lies to require the execution of a ministerial duty. A ministerial duty is one that requires neither the exercise of official discretion nor judgment. It connotes an act in which nothing is left to the discretion of the person executing it. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law.Mandamus is available to compel action, when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion one way or the other. *** Respondents, on the other hand, counter that the statutory command is clear and that petitioners duty to comply with and act according to the clear mandate of the law does not require the exercise of discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for

example, to choose which bodies of water they are to clean up, or which discharge or spill they are to contain. By the same token, respondents maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the MMDAs ministerial duty to attend to such services. We agree with respondents. First off, we wish to state that petitioners obligation to perform their duties as defined by law, on one hand, and how they are to carry out such duties, on the other, are two different concepts. While the implementation of the MMDAs mandated tasks may entail a decision-making process, the enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus. We said so in Social Justice Society v. Atienza in which the Court directed the City of Manila to enforce, as a matter of ministerial duty, its Ordinance No. 8027 directing the three big local oil players to cease and desist from operating their business in the so-called Pandacan Terminals within six months from the effectivity of the ordinance. But to illustrate with respect to the instant case, the MMDAs duty to put up an adequate and appropriate sanitary landfill and solid waste and liquid disposal as well as other alternative garbage disposal systems is ministerial, its duty being a statutory imposition. The MMDAs duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section defines and delineates the scope of the MMDAs waste disposal services to include: Solid waste disposal and management which include formulation and implementation of policies, standards, programs and projects for proper and sanitary waste disposal. It shall likewise include the establishment and operation of sanitary land fill and related facilities and the implementation of other alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.) The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides the minimum operating requirements that each site operator shall maintain in the operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003, enjoining the MMDA and local government units, among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for solid waste and disallowing, five years after such effectivity, the use of controlled dumps. The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not only in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system cannot be characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given by law to public functionaries to act officially according to their judgment or conscience. A discretionary duty is one that allows a person to exercise judgment and choose to perform or not to perform. Any suggestion that the MMDA has the option whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis. A perusal of other petitioners respective charters or like enabling statute s and pertinent laws would yield this conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are precluded from choosing not to perform these duties. **** **** All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete as to what are the obligations and mandate of each agency/petitioner under the law. We need not belabor the issue that their tasks include the cleanup of the Manila Bay.

Secs. 17 and 20 of the Environment Code Include Cleaning in General ****

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, as long as water quality has deteriorated to a degree where its state will adversely affect its best usage. This section, to stress, commands concerned government agencies, when appropriate, to take such measures as may be necessary to meet the prescribed water quality standards. In fine, the underlying duty to upgrade the quality of water is not conditional on the occurrence of any pollution incident. For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In such instance, the concerned government agencies shall undertake the cleanup work for the polluters account.**** As earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the specific duties of the agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the happening of a specific pollution incident. In this regard, what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better served by making Secs. 17 & 20 of general application rather than limiting them to specific pollution incidents. Granting arguendo that petitioners position thus described vis --vis the implementation of Sec. 20 is correct, they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude and scope that it is well-nigh impossible to draw the line between a specific and a general pollution incident. And such impossibility extends to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions water pollution incidents which may be caused by polluters in the waters of the Manila Bay itself or by polluters in adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to any person who causes pollution in or pollutes water bodies, which may refer to an individual or an establishment that pollutes the land mass near the Manila Bay or the waterways, such that the contaminants eventually end up in the bay. In this situation, the water pollution incidents are so numerous and involve nameless and faceless polluters that they can validly be categorized as beyond the specific pollution incident level. Not to be ignored of course is the reality that the government agencies concerned are so undermanned that it would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may perhaps not be amiss to say that the apprehension, if any, of the Manila Bay polluters has been few and far between. Hence, practically nobody has been required to contain, remove, or clean up a given water pollution incident. In this kind of setting, it behooves the Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup situation. The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution. The preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of water be stopped from reaching the ManilaBay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the Court to put the heads of the petitioner-department-agencies and the bureaus and offices under them on continuing notice about, and to enjoin them to perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level. Under what other judicial discipline describes as continuing mandamus, the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference. In India, the doctrine of continuing mandamus was used to enforce directives of the court to clean up the length of the Ganges River from industrial and municipal pollution.

***** In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all concerned executive departments and agencies to immediately act and discharge their respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and completion of the tasks, some of them as defined for them by law and the nature of their respective offices and mandates. The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be over-emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put their minds to these tasks and take responsibility. This means that the State, through petitioners, has to take the lead in the preservation and protection of the Manila Bay. The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners hiding behind two untenable claims: (1) that there ought to be a specific pollution incident before they are required to act; and (2) that the cleanup of the bay is a discretionary duty. RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and women representing them cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them.

How do we execute that judgment in the Kalikasan court? Theoretically, SC said that the execution of the judgment requires a periodic report from the agencies concerned on the extent of progress the government agencies concerned had achieved until the objective of the writ has been achieved. If the SC is understaffed to monitor the progress, it can appoint commissioners in charge of accepting periodic reports and in submitting the progress reports to the SC in order to satisfy this judgment requirement.Thus, dormancy and prescription of judgment under Rule 39 and NCC shall not apply in Writ of Kalikasan .

A continuing mandamus is another special civil action, but this time it is cognizable by the RTC, CA and the SC. Just like in Rule 65 or the Writ of Kalikasan as a special civil action, the respondent is required to file a verified return, and if no return is filed by respondent, court continues with the process of analyzing the merit of the petition for continuing mandamus. A provisional remedy that could be issued by the court handling the petition for continuing mandamus is the issuance of a Temporary Environmental Protection Order (TEPO) or a cease and desist order, just like in the writ of Kalikasan. There could also be an award of damages.

You will also notice that unlike in Kalikasan, there is no provision concerning appeals in continuing mandamus.. In the writ of Kalikasan as a special civil action, appeal under Rule 45 is a remedy, raising only questions of law and questions of fact. . It would seem that the appeals provided in ordinary civil procedure will govern. If the trial court is the RTC, the appeal could be by notice of appeal provided in the Rules, or it could be an appeal directed to the SC. In ordinary civil cases, we allow an appeal from the RTC to the SC under Rule 45, but the appeal should only contain questions of law.

What is the precautionary principle in Kalikasan Cases? Precautionary principle states that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat .

What is Strategic Lawsuit Against Public Performance (SLAPP) ? It could be in the form of a civil or criminal action. Plaintiffs intent from SLAPP is to discourage enforcement officers from enforcing or attempting to enforce environmental laws . This is filed usually against DENR or MMDA by a private individual. Strategic lawsuit against public participation (SLAPP) refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. In such case, the government officer can file a motion to dismiss such case. The public officer/defendant/accused need only to present substantial evidence (the same standard in administrative cases) to prove that the case filed was a SLAPP. The plaintiff must present preponderance of evidence/proof beyond reasonable doubt to sustain his challenge. In criminal procedure in SLAPP, there is a substantial change in the manner by which a criminal case is governed when compared to a criminal action which follows criminal procedure. In ordinary criminal procedure, if the court grants bail, one of the conditions in the bail is that if the accused does not appear in court for trial, then the court is authorized to conduct a trial in absentia. But in criminal procedure, if the accused is granted bail, and then during the arraignment he does not appear, the criminal court will be forced to suspend proceedings until the accused is rearrested. What the court will do is to postpone the arraignment, issue another arrest warrant and probably order the cancellation of the bail bond. But, the arraignment will not be pushed through. If there is no arraignment, there can be no trial in the ordinary criminal case. There must be an arraignment first before the court can conduct a trial in absentia. This is not followed in the Kalikasan criminal cases. In the Kalikasan criminal cases, the crimes are usually bailable. If the accused is granted bail, the condition of the bail bond will contain similar provisions to that found in bail under ordinary criminal proceedings. There is modification in arraignment. If accused does not appear in the scheduled arraignment, the court is authorized enter a plea of not guilty, so that if there is a plea of not guilty, the arraignment is completed, a trial can then be scheduled. If the accused still failed to appear on trial, there can be a trial in absentia. There is no more need for the accused to be present personally during the arraignment in the Kalikasan criminal cases. If he does not appear, then it is the court who will enter a plea of not guilty for him so the court can continue with the trial in absentia of the accused. Other Terms(Rules of Procedure on Environmental Cases): By-product or derivativesmeans any part taken or substance extracted from wildlife, in raw or in processed form including stuffed animals and herbarium specimens.

Consent decree refers to a judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment. Mineral refers to all naturally occurring inorganic substance in solid, gas, liquid, or any intermediate state excluding energy materials such as coal, petroleum, natural gas, radioactive materials and geothermal energy. Wildlifemeans wild forms and varieties of flora and fauna, in all developmental stages including those which are in captivity or are being bred or propagated. Some Important provisions (Rules of Procedure on Environmental Cases): Rule 2 SEC. 13. Service of summons, orders and other court processes.The summons, orders and other court processes may be served by the sheriff, his deputy or other proper court officer or for justifiable reasons, by the counsel or representative of the plaintiff or any suitable person authorized or deputized by the court issuing the summons. Any private person who is authorized or deputized by the court to serve summons, orders and other court processes shall for that purpose be considered an officer of the court. The summons shall be served on the defendant, together with a copy of an order informing all parties that they have fifteen (15) days from the filing of an answer, within which to avail of interrogatories to parties under Rule 25 of the Rules of Court and request for admission by adverse party under Rule 26, or at their discretion, make use of depositions under Rule 23 or other measures under Rules 27 and 28. Should personal and substituted service fail, summons by publication shall be allowed. In the case of juridical entities, summons by publication shall be done by indicating the names of the officers or their duly authorized representatives.

Rule 3 SEC. 3. Referral to mediation.At the start of the pre-trial conference, the court shall inquire from the parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal researcher for mediation. Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to mediation. The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.

Rule 3 SEC. 5. Pre-trial conference; consent decree.The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences. The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology. Evidence not presented during the pre-trial, except newly discovered evidence, shall be deemed waived.

Rule 4 SEC. 2. Affidavits in lieu of direct examination.In lieu of direct examination, affidavits marked during the pre-trial shall be presented as direct examination of affiants subject to cross-examination by the adverse party. Rule 4 SEC. 3. One-day examination of witness rule. The court shall strictly adhere to the rule that a witness has to be fully examined in one (1) day, subject to the courts discretion of extending the examination for justifiable reason. After the presentation of the last witness, only oral offer of evidence shall be allowed, and the opposing party shall immediately interpose his objections. The judge shall forthwith rule on the offer of evidence in open court.

Rule 4 SEC. 4. Submission of case for decision; filing of memoranda. After the last party has rested its case, the court shall issue an order submitting the case for decision. The court may require the parties to submit their respective memoranda, if possible in electronic form , within a non-extendible period of thirty (30) days from the date the case is submitted for decision. The court shall have a period of sixty (60) days to decide the case from the date the case is submitted for decision.

Rule 4 SEC. 5. Period to try and decide.The court shall have a period of one (1) year from the filing of the complaint to try and decide the case. Before the expiration of the one-year period, the court may petition the Supreme Court for the extension of the periodfor justifiable cause. The court shall prioritize the adjudication of environmental cases.

Rule 5 SECTION 1. Reliefs in a citizen suit.If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection, preservation or rehabilitation of the environment and the payment of attorneys fees, costs of suit and other litigation expenses . It may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purposesubject to the control of the court. Rule 5 SEC. 2. Judgment not stayed by appeal.Anyjudgment directing the performance of acts for the protection, preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court.

Rule 7 SEC. 6. How the writ is served.The writ shall be served upon the respondent by a court officer or any person deputized by the court, who shall retain a copy on which to make a return of service. In case the writ cannot be served personally, the rule on substituted service shall apply. Rule 7 SEC. 7. Penalty for refusing to issue or serve the writ. A clerk of court who unduly delays or refuses to issue the writ after its allowance or a court officer or deputized person who unduly delays or refuses to serve the same shall be punished by the court for contempt without prejudice to other civil, criminal or administrative actions.

Rule 10 SECTION 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged, shall be deemed instituted with the criminal action unless the complainant waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute separately the civil action shall be made during arraignment. In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment award. The damages awarded in cases where there is no private offended party, less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated. The award shall be used for the restoration and rehabilitation of the environment adversely affected. Rule 14 SECTION 1. Bail, where filed.Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. If the court grants bail, the court may issue a hold-departure order in appropriate cases. Rule 16 SEC. 4. Manner of questioning.All questions or statements must be directed to the court. Rule 16 SEC. 5. Agreements or admissions.All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel; otherwise, they cannot be used against the accused. The agreements covering the matters referred to in Section 1, Rule 118 of the Rules of Court shall be approved by the court.

Rule 20 PRECAUTIONARY PRINCIPLE SECTION 1. Applicability.When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. SEC. 2. Standards for application.In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected.

RULE 66 QUO WARRANTO ~One of the cases under the concurrent original jurisdiction of the SC, CA and RTC under BP 129 and also the COMELEC under the Omnibus Election Code. MTC has limited quo warranto jurisdiction as to proceedings at the barangay level. Q: What is quo warranto? A: A proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise. Note: It is commenced by a verified petition brought in the name of the Republic of the Philippines or in the name of the person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another. (Sec. 1) Q: What are the classifications of quo warranto proceedings? A: 1. Mandatory brought by the Solicitor General or Public prosecutor when: a. directed by the President; b. upon complaint or when he has reason to believe that the cases for quo warranto can be established by proof (Sec. 2) c. at the request and upon the relation if another person (ex relatione), but leave of court must first be obtained. (Sec. 3) 2. Discretionary brought by the Solicitor General or a public prosecutor at the request and upon the relation of another person, provided there must be: a. leave of court b. at the request and upon the relation of another person c. indemnity bond (Sec. 3) Who commences the action? A: 1. The solicitor general or public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the proceeding section can be established by proof. (mandatory quo warranto) 2. The Solicitor General or a public prosecutor may, with the permission of court, bring an action at the request and upon the relation of another person. (discretionary quo warranto) 3. A person claiming to be entitled to a public office or position or unlawfully held or exercised by another may also bring action, in his own name. (Relator) Q: Against whom a quo warranto may be filed? A: The action must be filed against: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 2. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; and 3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (Sec. 1, Rule 66). Note: Actions of quo warranto against corporations now fall under the jurisdiction of the RTC (Sec. 5.2, Securities Regulations Code).

Usually, the petitioner has the right of choice. But under Rule 65, although nothing is mentioned in Rule 66 about hierarchy of courts in quo warranto proceedings, we follow hierarchy of courts. As much as possible, we do not file a petition for quo warranto in the SC. It should be filed in the RTC which has territorial jurisdiction over the case where the public office in question is placed.

If we compare quo warranto to mandamus, if you go back to Rule 65 Section 3, the second part of that section has a phrase or clause which seems to overlap with the concept of quo warranto. Quo warranto refers to the usurpation, holding an office without title. In mandamus, the second part of the section on mandamus speaks about a respondent who unlawfully excludes another from the use or enjoyment of a right or office to which he is entitled. So there seems to be an overlap between the second part of mandamus and quo warranto. Rule 65 SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled , and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. Because of this seemingly overlap between mandamus and quo warranto, the SC has also resolved that there is nothing wrong when a petitioner files a petition for mandamus or in the alternative a petition for quo warranto. The petitioner is not very certain whether the right proceeding is mandamus or quo warranto, because these actions would involve really the intrusion or usurpation of a public office or title. But there is a great difference procedurally between mandamus and quo warranto although these petitions could be used alternatively. This is because in a quo warranto proceeding, the petitioner could be the Solicitor General, although he is not interested in the public office in question. Upon the instruction of the President, the SolGen is authorized to file a petition for quo warranto. Or, if the instructions does not come from the President, the request comes from a relator. A relator is a term associated with quo warranto, he is the petitioner, a person who believes he is entitled to the public office held by another, and he is asking the SolGen to file a petition for quo warranto on his behalf. The SolGen, upon the request of a relator, shall commence a petition for quo warranto. But the person interested in the office could himself file a petition for quo warranto. That is what usually happens. The person who alleges he is entitled to a position can file a petition for quo warranto in a competent court. Quo warranto is a special civil because of numerous changes in the procedure which modify the rules we apply to ordinary civil actions. Procedural changes: 1. Rule on venue Usually in ordinary civil cases, in the absence of an express agreement, venue is governed by Rule 4. We do not follow this in quo warranto. It is specifically provided that for quo warranto, the venue is where the officer sought to be ejected is residing. We do not take into account the residence of the petitioner. Q: A group of businessmen formed an association in Cebu City calling itself Cars Co. to distribute/sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before the RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars Co. The latter filed a motion to dismiss the petition on the ground of improper venue claiming that its main office and operations are in Cebu City and not in Manila. Is the contention of Cars Co. correct? Why? A: No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a Regional Trial Court in the City of Manila, as in the case, in the CA or in the SC (Sec. 7, Rule 66). (2001 Bar Question) 2. Period for submission of pleadings

In ordinary civil actions, the period to file pleadings is fixed in the Rules, and the court has discretion to grant extension thereof. But if we read Rule 66, the quo warranto court can reduce the period at its discretion. The quo warranto court can issue a summons instructing the recipient thereof to file a responsive pleading with 5 days. That discretion of a quo warranto court is not enjoyed by other courts under ordinary civil procedure, as courts under ordinary procedure can grant extensions only. 3. The most significant change in quo warranto is that we do not apply the rule against splitting a cause of action .It is expressly allowed in quo warranto under Sections 9, 10 and 11 of Rule 66. SEC. 9. Judgment where usurpation found.When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires. SEC. 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages .If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondents custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court . The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation . SEC. 11. Limitations.Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose ; nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioners right to the office in question.

You will note that in these 3 sections, there is a rule derived from these sections, which says that if the quo warranto court decides in favor of the petitioner, the quo warranto court will oust the respondent and direct that the office and the records of that office be turned over to the prevailing party. In the succeeding sections, it is also provided that the prevailing party has a right, within 1 year after taking over, can claim damages incurred as a result of usurpation by ousted respondent public officer.Although a favorable decision in a quo warranto proceeding could lead the court to award damages against the respondent public officer, the quo warranto need not award damages in the quo warranto petition itself. There could be a separate complaint for recovery of damages arising from the usurpation of a public office. This is splitting a cause of action. In other words, the prevailing party can recover the office, and after he has assumed office, within one year from entry of judgment, he can file a separate complaint for the recovery of damages suffered as a result of the intrusion or usurpation made by the defendant. Claim for damages arising from principal cause of action is not barred if split from quo warranto action. But prescriptive period is 1 year from entry of the main action. Whereas in the case of mandamus, a special civil action, lets say the petitioner files a petition for mandamus without a claim for damages. He later on wins the case. When court directs the defendant to turn over the office to the prevailing party, the prevailing party will be barred from claiming damages from the plaintiff. Mandamus does not authorize splitting a cause of action. A claim of damages could be awarded if claimed in the same petition for mandamus. In quo warranto, there is a different procedure that we follow when it comes to recovery of damages. There could be a separate complaint for recovery of damages arising from the intrusion or usurpation of public office. But the prescriptive period is one year from entry of judgment of the quo warranto proceeding.

Distinguish mandamus from quo warranto. A: Mandamus Available when one is unlawfully excluded from the use or enjoyment of an office against a person who is responsible for excluding the petitioner No splitting of a cause of action.

Quo Warranto Available against the holder of an office, who is the person claiming the office as against petitioner, not necessarily the one who excludes the petitioner Recovery of damages is allowed within 1 year from the entry of judgment of the petition for quo warranto

Distinguish quo warranto in elective office from an appointive office. A: Elective Office Appointive Office Issue: eligibility of the respondent Issue: validity of the appointment Occupant declared ineligible/disloyal will be unseated but Court will oust the person illegally appointed and will order petitioner will not be declared the rightful occupant of the the seating of the person who was legally appointed and office. entitled to the office. Distinguish quo warranto under Rule 66 from quo warranto under Omnibus Election Code. A: Quo Warranto Under Rule 66 Quo Warranto In Electoral Proceedings Prerogative writ by which the government can call upon any To contest the right of an elected public officer to hold person to show by what title he holds a public office or public office. exercises a public franchise. Grounds: 1. usurpation Grounds: 2. forfeiture ineligibility or disqualification to hold the office 3. illegal association Presupposes that the respondent is already actually holding Petition must be filed within 10 days from the proclamation office and action must be commenced within 1 year from of the candidate. cause of ouster or from the time the right of petitioner to hold office arose. The petitioner must be the government or the person May be filed by any voter even if he is not entitled to the entitled to the office and who would assume the same if his office. action succeeds. Person adjudged entitled to the office may bring a separate Actual or compensatory damages are recoverable in quo action against the respondent to recover damages. warranto proceedings under the Omnibus Election Code. Note: If the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto is not the proper remedy but an election protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25, 1929) Is the claim of damages in quo warranto cases considered a separate special civil action? No, it is an ordinary action for a claim of damages. Supposing that the petitioner filed a case for quo warranto against respondent. His petition for quo warranto was granted. The respondent was ousted from the office. When the prevailing party filed a case for damages, 1 year after the entry of the judgment of the quo warranto court, the respondent interposed a defense that he cannot be held liable for damages as the judgment of the quo warranto court was an invalid judgment. Is his defense succeed in this ordinary complaint for damages? No. It cannot be set up. It is a collateral attack on a judgment, which we do not allow. Collateral attack on judgment rendered by the court is not allowed when the judgment appears on its face to be valid under Rule 39. Practically, in that separate complaint for the recovery of damages, no meritorious defense could be set up by the respondent because the award of damages necessarily arises from the fact that there is already a final and executory judgment rendered in the principal case of quo warranto.

RULE 67 EXPROPRIATION Q: What is expropriation? A: The procedure for enforcing the right of eminent domain. Q: What are the requisites of a valid expropriation? A: 1. Due process of law 2. Payment of just compensation 3. Taking must be for public use Q: What is the power of eminent domain? A: It is the right of the State to acquire private property for public use upon the payment of just compensation. Q: When is expropriation proper? A: It is proper only when the owner refuses to sell or, if the latter agrees, agreement as to the price cannot be reached .

Jurisdiction exclusively cognizable by RTC. The test in BP 129 as to assessed value of the property is not applied here. The nature of the action as a real action has nothing to do with the jurisdiction of the court, but it has something to do only with respect to the venue.The nature of the property is not determinative of jurisdiction in expropriation proceedings because expropriation is one not capable of pecuniary estimation. Why is this so when state is required to pay just compensation? This is because the issue to be resolved first by the court is the right of the plaintiff to expropriate . Only in the second stage is the fixing of just compensation resolved.A court cannot simply decide the issue of just compensation first, as it should assess first the right to expropriate, which is incapable of pecuniary estimation . SC held that since the first issue to be resolved is one incapable of pecuniary estimation, under BP 129, then it should be the RTC which should have jurisdiction. In expropriation proceedings, if there is a complaint filed yesterday, and the plaintiff deposits an amount equivalent to assessed value today, even if the defending party has not been notified yet, the plaintiff can proceed to possess the property subject of expropriation.Let us say that the DPWH is interested in getting a property of land for the purpose of expanding a national highway. What it will do is to simply file a complaint in the RTC where the land is located. The deposit is made the next day. Immediately, the DPWH will take over the said property, and the owner thereof can do nothing about it. Once deposit is made as required by the Rules or as required by substantive law, the court issues a writ of possession as its ministerial duty.In ordinary civil actions, issuance of a writ of possession can be done only after the court has rendered a decision and such decision has been entered. In case of reversion, when will the owner recover the expropriated property? After a judgment in favor of owner has become final and executory. If there is an appeal, possession is not returned, except when execution pending appeal is granted. Otherwise, a writ of possession shall be issued upon finality. Suppose there is a lien over the property? What if there were informal settlers in the property? They will all be driven out as a result of the writ of possession issued even before the expropriation court has determined whether or not the state has a right to expropriate.

There are now new laws providing for fixing the amount of deposit to be made, not the one that is always provided for under Rule 67. The new laws say that deposit should be 100% of the assessed value. Rule 67 shall govern in cases where the special laws are not applicable.

WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY Q: What is the new system of immediate payment of initial compensation? A: RA 8974 provides a modification of sec 2, Rule 67 where the Government is required to make immediate and direct payment to the property owner upon the filing of the complaint to be entitled to a writ of possession. As a relevant standard for initial compensation, the market value for the property as stated in the tax declaration or the current relevant zonal valuation of the Bureau of internal Revenue (BIR), whichever is higher and the value of the improvements and/or structures using the replacement cost method. Note: RA 8974 applies in instances when the national government expropriates property fornational government infrastructure projects. Thus, if expropriation is engaged by the national government for purposes other than national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply . The intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of immediate payment in cases involving national government infrastructure projects is indeed very clear (MCWD v. J. King and Sons, GR 175983, April 16, 2009) NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION Q: What is the new system of immediate payment of initial just compensation? A: For the acquisition of right-of-way, site or location for any national government infrastructure project through expropriation, upon the filing of the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100 percent of the value of the property based on the current relevant zonal valuation of the BIR; and (2) the value of the improvements and/or structures as determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974).

Expropriation by LGUs, under the LGC, it must be alleged in the complaintthat there is an ordinance authorizing the filing expropriation complaint and a further allegation that LGU offered to buy the property from the owner, but the owner refused (there was an attempt by the LGU to buy the property).

What are the two (2) stages in expropriation proceedings? A: 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved. 2. Determination of just compensation. FIRST STAGE The first stage of the expropriation proceeding is for purposes of determining the plaintiffs right to expropriate. The first decision in resolving this issue is called an order of condemnation or expropriation, which is a final decision on the merits. This is appealable. Certain pleadings are not allowed: Counterclaim, cross-claim and 3rd party complaint. If defendant believes the filing of expropriation by the Republic is arbitrary, he cannot sue the Republic. He cannot file a counterclaim against the Republic. Is there a way the defendant protect himself in case the court decides in his favor? Under Rule 67, even if without a counterclaim, if the court resolves the expropriation is not meritorious, the court will award damages in favor of defendant. If there is a dispute among several defendants as to who is entitled to just compensation, even if no cross-claim is filed, the court itself will resolve this issue, even if there are no pleadings relating thereto. The expropriation court has a very wide discretion in the matter of payment, or even distribution, of just compensation that will be fixed during the 2nd stage where the court will appoint commissioners, who will then tell the court the amount of just compensation to be paid to the various defendants.

POSSESSORS WITH JUST TITLE SC also ruled that if the Republic has a Torrens title over certain properties, but the said properties were in the possession of private individuals claiming possession under a just title, the Republic cannot simply cause their ejection, but Republic can simply file an expropriation proceeding against them. There is nothing wrong if the Republic will file a complaint for expropriation to oust the possessors from the property, although these properties are already in the title of the government. DEFAULT Supposing the defendant does not answer within the period of default, the court, upon motion of the plaintiff, may declare the defendant in default. But in the default order issued in expropriation proceedings, the defendant is in default only during the first stage of the proceedings, and is lifted automatically in the 2nd stage. The defendant, if declared in default, will not be able to participate during the first stage of the proceedings where the right of the plaintiff to expropriate will be determined by the court. The first stage ends, if favorable to plaintiff, with the court issuing an order for condemnation or order of expropriation. Once that order is entered, or even if there is an appeal from that order, the expropriation court will now go to the second stage, the fixing of just compensation. During the 2nd stage, the defendant is allowed again to participate in the proceedings the fixing of just compensation. Unlike in ordinary civil actions, if the defendant is in default, the defendant will not be able to participate during the entire proceedings, unless the order of default is lifted or the order of default is set aside. SECOND STAGE The fixing of just compensation is not solely the discretion of the court. Court MUST appoint commissioners to determine such compensation. If the court has not followed this procedure, there is ground to question the decision of just compensation by said court. Commissioners must be appointed in order to help the court in fixing the just compensation to be paid. This is another deviation from ordinary procedures. Note in ordinary procedure, trial by commissioners is discretionary; unlike in expropriation, the appointment of commissioners in the second stage is mandatory. The judgment rendered by the expropriation court will be void if the court does not follow the mandatory requirement of appointing of commissioners. Q: May the court dispense with the assistance of commissioners in the determination of just compensation in expropriation proceedings? A: No. The appointment of commissioners in expropriation proceedings is indispensable. In such cases, trial with the aid of commissioners is a substantial right that may not be done away with capriciously or for no reason at all (MERALCO v. Pineda, G.R. No. L-59791, Feb. 13, 1992). Note: Objections to the order of appointment must be filed within 10 days from service of the order and shall be resolved within 30 days after all the commissioners received the copies of the objections (Sec. 5) Q: What is just compensation? A: Just compensation is equivalent to the fair market value of the property at the time of its taking or filing of complaint whichever comes first. It is the fair and full equivalent for the loss sustained by the defendant. Q: What is the formula for the determination of just compensation? JC = FMV + CD CB If CB is more than CD then, JC = FMV Where: JC Just compensation FMV Fair market value CD Consequential damages CB Consequential benefits Note: Sentimental value is not computed.

Q: What is the reckoning point for determining just compensation? A:The value of just compensation shall be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. (Sec. 4) GR: When the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent domain, the just compensation should be determined as of the date of the filing of the complaint. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010). Note: Typically, the time of taking is contemporaneous with the time the petition is filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10, 2009) XPNs: 1. Grave injustice to the property owner 2. The taking did not have color of legal authority 3. The taking of the property was not initially for expropriation 4. The owner will be given undue increment advantages because of the expropriation

Based on past jurisprudence, if the state has expropriated a piece of land and had paid just compensation based on the courts decisions, but the state did not push through with the project alleged in the complaint, there is nothing we can do about it on ground of res judicata.The case can no longer be reopened. But that was old jurisprudence. Recently, the decision on Mactan-Cebu International Airport cases, the last of which was decided in 2010, the SC held that in the case of the public purpose of the expropriation being unfulfilled, the former owners can rightfully file a complaint in the RTC for the reversion of the property andreconveyance of the property expropriated, the amount of payment of which shall be based on the just compensation paid at the time of expropriation (the purpose being to return to the government the amount of just compensation paid to them). In another case, there was a land owner who donated a tract of land to the government. The government introduced improvements with tolerance of the owner, and the value of the property increased. The donor, seeing that the improvements increase the value of his property, changed his mind and sought to recover the donated property by filing a case for unlawful detainer against the government.SC held that unlawful detainer is not the remedy. There was a de facto expropriation that happened when the government took over the property. What the owner can do is to file an ordinary action for the recovery of just compensation. In other words, if we follow the reasoning of the SC, expropriation could be de jure expropriation, it could also be de facto expropriation. If the government actually occupies a piece of land and introduces improvements therein, with the tolerance of the owner of the property, that is effectively an expropriation of the property. And the only remedy of the land owner is to file an ordinary case for the recovery of just compensation. There will still be a need to fix the amount of just compensation. We follow the same procedure if the subject of expropriation is personal property. But there are laws fixing the amount to be deposited if the government wants to take possession of the personal property right away. APPEAL Supposed defendant appealed the first final order, may the court proceed with the 2nd stage? Yes. An appeal from the first final order will not prevent the court from proceeding to the 2nd stage to fix the amount of just compensation. If the defendant during appeal asks the court to withdraw the deposit made, will that mean he is withdrawing his appeal or shall the appeal continue? The appeal shall continue. SC held that defendant is allowed to withdraw the money since technically it is his as it is intended to pay partly his just compensation, this will not mean that the appeal is being withdrawn.

Thus, immediately, you can see why expropriation is a special civil action. It consists of 2 stages. And for each stage, there is a final order of judgment. Thus, for each final order of judgment, an appeal can be had, meaning there can be 2 appeals in an expropriation case. Thus, it is possible that there can be multiplicity of appeals in expropriation cases, which is not allowed in ordinary civil actions. Because of the possibility of multiple of appeals in expropriation proceedings, the requirements of appeal are changed. In ordinary civil proceedings, the period to appeal is 15 days, and what needs to be filed is just a notice to appeal. In expropriation proceedings, since there could be multiple appeals, the period to appeal is extended to 30 days, and together with notice of appeal, appellant is also required to file a record on appeal. Failure to file record to appeal means the appeal is not perfected.

Q: City of Iloilo (petitioner) represented by Mayor Treas filed a complaint for eminent domain against Javellana seeking to expropriate two parcels of land. Mayor Treas filed a motion for issuance of writ of possession alleging that it had deposited 10% of the amount of compensation of which the court issued. A writ of possession was subsequently issued, and petitioner was able to take physical possession of the properties. After which, the expropriation proceedings remained dormant. 16 years later, Javellana filed an ex parte motion/manifestation, where he alleged that when he sought to withdraw the money, he discovered that no deposit was made. Thus, Javellana filed a complaint for recovery of possession, fixing and recovery of rental and damages. The City of Iloilo argues that Javellana could no longer bring an action for recovery since the subject property was already taken for public use. The trial court in its orders and amended orders maintained that the assailed orders issued by it were interlocutory in character and as such are always subject to modification and revision by the court anytime. Is the order of expropriation final? A: Expropriation proceedings have two stages. The first phase ends with an order of dismissal, or a determination that the property is to be acquired for a public purpose. The second phase consists of the determination of just compensation. Both orders, being final, are appealable. An order of condemnation or dismissal is final, resolving the question of whether or not the plaintiff has properly and legally exercised its power of eminent domain. Once the first order becomes final and no appeal thereto is taken, the authority to expropriate and its public use can no longer be questioned. Thus, it has become final, and the petitioners right to expropriate the property for a public use is no longer subject to review. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010). May Congress enact a law providing that a 5,000 square meter lot, a part of the UST compound in Sampaloc, Manila, be expropriated for the construction of a park in honor of former City Mayor ArsenioLacson? As compensation to UST, the City of Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally intended as a residential subdivision for the Manila City Hall employees. Explain. A: Yes, Congress may enact a law to expropriate property but it cannot limit just compensation. The determination of just compensation is a judicial function and Congress may not supplant or prevent the exercise of judicial discretion to determine just compensation. Under Sec. 5, Rule 67 of the Rules of Court, the ascertainment of just compensation requires the evaluation of 3 commissioners. (2006 Bar Question)

RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE Another multi-stage special civil action it has 3 stages Q: What is foreclosure of Real Estate Mortgage (REM)? A: It is the remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against the property used to secure said obligation. Note: It is commenced by a complaint setting forth the date and due execution of the mortgage; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage (Sec. 1).

JUDICIAL VS.EXTRA-JUDICIAL FORECLOSURE Judicial Foreclosure Extra-judicial Foreclosure Governed by Rule 68 Governed by Act 3135 There is only an equity of redemption except when the Right of redemption exists mortgagee is a bank Requires court intervention No court intervention necessary Mortgagee need not be given a special power of attorney. Mortgagee is given a special power of attorney in the mortgage contract to foreclose the mortgaged property in case of default Note: A mortgagee may bring a personal action for the amount due, instead of a foreclosure suit, in which case, he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding. (Movido v. RFC, G.R. No. L11990, May 29, 1959) Judicial foreclosure of real estate mortgage.Rule 68 deals only with real estate mortgage. Here, the court is involved. Note: There is no judicial foreclosure of a chattel mortgage. Extra-judicial foreclosure of real mortgage is governed by special law, the Real Estate Mortgage Law. We deal only with the notary public or the court sheriff. There is a circular issued by the SC concerning extra-judicial real estate mortgage, so we follow that SC circular when it comes to extra-judicial foreclosure. In the circulars, the mortgagee will not need to file a complaint, but instead will be dealing with notary public or sheriff. There will also be public auction, period of redemption, and consolidation of title by RoD. The only time when the purchaser in this foreclosure needs to go to court is when the purchaser needs to recover possession of the property. He will have to go to court in order to petition for the issuance of a writ of possession. In extra-judicial foreclosure of mortgage, the period of redemption is similar to Rule 39, 1 year from registration of the certificate of sale. This period of redemption is one of the distinctions of judicial under Rule 68 and extra-judicial foreclosure of mortgage. Redemption in judicial foreclosure is called equity of redemption. It is redemption just the same. Period of redemption is between 90 to 120 days from entry of judgment. Such short period is actually misleading, as it can be without a definite end. The counting must be commenced from ENTRY of judgment or final order. There are 3 judgments or final orders to be rendered in judicial foreclosure. For each stage, there could be an appeal in each final order. The counting starts upon entry of all three judgments or final orders. Thus, if one or two judgments were appealed in the CA up to the SC, then such period is extended until the finality of the said judgments, which could take many years. If an appeal is perfected on time, there can be no entry of judgment. This is the reason why mortgagees are discouraged from engaging in judicial foreclosures. Q: Distinguish equity of redemption from right of redemption. A: Equity of Redemption Right of Redemption Right of the defendant mortgagor to extinguish the Right of the debtor, his successor in interest or any judicial mortgage and retain ownership of the property by paying creditor or judgment creditor of said debtor or any person the debt within 90-120 days after the entry of judgment or having a lien on the property subsequent to the mortgage or even after the foreclosure sale but prior to confirmation deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriffs certificate of foreclosure sale Governed by Rule 68 Governed by Secs. 29-31, Rule 39 Note: There is no right of redemption in judicial foreclosure sale after the confirmation of sale except those granted by banks or banking institutions in favor of non-judicial persons as provided by the General Banking Act (Government Insurance System v. CFI of Iloilo, G.R. No. 45322, July 5, 1989). In extra-judicial foreclosure, the mortgagor has the right to redeem the property within one year from the registration of the deed of sale. However, Sec. 47 of the General Banking Act provides that in case of extra-judicial foreclosure, juridical

persons shall have the right to redeem the property until, but not after, the registration of the certificate of foreclosure sale which in no case shall be more than 3 months after foreclosure, whichever is earlier. The pendency of the action stops the running of the right of redemption. Said right continues after perfection of an appeal until the decision of the appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)

A mortgagee can only foreclose extra-judicially under the Real Mortgage Law if he is given an SPA to do so by the mortgagor. Otherwise, he must make use of judicial foreclosure of mortgage. If mortgagee files a complaint for judicial foreclosure, the first problem is jurisdiction. SC held that foreclosure of REM is always cognizable under the RTC. It is not capable of pecuniary estimation. Notwithstanding the nature of foreclosure of a real estate, the SC used the reasons in expropriation. SC held that a judicial foreclosure of a real estate mortgage is incapable of pecuniary estimation since in the first stage, the court determines the right of plaintiff to foreclose, which is incapable of pecuniary estimation.

Rule 68 already tells who should be the plaintiff as well as who to implead defendant. The defendants should be the debtor and the mortgagor. The debtor is different from mortgagor. And debtor must also implead as co-defendants persons who might have interests or liens subsequent to the mortgagee. By implication, the owner of a piece of land can validly mortgage his land more than once. He can mortgage the land to A, then to B, and then C. If the mortgage loans are all defaulted, the defendant, if he has not given any authority to foreclose the mortgage, is sure to be impleaded as a defendant in the complaint for judicial foreclosure of a real estate mortgage. It is the first mortgagee who judicially forecloses the mortgage and if he follows the Rules, the first mortgagee should implead the debtor, the mortgagor and the subsequent mortgagees. Does it mean to say that the debtor is an indispensible party? Yes. The mortgagor is an indispensable party, whose property is sought to be foreclosed. Remember that a mortgage is a collateral contract. There must always be a principal contract coupled with a contract of real estate mortgage. Thus, we should always implead the mortgagor, who is an indispensable party in the recovery of the indebtedness. How about the mortgagor, is he an indispensible party? Yes. He is also an indispensible party as it is his property that will be foreclosed. He might lose his property if it is foreclosed to satisfy the obligation incurred by the debtor. Supposing the mortgagor files an answer and sets up the defense that the mortgage insofar as he is concerned is void due to lack of consideration thereto, is this a valid argument against the foreclosure? It is untenable. In civil law, where there is a collateral under an accessory contract, the consideration under the principal contract serves automatically as the consideration for the accessory contract. The mortgagor only has himself to blame, setting up his property as security for the benefit of the debtor without compensation. Subsequent lien holders are necessary parties, so they will lose their equity of redemption incase the plaintiff wins the case. The only reason why subsequent mortgagees should be impleaded under the Rules is to protect the 1st mortgagee, assuming that he wins the case, from these subsequent lien holders (subsequent mortgagees) from exercising their equity of redemption. If the subsequent mortgagees are not impleaded, and there is a decision in favor of the 1st mortgagee, the subsequent mortgagees will not lose their equity of redemption. Meaning, they do not start to count the 90 to 120 days period from entry of judgment so as to bar these subsequent lien holders from exercising their right to equity of redemption. That is the only reason why Rule 68 says that subsequent lien holders should be impleaded, because they are necessary parties, so that they will lose their equity of redemption if ever the 1st mortgagee will win the case. In an indispensible party is not impleaded, the court will order plaintiff to amend his complaint and include said party. Failure to implead an indispensible party despite order of the court will result in the dismissal of the case.

STAGES OF JUDICIAL FORECLOSURE FIRST STAGE In the first stage, the court determines the liability of the debtor, and the court will order the debtor to pay his indebtedness withina 90- to 120-day period from entry of judgment. The mortgagor is not the one ordered to pay the secured indebtedness, it is the debtor who must pay. But inn our given facts, we do not expect the debtor to pay, because the property anyway does not belong to him. He will leave the problem to the mortgagor. If there is no payment, and the judgment is not appealed, it will be entered. The entry will not cut off the equity of redemption. The equity of redemption shall exist until after the entry of the 2nd judgment. If the debt is paid, the proceedings become academic. There is no more reason for the mortgagee continue his complaint if the debt is paid. It is the obligation of the mortgagee to cancel the mortgage if the obligation is finally settled. But if the obligation is not paid, the proceedings will go to the 2nd stage. SECOND STAGE The foreclosure court orders the sale of the mortgaged property at public auction. The court will issue an order directing the sheriff to sell the property in a public auction under Rule 39, as well as in the Mortgage Law. If the property is sold to the highest bidder, do we now cut off the equity of redemption? We do not cut off as of yet the equity of redemption even when the property has been sold at public auction. What the court will do next after the public auction is conducted is to resolve the motion for the confirmation of the validity of the auction sale. This is the second final order of confirmation. It is appealable. When an appeal is seasonably filed, the final order of confirmation is not entered, the equity of redemption will still continue to run. It will not be interrupted until the 2nd judgment is entered. If 2nd final order is entered, that will not mark the end of the proceedings. That will only mark the beginning of the 3rd stage. THIRD STAGE Deficiency Judgment If the proceeds of the auction sale are not enough to pay off the indebtedness, the court will be determining if there is any deficiency and issue another final order authorizing the recovery of the deficiency. The recovery of the deficiency will be governed by Rule 39, because the property/collateral has already been sold at public auction. We are going to apply, for purposes of recovery of deficiency, execution of judgment. The recovery of deficiency is the third final order. If there is no satisfaction of the deficiency through voluntary payment, the foreclosing mortgagee will have to avail of Rule 39. He can move for the issuance of a writ of execution. But in that 3rd stage, do not forget that the only one who is liable now is the debtor. The mortgagor will not be liable for any deficiency, because the mortgagor is not the debtor. The mortgagor is liable only to the extent of the value of his collateral. He cannot be held personally liable for the value of the deficiency, unless he makes himself solidarily liable together with the debtor. So in the recovery of deficiency, only the principal debtor is held liable, but not the mortgagor of the property. Since we are going to apply Rule 39, there will be a levy on execution of properties of the debtor. If these are sold at public auction, there will be another round of legal redemption, 1 year from registration of the certificate of sale in the RoD, but not because of the foreclosure, but because of the issuance of the foreclosure court of a writ of execution. Q: What is deficiency judgment? A: It is the judgment rendered by the court holding the defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt. Q: What are the instances when the court cannot render deficiency judgment? A: where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the pendency of the proceedings was outside the Philippines, then it is not procedurally feasible. It is by nature in personam and jurisdiction over the person is mandatory.

In one case decided by the SC, the debtor secured his indebtedness with a real estate mortgage to his own property. The lender/mortgagee obligated the debtor to issue post-dated checks for the payment of the obligation. The mortgagees filed criminal cases since the checks he got from the mortgagor were dishonored upon presentation. During the pendency of the criminal cases, since the principal obligation remained unpaid, the mortgagee availed of the special civil action for judicial foreclosure of mortgage of the mortgagors property. The mortgagor, previously summoned in the criminal cases, sought for the dismissal of the foreclosure case, claiming that the civil aspect of BP 22 should not be separated from the criminal aspect as it is automatically carried with the criminal case, and that mortgagee has split his causes of action in filing the special civil action for judicial foreclosure. Is the mortgagor correct? In an earlier case, the SC upheld the mortgagor. The special civil action for judicial foreclosure was dismissed. There was really splitting of causes of action.The criminal cases stemmed from the issuance of the debtor of the checks, which were dishonored. In a mortgage relationship, there are effectively 2 contracts entered into between the mortgagor and mortgagee. The principal contract, usually a loan, and an accessory contract of mortgage. If the mortgagee files a separate complaint for the recovery of the loan without foreclosing the mortgage, he can do so. The filing of a separate complaint for the purpose of recovering the loan will be considered as a waiver of the collateral arrangement. The mortgagee, if he does this, is deemed to have abandoned the mortgage. He is deemed to have converted his secured loan to an unsecured loan. The ordinary civil action of the loan will bar a second complaint for the judicial foreclosure of mortgage. In a 2011 decision, involving the same set of facts, the SC changed its course. SC held that the existence of a criminal case for violation of BP 22 is not a ground to conclude that the mortgagee has abandoned his mortgage lien. Notwithstanding the criminal case for violation of BP 22 pending before the MTC, the mortgagee can still institute a judicial foreclosure of the mortgage. Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled land of her friend Gretchen who, however, did not assume personal liability for the loan. Arlene defaulted and GAP filed an action for judicial foreclosure of the real estate mortgage impleading Arlene and Gretchen as defendants. The court rendered judgment directing Arlene to pay the outstanding account of P1.5 million (principal plus interest) to GAP. No appeal was taken by Arlene. Arlene failed to pay the judgment debt within the period specified in the decision. At the foreclosure sale, the land was sold to GAP for P1.2 million. The sale was confirmed by the court, and the confirmation of the sale was registered with the Registry of Deeds on January 5, 2002. On January 10, 2003, GAP filed an ex-parte motion with the court for the issuance of a writ of possession to oust Gretchen from the land. It also filed a deficiency claim for P800,000 against Arlene and Gretchen. The deficiency claim was opposed by Arlene and Gretchen. 1. Resolve the motion for the issuance of a writ of possession. 2. Resolve the deficiency claim of the bank. A: 1. In judicial foreclosure by banks such as GAP, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property within 1 year after the sale (or registration of the sale). However, under Sec. 47 of the General Banking Law of 2000, the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming sale. The motion for writ of possession, however, cannot be filed ex parte. There must be a notice of hearing. 2. The deficiency claim of the bank may be enforced against the mortgage debtor Arlene, but it cannot be enforced against Gretchen, the owner of the mortgaged property, who did not assume personal liability of the loan. (2003 Bar Question)

INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT Q: What are the instances when the courts cannot render deficiency judgment? A: When the:

1. Case is covered by the Recto Law (Art. 1484, NCC); 2. Mortgagor is a non-resident and is not found in the Philippines, unless there is attachment; 3. Mortgagor dies, the mortgagee may file his claim with the probate court under Sec. 7, Rule 86; and 4. Mortgagee is a third person but not solidarily liable with the debtor.

If the mortgagee holds a chattel mortgage, he will have to foreclose it under the provisions of the Chattel Mortgage Law via an extra-judicial foreclosure of chattel mortgage. The problem of the mortgagee in a chattel mortgage is similar to that of a mortgagee in a real estate mortgage. In mortgage arrangements, the collateral is usually left to the possession of the mortgagor. Inreal estate mortgage, mortgagor continues to be in possession of the real property. In a chattel mortgage, chattel is retained by mortgagor. (If mortgagor loses possession of the personal property, the contract will not remain a contract of mortgage, but one of pledge.) With respect to real estate mortgage, the possession of the collateral by debtor does not give much of a problem. Mortgagee, if he is the highest bidder, can ask for writ of possession after the auction sale. The problem by the mortgagee in a chattel mortgage is that the personal property must be in his possession before he can extra-judicially sell the chattel subject to the mortgage. Mortgageesin a chattel mortgage usually resort to court action by filing a complaint for replevin and avail of the provisional remedy of a warrant of seizure or a writ of replevin. The court can grant the provisional remedy even before the mortgagor files an answer. Once the mortgagee gains possession of the chattel, he can proceed with the process of extra-judicial foreclosure of a chattel mortgage.

