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SAN BEDA COLLEGE OF LAW MENDIOLA

JARA NOTES 2013 (CIVIL PROCEDURE)

We take up Part II of the lectures on Remedial Law. You are through with Part I - criminal
procedure and evidence. You were forced to read criminal procedure ahead of civil procedure
because that is the curricula that is required by the board of legal interpretation for law
schools. You see, criminal procedure is taken up in 2 nd year - much ahead of civil procedure.
Criminal procedure really is taken up by 2 nd year law students and then civil procedure is
taken up by 3rd year law students. The other reason why there was a lecture on criminal
procedure ahead of civil procedure is to emphasize that, although learned in criminal procedure
that, generally, the criminal action carries the civil aspect of the case, with regard to the civil
aspect of the case, we usually do not apply the rules for civil procedure.

X X X the defendant - the accused -, after he enters the plea of not guilty, is not required to file
an

answer

to

the

civil aspect of the case. It is enough that he pleads not guilty. That plea of not guilty is also
a

denial

of

this

probable civil remedy. This is also the reason why, in a civil aspect that is brought along by the
criminal

action,

we dont apply the rule on specific denial. This is required in civil cases. In a criminal case,
the

plea

of

[not]

guilty is not considered a specific denial if we apply the rules on civil cases because the plea of
not

guilty

will

if there is a plea of not guilty, the court cannot compel the accused to explain why he is entering
such

plea.

If

he

chooses to plead not guilty, the court can do nothing about it. The court cannot ask the
accused:

what

are

your

reasons? What are your defenses? Unlike in a purely civil action where there is a civil complaint

filed

against

the

defendant and the defendant simply tells the court in his answer, I deny liability. If we apply
civil

procedure,

that is a judicial admission of liability. In fact, that kind of denial in a civil case may lead to a
judgment

on

the

pleadings. In civil, purely civil cases, - not the civil aspect of a criminal case - there is always a
need

for

specific

denial which is not, again, required in the civil aspect of a criminal case. So do not have the
impression

that

although a criminal case carries with it, generally, the civil aspect of the case We dont apply
civil

procedure

to

the civil aspect. That criminal case which carries with it the civil aspect will always be
governed

by

criminal

procedure, not by civil procedure.

The only difference, probably, that can be cited with respect to procedural rules governing the
civil

aspect

of

criminal case will be the quantum of evidence. You learned in criminal procedure that the guilt
of

the

accused

shall be demonstrated by proof beyond reasonable doubt. But in so far as the civil
aspect

of

the

case

is

concerned, the quantum should only be preponderance of evidence. So that, in a criminal case,
it

is

very

likely

that the accused will be acquitted of the crime but he can be held civilly liable because the
quantum

of

evidence

used, in so far as the civil aspect, is not proof beyond reasonable doubt but only preponderance
of evidence.

But just like in criminal procedure, we always start with the topic