PARTITION It is a special civil action which could involve both personal and real properties unlike judicial foreclosure. A complaint for partition is predicated on the theory that plaintiff and defendant are co-owners of the properties subject of litigation. The basis of a complaint of partition is that the plaintiff is allegedly a co-owner of the property together with other co-owners who are impleaded as defendants. What is essential in the complaint is that ALL co-owners of the plaintiff must be impleaded in the case as defendants. Q: What is partition? A: It is a process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property. It presupposes the existence of a co-ownership over a property between two or more persons. The rule allowing partition originates from a well-known principle embodied in the Civil Code, that no coowner shall be obliged to remain the co-ownership. Because of this rule, he may demand at any time the partition of the property owned in common (Art. 494). Note: It is commenced by a complaint. (Sec.1, Rule 69) Q: What are the requisites of a valid partition? A: 1. Right to compel the partition; 2. Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which partition is demanded; and 3. All other persons interested in the property must be joined as defendants (Sec. 1, Rule 69) Who may file and who should be made defendants? A: The action shall be brought by the person who has a right to compel the partition of real estate (Sec. 1, Rule 69) or of an estate composed of personal property, or both real and personal property (Sec. 13, Rule 69). The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. The defendants are all the co-owners. SC said that all co-owners are indispensable parties. Even if one is left out, the judgment of partition will never become final and executory. So, all of the co-owners MUST be impleaded. Q: What is the effect of non-inclusion of a co-owner in an action for partition?

A: 1. Before judgment not a ground for a motion to dismiss. The remedy is to file a motion to include the party. 2. After judgment makes the judgment therein void because co-owners are indispensable parties. Note: Creditors or assignees of co-owners may intervene and object to a partition affected without their concurrence. But they cannot impugn a partition already executed unless there has been fraud or in case it was made notwithstanding a formal opposition presented to prevent it. (Sec. 12, Rule 69) Can co-owners agree among themselves to partition without going to court? Yes. If they were able to agree among themselves, then they do not need to go to court anymore. The only time they go to court is the time when they cannot agree in the partition. But even if they cannot agree at the start, and therefor there is now a complaint for partition now filed in court, during the pendency of the case, they can file agree voluntarily on how to partition that property. And if they want, they can submit the agreement of partition to the court. If the court approves the agreement of partition, that will be a decision on the merits by the court. It is a partition in the form of a compromise agreement duly approved by the court.So even during the pendency of the case, there nothing to prevent the plaintiff and the defendants from entering voluntarily into a voluntary partition. They may not allow the court to decide how the property will be divided. But if the parties insist in partition to be done by the court, it will involve a 2-stage proceeding. Partition is a two-stage proceeding. First proceeding the court will issue an order for partition, Second proceeding the court may appoint commissioners to determine how the property will be divided among the coowners. There could be a third stage if there is no agreement on the system of accounting for the properties; the court will order the co-owner who has been managing the property to submit his accounting to the court for its approval, but he furnishes a copy to show how he has spent the income and how he has kept the income as a fund for the preservation of the property.

What are the two aspects of partition proceedings? A: 1. Existence of co-ownership; and 2. Accounting or how to actually partition the property. Note: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner and there is co-ownership and that partition is not legally proscribed, the court will issue an order of partition. It directs the parties to partition the property by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed and such is to be recorded in the registry of deeds of the place in which the property is situated (Sec 2, Rule 69). There always exists the possibility that the parties are unable to agree on the partition. Thus, the next stage is the appointment of commissioners. What are the stages in an action for partition which could be the subject of appeal? A: 1. Order determining the propriety of the partition 2. Judgment as to the fruits and income of the property 3. Judgment of partition (Riano, Civil Procedure: A Restatement for the Bar, p. 596, 2009 ed.) ORDER OF PARTITION AND PARTITION BY AGREEMENT Q: What is an order of partition? A: The order of partition is one that directs the parties or co-owners to partition the property

Q: When does the court issue the order of partition? A: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that there is indeed a co-ownership among the parties, and that a partition is not legally proscribed thus may be allowed. If the court so finds that the facts are such that a partition would be in order, and that the plaintiff has a right to demand partition, the court will issue an order of partition. Note: The court shall order the partition of the property among all the parties in interest, if after trial it finds that the plaintiff has the right to partition (Sec. 2, Rule 69). It was held that this order of partition including an order directing an accounting is final and not interlocutory and hence, appealable; thus, revoking previous contrary rulings on the matter. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. When is partition by agreement proper? A: The parties may make the partition among themselves by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed upon by all of the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated (Sec. 2, Rule 69).cc

If you happen to read the provisions in the NCC on co-ownership, it would seem that if there is a complaint for partition filed by one co-owner against the other co-owners, it seems the other co-owners cannot set up a very meritorious defense. When one of the co-owners wants to leave, that is a right given him by substantive law. Nobody can stop him from leaving the co-ownership. In one recent case, the SC said that here could be a good defense in a complaint for partition. Even if the court finds property is co-owned, and one co-owner decides to leave, the court cannot simply issue a decision in favor of the plaintiff/co-owner that will lead to the dissolution of the co-ownership. SC cited the provision in the Family Code citing Article 159, which substantially says that if there are co-owners of a property by reason of their right to inheritance from a predecessor in interest, and one of them is a minor residing in the property, the court cannot subject the property to partition and the co-ownership cannot be dissolved until the minor shall be capacitated. That would be a good defense in a complaint for partition. FC Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor . This rule shall apply regardless of whoever owns the property or constituted the family home.

I suggest that you read provisions of the NCC on the propriety of a partition among co-heirs if one of them is a minor who is residing in the property owned in common. It seems that the co-ownership shall continue to exist for 10 years if there is a minor residing in that property. That property cannot be simply be ordered to be divided by the court, even if there is a complaint for partition.

NCC Articles related to partition among heirs Art. 238. Upon the death of the person who has set up the family home, the same shall continue, unless he desired otherwise in his will. The heirs cannot ask for its partition during the first ten years following the death

of the person constituting the same, unless the court finds powerful reasons therefor. Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.

minor or a person subject to guardianship; but the mandatory, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs. Art. 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. FC Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home.

SECTION 6. - Partition and Distribution of the Estate SUBSECTION 1. - Partition Art. 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n) Art. 1081. A person may, by an act inter vivos or mortis causa, entrust the mere power to make the partition after his death to any person who is not one of the coheirs. The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a

Note: Family Code is a subsequent law, hence the limit is 10 years.

Unlawful Detainer and Forcible Entry (Rule 70) Read NCC articles on lease (especially those relevant to UD) LEASE

Art. 1669. If the lease was made for a determinate time, it ceases upon the day fixed, without the need of a demand. Art. 1670. If at the end of the contract the lessee should continue enjoying the thing leased for fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party has previously been given, it is understood that there is an implied new lease, not for the period of the original contract, but for the time established in Articles 1682 and 1687. The other terms of the original contract shall be revived. Art. 1671. If the lessee continues enjoying the thing after the expiration of the contract, over the lessor's objection, the former shall be subject to the responsibilities of a possessor in bad faith. Art. 1672. In case of an implied new lease, the obligations contracted by a third person for the security of the principal contract shall cease with respect to the new lease. Art. 1673. The lessor may judicially eject the lessee for any of the following causes: (1) When the period agreed upon, or that which is fixed for the duration of leases under Articles 1682 and 1687, has expired; (2) Lack of payment of the price stipulated;

(3) Violation of any of the conditions agreed upon in the contract; (4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the use thereof. The ejectment of tenants of agricultural lands is governed by special laws. Art. 1674. In ejectment cases where an appeal is taken the remedy granted in Article 539, second paragraph, shall also apply, if the higher court is satisfied that the lessee's appeal is frivolous or dilatory, or that the lessor's appeal is prima facie meritorious. The period of ten days referred to in said article shall be counted from the time the appeal is perfected. Art. 1675. Except in cases stated in Article 1673, the lessee shall have a right to make use of the periods established in Articles 1682 and 1687.

Art. 1147. The following actions must be filed within one year: (1) For forcible entry and detainer; (2) For defamation.

Rule 70 FORCIBLE ENTRY (FE) AND UNLAWFUL DETAINER (UD) Rule 70 contains 2 special civil actions which are different from one another, FE and UD. FE and UD are special civil actions cognizable exclusively in the MTC following summary procedures. The provisions of Rule 79 are practically a reproduction of summary procedures. They are initiated by a complaint filed in the MTC. Both are real action, but we do not follow BP 129 which uses the assessed value to determine jurisdiction. Under BP 129, real actions are cognizable by an MTC or an RTC depending upon the assessed value of the real property involved. FE and UD are cognizable by an MTC regardless of the assessed value of the property or other collateral issues that could be raised like unpaid rentals or recovery of damages. So if there is a complaint for unlawful detainer with a claim for back rentals amounting to 1M, the case is still cognizable by the MTC. In certain instances, the landlord/land owner is interested only in the recovery of the back rentals. And if he decides to file a complaint solely for recovery of the 1M back rentals, then the case is cognizable in the RTC, since the case is no longer one for unlawful detainer UD, just like FE, is for the recovery of physical possession of property. The recovery of money is only an incident to the principal action. Q: What is forcible entry? A: It is entry effected by force, intimidation, threat, strategy, or stealth; the action is to recover possession founded upon illegal possession from the beginning. Note: It is commenced by a verified complaint. (Sec. 1)

Q: What are the requisites of a valid forcible entry? A: 1. A person is deprived of possession of any land or building by force, intimidation, threat, strategy, or stealth; and 2. Action is brought within 1 year from the unlawful deprivation. (Sec. 1) Q: What are the questions to be resolved in an action for forcible entry? A: 1. Who has actual possession over the real property; 2. Was the possessor ousted therefrom within one year from the filing of the complaint by force, intimidation, strategy, threat or stealth; and 3. Does the plaintiff ask for the restoration of his possession (Dizon v. Concina, G.R. No. 23756, Dec. 27, 1969) Q: What is unlawful detainer? A: It is unlawful detention by a person who has acquired possession rightfully, but who detains the property after the right to keep possession has ended. Note: It is commenced by a verified complaint. (Sec. 1) Q: What are the requisites of a valid unlawful detainer? A: 1. Possession of any land or building is unlawfully withheld from a lessor, vendor, vendee, or other person after the expiration or termination of the right to hold possession by virtue of any contract express or implied; 2. Action is brought within 1 year after such unlawful deprivation or withholding of possession; and 3. Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. (Sec. 1) Q: Is formal contract a prerequisite in unlawful detainer? A: The existence of a formal contract is not necessary in unlawful detainer. Even if there is no formal contract between the parties, there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner (Peran v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). Q: Does the amount of rents and damages prayed for in an action for forcible entry and unlawful detainer affect the jurisdiction of the courts? A: No. The amount of rents and damages claimed does not affect jurisdiction of the MTCs because the same are only incidental or accessory to the main action (Lao SengHian v. Lopez, G.R. No. L-1950, May 16, 1949). Note: If only rents or damages are claimed in an ordinary action, the action is personal and the amount claimed determines whether it falls within the jurisdiction of the RTC or the MTC. Q: Distinguish forcible entry from unlawful detainer. A: Forcible Entry (Detentacion) Possession of the land by the defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat or stealth. No previous demand for the defendant to vacate the premises is necessary. The plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant. The 1 year period is generally counted from the date of actual entry on the land.

Unlawful Detainer (Desahucio) Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract with the plaintiff. Demand is jurisdictional if the ground is non-payment of rentals or failure to comply with the lease contract. The plaintiff need not have been in prior physical possession. Period is counted from the date of last demand or last letter of demand.

DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: What are the possessory actions on real property? A: Accion Interdictal Accion Publiciana Summary action for the recovery of A plenary action for the recovery of the physical possession where the real right of possession when the dispossession has not lasted for more dispossession has lasted for more than than 1 year. 1 year. All cases of forcible entry and unlawful RTC has jurisdiction if the value of the detainer irrespective of the amount of property exceeds P20,000 or P50,000 damages or unpaid rentals sought to in Metro Manila. be recovered should be brought to the MTC has jurisdiction if the value of the MTC. property does not exceed the above amounts.

Accion Reinvindicatoria An action for the recovery of ownership, which necessarily includes the recovery of possession. RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila. MTC has jurisdiction if the value of the property does not exceed the above amounts.

Usually in UD, the contract involved is a contract of lease. There is a land lord-tenant relationship, the tenant does not pay rental, there is a written demand to vacate and to pay back rentals, and if tenant fails to pay, then there could be a complaint for UD. But, these remedies appear to have been modified by the decisions of the SC. For instance, in a past case, about 30 years ago, there was a case involving a contract of lease on a commercial property. There was a stipulation in the contract which states that if the tenant does not pay rentals, for instance, 3 months, the land lord will send a letter demanding that the tenant must vacate the property and pay the back rentals for 3 months. If the tenant still failed to pay, the land lord can extra-judicially take over the property. Under that stipulation, the land lord does not have to go to court in order to recover physical possession of the property. What the land lord will do is to go to the premises, throw out the things of the tenant, change the locks of the doors of the property, and accept a new tenant. When the tenant challenged the validity of the stipulation in the SC, the SC at that time held that the stipulation was valid. The SC held that the contract was one of lease with a resolutory condition. When the tenant fails to pay, he loses his right to possess the property. The latest decision involving this kind of stipulation in a contract of lease was last 2009/10, one of the parties was By the Bay, Inc. It also involved a lease of a commercial property, with essentially the same set of facts involving the same stipulation, that the land lord can take over the property extra-judicially if tenant failed to pay upon written demand to pay back rentals and vacate. The SC affirmed it past decision, that the lease contract is one with a resolutory condition. As of now, it seems that if you are lawyering for the land lord, and you want to protect the land lord without a need to go to court file a case for unlawful detainer, all you have to do is to incorporate a stipulation in the contract of lease authorizing the land lord to take over extra-judicially the possession of the property. SC said this is a valid stipulation, there is nothing wrong with it. Under our system, a contract is the law between the parties. There is nothing wrong if the tenant agrees in a contract of lease to be ejected without a court order by virtue of a written stipulation in the contract of lease. These contracts have been accepted as valid by the SC. So, such stipulation is a valid stipulation in a lease contract. But in the event that the contract of lease does not contain such stipulation, if the tenant has failed to pay rentals for several months, the only recourse of the land lord is to file a complaint before the MTC for unlawful detainer.

Supposing the land lord of a contract without that stipulation physically enters the property, ejects the tenant, throws out the things of the tenant and starts to occupy the property. The land lord is now in possession of the property. Can the tenant file a case against the land lord for forcible entry? Yes. When the land lord forces his way into the rented property (subject to a contract of lease without the resolutory condition), and the land lord acquired the property through force, intimidation, strategy or stealth, that is forcible entry.

Is there anything improper if the tenant files a case for unlawful detainer or forcible entry against the owner of the property? There is nothing wrong from the legal point of view, because what is involved in unlawful detainer or forcible entry is not ownership, it is physical possession of the property. So the defendant in a case for FE or UD may be the owner of the property when he is in unlawful possession of his own property, depending upon the circumstances of the case.

What makes FA and UD special as a special civil action? FE and UD are governed by summary procedures. But that fact alone is not the most significant reason why FE and UD are characterized as special civil actions. It is due to the provision of immediate enforcement of a decision in favor of the plaintiff under Sec. 19 Rule 70 that makes FE and UD a special civil action. The decision is immediately executory, although it is appealable. But even if appealed, the decision is immediately executory. The appeal shall not stop the court in performing in its ministerial duty to execute the decision in a case of FE or UD. The execution of the decision here is a matter of right on the part of the plaintiff, and not a matter of discretion of the court. Why the radical change from the procedural rules that we had in ordinary civil actions? This is because of the provision found in Section 4 Rule 39. Under Rule 39, the general principle is that we cannot execute as a matter of right a judgment that has not been entered. Generally, what can be executed as a matter of right is a judgment duly entered. There is an exception to this general rule in Section 4 Rule 39, rendering the judgment as executory as a matter of right, although appealable. The first sentence in Section 4 states: Judgments in actions 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. There are very few judgments that are executory as a matter of right, and the phrase and such other judgments as are now or may hereafter be declared to be immediately executory includes FE and UD. SEC. 4. Judgments not stayed by appeal. Judgments in actions 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. The fact is that a decision in favor of the plaintiff is immediately executory as a matter of right, although the aggrieved defendant could immediately appeal the said decision, is there no contradiction in terms? Why? There is no contradiction. This is because the Rules do not say that simply because the defendant has appealed from the judgment, the MTC cannot go on with execution of its judgment. Thus, although appealable, the decision is immediately executed. If defendant does not want to be evicted right away on appeal, Rule 70 requires the defendant can file supersideas bond duly approved by the MTC [current rentals earned, referring to the preceding month, according to the contract of lease or the terms of the decision, plus cost of suit] to the cashier of the RTC. While the case is on appeal, defendant should keep on depositing said bond (monthly basis if rent is paid monthly according to the contract of lease). Failure to do so, he will be evicted, but the appeal continues.

How is the execution of judgment stayed? A: Defendant must take the following steps to stay the execution of the judgment: 1. Perfect an appeal;

2. File a supersideas bond to pay for the rents, damages and costs accruing down to the time of the judgment appealed from; and 3. Deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the premises (Sec. 19, Rule 70). Q: When is demand necessary? A: Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced only after the demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 2). The requirement for a demand implies that the mere failure of the occupant to pay rentals or his failure to comply with the conditions of the lease does not ipso facto render his possession of the premises unlawful. It is the failure to comply with the demand that vests upon the lessor a cause of action. Q: In what form should the demand be made? A: The demand may be in the form of a written notice served upon the person found in the premises. The demand may also be made by posting a written notice on the premises if no person can be found thereon (Sec. 2). It has been ruled, however, that the demand upon a tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence must be adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses.

The RTC is the appellate court in FE and UD cases. If the RTC decides against appellant/tenant and the tenant appealed in the CA, what can be done to prevent eviction on appeal to the CA under Rule 65? The filing of a supersideas bond cannot be applicable this time. This process will apply if the decision appealed upon is a decision of the MTC. If the RTC decides in favor of the land lord, the judgment will still be executed as a matter of right, and eviction can be had. The only way to prevent the immediate eviction of the defendant tenant on appeal to the CA is to apply for a TRO or writ of preliminary injunction in the CA against the eviction of the tenant, subject to filing of a bond if required by the CA. There are mechanisms resorted to by a tenant in order to delay an action to recover possession of property What can the tenant file to protect his right to possess? ~In case of UD, the tenant can file a case for reconveyance or reversion of tenanted property in the RTC ~He can also file a case for Quieting of Title in the RTC ~Complaint for Recovery of Possession in the RTC The tenant filed a case for reconveyance of the property subject to the lease in the RTC. During the pendency of the case, the land lord filed a case for FE or UD to recover of possession of the property subject to the lease. The tenant asked the RTC to issue a writ of injunction or TRO against the MTC, in order to prevent it from trying the case for FE or UD. Is this allowed? No. This is a settled issue. The tenant shall not be allowed to cause the injunction of the case in the MTC. Although these 2 cases filed in different courts involve the same property, they do not involve the same issue. FE and UD involve the issue of physical possession of the property. In reconveyance or quieting of title, the issue is also possession, but it is what is called in the NCC as a real right of possession, not mere physical possession of the property. The SC had made it very clear that we can have a case for FE or UD filed by the land lord against the tenant pending in the MTC, and at the same time, a case for reconveyance to reacquire the same property subject to the lease pending before the RTC. SC held that there is no litis pendencia here. Also, RTC cannot enjoin MTC from trying the complaint for FE or UD, as MTC has exclusive jurisdiction over cases of FE or UD. Can the court grant injunction while the case is pending? A: The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof (Sec. 15, Rule 70).

Note: Prior demand to vacate and to pay is jurisdictional in unlawful detainer, but not in all cases. If the tenant had failed to pay rents for 3 months, and the land lord immediately filed a case for UD without a prior demand to vacate and to pay, the MTC does not acquire jurisdiction over the case. A demand to vacate and to pay is jurisdictional in FE or UD. But not in all cases. IMPLIED NEW LEASE In the NCC there are provisions governing the relationship of land lord and tenant once the lease has expired. If the tenant had remained in unlawful possession by tenant was retained after 15 days from the end of the lease, there is an implied new lease, but such implied new lease will be on a month-to-month, day-to-day or quarterly basis, depending on the previous contract of lease as to period of payment. Art. 1670. If at the end of the contract the lessee should continue enjoying the thing leased for fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party has previously been given, it is understood that there is an implied new lease, not for the period of the original contract, but for the time established in Articles 1682 and 1687. The other terms of the original contract shall be revived. At the end of the lease contract until the 15th day, the tenant is deemed to be in unlawful possession of the leased property. There is no need for the land lord to send a demand to vacate to make the tenant an unlawful possessor, as he became so from the operation of the NCC. Within the 15-day period, the land lord can properly file a case for unlawful detainer against the tenant by virtue of the termination of the lease. The NCC itself calls the tenant as an unlawful possessor if he does not surrender the property after the lease has already terminated. The NCC has a caveat. If the tenant, after the termination of the lease, remains in possession of the property for the next 30 days from the termination of the lease, and there is no action filed by the land lord in court, the unlawful possession by the tenant will be reconverted to a lawful possession because of the implied new lease. The implied new lease is not for the same period stipulated in the old contract of lease. It will be on a month-to-month, day-to-day or quarterly basis, depending on the previous contract of lease as to period of payment Propriety of the awarding of damages in FE and UD. There is a conflict in jurisprudence as to extent of damages that could be awarded. The Section 1 of Rule 70 authorizes awarding of damages, but it does not place a limit on the kind of damages to be awarded. In Sec. 17, there is a clear statement as to award of damages being a reasonable amount as compensation for the use of the property if no amount is stipulated in the lease contract. SECTION 1. Who may institute proceedings, and when.Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person may at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of posses-sion, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. SEC. 17. Judgment.If after trial the court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, attorneys fees and costs. If it finds that said allegations are not true, it shall render judgment for the defendant to recover his costs. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice requires. There is a decision by the SC which held that Section 1 should be implemented if fully proven in court. Moral damages, temperate damages, as well as other forms of damages may be awarded beside interest and the actual rent.

The greater number of SC decisions adhere to Section 17 Rule 70. There is a limit as to the award of damages that could be had in MTC, and the MTC had always followed strictly the provisions of Section 17. The award of damages is based on the amount stated in the contract as rentals or if none, a reasonable amount for the use of the property during the tenantship. In what instances may the court resolve issue of ownership? A: When the defendant raises the issue of ownership, the court may resolve the issue of ownership only under the following conditions: (a) When the issue of possession cannot be resolved without resolving the issue of ownership; and (b) The issue of ownership shall be resolved only to determine the issue of possession (Sec. 16). Note: The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404 SCRA 487).If the defendant raises the question of ownership and the issue of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession (Sec. 3, RA 7691).

Rule 71 CONTEMPT What is contempt? A: It is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with, or prejudice litigant or their witnesses during litigation (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985) Note: It is commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein (Sec. 4). Q: What are the kinds of contempt? A: 1. Direct or indirect, according to the manner of commission. 2. Civil or Criminal, depending on the nature and effect of the contemptuous act. Q: Distinguish direct from indirect contempt? A: Direct Contempt Committed in the presence of or so near a court. Summary in nature If committed against: 1. RTC fine not exceeding P2,000 or imprisonment not exceeding 10 days or both. 2. MTC fine not exceeding P200 or imprisonment not exceeding 1 day, or both. Remedy:Certiorari or prohibition (or you could follow the old jurisprudence, file a petition for habeas corpus on the ground that the confinement is illegal. Dean Jara) AKA Contempt in facie curiae (in front of the judge)

Indirect Contempt Not committed in the presence of the court. Punished after being charged and heard IF COMMITTED AGAINST: 1. RTC FINE NOT EXCEEDING P30,000 OR IMPRISONMENT NOT EXCEEDING 6 MONTHS OR BOTH 2. MTC fine not exceeding P5,000 or imprisonment not exceeding 1 month or both. Remedy: Appeal (by notice of appeal)

AKA Constructive contempt

Distinguish criminal contempt from civil contempt. A: Criminal Contempt

Civil Contempt

Punitive in nature Purpose is to preserve the courts authority and to punish disobedience of its orders Intent is necessary State is the real prosecutor

Proof required is proof beyond reasonable doubt. If accused is acquitted, there can be no appeal.

Remedial in nature Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order for the preservation of the rights of private persons Intent is not necessary Instituted by the aggrieved party or his successor or someone who has pecuniary interest in the right to be protected Proof required is more than mere preponderance of evidence If judgment is for respondent, there can be an appeal

Q: What is the purpose of the power to contempt? A: The reason for the power to punish for contempt is that respect of the courts guarantees the stability of their institution. Without such guarantee, said institution would be resting on shaky foundation (Cornejovs.Tan, 85 Phil. 772). Q: What is the nature of contempt power? A: The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders and mandates of the courts, and, consequently, to the due administration of justice. Q: What are the dual aspects on the power to punish contempt? A: 1. Primarily, the proper punishment of the guilty party for his disrespect to the courts; and 2. Secondarily, his compulsory performance of some act or duty required of him by the court and which he refuses to perform.

Contempt is the one that we can consider as a special civil action for the following reasons: Contempt is a special civil action where one can be sent to jail whereas the case is civil in character. There is no need to file a case, especially in direct contempt. In ordinary cases, if there is no complaint, the contender does not know who the plaintiff is, and he is appearing before a court before a plaintiff can be identified. But in direct contempt, it is clear that the plaintiff is the court. A contender would practically have no chance to win in this instance. The complainant is the court, and the onewho will decide the case is still the complaining court . What are the acts which are deemed punishable as indirect contempt? A:After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: 1. Misbehavior an officer of a court in the performance of his official duties or in his official transactions; 2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; 3. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;

4. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorney or an officer of a court, and acting as such without authority; 6. Failure to obey a subpoena duly served; 7. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him (Sec. 3). Note: Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede the administration of justice.

Q: How may an action for indirect contempt be commenced? A: 1. By order or other formal charge by the court requiring the respondent to show cause why he should not be punished for contempt (motu proprio); or (Show cause order) 2. By a verified petition with supporting particulars and certified true copies of the necessary documents and papers (independent action) (Sec. 4). (Separate petition) Note: The first procedure applies only when the indirect contempt is committed against a court or judge possessed and clothed with contempt powers. The second mode applies if the contemptuous act was committed not against a court or a judicial officer with authority to punish contemptuous acts. (Nazareno v. Barnes, G.R. No. L-59072, Apr. 25, 1984) The court does not declare the respondent in default since the proceeding partakes the nature of a criminal prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct. 28, 1982). Indirect contempt is initiated through: 1. show cause order 2. independent action, which the court may consolidate with the main case If there is a separate petition for indirect contempt filed, although it arises out of a pending case or is related to a pending case, the petition is still an independent case, and what the court usually does is to consolidate the pending case with the petition to cite respondent in contempt of court. Penalty in Contempt Cases The penalty may be payment of fine or imprisonment. Q: What are the procedural requisites before the accused may be punished for indirect contempt? A: 1. A charge in writing to be filed; 2. An opportunity for the person charged to appear and explain his conduct; and 3. To be heard by himself or counsel. (Regalado v. Go, G.R. No. 167988, Feb. 6, 2007) NOTE: The rules on contempt under Rule 71 apply to contempt committed against persons or entities exercising quasijudicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply suppletorily (Sec 12, Rule 71)

Because of the nature of direct contempt proceedings where there is no initiatory proceeding filed, the remedy of the contender is different from the remedy of the contender in indirect proceedings. Citation for indirect contempt is not immediately executory , according to current jurisprudence. That is why there is a remedy provided for in the Rules Q: Lawyer Mendoza, counsel for the accused in a criminal case, was cited for direct contempt by Judge Tagle and was sentenced to 10 days imprisonment. Lawyer Mendoza was placed in prison immediately. Lawyer Mendoza manifested his readiness to post a bond and to appeal the order by certiorari to stay its execution but Judge Tagle said that the order is immediately executory. Is Judge Tagle correct? A: No. An order of direct contempt is not immediately executory or enforceable . The contender must be afforded a reasonable remedy to extricate or purge himself of the contempt. Under Sec. 2, Rule 71, of the Rules of Court, a person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him (Tiongco v. Judge Salao, A.M. No. RTJ-06-2009, July 27, 2006). Contenders remedy in indirect contempt is an ordinary appeal as in criminal cases. In indirect contempt, if contender is found guilty, he has the right to appeal. In Direct Contempt, the remedy is Rule 65 or Habeas Corpus. BP 129 has done away with bond in cases of contempt. But, a bond is still required to be posted in APPEALING the judgment of contempt in order to suspend the execution thereof.

What is the remedy against direct contempt and its penalty? A: 1. The penalty for direct contempt depends upon the court which the act was committed; a. If the act constituting direct contempt was committed against an RTC or a court of equivalent or higher rank , the penalty is a fine not exceeding 2,000 pesos or imprisonment not exceeding 10 days, or both ; b. If the act constituting direct contempt was committed against a lower court, the penalty is a fine not exceeding 200 pesos or imprisonment not exceeding one (1) day, or both (Sec. 1); c. If the contempt consists in the refusal or omission to do an act which is yet within the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. 2. A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for certiorari or prohibition (Rule 65) directed against the court which adjudged him in direct contempt(Sec. 2). Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment for direct contempt shall be suspended . The suspension however shall take place only if the person adjudged in contempt files a bond fixed by the court which rendered the judgment. This bond is conditioned upon his performance of the judgment should the petition be decided against him.

What is theremedy against indirect contempt and its penalty? A: 1. The punishment for indirect contempt depends upon the level of the court against which the act was committed; (a) Where the act was committed against an RTC or a court of equivalent or higher rank , he may be punished by a fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months, or both;

(b) Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000 pesos or imprisonment not exceeding one month, or both. Aside from the applicable penalties, if the contempt consists in the violation of a writ of injunction, TRO or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved(Sec. 7); (c) Where the act was committed against a person or entity exercising quasi-judicial functions, the penalty imposed shall depend upon the provisions of the law which authorizes a penalty for contempt against such persons or entities. (2) The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. The appeal will not however have the effect of suspending the judgment if the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken . This bond is conditioned upon his performance of the judgment or final order if the appeal is decided against (Sec. 11). Quasi-judicial bodies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. Q: May a non-party be held for contempt? A: No, unless he is guilty of conspiracy with any one of the parties in violating the courts orders (DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30, 1982). Q: Ray, through Atty. Velasco, filed a complaint for quieting of title against Chiz. Chiz, however, interposed the defense that the documents relied upon by Ray and Atty. Velasco were forged and falsified. Finding that the said documents were indeed forged and falsified, Judge Victoria cited Ray and Atty. Velasco for direct contempt and ordered them to serve 10 days of detention at the Municipal Jail. Ray and Atty. Velasco filed a motion for bail and a motion to lift the order of arrest. But they were denied outright by Judge Victoria. Is Judge Victoria correct? A: No. Direct contempt is a contumacious act done facie curiae and may be punished summarily without hearing. Indirect or constructive contempt, in turn, is one perpetrated outside of the sitting of the court. Here the use of falsified and forged documents is a contumacious act. However, it constitutes indirect contempt not direct contempt. The imputed use of a falsified document, more so where the falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as such is subject to such defenses as the accused may raise in the proper proceedings. Thus, following Sec. 3, Rule 71, acontender may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel. Moreover, settled is the rule that a contempt proceeding is not a civil action, but a separate proceeding of a criminal nature in which the court exercises limited jurisdiction . Thus, the modes of procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions. Thus, the judge erred in declaring summarily that Ray and Judge Velasco are guilty of direct contempt and ordering their incarceration. He should have conducted a hearing with notice to Ray and Judge Velasco (Judge Espanol v. Formoso, G.R. No. 150949, June 21, 2007).

CONTEMPT AGAINST QUASI-JUDICIAL BODIES Q: What is the rule on contempt against quasi-judicial bodies? A: The rules on contempt apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply suppletorily. Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them in the

proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. The RTC of the place where contempt has been committed shall have jurisdiction over the charges for indirect contempt that may be filed(Sec. 12). If one was found guilty of contempt, it is possible other laws or Rules may be applicable. For example, a lawyer may be sanctioned under the Code of Professional Ethics. Other laws may also apply in certain instances although contender was not found guilty of contempt. Relate this to the modification under Rule 65. A lawyer may be cited for indirect contempt, even if there is no show-cause order, at the discretion of the court. In Rule 65, under the principle of res ipsa loquitur, the lawyer who files a patently unmeritorious pleading under Rule 65 can be cited in indirect contempt, even without a show cause order.

In execution of judgment, Contempt is not a usual recourse to execute a judgment. But, contempt is the only recourse whenever there is a writ or process (like a writ of mandamus or prohibition) that is issued by the court that is subsequently disobeyed by the contender/respondent. We do not use contempt in Rule 39 when it comes to execution of judgments for money or delivery of property. But when the judgment is about issues in special civil actions, the only remedy will be a citation for contempt. Q: When shall imprisonment be imposed? A: When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it.Indefinite incarceration may be resorted to where the attendant circumstances are such that the non-compliance with the court order is an utter disregard of the authority of the court which has then no other recourse but to use its coercive power. When a person or party is legally and validly required by a court to appear before it for a certain purpose, and when that requirement is disobeyed, the only remedy left for the court is to use force to bring the person or party before it. Note: The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured aside from the need to compel performance of the orders or decrees of the court, which the contemnor refuses to obey although able to do so. In effect,it is within the power of the person adjudged guilty of contempt to set himself free.

Ordinary Action To protect or enforce a right or prevent or redress a wrong Involve 2 or more parties plaintiff and defendant Governed by ordinary rules, supplemented by special rules Initiated by a complaint, and parties respond through an answer Heard by courts of general jurisdiction Issues or disputes are stated in the pleadings of the parties Adversarial Based on a cause of action

Special Proceeding Involves the establishment of a right, status, or fact May involve only one party only petitioner Governed by special rules, supplemented by ordinary rules Initiated by a petition and parties respond through an opposition Heard by courts of limited jurisdiction Issues are determined by law Not adversarial Not based on a cause of action (except habeas Corpus)

Special Civil Action Civil Action subject to specific rules. Involves two or more parties Ordinary rules apply primarily but subject to specific rules Some are initiated by complaint, while some are initiated by petition

Some special civil action have no cause of action

SPECIAL PROCEEDINGS Do not rely so much in the enumeration of the special proceedings in our RoC as some of them are no longer applicable. Like constitution of a family home, there is no such proceeding now, a family home is constituted now under the NCC by

operation of law. There is no more need for a judicial declaration to consider a home as a family home. There is also no more judicial recognition of illegitimate children. This concept has been changed also by the FC, where recognition takes place by operation of law. Under the present set up, the rules on adoption incorporates two other special proceedings. Thus presently, we can file a petition for adoption, plus a petition for change of name, plus a petition for correction of entry. But the rule is that if there is a petition for adoption which encompasses tw0 other proceedings, that petition should also comply with jurisdictional requirements on change of name and correction of entries of the records of the local civil registrar. The 3 most important special proceedings which are often the source of bar questions, which are asked usually, would be settlement of estates of deceased persons, habeas corpus (inclusive of Amparo and Habeas Data) and the adoption. What makes a proceeding a special proceeding or a special action that is entertained by the court? The definition given in the rules is a very clear and simple definition. A special proceeding is one that is commenced for the purpose of establishing a right, status or a particular fact. Intrinsic in this definition of special proceedings therefore is the conclusion that special proceedings generally are not designed to be adversarial. There is no contest between 2 contending parties. All you have to do is to look for the particular fact or status or right which the petitioner seeks to establish and to be declared by the court. SETTLEMENT OF ESTATES OF DECEASED PERSONS With respect to settlement of estates in the concept of special proceedings, we have to go back to Rule 1 to appreciate the meaning of a special proceeding. At the end, the conclusion that we derive from this special proceeding is that there is a person who is dead. The principal fact that is sought to be established in settlement of estates first is that a person is dead. We cannot settle the estate of a person who is still alive. But because settlement of estate usually carries with it the concept of probate of a will, there is some complication because under the NCC, under substantive law, a will can be submitted for probate during the lifetime of the testator. So, it is not correct to assume, that when there is a petition for a probate of a will, the testator is already dead. Under substantive law, the testator himself, during his lifetime, can file a petition in the RTC for the probate of the will. The complication arises because when it is the testator who files a petition for the probate of his own will during his lifetime, and that will is admitted to probate, it is allowed by the RTC, that will be the end of the probate proceedings. There will be no settlement of estates that will follow. That is the only fact that needs to be established in a probate of a will while the testator is still alive. What he seeks from the court is a mere declaration that the will has been executed in accordance with the formalities of the NCC. When the will is admitted to probate, where the petitioner is the testator himself, the admission to probate will mark the end of the special proceedings. No settlement of estate will follow. Q: What is probate? A: Probate is the act of proving before a competent court the due execution of a will by a person possessed of testamentary capacity, as well as the approval thereof by said court, (also known as Allowance of Will). Q: Why is probate necessary? A: To settle all questions concerning the capacity of the testator and the proper execution of his will, irrespective of whether its provisions are valid and enforceable. (Fernandez v. Dimagiba, G.R. No. L-23638, Oct. 12, 1967)

Q: What is the nature of a probate proceeding? A: 1. IN REM- It is binding upon the whole world. 2. MANDATORY- No will shall pass either real or personal property unless it is proved and allowed in the proper court.

Note: However, a will may be sustained on the basis of Article 1080 of the NCC which states that, if the testator should make a partition of his property by an act intervivos or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir. (Mang- Oy v. CA, L-27421, 1986) 3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator 4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory. The presentation and probate of the will is required by public policy. It involves public interest. (Fernandez v. Dimagiba, L- 23638, 1967) Q: Does the probate court look into the intrinsic validity of the will? A: GR: The jurisdiction of probate court is limited to the examination and resolution of the extrinsic validity of a will. XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will: 1. If the case where to be remanded for probate of the will, it will result to waste of time, effort, expense, plus added anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966). 2. Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985). Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the will. NOTE: The decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by law, except by fraud, in any separate or independent action or proceeding. WHO MAY PETITION FOR PROBATE Q: Who may file petition for allowance of will? A: 1. Executor (Sec. 1, Rule 76); 2. Devisee or legatee named in the will (Sec. 1, Rule 76); 3. Person interested in the estate; e.g. heirs Note: An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate such as a creditor. (Sumilang v. Ramagosa, G.R. No. L-23135, Dec. 26, 1967) 4. Testator himself during his lifetime (Sec. 1, Rule 76); or 5. Any creditor as preparatory step for filing of his claim therein. Q: Who are the people entitled to notice in a probate hearing? A: 1. Designated or known heirs, legatees and devisees of the testator resident in the Philippines at their places of residence, at least 20 days before the hearing, if such places of residence be known. 2. Person named executor, if he not the petitioner. 3. To any person named as co-executor not petitioning, if their places of residence be known. 4. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. (Sec. 4, Rule 76)

We compare that to a probate of a will where the testator is already dead. Since the testator is already dead, the petitioner could be somebody else interested in his estate, like an heir, devisee, legatee or creditor of the decedent. In this second kind of probate of a will where the testator has died, when the will is admitted to probate, that will not be the end of the proceedings. In fact, that will mark the beginning of the settlement of estate of the deceased person. That is the time when we apply the rules in special proceedings in settlement of estate of deceased person.

You should be wary about the differences between probate of a will when the testator is still alive, and the probate of a will when the testator has already died. When the testator has already died, the admission to probate of that will not be the proceedings, it will be the start the settlement of estate. We should also relate settlement of estate of decease persons to Rule 107, the Rule on Absentees. When the law speaks about settlement of estates of deceased persons, the inference that we derive is that the fact that is sought to be established is that a person is dead. That is not necessarily true insofar as probate of will or intestacy is concerned. We have to relate it to the provisions of the NCC and FC on absentees, and also the provisions of special proceedings on absentees in Rule 10. Even if the testator is not in fact dead, even if the problem is that the heirs, legatees, devisees and creditors are not certain whether or not the testator is dead, therefore, the court cannot simply issue an order declaring he is dead. Under our present rules, if there are antecedent facts that are proven by clear and convincing evidence, we can apply the presumption of death under the NCC, then we can commence a special proceeding for the settlement of his estate. If we go through the provisions of Rule 107 on absentees, the first essential is that a person has left properties without somebody in charge or without an administrator, and that his whereabouts are unknown. And then, he has disappeared for at least 2 years. On the second year of his absence, there could be a petition for the declaration of his absence. In other words, being absent is a status under our procedural laws. This person who has been declared an absentee cannot be an absentee forever. So there must come a time when the said status as an absentee could be utilized in order to settle his estate, and this is the situation contemplated in Rule 107. If there is enough proof of facts that will allow the court to conclude that the absentee is already dead, although he is not actually dead, we can commence proceedings. But the court will not issue an order declaring the absentee as presumptively dead. A court does not have any authority at all to issue an order declaring a person dead by presumption. We just capitalize on the presumption given in the NCC, that under circumstances, a person is presumably dead. Using that presumption, the remedy of the spouse, heirs, or any interested person is to file a petition for the settlement of the estate. So, there could be a petition for the settlement of estates of a person who is certainly dead. The court will declare that this person is actually dead, and this can be easily proven by submission of a certificate of death. But if a certificate of death cannot be issued or the civil registrar is unwi lling to issue a certificate of death because there is no certainty of the persons death, but the antecedent facts proven before the courts show that we can now make a disputable presumption that the person is dead, the remedy is to file a petition for the settlement of his estate. So it is not always correct to say that in settlement of estates of deceased persons, that person must be proven to have really died. That is not what the law requires. What the law requires is simply the demonstration or proof of certain facts upon which this disputable presumption of death will be used in order to settle his estate. Supposing there are certain facts which will lead to the conclusion that this person is presumably dead. There are proceedings initiated for the settlement of his estate. While the proceedings are going on, or even after the closure of the settlement proceedings, the person suddenly reappears. Will the settlement of his estate be negated? Not so. He can recover what is left of his properties. Because in settlement proceedings, we always involve the payment of his indebtedness to his creditors. If the debts has already been paid, this person is not allowed to file for the recovery of the money or other properties that may have been delivered to the creditors or to the heirs of his estate. But the procedure that is outlined in our Rules is about settlement of estate of deceased persons. So that is the first particular fact that will be established in settlement of estate of deceased persons. The court will issue an order, let us say, in admitting the will to probate, the court will make a finding that the testator is already dead. Then, there will also be a finding as to the formal validity of the will. With respect to the jurisdiction, the RoC is not expected to give us the standard in determining the jurisdiction of courts in settlement proceedings. The courts will rely on what BP 129 provides. In BP 129, there are 2 courts which are given authority to take cognizance of estate proceedings, the MTC and the RTC, depending upon the gross value of the estate, the same amount used as a standard in ascertaining the jurisdiction of MTC or RTC in money claims. But it is the gross value of the estate that will be the principal factor. Unlike in action reinvindicatoria, the assessed value of the property will be the standard that will be determining the jurisdiction of court.

Which court has jurisdiction over the estate of the deceased? A: Regional Trial Court Metropolitan Trial Court Gross value of the estate exceeds 500,000 (within Metro Gross value of the estate does not exceed 500,000/400,00 Manila) or 400,000 (outside Metro Manila) State the rule on venue in judicial settlement of estate of deceased persons. A: Resident Non-Resident Court of the province/city where the deceased resided at Court of the province/city wherein he had the estate the time of death, whether a citizen or alien

In special proceedings, one Rule that you should always bear in mind is that when a court entertains a special proceeding, that court, RTC or MTC, acts with a very limited jurisdiction. So, if the settlement is in the RTC, although the RTC is characterized as a court of general jurisdiction under BP 129, when an RTC tries a proceeding for settlement of the estate, the RTC acts with a limited jurisdiction. The same is true with the rest of special proceedings. When the RTC acts as a habeas corpus or amparo or habeas data court, the RTC acts with a very limited jurisdiction. In other words, what can be resolved by the RTC in these special proceedings will only be the issue that is raised in the petition. It cannot be expanded. For instance, when the RTC acts as a settlement court, and there is a dispute between a stranger and the executor, concerning the ownership of a piece of land which the executor claims to be owned by the estate of the deceased, and which according to the stranger is owned by him, the settlement court has no authority to rule on that issue. Title of this real property has to be resolved in an independent proceeding, an ordinary action of accion reinvindicatoria. To illustrate why a habeas corpus, amparo or habeas data court has limited jurisdiction, in a petition for habeas corpus, if the habeas corpus court makes a finding that the petitioner has been unlawfully deprived of his liberty by the respondent, the habeas corpus court cannot award damages for unlawful deprivation of liberty. It is enough for the habeas corpus court to say that there was unlawful deprivation of liberty. But the court cannot go further by awarding damages in favor of the petitioner. That is always the rule that we follow in special proceedings. Any court in a special proceeding acts within a limited jurisdiction. The jurisdiction is limited to the issue that should be resolved by the special proceeding involved.

Q: May probate courts determine issues of ownership in a proceeding for the settlement of estate of decedent? Explain. A: GR: No, because probate courts are courts of limited jurisdiction. XPNS: 1. Provisionally, for the sole purpose of including the property in the inventory, without prejudice to its final determination in a separate action; 2. When all the parties are heirs of the decedent and they agreed to submit the issue of ownership to the probate court, provided that no rights of third persons are prejudiced; 3. If the question is one of collation or advancement; or 4. If the parties consent to the assumption of jurisdiction by the probate court and no rights of third parties are prejudiced. (Agpalo, Handbook on Special Proceedings, pp. 10-12, 2003 ed.)

Q: The probate court ordered the inclusion of a parcel of land registered in the name of Richard in the inventory of the properties of the deceased Anna. Richard opposed the inclusion arguing that the probate court cannot determine the issue of the ownership of the parcel of land inasmuch as the same was registered in his name. Is Richard correct? A: Yes. In probate proceedings, if a property covered by Torrens title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000).

It is not also correct to assume that when a person dies, his estate can be settled only through this special proceeding of settlement of estate. It is very clear from the Rules that if a person dies, the heirs can agree among themselves to settle his estate without going to court through the scheme of extra-judicial partition. They can agree to divide among themselves what has been left by the decedent. They can do so voluntarily. But there are certain essentials like there must be no will that has been left by the decedent, that there are no creditors, and that all heirs are of age, or if some are minors or incapacitated, they are properly represented properly by a guardian. If a person dies, he has left sizable properties, and the spouse and the children are in good terms, there is no will, and there are no creditors, then the surviving spouse and the children can simply execute what is called a deed of extra-judicial partition. If there is one heir, then he will just institute a document called an affidavit of self-adjudication. The deed of extra-judicial partition or affidavit of self-adjudication will have to be registered with the Office of the Registry of Property, especially when there are properties involved, in order to enable the parties or the only heir to get a title in their or his own name. By virtue of the presentation of the deed of extra-judicial partition or affidavit of self-adjudication, if there are titled properties that have been left, the title of the deceased will be cancelled, and a new one will be issued in the name of his heirs or only case, as the case may be. What protection do we give to the creditors, if there are any, or even to the Republic of the Philippines? Insofar as the Republic of the Philippines, the interest of the state will be in recovering taxes arising from the death of the person if he left sizable properties. Insofar as creditors are concerned, they are interested in getting full payment of their respective claims. The protection given by our Rules is that when it comes to taxes due, the RoD will not accept for registration an deed of extra-judicial partition or affidavit of self-adjudication unless the interested parties present to the civil registrar a certification from the BIR that taxes have been paid. So that solves the problem of the state. It may always be able to recover the taxes due, because if the BIR does not issue this certification, the civil registrar also will not accept for registration the deed of extra-judicial partition or affidavit of self-adjudication. The situation of the creditors, if there are any, entails a bigger problem, because the RoD has the ministerial duty to accept a deed of extra-judicial partition or affidavit of self-adjudication for registration. The RoD simply cannot compel the parties to that deed of extra-judicial partition or affidavit of self-adjudication to present proof that there are really no creditors of the estate. The RoD will have to rely on the say so of the parties who have signed the deed of extra-judicial partition or affidavit of self-adjudication. And in that deed or affidavit, the parties are required to state that there is no will, and that there are no debts. So if these parties are telling a lie, they know that there are creditors but they state otherwise, then the creditors will be at the losing end. They need protection for their claims. What the law provides is that if the estate settled consists of both personal and real properties, before the RoD will accept these documents for registration, the interested parties must file a bond equivalent to the value of the personal properties. Again, the parties can easily avoid this requirement by simply stating in the deed that there are no personal properties involved, so they need not pay the bond. If there are no personal properties of the estate, then there is no requirement for the interested parties to submit a bond to the RoD. So if the estate consists purely of real titled properties, the RoD will admit the documents for the registration, he will cancel the title of the decedent and issue new ones in the name of the interested parties. But at the back of the title of the new owners, there is annotated a lien, that the property is subject to the claims of any creditors within a period of 2 years. The 2-year period, according to jurisprudence, is really extended by another 2 years. The SC ruled that if there is a title carrying this annotation, a person interested in the property, like an heir who has been deprived of his share, or even a creditor, can file an ordinary civil action for the annulment of the writ of extra-judicial partition within 4 years from the discovery of fraud. So that 2-year period, if we apply that decision of the court, will be extended to another 4 years, and the 4-year period shall be counted from the discovery of fraud. It is fraudulent for the heirs or interested parties to extra-judicially partition the estate of a deceased person without including all the heirs. So an heir so excluded can always contend that there was fraud in the execution of that document, and he has a period of 4 year within which to file an ordinary action for the setting aside or annulment of the deed of extra-judicial partition.

Q: What is the effect of an extra-judicial partition executed without the knowledge and consent of the other co-heirs?

A: It shall not prejudice the co-heir who had no knowledge nor consented to the same. He shall have the right to vindicate his inheritance. Such heir or such other person deprived of his lawful participation payable in money may compel the settlement of the estate in courts for the purpose of satisfying such lawful participation. (Sec. 4, Rule 74) Q: What is the effect of an extra-judicial partition executed without the knowledge and consent of the other co-heirs? A: It shall not prejudice the co-heir who had no knowledge nor consented to the same. He shall have the right to vindicate his inheritance. Such heir or such other person deprived of his lawful participation payable in money may compel the settlement of the estate in courts for the purpose of satisfying such lawful participation. (Sec. 4, Rule 74)

TWO-YEAR PRESCRIPTIVE PERIOD Q: When does the two year period rule apply? A: After the expiration of two years from the extra-judicial partition, distributees or heirs are barred from objecting to an extra- judicial partition. The two year prescriptive period applies only: 1. To persons who have participated or taken part or had notice of the extra-judicial partition; and 2. When all the persons or heirs of the decedent have taken part in the extra-judicial settlement or are represented by themselves or through their guardians. Note: It is only a bar against the parties who had not taken part in the extra-judicial proceedings, but not against third persons not parties thereto. (Herrera, Remedial Law III-A, 39) Q: Does the two year period apply for a claim of minor or incapacitated person? A: If on the date of the expiration of the period of two years prescribed, the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one year after such disability is removed. (Sec. 5, Rule 74)

The deed of extra-judicial partition or affidavit of self-adjudication should also be published, once a week for three consecutive weeks, before the RoD will admit it for purposes of registration. When is extra judicial settlement by agreement between the heirs allowed? (Substantial Requisites) A: When the decedent: 1. Left no will and no debts; and the heirs are all of age; and 2. Of the minors are represented by their judicial or legal representatives duly authorized for the purpose. Q: What are the requisites before an extra-judicial settlement of estate could be resorted to as evidence of its validity? (Procedural Requisites) A: 1. Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir; Note: In case of disagreement of heirs, they may state their oppositions in an ordinary action of partition. 2. Filed with the Register of Deeds; 3. Fact of settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks; and 4. Bond filed equivalent to the value of personal property. (Sec. 1, Rule 74) Note: While the Rules of Court provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the extra-judicial settlement is entered into (Guico v. Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent. Q: What is a bond?

A: It is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims under Section 4, Rule 74. Note: The amount of bond required under Section 2 is determined by the COURT whereas in Section 1 the amount is EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as established by adjudication. Q: When is a bond required to be filed in extra-judicial settlement of estate? A: When personal property is involved, a bond is required. On the other hand, if it is a real property, it is subject to a lien in favor of a creditor for 2 years from distribution and such lien cannot be substituted by a bond. (Sec. 1, Rule 74) Note: The same provision on the bond and lien also applies in summary settlement of estate. (Sec. 2, Rule 74) Q: Is a public instrument necessary for the validity of the extra-judicial settlement? A: No, the requirement of public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947). Even a private instrument, oral agreement of partition or compromise agreement entered into without previous authority from the court is valid. However, reformation of the instrument may be compelled. Note: Public instrument is required in transfer and registration of title to the heirs. Q: Why is publication of the extra-judicial settlement necessary? A: To notify and bind the whole world of the extra-judicial settlement and give the concerned parties a chance to come forward and challenge the same (Sec. 1, Rule 74). Note: Publication alone does not suffice to bind the excluded heirs to the extra-judicial settlement unless he did not participate in the proceedings. Q: What is the effect if the provisions on notice or participation requirement under Sec. 1, Rule 74 have been strictly complied with? A: It bars distributees or heirs from objecting to an extra-judicial partition after the two-year prescriptive period to question such partition. (Sec. 4, Rule 74)

But if the parties cannot settle extrajudicially, then the only recourse will be to go to court, so that the court will decide the manner by which the properties of the estate should be divided among the heirs. In still situation, the parties are not required file a case for settlement of the estate. There is still another option given in these special civil actions. The special civil action of Partition under Rule 69 is also available as a remedy in order to divide the estate of the decedent. If you go back to partition, partition as a special civil action is predicated on the theory that there are several co-owners of the same property, and one of the co-owners decide to leave the co-ownership. This is related to settlement of estates because under substantive law, when a person dies, the heirs automatically become co-owners of the estate of the decedent. So if there is a co-ownership created by operation of law, any one of the co-owners can decide to leave the coownership by simply availing of the special civil action for partition. But a special civil action of partition as given in Rule 69 is not in rem. It cannot prejudice persons who have not participated in these proceedings. So if there is an heir or creditors who has not been impleaded in this special civil action for partition, that deed of partition duly approved by the court will not have the effect of a judgment in rem. That is always the advantage of a settlement proceeding as a special proceeding, the judgment and final orders of the court in a settlement proceeding are in rem. They will be enforceable against any person who might have an interest in the properties of the estate. That is the only advantage of settling the estate of a deceased person through a petition for probate of a will, or if there is no will, through a petition for the issuance of letters of administration. In settlement proceedings, we have to determine whether there is a will or none. Under substantive law, whose provisions are practically reproduced in the RoC, before the will would be a basis for the division or giving of the properties of the estate to the heirs, devisees or legatees, the will must be admitted to probate. If not admitted to probate, it could not be

the proper basis for the division, even if the parties will state in their agreement that they have divided the estate in accordance with the provisions of the last will and testament. The SC has repeatedly held that if there is a will, that will must be submitted to the court for probate, so that it can be a source of a right given to an heir, a devisee or legatee. Without an order from the court allowing or admitting the will for probate, a person who benefited from the provisions of that will cannot enforce his right. There must always be first an order coming from the court admitting the will or allowing the probate of the will. In order to appreciate the scope of an order of a court admitting a will to probate, read Rule 39, that is the effect of a judgment in rem in Section 47(a). 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 of 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. Rule 39 gives us the effect of a judgment in rem. A judgment admitting a will to probate is a judgment in rem. It is binding upon anybody who might have interest in the estate. In fact, the NCC says that an order of a court admitting the will to probate is conclusive insofar as the formal requirements of a will are concerned. Supposing that a will is admitted to probate, can the oppositors appeal from that order? Yes. If there is an appeal from an order of the court allowing a will, we cannot apply the statement in Rule 39 that probate of a will is conclusive insofar as the formal elements are concerned because that order, if there is an appeal going on, will not be entered. That provision in Rule 39 presupposes that an order admitting the will has been entered. It has become final and executory. But before it is entered, do we have the presumption that the formal requisites of the will have been satisfied? Yes. But the presumption is not a conclusive presumption, merely disputable. Under our Rules on Evidence, there is a disputable presumption that the final order or judgment of a court is presumed to be correct, that is if it has not yet been entered. Once entered, the period to appeal having expired without an appeal being perfected, then the disputable presumption to a conclusive presumption. So once the order admitting the will to probate is entered, then we are going to apply the provisions of Rule 39 Section 47. The formal requisites of the will are conclusive upon anybody who might have an interest in the estate.

If there is no will, the settlement proceedings will be called intestate proceedings. If there is a will, it will be called testacy or probate proceedings. But in our Rules, whether the special proceeding to settle the estate is testate or intestate, there should be only one settlement court in our jurisdiction.

So if there is a petition to settle where the decedent died without a will, praying for letters of administration, during the pendency proceedings after the letters had been issued by the court, an heir suddenly appears in court claiming he has discovered a will of the decedent. What will happen to the proceedings of intestacy? The court will change the proceedings from intestacy to testacy, simply converting from intestate court to testate or probate court. There should only be one settlement court. A court that takes cognizance of settlement of the estate of a deceased person does so to the exclusion of all other courts. There is a clear message that in settlement proceedings, we should only have one settlement court. But what always happens, as our culture allows to happen, is when a person dies and in his lifetime was a very wealthy person, our culture expects that he was maintaining several different families in different regions. So when he dies, one family will file settlement proceedings for the estate located, let s say in Mindanao, and another family would do so also for the property found in Cebu, and so forth. We cannot allow this to happen where several courts take cognizance of the properties of one decedent. We still have to apply the Rule in Rule 73, where a court that takes cognizance of the settlement of the estate of a decedent will do so in exclusion of other courts. So, its just a matter of determining which RTC has first acquired jurisdiction over the case. The jurisdiction over the case can be ascertained by determining the period when these different petitions were filed. Thus, we will have one settlement court. The authority of a settlement court will extend to any part of the country where the decedent left some properties. A settlement court in Manila will have jurisdiction over properties left in Cebu or Mindanao. And it is very simple for the court to acquire jurisdiction over these properties, because when the court issues letter testamentary or letters of administration, the administrator is required to submit an inventory of the estate of the deceased. This inventory must be complete, an inventory of properties possessed by the administrator or executor or the properties that have come to the knowledge of the administrator, though not in his physical possession. So the settlement court s authority will be throughout the country insofar as the properties left behind by the decedent is concerned. There is another term used in the Rule aside from letters testamentary or administration, and it is called letters of administration with a will annexed. What is this concept of letters of administration with a will annexed? This is the letter issued by the court where there is a will submitted to probate, but where the executor nominated in the will has refused to accept the trust or he is not qualified to accept the trust. So if there is no executor willing to accept the trust, the court will have to appoint another administrator. To distinguish an administrator who is usually appointed where there is no will that is submitted for probate, we call these letters as letters of administration with a will annexed. Letters of administration with a will annexed assume that there is a will submitted to the court for probate, and that the court has admitted or allowed the will, but the executor nominated in the will has refused to accept the position.

In a will, aside from the disposition of the properties, the decedent usually nominates a person who will act as executor of the will. This is the reason why in RoC, there is an order of preference in appointing an administrator. But there is no order of preference insofar as the appointment of an administrator in letters of administration with a will annexed. This is because the court will appoint an administrator despite the fact that an executor is nominated by the testator in the will. You should also note that when a testator names the person as executor of the estate, that is only a nomination. It is the court that will appoint him as executor. The proof that he is now an executor is called letters testamentary; the proof of the authority of an administrator is called letters of administration. We also have the concept of letters of ancillary administration. In ancillary administration, the antecedent fact is that a will has been admitted to probate in a foreign country. The testator must have been a resident of that foreign country. But the testator also left properties in RP. So, there is a principal testate proceedings going on in a foreign country where an executor may have been appointed in that foreign country. But the authority of the appointed executor from a foreign court cannot extend to properties within Philippine territory. The remedy of that executor from a foreign country is to initiate a proceeding called ancillary administration proceedings, which be called a reprobate of the same will of the same

will that has been admitted to probate in a foreign court. That petition for ancillary administration, if a will has been already admitted to probate in a foreign country, the same will be submitted to a local court for another proceeding. The local court will simply rely on the decision of the foreign court in admitting the will for probate. If there was no will left by this foreigner, then the ancillary proceedings will also be an intestate proceeding. It will still be the local court that will issue letters of ancillary administration to the administrator appointed by the local court to take care and to manage the properties left within RP territory. There is also another concept called letters of special administration or a special administrator. These letters are issued by the court when there is a delay in the appointment of an administrator or an executor of the estate. If a court issues letters of administration, and therefore appoints letters of administration of an intestate estate, or issues letters testamentary, to the person who will manage the estate, this is always a final order. The appointment of a regular administrator is always a final order, never interlocutory. Since it is a final order, it is appealable. In order to appreciate in settlement proceedings the difference between a final order and an interlocutory order in settlement proceedings, read Rule 109, Section 2. SEC. 2. Advance distribution in special proceedings. Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules.

FINAL ORDERS If you go through the provisions of Rule 109, Appeals in Special Proceedings, right away you will notice that if special proceedings were governed by the rules of ordinary civil actions, some of the final orders in special proceedings may be interlocutory in ordinary civil actions. For instance, appointing an administrator or executor, if we use the rules in ordinary civil actions, this appointment will be interlocutory, because it does not put an end to the case, unlike final order in ordinary civil actions which put an end to the case. But in settlement proceedings, what was interlocutory under ordinary civil proceedings will be a final order in special proceedings, of which the appointment of an administrator/executor is a good example. The appointment of an administrator/executor will not put an end to the proceedings. In fact, an appointment of an administrator/executor will mark other proceedings to be taken by the court in settling the estate. But since special proceedings are governed by their own rules, and it says that the appointment of an administrator/executor or admitting of a will to probate are all final orders and hence appealable. In fact if we go through the whole process of settlement proceeding, although it is the policy of the RoC to terminate proceedings speedily, with as much as practicable a period of 2 years from institution of the settlement proceedings, Rule 109 negates this state policy because of the Rule in 109 that all final orders are appealable. In the course of reading special proceedings, there are several final orders that can be issued by the settlement court, and all these final orders can be appealable. The settlement proceedings will not be terminated until all these issues brought on appeal had been resolved by the appellate court and the records returned to the settlement court. If the settlement court appoints Juan dela Cruz today as administrator of the estate, an heir who dislikes him can appeal from that order. And while that appeal is going on, Juan dela Cruz cannot assume the position as administrator of the estate until the higher court has ruled on the qualifications or the validity of the order appointing him as administrator. In the meantime, nobody will be taking care of the estate. The remedy of Juan dela Cruz is to ask the court to appoint him as a special administrator. So if his appointment as administrator is challenged by another heir, he cannot assume the office as a REGULAR administrator, but the settlement court can appoint him as SPECIAL administrator. A settlement court has the authority to appoint a special administrator if there is a delay in the appointment of a regular administrator. This is necessary because the estate has to be managed while the appeal is ongoing. Will it cause any prejudice to the heirs or creditors if Juan dela Cruz is appointed as special administrator? There will be no prejudice to anybody. This is because as special administrator, Juan dela Cruz is not given all the powers of a regular administrator. All that he can do is to manage the properties of the estate, to preserve the estate. He will not be able to entertain claims of creditors. That is the sole prerogative of a regular administrator/executor of an estate. Can an oppositor also appeal from the order of the court appointing Juan dela Cruz as special administrator? We cannot. Under Rule 109, the appointment of a special administrator is interlocutory, it is not appealable. The remedy will be Rule 65, to challenge the appointment as special administrator. But it will not give the oppositors any undue

advantage, since we have learned under Rule 65, the assumption of Juan dela Cruz as special administrator will not be prevented, unless the higher court issues a writ of preliminary injunction or TRO.Without these injunctive writs, Juan dela Cruz can start with the performance of the office of a special administrator. The great difference between a special administrator and a regular administrator of an estate is that a regular administrator is empowered to entertain claims of creditors to be filed against the estate, while a special administrator cannot. In fact, the statute of non-claims given in Rule 86 will only come to life after the appointment of a regular administrator/executor. We cannot talk about statute of non-claims if the court has only appointed a special administrator. Let us assume that there is already a regular administrator/executor appointed by the settlement court. Whether there is an executor or administrator, their duties are the same. Both should submit to the court within a period of 3 months a complete inventory of the properties of the estate that have come to their possession or to their knowledge, and then they will have to do an accounting within a period of 1 year. They have to preserve and manage the estate, and they will have to comply with the orders of the settlement court. The duties of administrator/executor outlined in the Rules are practically the duties of any fiduciary given in the RoC, similar any person who occupies a fiduciary position under the Rules like a trustee of an express trust, the guardian of an incompetent of a minor. They have all these common duties like to preserve the estate, to submit an inventory, to submit an accounting, and to obey the orders issued by the court.

STATUTE OF NON-CLAIMS Rule 86 SEC. 5. Claims which must be filed under the notice. If not filed, barred; exceptions.All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants . Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceed-ings. Claims not yet due, or contingent, may be approved at their present value. Once the administrator/executor has assumed office, the first thing that he should do under Rule 86 is to ask the court to issue a Notice to Creditors. This will be published. This is a notice to all the creditors of an estate to submit their claims within a period of not less than 6 months nor more than 12 months from the first publication of the Notice to Creditors. This period of not less than 6 months nor more than 12 months within which creditors should file their claims is called the Statute of Non-Claims. Rule 86 spells out the concept and the consequences of the Statute of Non-Claims. It is a very short prescriptive period. The publication of the Notice to Creditors is jurisdictional insofar as creditors are concerned, because this notice serves as a prescriptive period. So if there is a creditor of the estate, like PNB, from whom the decedent borrowed 2M in a clean loan (unsecured) during his life time. Can PNB file an ordinary action for the recovery of indebtedness against the estate of the estate on the theory that under the law, when a natural person dies, the law creates an artificial person, called the estate of the deceased, to take the place of his person? Although it is true that when a natural person dies, under the NCC creates another person to take his place, an artificial person called estate of the deceased. But the law does not allow the artificial person to be a defendant in a suit for recovery of money. What the law requires is for PNB to file a claim within a period of not less than six months to 12 months from the first publication of the Notice to Creditors.

So you will not find any ordinary civil action commenced by a creditor against the estate of a deceased creditor. That simply is not allowed by the Rules. But you can find a complaint, ordinary civil action, where the action is Creditor vs. Estate of Deceased Debtor, but the circumstances are different from one another. When you meet a case captioned thusly, the debtor must have died after the institution of that action. If the debtor is already dead, the creditor will not be allowed an ordinary civil action for the recovery of the indebtedness. The only recourse of the creditor after the death of the debtor is to file a claim in the settlement court within the period so provided by law. Why do we make a distinction as to whether the debtor is dead before the commencement of the action or during the pendency of an ordinary civil action for the collection of money? The answer is found in Rule 3 Section 16 and Section 20. 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.

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. In Rule 3, Section 20, if the debtor in a claim for money dies during the pendency of the case, RoC provides that the case will be prosecuted until final judgment. But what Rule 3 requires is that there will be substitution of parties, and if there are no heirs willing to act as the defendant, it is ultimately the administrator/executor who will be named as the substitute defendant. This is the only instance where we can have an ordinary civil action for the recovery of money where the defendant is the estate of the deceased debtor represented by the administrator/executor. Remember the antecedent facts: The debtor died during the pendency of the case. At the time the action was commenced, the debtor was still alive. If the debtor is already dead, a creditor cannot file an ordinary civil action for the recovery of the indebtedness. The creditor must file a claim in the settlement court within the Statute of Non-claims. In the same facts of the problem involving PNB with an unsecured 2M loan, we assume that PNB made a promissory note, which was signed by the now deceased debtor. So, the unsecured loan of 2M was put into writing. The obligation is now reduced into writing. Under the NCC, if there is a money claim supported by a written document, prescription period is 10 years. The creditor can enforce his claim within 10 years. But suddenly, here is Rule 86 giving PNB a very short period for which to enforce the claim. Will it not defeat substantive law? Are we not reducing the prescriptive period enjoyed by PNB from 10 years to 12 months? Can RoC defeat substantive law?

There is really a conflict in the RoC and NCC in this instance. What the SC said is that the provisions of Rule 86 will prevail over the NCC. We reduce the prescriptive period contained in the NCC which is 4 years, 6 years or 10 years are shortened to 6 months to 12 months from first printing of the Notice to Creditors. The justification given by the SC is that the statute of non-claims as contained in the Rule 86 is not a product of the SC. It is just a copy of the old civil procedure. At that time, the old code of civil procedure was also a substantive law insofar as prescription was concerned. SC went further by saying, even under the NCC on the chapter of prescription, it is provided that the NCC provisions will be without prejudice to periods of prescription that are found in special or other laws. In other words, the period of prescription given in the NCC is the general law on prescription. If there are other laws on prescription which contravene the NCC, then the NCC will have to give way over the provisions of the other laws. Rule 86 is just an exact copy of the period of prescription that was contained in the old code of civil procedure, which has not been repealed by the provisions of the NCC. We still maintain this statute of non-claims as a prescriptive period, not less than six months nor more than 12 months from the date of first publication of the Notice to Creditors. If you read Rule 86 on the statute of non-claims, the consequence is that the claim will be barred forever if it is not submitted within this period to the settlement court. But the RoC do not require all creditors to submit their claims within this statute of non-claims. You have also to take into account the provisions of Rule 87. If there are creditors but their claims are not for money, and instead involve recovery of real or personal property, they are not covered by the statute of non-claims. Or if these creditors claim, although for money, stem out of a tort committed by decedent during this lifetime, they are not governed by the statute of non-claims. So we have to limit the concept of these claims to the provisions of Rule 86. What are these money claims? All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, as provided for in Section 5 of Rule 86. So that excludes claims arising from a crime or delict or tort. These claims must be claimed within the period of non-claims. Otherwise, they are barred forever. In our example, where the debtor dies during the pendency of an action for the recovery of the loan, the administrator/executor has taken his place as a substitute defendant. If the administrator/executor subsequently loses the case, the creditor will have an award in his favor for payment of 2M. Even if that award is supported by a final and executory judgment, the creditor should still file a claim against the estate within 6 months and 12 months,in the period for statute of non-claims. Otherwise, the claim will be barred. If you read Rule 86 on the statute of non-claims, claims for money supported by a final judgment should still be submitted as a claim before the settlement court. In short, the judgment creditor cannot make use of Rule 39. He cannot move for the issuance of a writ of execution. If a trial court issues a writ of execution, that writ is void. We cannot issue a writ of execution against an estate that is being settled in a settlement court. It is the settlement court that has the authority to determine who the creditors are and what claims will be approved and paid in the settlement proceeding. And that cannot be interfered with by any other court. If you will notice, in the Rule on settlement of estates, there is no instance by which a writ of execution can be enforced against the estate of the deceased person. That is prohibited under our system. Except the instance that is contemplated in Rule 39, when there is already a writ of execution issued against a defendant who is still alive, and there is a levy on execution on the properties of this defendant, and thereafter, the defendant died. The levy on execution can continue and the properties can be sold at public auction. This is the only known instance where there could be a writ of execution and a levy on execution against the estate of the recently deceased judgment debtor/defendant in Rule 39. The general rule is we cannot enforce a judgment against a deceased judgment debtor by using a writ of execution and levy on the properties of his estate under Rule 39. Although Rule 86 operate as a period of restriction, Rule 86 recognizes that certain creditors do not have to submit their claims against the estate. And even if they do not submit their claims, their claims will not be barred, they can still enforce their claims. This involves creditors who hold a security, a mortgage, a pledge or any other security arrangement, contractual in character, that has been entered into during the life the deceased debtor. So, a mortgagee, a pledgee or any other creditor who holds a security is not required to submit a claim against the estate. He does not participate in the settlement proceeding, but he can still enforce his claim. In fact, under Rule 86, the secured creditors are given 3 options. The first is that they just abandon their security. So if the creditor is a mortgagee at the same time, and he uses the first

option, he will convert himself from a secured creditor to an unsecured creditor. He gives up the mortgage, so he will be able to participate in the proceedings. This does not seem to be very practical. Why should a secured creditor convert himself into an unsecured creditor when there is no certainty that he is going to be paid? But that is the first option given to secured creditors. The second option relies on the collateral. Foreclose the mortgage. And if there is any deficiency, with respect to the deficiency, submit a contingent claim within the statute of non-claims. So in this second option, the mortgage is not abandoned, but foreclosed instead, and the creditor is required to file a contingent claim for any deficiency. In the third option, the secured creditor will rely entirely on his security. He can foreclose the mortgage. But if there is a deficiency, he can no longer recover the deficiency against the estate. He will have to be satisfied with what he received in the foreclosure of the mortgaged property. There could be some questions pertaining to this rule on secured creditors in Rule 86. Remember that the mortgagor/pledger is already dead. And if in the mortgage, the mortgagee is given a special power of attorney to extrajudicially foreclose the mortgage, the administrator/executor or any one of the heirs can bring out this issue, if the mortgagor is already dead, does it not follow that the SPA given to the mortgagee to foreclose extra-judicially will be extinguished. Because what the mortgagor gives to the mortgagee is a SPA to extra-judicially foreclose a mortgage, a contract within a contract. In essence, a contract of agency is created, authorizing the mortgagee to extra-judicially foreclose the security. Supposing the administrator challenges the authority of the mortgagee to extra-judicially foreclose the mortgage, on the ground that under the NCC the death of the principal extinguishes the agency. Is the administrator correct? No. The SC said we do not apply that principle in agency through a case of secured credit and security consists of a mortgage, pledge or any other form of contractual security arrangement. And the SC said that the death of the mortgagor will not extinguish the agency, since the agency falls in the concept in the civil code called an agency coupled with an interest. So if the mortgagor dies, the mortgagee still retain the right to extra-judicially foreclose the security. So, we do not take away the right of the mortgagee to extra-judicially foreclose the security even if the mortgagor is already dead. That is the reason why in Rule 86, the mortgagee is given the 3 options: to abandon the mortgage, foreclose the security and recover the deficiency by filing a contingency claim within the statute on non-claims or rely solely on the foreclosure of the security and forget about the deficiency.

We said that a court will not accept even for filing an ordinary complaint for the recovery of money arising from a contract if the defendant was already dead, even if we implead as defendant the estate of the deceased defendant. Even if the court accepts it for filing, it will be subsequently dismissed because the filing is not the proper filing for the commencement of a complaint. How do we expect creditors to file a claim? In our example, do we expect PNB to file an action against the administrator/executor for the recovery of the loan? So, in filing a claim for money, what do we expect the creditors to submit if they are not expected to file an ordinary claim in court? A claim in settlement proceedings is just in the form of an affidavit where the creditor asserts his claim and then gives the circumstances surrounding the claim, and then he presents already together with his affidavit proof of the existence of his claims. So these claims are not commenced with the filing of a complaint. Since these claims are commenced by the filing of an affidavit, the SC ruled that claimants for money do not require a certification for non-forum shopping. Said certification is not required since an affidavit can hardly be considered an initiatory pleading. Such certification is required only in initiatory pleadings. Supposing that the settlement court is an RTC. Therefore we assume that the estate is sizable. A creditor files a claim, submits his affidavit, saying that the decedent owed him money by way of a loan but only the sum of 200k. Can the RTC as a settlement court entertain that claim, although it is not within the jurisdictional amount given to an RTC under BP 129? Yes. The amount of the claim of the creditor will not determine the jurisdiction of the settlement court. This is only an incident of the exercise of the settlement court of its authority to entertain the petition for the settlement of estate. As long as the settlement court has jurisdiction because of the GROSS VALUE OF THE ESTATE, the settlement court will have the authority to resolve ALL incidents that are brought before it in relation to the liquidation of the estate of the deceased person.

Under the Rules also, if there are 10 claimants for money, and they all have submitted their claims in the form of an affidavit, the Rules expect the administrator/executor to respond to the claims, so he can contest or accept the genuineness or validity of the claims. If the administrator/executor does not respond at all, can the court declare the administrator/executor in default? No. Because, the claim is not in the form of a complaint, only in the form of an affidavit. So there is no default if the administrator/executor does not respond to the claim. If the administrator/executor contests the claim, he is expected to reduce his contest formally in writing, stating the defenses that the administrator/executor wishes to set up when that particular claim is filed. If the administrator/executor admits the claim, he will simply state that he is not contesting the claim. So it is very likely that the administrator/executor will collude or conspire with a creditor who has filed a claim by simply telling the court that he is admitting the genuineness of a particular claim. There is mechanism given in the Rules for this situation. If the administrator/executoradmits a claim for money, the heirs can submit their opposition to the admission of the claim, in which case, the claim will become a contested claim. If there are contest given by the administrator/executor to the 10 claims submitted by the creditors, then the court will have to try these 10 claims, as if there is a full blown trial, to be taken up in the settlement court. The court can easily avoid conducting a hearing in cases of contested claims by using another provision in the Rule 86, that is to appoint commissioners in order to hear the claims of the creditors. In Rule 109, the order for each and every claim is considered as a final order. So if the court eventually denies all the 10 claims, and the creditors feel aggrieved, expect the creditors to appeal to the CA or SC as the case may be. There will be 10 appeals emanating from the same proceedings. While these appeals are going on, the settlement court will have to wait until they are finally adjudicated. So that is why although the policy of the state is to speedily dispose of settlement proceedings, by providing in the Rules a clear period within which a settlement proceedings should be terminated and closed, it is Rule 109 that will necessarily cause a delay in the closure of settlement proceedings, because of the number of appeals that can be taken in each and every final order that can be granted by the settlement court. Under the Rules, the resolution of each money claim is a final order. Let us assume that all claims had been resolved and granted by the court, and the administrator/executor does not appeal. The final order became final and executory, it will now be entered. Can the creditors, whose claims have been approved, file in the settlement court a motion for execution under Rule 39? No. The settlement court is not bound to issue or to order an execution of its own final order, even if the final order is favorable to a creditor with a claim for money. Does the judgment creditor have any other recourse? None. He cannot make use of Rule 39. The only recourse, if we can call it a recourse, available to a judgment creditor who has filed a claim for money is to wait for the court to issue another order directing the administrator/executor to pay all these claims. Until that order is issued, the administrator/executor has no authority to voluntarily pay off the claims of the judgment creditors, although they have already been approved. Insofar as creditors of an estate subject of settlement are concerned, even if they have won their respective claims, there is guarantee that they are going to be paid. It is also possible that they will not be paid at all if the estate is insolvent. There are more liabilities than assets, then the settlement court will be forced to make use of the provisions in the NCC on preference and concurrence of credits. A creditor cannot tell himself that since his claims had been approved by the court, all that he needs to do is to wait for the full payment. There is no assurance that a creditor in a settlement proceeding could even be paid. If he is going to be paid, there is no assurance that he will get the full amount of his claim, it could only be a part. This is when the court will start to use the NCC provisions on preference and concurrence of credits. In preference and concurrence of credits, there are credits that are more preferred than other credits. There is need to pay these preferred creditors before the rest of the creditors can be paid. And the Rules are very clear in saying that when there

are more assets that liabilities in the estate, the estate being insolvent, the settlement court is duty-bound to observe the preference and concurrence of credits. So, always have in mind that judgment creditor in a settlement proceeding cannot make use of Rule 39. No writ of execution, no levy on execution. And, we cannot say with certainty that a duly approved claim of a creditor will lead to payment in full. There could be full payment, partial payment or no payment at all, depending on the financial condition of the estate that is being settled. How about the heirs? Can these heirs enter into possession of some of the properties under liquidation? They may not. The purpose of a settlement proceeding is primarily to protect the state and most of the creditors of the deceased. Until the creditors of the decedent are fully satisfied, the heirs cannot take over possession and control any of any properties of the estate. The entity that has full control of the estate of a deceased person is the settlement court, probate court or intestate court as the case may be. So how will the surviving spouse and minor children survive? There are some provisions in the Rules and the NCC that during the pendency of the settlement proceedings, the surviving spouse and the children will be entitled to allowances determine by the court. And it is the duty of the administrator to comply with the order of the court directing him to give allowances to the surviving spouse and minor children. What the settlement court is prohibited from doing is to allow the surviving spouse and the heirs to take over possession and control over properties of the estate before the creditors are fully paid or the estate has been exhausted for the payment of these creditors. Supposing that the statute of non-claims has already expired, and the court has already resolved the validity of these claims, but the administrator/executor reports to the court that there are not much liquid assets of the estate. Can the court authorize the administrator/executor to pay creditors whose claims had been approved through the mechanism known as accion en pago (pay using properties belonging to the estate)? Generally, dacion en pago is not allowed in settlement cases. A court will not allow or authorize an administrator/executor to settle a monetary obligation with properties of the estate. The procedure outlined in the Rules where assets are enough to pay, but the assets are not in cash is for the administrator/executor to ask the convert for authority to convert the hard assets (properties) into liquid assets (cash) by selling the properties of the estate. The order of preference is to sell personal properties first. Generally, this is the rule followed by the settlement courts. If we are going to sell properties in order to generate cash to pay off creditors, we sell first personal properties. And then, if the proceeds are not enough still, the court can authorize the sale, mortgage or encumbrance of real properties. So, the Rules seem to allow only a sale of personal property, but not mortgage or encumbrance of personal properties of the estate. But the Rules are very clear that in the case of real property, there could be a sale, mortgage or encumbrance, if so directed by the court. The authority of the administrator/executor to sell properties, whether real or personal, does not stem from his authority as an administrator/executor. He should get a special order from the settlement court authorizing him to sell particular pieces of properties. And it is the court that will determine under what conditions under which the contract of sale should be had, and if signed by the administrator/executor. Can the administrator/executor, after he has obtained an authority to sell properties of the estate, sell these properties in a private sale or public auction sale? Yes to either, as long as the court authorizes the sale in either a private or public sale of these properties. The settlement court has almost complete discretion in determining the cognizance for the disposition of the properties of the estate for the purpose of generating money with which the administrator/executor can pay the claims of creditors. If the administrator/executor has already amassed enough cash in order to pay off the creditors, can the administrator/executor start paying or liquidating in full the approved claims against the estate? He cannot still. He needs another order from the court, directing him, the administrator/executor, to pay creditors whose claims had already been approved. So, the administrator/executor should always be relying upon the directive that will be issued from the settlement court.

If the administrator is directed to pay off already his creditors because there are already enough funds, and the creditor neglects to pay the creditors, can the creditors this time make use of Rule 39, to file a motion for execution? They still cannot. We do not use Rule 39 in settlement proceedings. If the administrator/executor disregards the order of the court directing him to pay his creditors, the creditors can move to cite him in contempt of court, or the court can even remove him as an administrator/executor and appoint another. If all the creditors have been paid, and there are enough assets left for distribution to the surviving heirs, legatees or devisees, if there is a will, the next problem to be resolved by the court is determining who the heirs are. We have learned that a settlement court is a court of very limited jurisdiction. Does it possess authority to determine who the heirs are? Yes, that is part of the limited jurisdiction of a settlement court. So if the settlement court can determine who the heirs are, the court is likewise authorized to determine the distributive share of each of these heirs. What the settlement court cannot do is to resolve contentious issues concerning title to or possession of real property. In a dispute between the estate and a 3rd person concerning the property, the settlement court has no authority to resolve that issue. It has to be resolved in an ordinary civil action. The only recognized exception that is recognized by the SC, although not contained in the Rules, is that if all the parties agree to submit this matter/dispute concerning title or possession of property to the settlement court for resolution. If there is such an agreement, that will place these parties in estoppel from challenging later on the resolution of the court. The declaration by the settlement court as to who the hers are is another final order that can be appealed to a higher court. It is not an interlocutory order. Even if the heirs have already been determined by the court, the other problem now is how to divide the estate and distribute the estate among the heirs. If they cannot agree on the manner of division, can they file a special civil action for partition? They cannot if there is a pending settlement proceeding in court. The partition of the estate, how they will divide the property, is within the authority of the settlement court to determine. So if they want the settlement court to have the ultimate responsibility to divide the property, they can submit that issue to the settlement court. If they do not want the settlement court to settle that issue, the compulsory heirs, the devisees and legatees can agree on what is usually called in settlement proceedings as a project of partition. A project of partition is usually agreed upon voluntarily among the heirs. They sign it and then submit it to the court for approval. Once approved by the court, the court will issue another order directed to the administrator called an order of distribution. If the administrator/executor neglects to distribute, again the remedy is not Rule 39, it is simply to cite the administrator/executor in contempt or the court will ask him to resign or be removed by the court from that office. If all the creditors had been paid, and the heirs have received their distributive shares according to the project of partition, will the proceedings now be terminated? Before termination, there is a final stage before the court will issue an order of closure, the order which will terminate the proceeding. It is essential that the court should conduct a hearing and approve the final accounting of the administrator/executor. Under the Rules, an administrator/executor is required to submit an accounting once a year. If all these submissions have been approved in the past, then there is no more need to repeat them during final accounting. If you also again read Rule 109, each and every approval by the settlement court of an accounting is a final order. If there is a final accounting submitted and that is approved by the court, it is a final order. If that is appealed, the settlement court in the meantime will not issue an order of closure. When there is already an order of closure, the period to appeal therefrom has expired, then the order of closure will be entered. That will mark the end of the proceedings.

Supposing that after the order of closure has been entered and the proceedings have been terminated, here comes an heir who claims that he has been deprived of his distributive share in the estate, and here comes a creditor who claims he is a creditor for money but he was unaware that there was a settlement proceeding. Can the heir file his own petition for the settlement of estate for the same decedent? Can the creditor also commence his own petition for the settlement of the estate? No to both remedies. There should be only one settlement court allowed, and it has already terminated the proceedings. If there is only one settlement court allowed, but the settlement proceedings have already been closed, what remedy do the heir and creditor have, if there is any remedy at all, that is if we want to life to the principle that there should be only one settlement court? The remedy of the heir is to look for reopening of the case. A proceeding that has already been closed can be reopened by the same settlement court. This is insofar as the heir is concerned, if he can show that he has been unjustly deprived of his estate. But insofar as the creditor for money is concerned, he does not have this privileged for asking for reopening, because his claim for money must have been filed during the running of the statute of claims. If he has failed to do so, following the provisions of Rule 86, the creditors claim shall be barred forever. So, the person who can ask for reopening will be an heir, not a creditor of the estate. Remember that a final order in settlement proceedings is considered a judgment in rem. It binds anybody who might have an interest upon the estate. That is the rule we are applying insofar as the creditor is concerned. The order of closure will be binding upon the creditor, because the prescriptive period given in the Rules has already lapsed. His claim is barred forever. But insofar as the heir is concerned, he can capitalize on a provision in the Rules which says that aside from publication of the notice of hearing of the probate of a will, or for the filing of letters of administration, it also jurisdictional for that settlement court to give personal notice to the heirs, legatees or devisees mentioned in the will. The notice, which is also jurisdictional together with the publication, refers to a notice by registered mail that must be strictly adhered to by the settlement court. Otherwise, if not strictly adhered to insofar as the heir is concerned, he can always contend that the court has not acquired jurisdiction over his person. That could be used by this heir deprived of his share in order to challenge the nature of the order of closure as a judgment in rem. The SC has not fixed any period at all within which a motion or petition for the reopening should be filed. It seems that it is not possible to fix a period within which a period for reopening could be filed, because if we place a period of prescription, the only remedy that will be left to the heir will be to file his own petition for the settlement of the estate, which is not allowed under these Rules. So, as of now, there is really no fixed period within which a petition for the reopening of the settlement proceedings could be filed.

Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate? GROUNDS: (Section 4, Rule 74) a. If there is undue deprivation of lawful participation in the estate; b. Existence of debts against the estate. Should be brought within 2 years after settlement and distribution of the estate Should be brought within 2 years after settlement and distribution of the estate

COMPEL THE SETTLEMENT OF ESTATE IN COURTS ACTION FOR RESCISSION

It must be availed of within 5 years from the time the right of action accrues. (Art. 1149, NCC)

Also applicable in judicial proceedings ACTION FOR RECONVEYANCE OF REAL PROPERTY GR: It is based on an implied or constructive trust which prescribes in 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith. XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for value and good faith, action is imprescriptible. (Marquez v. CA, G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings. Upon motion of a person who either: a. Has a legal interest in the matter in litigation; b. Has such legal interest in the success of either of the parties, or an interest against both; or c. Is so situated as to be adversely affected by the distribution of property in the custody of the court or of an officer. Note: May be availed of after judgment but before its finality or appeal by the aggrieved party. On grounds of fraud, accident, mistake, and excusable negligence within 60 days after petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered. (Rule 38.) Also applicable in judicial proceedings. On the ground of fraud which should be filed within 4 years from the discovery of fraud.

REOPENING BY INTERVENTION IN SUMMARY SETTLEMENT

PETITION FOR RELIEF (SUMMARY SETTLEMENT) ACTION TO ANNUL A DEED OF EXTRA-JUDICIAL SETTLEMENT OR JUDGMENT IN SUMMARY SETTLEMENT ORDINARY ACTION BUT NOT AGAINST THE BOND

If the order of closure has already become final and executory, the heir must file an independent civil action of accion reinvindicatoriato recover his deprived share. Note: It must be brought within 10 years from the time the right of action accrues. [Art. 1144(c)] Also applicable in judicial proceedings. After the lapse of two years an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.

Rule 91 ESCHEAT The special proceeding after settlement is escheat. Although escheat comes right after settlement, it does not mean to say that escheat is an integral part of an estate settlement proceeding. Escheat proceedings are independent of settlement proceedings, although the nature of escheat proceedings contemplated in the Rules is also one where a person has died and there is no will, and then there are no persons who claim to be entitled to the estate. But if you read the last section of escheat, there is another proceeding contemplated which could be different from escheat. We call it a reversion proceeding. Rule 91 SEC. 5. Other actions for escheat.Until otherwise provided by law, actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall be instituted in the province where the land lies in whole or in part. The escheat contemplated in the Rules is one where a person has died, left no will and there are no person who claim to be entitled to the estate as heirs or any other capacity whatsoever. In an escheat proceedings under these antecedents, is that the proceeding will be initiated by the Solicitor-General in his capacity as the lawyer of the Republic. So, it is also an in rem proceedings. Petition for the escheat of the properties of Juan dela Cruz. This is also a proceeding in rem because there is no party impleaded as defendant. It is not also adversarial, theoretically. The publication requirement is much longer than the publication requirement in settlement proceedings. If the escheat court finds the petition sufficient in form and substance, and the jurisdictional requirements have been met by proof of publication, the escheat court will declare the properties of the deceased person as escheated in the name of the

Republic of the Philippines. The provisions of the Rules on how the properties will be distributed are mere reiterations of the provisions found in the NCC. You will notice then that there seems to be no protection at all extended by the Rule of Escheat to creditors of the deceased, unlike that extended in settlement proceedings where parties are notified and they are required to submit their claims within a certain period of time, or else their claims are barred. There is no such procedure under escheat proceedings So fi the escheat court has issued an order escheating the properties in favor of the state, the state will just distribute the properties in accordance with the provisions of substantive law. If it turns out that there are creditors of the deceased, do these creditors have any remedy at all to enforce their claims, although the estate of the deceased debtor has not been settled in accordance with settlement proceedings? The escheat court in fact will give creditors a very long period of 5 years within which to file their claim. Within that 5 years, the escheat court will either approve or deny the claims, and then order the payment of these claims. Can the settlement court convert itself into an escheat court if in the settlement proceedings, there are no claimants to the estate under settlement there being only creditors, but no heirs, devisees or legatees? No. It cannot convert itself into an escheat court. In an escheat proceeding where decedent had left no will, nor are there any heirs or creditors, the proceeding should be commenced by the solicitor-general via an independent petition for escheat. It is also incorrect to assume where escheat is applicable only in situations where the owner is dead. Even if the owner is still alive, there could be escheat proceedings under certain special laws, particularly the Law on Unclaimed Balances Act. This law covers bank deposits that have remained dormant for a period of at least 10 years. If the depositors of these bank accounts leave their accounts dormant for a period of 10 years, the Republic of the Philippines will confiscate these dormant accounts. So, it is not good to deposit in a bank and keep it dormant. You should keep on depositing and withdrawing, as the case may be, so that may prevent the Unclaimed Balances Act from being implemented in your account. This dormant bank accounts will also be the subject of escheat proceedings. The Republic of the Philippines will file a petition for the escheat of these dormant accounts. And once the court has granted the petition, the deposits will be turned over to the national treasury. These dormant accounts might be in millions of pesos, because they have been dormant for about 10 years, and it must have kept on earning interest. Is this not unconstitutional? SC said it is not unconstitutional. It is merely an exercise of the Republic of the Philippines will of its police power. It is not eminent domain since the state is confiscating money without paying just compensation to the owners. If it were expropriation or eminent domain, the Republic of the Philippines will be forced to pay just compensation for these dormant deposits.

REVERSION With respect to the reversion, it is also a proceeding in rem according to the SC. Although, there is a particular individual who is impleaded for the recovery of properties that are ill-gotten. The SC said these are also proceedings in rem. And with respect to a reversion filed by the Sol-Gen involving real properties, the SC recently ruled on the issue as to whether proceeding for the recovery of a real property is cognizable by an MTC or RTC, depending upon the assessed value of the property based on the standards under BP 129, the SC said that it is possible that a reversion proceeding involving titled property will be cognizable by an MTC if the assessed value of the property is within the jurisdiction of the MTC as embodied in BP 129. But even if the assessed value of that property is within the jurisdictional amount assigned to the MTC, the MTC will have no jurisdiction if it will involve the setting aside of a judgment or annulment of a judgment that has already been rendered in the past by the court, more particularly if that judgment has been a duly entered judgment. SC said MTC will have no authority over that reversion proceeding because the reversion will include another aspect, that is annulment of judgment, over which an MTC does not have any jurisdiction under BP 129.

Rule 102 HABEAS CORPUS, WRIT OF AMPARO, WRIT OF HABEAS DATA

If you are asked whether a writ of habeas corpus issued by a court will release a detainee from detention, that is if upon issuance of the writ, will that result to the release of the detainee from detention? No. A writ of habeas corpus, even if issued by the court, does not mean the detainee will be released from detention. What the writ of habeas corpus provides is that the respondent will be required to present to the court the detainee on a particular day and period before the court. And after the detainee had been presented on that particular day and period, the respondent would have complied with the writ of habeas corpus. So a petition for habeas corpus, once granted, does not mean that the detainee will be released from detention. What will release the detainee from detention? Under Section15, Rule 102, if the writ is issued with a complimentary order after hearing that will lead to the release of the detainee from detention. The order in Section 15 is called an order of discharge or an order of release. So, it is not the writ of habeas corpus itself that will lead to the release of the detainee. Rule 102 SEC. 15. When prisoner discharged if no appeal.When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released. It is the order of discharge or release that will be issued by the court after conducting a hearing, which could be a summary hearing, after a return was submitted by the respondent to the court. So that is a complementary order issued by the habeas corpus court that will now authorize the detainer to release the detainee. With respect to jurisdiction, the provisions of the law creating the Family Court, the Constitution as well as BP 129 have long been the subject of discussions, because under the law creating a Family Court, the court has exclusive original jurisdiction over petitions for custody of children and habeas corpus in relation to custody of children. The intention of the law is quite clear by merely reading the substantive law creating the Family Court. The family court has exclusive original jurisdiction over petitions for habeas corpus in relation to custody of a minor. And of course, in the Constitution, the SC has also original jurisdiction over petitions for habeas corpus, together with certiorari, prohibition, mandamus, etc. And then, under BP 129, the CA is likewise vested with original jurisdiction over the same petitions. That includes habeas corpus. The RTC likewise has original jurisdiction over petitions for habeas corpus. So, there seems to be an inconsistency or conflict between the Constitution, BP 129 and the law creating a Family Court which assigned to a family court exclusive original jurisdiction over petitions for habeas corpus in relation to custody of a minor. The SC has already settled this issue. The SC has already ruled that notwithstanding the provisions of the Family Court Law assigning exclusive original jurisdiction to a family court over petitions for habeas corpus in relation to custody of a minor, the SC, CA and the RTC still exercise jurisdiction over petitions for habeas corpus. From a procedural point of view, habeas corpus is limited to only two instances. The first is when there is unlawful detention, which deprives a person of his liberty. And the second situation is when the lawful custody of the person is withheld. If there is a detainee who complains that his detention is unlawful, he will file a petition for habeas corpus. Rule 102 provides that the petition can be filed by a person on behalf of the detainee. Our problem in habeas corpus is that jurisprudence is to the effect that when there is another person who files a petition for habeas corpus on behalf of the detained person, this has been construed very restrictively by the SC. The SC has ruled several times in the past that a stranger who files a petition for habeas corpus on behalf of a detainee should show or demonstrate his personality or his standing as to why he is interested in the release of the detainee. So there must be a relationship between the petitioner and the detainee, if the petition is not filed by the detainee himself. If the petition is sufficient in form and in substance, the habeas corpus court can right away issue the writ of habeas corpus. There is no need for the court to hear the side of the respondent. So if we stop at these principles of habeas corpus, it

would seem that habeas corpus is a prerogative writ of liberty, it is designed to favor of a detainee who claims that he is being deprived of his liberty by means of an unlawful detention.

Q: When is habeas corpus not applicable? A: 1. When detained under a lawful cause. 2. In case of invasion or rebellion or when public safety requires it, under Art. III, Sec. 15, 1987 Constitution. 3. When in case of invasion or rebellion or when public safety requires it, for a period not exceeding 60 days, under Art. 7, Sec. 18, 1987 Constitution. 4. If the jurisdiction of the court to try the person detained appears after the writ is allowed. (Sec. 4, Rule 102). 5. If the person is in custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the process, render the judgment, or make the order. (Sec. 4, Rule 102). 6. If the person is charged or convicted of an offense in the Philippines. (Sec. 4, Rule 102). 7. If the person is suffering imprisonment under lawful judgment. (Sec. 4, Rule 102). 8. In case of three-day retention of a suspect for three days without charge, pursuant to Sec. 18 of the Human Security Act. 9. When person is serving final sentence imposed by court. 10. For asserting or vindicating a denial of right to bail. 11. For correcting errors in appreciation of facts or of law. Note: Issuance of a writ of habeas corpus may not lie in order to revive a settled issue of the validity of the writ of preliminary injunction issued in an agrarian case allegedly on the ground of the existence of a tenancy relationship between the parties arising from their arrest for having assaulted persons in authority. (Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996). Loss of the records of the case after petitioner, by his own admission, was already convicted by the trial court of the offense charged will bar the issuance of a writ of habeas corpus. The loss must have occurred prior to the filing of the information against him. (Feria v. CA, G.R. No. 122954, Feb. 15, 2000). It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in the Criminal Case. That is error. If the Accused was illegally detained because he was arrested without a preliminary examination, what should have been done was to set aside the warrant of arrest and order the discharge of the Accused, but without enjoining the Municipal Judge from conducting a preliminary examination and afterwards properly issuing a warrant of arrest. Habeas Corpus proceedings are not meant to determine criminal responsibility. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981). In case of an illegal arrest, the petition for a writ of habeas corpus will still not prosper if the detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of an order denying bail. (Velasco v. CA, G.R. No. 118644, July 7, 1995). Habeas Corpus may be had to give retroactive effect to a previous ruling of the Supreme Court favorable to the accused when the accused has already served the full term for a crime which the Court has declared non-existent. (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it will not lie if the penalty of imprisonment imposed by the court is longer than that allowed by law. Such error of judgment may be corrected by appeal or by the President. (Pomeroy v. Director of Prisons, G.R. No. L-14284, Feb. 24, 1960). The writ of habeas corpus cannot be issued in cases in which the Bureau of Immigration has duly ordered the deportation of undocumented aliens, specifically those found guilty of illegally entering the Philippines with the use of tampered and previously cancelled passports. (Tung Chin Hui v. Rodriguez, G.R. No. 141938, April 2, 2001). Q: May a wife secure a writ of habeas corpus to compel her husband to live with her in the conjugal home? A: No. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any

penalty attached to the exercise of his right. That is a matter beyond judicial authority and is best left to the man and womans free choice. (Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000).

But if we reach the last sentence of Section 4, then the problems will now come out. Because in the last sentence of Section 4, it is provided that if a person has been convicted or charged of a crime, he is under detention by a lawful process issued by a court, there is no way that he can be released from detention through a petition for habeas corpus. Rule 102 SEC. 4. When writ not allowed or discharge authorized.If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. And then, if we relate Section 4 to Section 13 of Rule 102, we will meet very strict procedural requirements which the Rule require the petitioner to comply with so that the court will be convinced in order to issue a writ of habeas corpus or an order of discharge. Section 13 apples when a return is already submitted by the respondent. Rule 102 SEC. 13. When the return evidence, and when only a plea. If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law,the return shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth , and the party claiming the custody must prove such facts. You will notice that in Rule 102 although the court can issue the writ can be issued without hearing the other side as long as the petition is sufficient in form and substance, there is nothing in Rule 102 which fixes a date when a return should be filed in the habeas corpus. So, we rely on the discretion of the court as to when a return should be filed by the respondent. So the court can require the respondent to file the return after 15 days, 20 days or 30 days as the case may be. If the respondent indeed files a return, Section 13 provides that if the respondent is a public officer, and he admits that he is detaining the petitioner, the detainee, but under some process issued by the court, that return is prima facie presumed to be correct. That means the detention is correct, if that is the tenor of the return submitted by the respondent. But if the detainer is not a public officer, a private individual, when the return says that the detention by the respondent private individual is lawful, it is not considered as presumably correct. It will only be considered as a plea. Why is this Rule very prejudicial to the detainee?Let us say the respondent is the chief of the PNP, he is required to file a return. He submits a verified return saying that they are detaining petitioner based on court processes authorizing detention by the PNP. Insofar as the habeas corpus court is concerned, the detention is presumably lawful. So it is up to the petitioner to contravene this disputable presumption of regularity in the performance of service by the PNP. From a purely evidentiary angle, that will make it hard for the petitioner to disprove the disputable presumption created in Section 13, that the detention is prima facie presumed to be an orderly and lawful detention. Why do we say this? Because if the respondent has in his favor that the detention is prima facie proper, then, he does not have to present any evidence at all about the lawfulness of the detention. He enjoys a presumption created by law. It is the burden of the petitioner to disprove that presumption, to present the quantum of evidence necessary to dispute the presumption of regularity given in the Rules and by substantive law. If the respondent enjoys this disputable presumption that the detention is lawful, the quantum of evidence required in the RoC to defeat a disputable presumption is of a much higher level, that is the level of clear and convincing evidence. But remember that habeas corpus is not a criminal case. It is a special civil action akin to an ordinary civil action or even a special civil action, and the quantum of evidence in ordinary or special civil actions is just preponderance of evidence. But in habeas corpus, because the respondent enjoys a disputable presumption, that the detention is lawful and proper, it will

create a very big burden on the part of the petitioner to present evidence that will reach the level of clear and convincing evidence to disprove that disputable presumption. That has always been the rule that was followed in habeas corpus cases. But if the one detaining is not a public officer, a private individual, then we dont apply this disputable presumption of regularity. For instance, if a woman gives birth to an infant in a clinic, and when she wants to leave the clinic, the clinic tells the woman that she is allowed to leave, but the infant must be left behind and will stay there until the woman has fully paid the medical bills. That could be the subject of habeas corpus, because the lawful custody of the mother is being unlawfully withheld from her, as means of leverage against the woman to enforce payment of hospital bills. And if there is a return submitted by the owner of the clinic, it is up to him to prove that the detention is lawful. The quantum will only be preponderant evidence, which is the same quantum the petitioner will also be required to submit to court. In Section 4 also, if you notice, if there is already a conviction by the court, and the convict is now in jail, a petition for habeas corpus will not be proper in order to obtain his release. But, there are several exceptions to this rule. Even if a person is already convicted of an offense, and the conviction has become final and executory, and he is now serving sentence, he can still obtain his release through a petition for habeas corpus if the situation is covered by the Rule on DNA evidence (A.M. No. 06-11-5-SC). There is a section on the circular on DNA evidence entitled post-conviction DNA testing. (A.M. No. 06-11-5-SC)SEC. 10. Post-conviction DNA Testing. Remedy if the Results Are Favorable to the Convict.The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause . A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. If a person is convicted of a crime, he is now in jail because the judgment has become final and executory. While in jail, he can move for DNA examination. If the DNA examination results are favorable to him, in the sense that the findings create a doubt as to whether or not he is the one who committed the crime, he can obtain his release through a petition for habeas corpus. In other words, the judgment of conviction that has become final and executory can be overturned by a petition of habeas corpus. Remember that the judgment is now final and executory, and if we use civil law, there is now res judicata. But DNA Circular says that in a post-conviction DNA testing authorized by the court, if the finding creates a doubt as to whether the detainees stay in jail is still proper, an RTC can entertain a petition of habeas corpus and overturn a judgment of conviction that has become final and executory. There are other instances where a judgment of conviction although final and executory can be defeated by a petition for habeas corpus. In one case, there was a judgment of conviction, serving his sentence. While the convict was serving sentence, the Congress enacted a law which reduced the penalty for the crime committed by the convict. Since the convict has served the sentence as imposed by the new law, he filed a petition for habeas corpus, saying that he has already served the sentence, and therefore his stay in jail constitutes deprivation of his liberty, a case of unlawful detention. And the court issued the writ of habeas corpus and ordered the release of the convict. (Robin Padilla case) So simply because there is a final judgment of conviction, it does not mean to say that petition for habeas corpus is no longer available as what Section 4 intends to say as a message. There are several instances still where a final judgment of conviction can be overturned, and the convict will be released from custody. In habeas corpus also, when it comes to a return filed by a respondent public officer, if the respondent tells in the return that he has custody of the detainee a few months ago, but the detainee has already been released by said officer, with documentation showing that the detainee has already been release, what is the effect of this return upon the petition of habeas corpus? The SC said that if the detainee has already been released, and proven by preponderance of evidence, then the petition for habeas corpus has become moot and academic and the petition for habeas corpus is going to be dismissed.

Or, in other instances when a public officer submits a return consisting of one sentence, stating that he does not have the petitioner in his custody, that is a sufficient return according to the SC. In other words, when it comes to habeas corpus, if you look at it solely from a procedural point of view, the aces are in the hand of the respondent public officer. He can file a very simple return that is effectively a general denial, if we are going to apply the rules for ordinary civil actions. The statement of denial of custody is a general denial as it does not give the circumstances upon which he relies upon to support that denial. That is allowed in habeas corpus. This because, habeas corpus is not a civil action, and therefore, the rules of ordinary civil procedure cannot be applied to a petition for habeas corpus. There are several procedural defects that a petition of habeas corpus will have to waive if we rely solely on Rule 102. These defects were pointed out a while ago. A general denial is allowed. We cannot compel a respondent to give particulars in support of that denial. Another procedural defect is that a person, not a detainee, who files a petition must show to the court why he is interested in the release of the detainee. If he cannot show any interest in the freedom of the detainee, he will be considered as not having the standing to file the petition for habeas corpus. And then, when it comes to evidentiary rules, Section 13 will always support the stand of the respondent public officer who is detaining person. Every time that he asserts that the detention was because of some process issued by a court, his stand will be presumed, although disputable, to be correct. Therefore, if the stand of the public respondent is the correct stand, the habeas corpus court will consider the detention of the detainee as one that is lawful and proper. When it comes to appeal, we have a special rule when it comes to habeas corpus. In spite of the different decisions of the SC in the past as to the period of appeal in habeas corpus cases, the SC finally resolved that the period to appeal in habeas corpus cases is the one found in BP 129. The period of appeal is 48 hours, not 15 days, not 30 days. And the SC relied solely on provisions of BP 129. If you read the last chapter on general provision of BP 129, there really is a 48 hour period in which to perfect an appeal in habeas corpus cases. Since there is a respondent in habeas corpus cases, do we consider that as one in personam or is it one in rem? This another settled matter. SC held that it is a proceeding in rem, although there is a particular respondent impleaded in the action. If we analyze the effect of authorizing a petition for habeas corpus in order to obtain the release of a person in jail or already serving a sentence by virtue of a judgment of conviction rendered by a competent court, like the rule on postconviction DNA testing, we will immediately appreciate that habeas corpus is a means by which we can attack collaterally a final and executory judgment. That is why, when we are talking about Rule 47, annulment of judgments in civil cases, we said that while annulment of judgment in Rule 47 is not applicable to a criminal case, the remedy available in a criminal case is more convenient, because the remedy available in a criminal case to defeat a final and executory judgment is simply a petition for habeas corpus. Why is habeas corpus a collateral attack on a judgment? Because the relief which the petitioner in habeas corpus seeks is for the court to issue an order saying that the detention is unlawful and there is deprivation of liberty. The habeas corpus court will not determine directly whether or not the conviction is proper or should be set aside, and that is why it is always a collateral attack from a judgment. If you compare habeas corpus to annulment of judgment, we will readily conclude that annulment of judgment is really a direct attack against the final and executory judgment because the relief which the petitioner in Rule 47 seeks is to declare the judgment null and void, it should be set aside because of lack of jurisdiction over the subject matter or the person, or based on extrinsic fraud. That is not what habeas corpus does. When the habeas corpus court releases a person on a finding that his confinement or detention is unlawful. But in declaring that his confinement is unlawful, the court will effectively say that there really is something wrong with the judgment that

has been rendered by the court. But the habeas corpus court does not say that the court did not have jurisdiction over the subject matter or the person, or that there was fraud committed during the pendency of the case. A habeas corpus court, since it is trying a special proceeding, will also be acting with a very limited jurisdiction. So if there is a petition for habeas corpus, and there is an allegation that the petitioner or detainee is being unlawfully detained, and that he is being deprived of his liberty, the detainee/petitioner cannot apply for the issuance of preliminary mandatory injunction in order to compel the immediate release of the detainee. This is because the court will be acting in a limited jurisdiction in the sense that what the court will do only is to determine whether or not there is unlawful deprivation of liberty.That independent action will no longer be a special proceeding; it will be an ordinary action for the recovery of damages. This is to emphasize that a habeas corpus court is acting like a settlement court, one having a very limited jurisdiction. Because of the procedural defects that we have always encountered when it comes to a petition for habeas corpus, the SC issued circulars on amparo and habeas data. So one of the purposes of the circulars on amparo and habeas data is to remedy the governing rules and the procedure we usually apply to petitions for habeas corpus. And the concept of amparo and even habeas data is of a much larger scope than in habeas corpus. You will note that in the instances given in Rule 102 in habeas corpus, it is intended to meet the fact or the situation that there is an actual deprivation of liberty, actual unlawful detention or there is an actual unlawful withdrawal of custody. But in amparo, it is not only limited to an actual violation of a constitutional right to life, liberty and security. It also covers a threat to violate a right, which is not possible in habeas corpus. So if the petitioner simply alleges in habeas corpus that the respondent has threatened him several times to deprive him of his right to liberty by unlawfully detaining him, that will not be a proper ground for habeas corpus. What habeas corpus requires is an actual deprivation liberty because of an actual detention. In amparo, what is also covered is a threat of the right to life, liberty and security. And of course, in the second part of the second paragraph of amparo, extralegal killings and enforced disappearances are also included in the writ of amparo. SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof . As late as 2009, there was a criticism hurled at the circular on amparo on the ground that although amparo appears to favor the respondents because enforced disappearance and extralegal killings are included, that there is no meaning given to the term enforced disappearance in the circular for amparo. That has been remedied. Congress enacted a law last year giving a definition of enforced disappearance. And under that law, enforced disappearance is now considered as a criminal act, although there are predicate offenses enumerated in that law. So, we now have a statute which considers enforced disappearances as a crime. Extralegal killings are killings committed without due process of law, i.e. without legal safeguards or judicial proceedings. As such, these will include the illegal taking of life regardless of the motive, summary and arbitrary executions, salvagings even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like. On the other hand, enforced disappearances are attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. (Annotation to the Writ of Amparo) Q: What are extralegal killings?

A: Killings committed without due process of law, legal safeguards or judicial proceedings. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) These include the illegal taking of life regardless of the motive, summary and arbitrary executions, salvaging even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like. Q: What are enforced disappearances? A: An arrest, detention or abduction of a person by a government official or organized groups or private individual acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)

You will also notice the improvements in the circulars on amparo and habeas data practically rectifies the stringent rules that we have always applied to habeas corpus. For instance, compared to habeas corpus, in a petition for amparo, there an express acknowledgement in the circular that anybody can file a petition for a writ of amparo. An NGO or any stranger can file a petition for a writ of amparo; unlike in habeas corpus where although the Rules say that the detainee or any person on this behalf can file, we do not have that restrictive interpretation that the SC has made in habeas corpus cases. So, a stranger can file a petition for a writ of amparo, and he does not have the burden to show why a writ of amparo should be issued, although the victim is not at all related to him, he will have the proper standing in court insofar as the filing of amparo is concerned. You will notice that there is an order of preference. Q: Who may file the petition? A: Any aggrieved party may file the petition. It may also be filed by any qualified person or entity in the following order: 1. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; 2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or 3. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. NOTE: The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. (Sec. 2).

With respect to the return in amparo, if we compare it to habeas corpus, there is a very big improvement. In amparo and even in habeas data, there is a very clear statement that a general denial is not allowed. So if the respondent submits a return containing a general denial, that will be disregarded by the court and then the court may cite the respondent in contempt of court; unlike in habeas corpus wherein a general denial is allowed. With respect to the evidentiary rules, what is the quantum of evidence required in amparo? You are familiar with the circular which says that although amparo is being heard by a court, not by a quasi-judicial body, the evidence required on both parties is merely substantial evidence. And the respondent cannot capitalize on a disputable presumption of regularity in the performance of official duty. So if the respondent is a public officer, which is an essential element in a petition for amparo, even if the respondent will say that he has in his custody or is detaining the petitioner, and he submits documents showing that the detention is supported by orders of another court or another body, he cannot enjoy the presumption of regularity in the performance of official duty. So, the amparo court will not look at the detention as a proper and regular detention. It will still look at the detention as more likely to be an unlawful detention of the petitioner. And the petitioner in amparo cases will only be required to reach the quantum of evidence called substantial evidence, the quantum of evidence applied only in quasijudicial bodies. In court proceedings, the usual quantum of evidence is usually proof beyond reasonable doubt, preponderance of evidence or clear and convincing evidence, which should normally be applied to a proceeding for amparo. But the SC has lowered the quantum in amparo, although the court is not a quasi-judicial body. The respondent

cannot set up the defense the theory should be presumed to be proper and regular due to the disputable presumption of regularity in the performance of official duty. Last year, the court decided the case entitled Bambico vs. Nieva (June 2012). The SC clearly spelled out the principle that in a petition for amparo, there should be an allegation essential to the succession for the prosecution of the petition that the respondents or the defendants are agents of the state; or even if the respondents are only private citizens, there should be an allegation that these respondents have been instructed or they have been used by government agents in causing the enforced disappearance or violation of the constitutional right of the petitioner. SC said if there is no such allegation as to the participation of government agents, the petition for amparo will fail. It will simply be a criminal act that has been committed by private individuals. That is not a part of the circular, that when the SC was given a chance to explain the concept of amparo in relation to conventions entered into among several states of which the Philippines is a member, the SC emphasized this essential allegation: that there should be a participation by the state or by agents of the state in causing the enforced disappearance of the petitioner. Also from another procedural angle, in habeas corpus, a habeas corpus court has the final say in fixing the submission of a return. In amparo, there is a 72 hour period fixed in the circular. And then, if you will notice in the circular on amparo, there is a long deliberation of prohibited pleadings and motions, similar to that in summary procedure, small claims procedure, and even in habeas date. Whereas there are no prohibited pleadings and motions in Rule 102 with respect to a petition for habeas corpus. Another important difference between habeas corpus and amparo is the express acknowledgment by the court now of the existence of provisional remedies. In habeas corpus, we cannot apply for a provisional remedy. But in the circular for amparo, there are 4 interim reliefs. They are effectively provisional remedies that could accompany petition for a writ of amparo. They are Protection Order, Inspection Order (IO), Production Order and Witness Protection Order (WPO). The IO and Production Order as interim reliefs in amparo are available to both petitioner and respondent. But the Protection Order and WPO` are both available only to the petitioner. And in these Production Order and IO in amparo, the amparo court should conduct a hearing before issuing these orders. The amparo court cannot simply grant a motion exparte for the issuance of these interim reliefs. You will also notice a big difference in amparo and habeas corpus. The appeal in amparo cases is always to the SC under Rule 45. And the issues that could be raised, even if it is the SC that will be hearing it, could be both issues of fact and issues of law, although the mode of appeal is under Rule 45. This is a departure from the usual principle that we apply when we appeal under Rule 45. The general rule that we apply in an appeal under Rule 45 to the SC is that we can only raise questions of law. But when it comes to amparo cases that are appealed to the SC under Rule 45, the appellant can raise both questions of fact and questions of law. You will also notice that in the circular on amparo, there is a provision which says it can co-exist with other criminal, civil or administrative proceedings that are filed with the competent court or body. So there is nothing wrong if a petition for a writ of amparo involving enforced disappearance or extralegal killing filed in an amparo court, and there is a criminal case is filed before an RTC concerning the enforced disappearance. The two can stand together, but with several qualifications.

Q: May a separate action be filed after filing a petition for a writ of amparo? A: Yes. It does not preclude the filing of separate criminal, civil or administrative actions. (Sec. 21) Q: What is the effect if a prior criminal action has been filed? A: No petition for a writ of amparo shall be filed. The reliefs under the writ shall be available by motion in the criminal case. (Sec. 22) The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

If the criminal case is filed ahead of a petition for amparo, we can no longer file a petition for writ of amparo as a special proceeding, but we can ask for the issuance of a writ of amparo through a motion in that pending case. So in that sense, amparo now becomes a provisional remedy in that case filed ahead of a petition for amparo.

Will it not cause prejudice to the movant if we require the movant to ask for a writ of amparo in the pending criminal case, given that in a criminal case, in order to prove the guilt of the accused, the prosecution must meet the quantum of evidence known as proof beyond reasonable doubt? Do we not make it difficult for the movant to convince the court to issue a writ of amparo since we are filing a motion for a writ of amparo in a court trying a criminal case? That is solved by the provisions of the amparo circular. If there is already an existing criminal case, the petitioner will no longer be allowed to file a petition for amparo. Instead, he will be required to file a motion for the criminal court to issue a writ of amparo, insofar as the criminal court is concerned, the criminal court will use the quantum of evidence in the amparo circular, although it is trying a criminal case. In other words, the criminal court will convict the accused through proof beyond reasonable doubt, but to convince the court to issue a writ of amparo concerning enforced disappearance and extrajudicial killing, the quantum of evidence required of the movant will be substantial evidence. So we find a situation where there are two different degrees of proof that will be used by the court in resolving these issues. The criminal case will require proof beyond reasonable doubt, but the issuance of a writ of amparo will require only substantial evidence. But if the criminal case is filed later than the petition for a writ of amparo, there will only be a consolidation of cases. The petition for the writ of amparo will retain its existence as a special proceeding but it will only be consolidated with the criminal case. With respect to habeas data, we practically follow the procedure that is given in amparo, except that, this time in habeas data, the circular does not authorize other persons to file a petition for habeas data. Generally, it is only the aggrieved party who can file properly a petition for habeas data. It is only when the records are kept by a government agency where the immediate family of the relatives of the victim can file a petition for habeas data. A stranger or an NGO are not authorize a petition for habeas date. And it is easy to understand why we do not follow the order of preference followed in amparo. Because in habeas data, it is concerned with records that are supposed to be confidential. They are supposed to be known only to the petitioner or to the aggrieved party. So, he is the only one authorized to file this petition for habeas data. We follow the same procedure in amparo, there are prohibited pleadings and motion. And habeas data can also be used as an interim relief and as a provisional remedy when a criminal case has been filed of the petition for habeas data.

PETITION FOR ADOPTION Q: What is adoption? A: It is a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Q: What is the State policy on adoption? A: It is the policy of the State to ensure that every child remains under the care of his or her parent/s and be provided with love, care, understanding and security towards the full and harmonious development of his personality. Q: What is a Child Legally Available for Adoption? A: A Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been proven through the submission of pertinent documents, or one who was voluntarily committed by his/her parent(s) or legal guardian. (Sec. 2(5), R.A. 9523). Q: What is the requirement in order that the child may be declared legally available for adoption? A: There must be a certification which shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature. The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption and in an inter-country adoption proceeding (Sec. 8, Ibid.). Q: Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them?

A: No. Adoption cannot be had without the written consent of a natural parent who has allegedly abandoned them. Abandonment cannot be merely presumed, it must be duly proven. Moreover, there should be proof of emotional abandonment. (Cang v. CA, GR No. 105308, Sept. 25, 1998). Q: Is publication of the hearing for adoption necessary for the adoption to be valid? A: Indeed, publication of the scheduled hearing for the petition for adoption is necessary for the validity of a decree of adoption but not for the purpose merely of taking a deposition. In taking a deposition, no substantial rights are affected since depositions may or may not be presented or may even be objected to when formally offered as evidence at the trial of the main case later on. the philosophy behind adoption statutes is to promote the welfare of the child and every reasonable intendment should be sustained to promote that objective. (Republic v. Elepano, G.R. No. 92542, Oct. 15, 1991). Note: The necessary consequence of the failure to implead the civil registrar as an indispensable party and to give notice by publication of the petition for correction of entry was to render the proceeding of the trial court, so far as the correction of entry was concerned, null and void for lack of jurisdiction both as to party and as to the subject matter. (Republic v. CA, G.R. No. 103695, Mar. 15, 1996). Q: What is the effect of adoption created under the law of a foreign country? A: It is entitled to registration in the corresponding civil register of the Philippines. It is to be understood, however, that the effects of such adoption shall be governed by laws of the Philippines. (Marcaida v. Aglubat, G.R. No. L-24006, Nov. 25, 1967)

A petition for adoption could carry with it 2 other special proceedings for change of name and correction of entries in the records of the local civil registrar, or it can stand by itself without the others. In one petition, we may have 3 special proceedings. And these 3 special proceedings are governed by different Rules. Is this not a violation of the RoC? Does not civil procedure prohibit joinder of causes of action when these causes of action are governed by different Rules?Well, it does, that is true. In Rule 2, that is one of the limitations to joinder of causes of actions. A party may join as many causes of action he may have, but he should see to it that these causes joined are not governed by different procedures. If so, there will be misjoinder of causes of action. The issues misjoined will be dropped, and the party will be forced to file a separate ordinary civil action. Why then does the circular on adoption allow a petition for adoption change of name and correction of entries when they are governed by different procedures? If you read the Domestic Adoption Act, Rule 103 on Change of Name and Rule 108 on Cancellation Or Correction Of Entries In The Civil Registry, you will immediately realize that the procedures to be followed are really different from one another. Their essentials are different, jurisdictional requirements are different, but we allow joinder because these are special proceedings, they are not ordinary civil actions, and therefore, they cannot be governed by Rule 2 on the prohibition concerning misjoinder of action. In special proceedings, we do not apply generally the rules for ordinary civil actions. They are governed by their own set of rules. That is why we allow joinder of several special proceedings, although they are governed by different rules. In adoption, in the past, there was a 4th special proceeding which SC allowed to be included in this petition. This was a declaration of a minor to be considered as legally available for adoption. The court in the same proceeding can declare that the child is legally free for purposes of adoption. We do not have that any more as a special proceeding. A court has no authority to declare a minor to be legally free for purposes of adoption. That is now the exclusive authority of the Secretary of the DSWD. So if the Secretary of Social Welfare issues an order declaring a minor as legally free for adoption, that declaration will be binding upon all courts. That is the effect of giving to the secretary the authority to declare a minor legally free for purposes of adoption. But if we look only adoption as a special proceeding, then there are 2 laws governing adoption in the country. The first is Inter-Country Adoption Law, and the Domestic Adoption Act. The Domestic Adoption Act contains its own rules under this law, and we do not necessarily follow anymore follow the rules of adoption in the RoC. We should rely solely on what the

Domestic Adoption Act provides, although in most instances, the provisions of the RoC would still be applicable because the provisions of the Domestic Adoption Act are reiterations of the procedures given in the RoC. What makes it difficult for adopters or proposed adopters to make use of adoption under the Domestic Adoption Act is the requirement that the adopter must have resided in the Philippines continuously for 3 years. That makes it extremely difficult for any person wishing to adopt to make use of the Domestic Adoption Act. And the law is very strict in saying that the 3-year period must be continuous in character. There are some breaks allowed, but there should be an order by the adoption court. Because of this difficulty in making adoption convenient to the adopter, we have the Inter-Country Adoption Law, which is not judicial in character, purely administrative in character. Although, we have this inter-country adoption board (ICAB), this applies only to Filipinos who are minors, unlike in Domestic Adoption Act, the adoptee could be an alien or a Filipino. Under the ICAB, this is limited to Filipinos who have not yet reached the age of majority. Usually, they are the children declared by the Secretary of Social Welfare to be legally free for purposes of adoption. Although we call the proceeding as purely administrative, it is not the ICAB that issues a decree of adoption, unlike in domestic adoption where it is the family court that issues a decree of adoption. The Inter-Country Adoption Act does not authorize the board to issue a decree of adoption. The ICAB will only be responsible for the matching for the adopter in the foreign country and the adoptee who is in the Philippines. In the process of this matching, it is the responsibility of the ICAB to determine the qualifications of the adopter, his financial capability, and also the possibility that the adopter and adoptee may not like each other once they start living together. So who will eventually issue the decree of adoption under the ICAB? It is a foreign court. It is the court of the country where the adopter resides. The adopter will come to the Philippines only when he is going to fetch the adoptee. So throughout the life of this administrative proceeding, it is likely the adopter has not gone to the Philippines at all. He is an alien residing abroad. He manifests his intent to adopt a legally free Filipino minor. And there is an agency that will get in touch with another agency stationed in the Philippines, and these two agencies will be getting in touch with one another as to the requirements and as to the possibility of the adopter adopting the proposed adoptee. So when the ICAB is finally convinced that the adoption is for the benefit of the adoptee, the ICAB will require the adopter to come to the Philippines to fetch the adoptee. That is the only time when we require the adopter to come to the Philippines, only for the purpose of fetching the adoptee. So that after the two had left for abroad, the adoptee will necessarily will be at the mercy of the adopter. No one will be able to protect the adoptee once he is allowed to leave the country. There are remedies concerning repatriation if the relationship turns out to be sour, but that will always be to the prejudice of the adoptee. It is the foreign court where the adopter resides that will issue the decree of adoption, because it is with that foreign court where the formal petition for adoption was filed, not in our family courts nor the ICAB. Insofar as domestic adoption is concerned, there is also a separate special proceeding, although related to adoption, it is always separate from a petition of adoption itself, it is rescission or revocation of adoption, also governed by the Domestic Adoption Act. In this separate special proceeding for revocation of adoption, or rescission of adoption, the petitioner is the adoptee, and the relief he seeks for the family court is for the family court to he seeks for the family court is for the family court to revoke or rescind the decree of adoption. If you will notice in the Domestic Adoption Act, this remedy is exclusively available to the adoptee only. If the adoptee and adopter cannot live together peacefully, the adoptee is given this remedy to file an independent special for the revocation or rescission of the adoption. The venue is where the adoptee resides. But when it comes to adoption, the venue is the place of residence of the adopter. It is only the adoptee who can avail of the special proceeding for the revocation or rescission of the adoption. The adopter cannot avail of this remedy. So if it is the adopter who is the victim of abusive conduct by the adoptee, the adopter cannot go to court for the rescission or revocation of the decree of adoption. But if it is the adoptee who is the victim of abusive conduct by the adopter, he can avail of this remedy. Is it unfair to the adopter who could a victim of abusive conduct by the adoptee? It is not, according the Domestic Adoption Law as the law gives to the adopter a remedy. The remedy given is for the adopter to disinherit the adoptee. That is the only recourse given to the adopter given under the law if he is a victim of abusive conduct from the adoptee.

Why the different treatment when it comes to the availability of remedies by the adopter and the adoptee? The reason is because these adoption laws are construed to be in favor of the adoptee, of the minor. If the adoptee is given this recourse while the adopter is given remedy to disinherit adoptee, is it not easier for the adopter to avail of the remedy because what the law tells us is that what an adopter must do is very simple if will just disinherit the adoptee? If you will look at the provisions of the NCC concerning disinheritance, you will notice that disinheritance must be contained in a last will and testament. And if that must be contained in a last will and testament, if the adopter dies, that will must be submitted for probate, it must be accepted/allowed by the court in a probate proceeding. There must be proof that the will has complied with the formalities contained in the NCC. If by chance the will of the adopter is not admitted to probate, then that remedy of disinheriting becomes ineffective, because if the will is not admitted to probate, there will be no disinheritance, and the adoptee will continue to be an heir of the adopter. Unlike a revocation or rescission of a decree of adoption, in which the decree of adoption will be set aside altogether, there will be no more relationship between the adopter and adoptee.

RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Q: What is the nature of proceedings in Rule 108? A: It is summary if the entries in the civil register sought to be corrected are clerical or innocuous in nature. However, where such entries sought to be corrected or changed are substantial, the proceedings are adversarial in nature. (Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986) Q: What is meant by appropriate adversarial proceeding? A: One which has opposing parties; contested as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. (Republic v. Valencia, Ibid.) Note: Rule 108, when all the procedural requirements thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in the entries of civil register (Lee v. CA, G.R. No. L-118387, Oct. 11, 2001). Q: What are the requisites of adversarial proceedings? A: 1. Proper petition is filed where the Civil Registrar and all parties interested are impleaded; 2. The order of hearing must be published once a week for three consecutive weeks; 3. Notice must be given to the Civil Registrar and all parties affected thereby; 4. The civil registrar and any person interested, may within 15 days from notice or from the last date of publication, files his opposition thereto; and 5. Full blown trial. (Republic v. Valencia, supra.)

The last special proceeding which can be attached to a petition for adoption is that in Rule 108, correction of entries in the records of the local civil registrar. For purposes of the Bar, we should be concerned principally with what entries in the records of the local civil registrar could be changed administratively or under Rule 108. Can there be a change of citizenship? In the records of civil registry in the certificate, can there be a change of filiation from legitimate to illegitimate? Can there be a change of sex or gender? Can there be a change of name?

In the case of citizenship in the records in the local civil registry, as entered in the birth certificate of a person, do not forget the case of Republic vs. Valencia. That is the leading case where the SC said that the entry in the citizenship from Chinese to Filipino can be allowed. Although, it is substantial, that is not a mere clerical error. It is not simply innocuous, we are changing the citizenship from Chinese to a Filipino. SC said that it can be done under Rule 108 as long as the court will conduct a full-blown hearing, different than the hearing contemplated in Rule 108, which is a summary hearing. When it comes to change or correction of entry involving a substantial change, it can be done, so long as a full-blown hearing is done under Rule 108. There is a need for respondents the chance to present its own evidence, to cross-examine the witnesses of the petitioner and they are notified of everything the court will do in the petition under Rule 108 with respect to citizenship. With respect to filiation, in the certificate of birth, there is an item for filiation, whether legitimate or illegitimate. There was a petition for the correction of filiation of the children born to a particular woman where the petitioner filed his petition to correct the entry in that certificate of birth from legitimate to illegitimate. The petitioner said that she is the lawful spouse of the person mentioned as the father of the children, but the children are not hers, but the children of the mistress of her spouse. They cannot be considered as legitimate children. They should be considered as illegitimate children. So the issue to be resolved was that could it be done under Rule 108 as the change that was going to be involved was substantial. Changing filiation of the children from legitimate to illegitimate will mean that the hereditary rights of these children will be significantly reduced. As legitimate children, they are entitled to so much of the estate, whereas as illegitimate children, each will get of what a legitimate child would get. SC, applying the principle in Republic vs. Valencia, also said that it could be done as long as the hearing conducted is not a summary hearing. It is a full-blown hearing where we notify the SolicitorGeneral or his representative, we comply with all the requirements given in Rule 108 concerning publication, where the petition will be filed, to implead the local civil registrar as a respondent in that petition. The bottom line is it can be done as long as the hearing conducted is a full-blown hearing. The process is adversarial, according to SC. With respect to gender, we have now a new law authorizing an administrative change of gender from male to female or vice versa, enacted last year. It gives to the local civil registrar the authority to change the gender of a person. But, the limitation in that law authorizing the local civil registrar the authority to change the gender of a person is by reason only of a clerical error or innocuous error. Before this new law was enacted last year, the SC had already established certain rules concerning sex change. The general rule, according to SC is that we do not allow under Rule 108 a change of sex if the sex change by reason of human intervention. For instance, if a man decides to become a female via a medical procedure, and after such operation, he applies for change of entry of gender from male to female (Republic vs. Silverio). SC held that is not allowed. If there is human intervention, that will not be allowed under Rule 108. That was the general rule until the SC was confronted by the case of Cagandahan (a hermaphrodite). In the case of Cagandahan, the SC allowed the change from male to female because the SC cannot do anything about the problem really. Even the doctor of the infant could not determine the gender of the infant. SC called it intersexuality. If the person is intersexual, and on the birth certificate the infant is made to appear as female, but as years go by, upon reaching the teenage years, the features suddenly changes from female to male, there could be sex change, SC said, because of the reason of absence of human intervention, by reason of the constitution form birth of the child. So, we have no sex change under Rule 108 based on the requirements given by the SC in the Cagandahan case. Now, here comes a new law, which authorizes a local civil registrar, to allow administratively a correction of entry from male to female, if the entry is proven really to be clerical or innocuous as the case may be. Under that law, the local civil registrar or the consul to a foreign country could also use this prerogative, provided that they are presented with records from the birth of this individual, which will convince him that the entry made in the certificate of birth is wrong. In other words, if the school records or baptismal records of the child invariably indicates that the child is really a female, but then the record shows that he is male, and then there is the certification by a government doctor that there was no human intervention that was made. According to this new law, the local civil registrar has the authority to administratively change the entry concerning the gender of a person.

This new law also enlarges the authority of a local civil registrar to change entries. Under the old law, the local civil registrar was authorized to only change administratively the first name and the nickname. Now it includes therein the gender, if it is purely clerical or innocuous error, date of birth, month of birth, but not the year of birth. Following the procedure in challenging this exercise of the local civil registrar of his authority under the old law; and in the new law, which is amendatory in character, it is also the one followed in the old law. There could be an appeal to the superior, the Civil Registrar General, there could be an appeal to the Office of the President, and form there, there could be a petition for review that could be filed in the CA under the provisions of Rule 43. Under Rule 43, in the enumeration of quasi-judicial bodies whose decisions may be brought to CA by way of petition for review, the enumeration includes the Office of the President. So, from the local civil registrar, we can go up to the Civil Registrar General, then appeal to the Office of the President following the political law principle of exhaustion of administrative remedies. So form the Office of the President, we have nowhere else to go, so the only recourse now is to make use of Rule 43, file a petition for review in the CA.

ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO RA 9048 Q: What are the entries subject to cancellation or correction under Rule 108? A: 1. Births; 2. Marriages; 3. Deaths; 4. Legal separations; 5. Judgments of annulments of marriage; 6. Judgments declaring marriages void from the beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgments of natural children; 10. Naturalization; 11. Election, loss or recovery of citizenship; 12. Civil interdiction; 13. Judicial determination of filiation; and 14. Change of name. (Sec. 2) 15.Gender (in the case of an intersexual or clearly clerical or innocuous error in the entry).

Q: May the trial court issued an order declaring the nullity of marriage under Rule 108 and change the status from married to single? A: No, it is proper only in ordinary adversarial proceedings. (Lim v. Republic, G.R. No. 8932, May 31, 1957)

Q: Within what period may a petition for correction or cancellation of entries be filed? A: The law did not fix a period within which the petition for correction under Rule 108 in relation to Art. 412 of Civil Code may be filed. Accordingly, such petition may be filed within 5 years from time the petitioner discovered the error or mistake in the civil registry, and not from the date the birth certificate was registered in the civil registry. (Lee v. CA, supra.) Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the ground of falsified material entries therein made by Celines husband as the informant. The RTC sets the case for hearing and directs the publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. Jeanie filed a petition for annulment of judgment before the CA, saying that she was not notified of the petition and hence, the decision was issued in violation of due process. Celine opposed saying that the publication of the court order was sufficient compliance with due process. Rule.

A: The petition for annulment of judgment before the CA should be granted. Jurisdiction of the court over a petition for cancellation of a birth certificate requires reasonable notice to all interested parties and also publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. In this case, publication of the order is insufficient because Jeanie, a directly concerned party, was not given reasonable notice, hence, denied due process. The lower court, therefore, did not acquire jurisdiction. (Ceruila v. Delantar, G.R. No. 140305, Dec. 9, 2005). Alternative Answer: It should not be granted. The publication of an order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. A petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole as a party in the case and vests the court with jurisdiction to hear and decide it (Republic v. Kho, G.R. No. 170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No. 120587, Jan. 20, 2004). (2007 Bar Question) Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by changing her filiation from "legitimate" to "illegitimate" and her citizenship from Chinese" to "Filipino" because her parents were not married. What petition should Helen file and what procedural requirements must be observed? Explain. A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. A petition to change the record of birth by changing the filiation from legitimate to illegitimate and petitioners citizenship from Chinese to Filipino does not involve a simple summary correction which could otherwise be done under the authority of R.A. 9048. Procedural requirements include: (a) filing a verified petition; (b) naming as parties all persons who have or claim any interest which would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. (2005 Bar Question)

GUARDIANSHIP Q: What is guardianship? A: It is a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs. Note: Guardianship of minors is now governed by the Rule on Guardianship of Minors (AM No. 03-02-05-SC) which took effect on May 1, 2003. While guardianship of incompetents who are not minors is still governed by the provisions of the Rules of Court on Guardianship. (Rule 92- 97) Q: What is ancillary guardianship? A: It refers to the guardianship in a state other than that in which guardianship is originally granted.

Q: To what extent does guardianship extend? A: Conflicts regarding ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding, the court in guardianship proceeding is concerned solely with the wards care and custody and proper administration of his properties (Villoria v. Administrator of Veteran Affairs, L-9620, June 1957) Q: What are the general powers and duties of guardians? A: 1. To have the care and custody of the person of the ward, and/or the management of his estate; 2. Pay the debts of the ward; 3. To settle accounts, collect debts, and appear in actions for the ward; 4. Manage the estate of the ward frugally, and apply the proceeds to the maintenance of the ward;

5. Render verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons; 6. Render to court for its approval an accounting of the property for 1 year from his appointment and as often thereafter as may be required, and upon application of interested persons 7. Consent to a partition of real or personal property owned by ward jointly or in common with others. (Secs. 1-8, Rule 96; Sec. 17, A.M. No. 03-02-05-SC) Q: What is the order of liability of the wards property? A: 1. Personal estate and income of real estate 2. Real estate Q: What are the requisites to authorize the guardian to join in the partition proceedings after hearing? A: 1. Hearing 2. Notice to relatives of the ward; and 3. Careful investigation as to the necessity and propriety of the proposed action (Section 5) CONDITIONS OF THE BOND OF THE GUARDIAN Q: What are the conditions of the bond of the guardian? A: 1. To make and return to the court, within 3 months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; 2. To faithfully execute the duties of his trust, manage and dispose of the estate according to the rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; 3. To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived there from, and of the management and disposition of the same, at the time designated by the rules and such other times as the court directs; and at the expiration of his trust, settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and 4. To perform all orders required by the court (Sec. 1, Rule 94; Sec.14, A.M. No. 03-02-05-SC). Q: What is the purpose of the bond? A: It is for the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (Herrera, Vol. III-A, p. 282, 2005 ed.) Note: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian. (Guerrero v. Teran, G.R. No. L-4898, Mar. 19, 1909) Q: Does the requirement of posting a bond extend to parents who are the legal guardians of their minor children? Explain. A: GR: No, if the market value or annual income of the child is P 50,000 or below. XPN: If the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians (Sec. 16, A.M. No. 03-0205-SC). Q: Who may petition for appointment of guardian for resident? A: 1. Any relative; 2. Other person on behalf of the minor;

3. Minor himself is 14 years of age; or 4. Secretary of Social Welfare and Development AND by the Secretary of Health in case of insane minor who needs to be hospitalized. (Section 2, AM-03-02-05-SC) Q: Is court appointment necessary to enable the father and the mother to exercise joint legal guardianship over the person and property of minor? A: No. The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on Guardianship (Section 1, AM -03-02-05-SC) Q: What would the court do if an issue arises as to who has the better right or title to the properties conveyed in the guardianship proceeding? A: GR: The issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. XPN: When the wards right or title to the property is clear and undisputable, the guardianship court m ay issue an order directing its delivery or return. Q: What are the grounds for the appointment of a guardian over the person or property, or both, of a minor? A: 1. Death, continued absence, or incapacity of his parents; 2. Suspension, deprivation or termination of parental authority; 3. Remarriage of surviving parent, if the latter is found unsuitable to exercise parental authority; or 4. When the best interests of the minor so require (Sec. 4, A.M. No. 03-02-05-SC). Q: What are the factors to be considered for the appointment of guardian of minors? A: 1. Moral character; 2. Physical, mental, and psychological condition; 3. Financial status; 4. Relationship of trust with the minor; 5. Availability to exercise the powers and duties of a guardian for the full period of the guardianship; 6. Lack of conflict of interest with the minor; and 7. Ability to manage the property of the minor (Sec. 5, A.M. No. 03-02-05-SC). Note: The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. (Sec.9, A.M. No. 03-0205-SC).

Q: Who may be appointed as guardian of a minor? A: In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing, as far as practicable, the following order of preference: 1. Surviving grandparent and, in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; 2. Oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified; 3. Actual custodian of the minor over 21 years of age, unless unfit or disqualified; 4. Any other person, who in the sound discretion of the court would serve the best interests of the minor (Sec. 6, A.M. No. 03-02-05-SC). Q: What are the grounds for opposition to petition of guardianship of minors? A: 1. Majority of the alleged minor; or

2. Unsuitability of the person for whom letters are prayed for (Sec. 10, A.M. No. 03-02-05-SC). Q: How may a petition for guardianship of minors or incompetents be opposed? A: Any interested person may contest the petition by filing a written opposition and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition (Sec. 10, A.M. No. 03-02-05SC; Sec. 4, Rule 9). The rest of the special proceedings like guardianship for instance, the guardian has the same duties as that of an administrator/executor because both are fiduciaries. The main difference between a guardian and administrator/executor is that a guardian has the authority by himself alone to pay the indebtedness of his ward. The administrator/executor does not have that authority. In settlement proceedings, we speak about statute of non-claims. There is no statute of non-claims in guardianship. The substantive law gives to the guardian the authority whether or not the claim against the ward is valid and therefore should be paid by him. He does not need express authority from the court to be able to pay a valid indebtedness incurred by the ward. For purposes of jurisdiction in guardianship proceedings, do not be of the impression that guardianship proceedings are always cognizable by the family court. If there is a guardianship proceeding involving a minor, that is exclusively cognizable by a Family Court. But when the guardianship is over an incompetent who is not a minor, the competent court is an RTC. The competent court is either a family court or an RTC, depending on who the ward is. If the ward is a minor, we go to a family court. If the ward is an incompetent of major age, then we go to the RTC. If you are asked to explain that this is the rule we follow, why not just give everything to the family court? After all, that is the expertise of the family court, a guardianship action. Why do we leave to anRTC the guardianship of an incompetent who is a minor? That fault is traceable to the Congress in enacting the law creating the Family Court. In that law, the family court was given exclusive original jurisdiction over petitions for guardianship involving a minor. The Congress failed to notice that there could also be guardianship involving a non-minor, that is if the ward is an incompetent. So, the SC applied literally this rule of exclusive original jurisdiction given to a Family Court. It has authority only when the guardianship involves a minor. But when the guardianship is over an incompetent who is not a minor, it still an RTC that has jurisdiction under the provisions of BP 129. When it comes to termination of guardianship. When the guardianship is via the family court by reason of minority, and the minor reaches the age of majority, there is no need for the family court to issue an order directing that the guardianship has ended. The guardianship automatically ends if the minor reaches the age of majority. By operation of law, he is no longer a minor. But when the guardianship is by reason of incompetency, there is a need for RTC to issue an order saying that the incompetency has ended, and there must be a hearing conducted by the court. There must be a finding by the court that the incompetent person is now competent and therefore, the guardianship should be terminated.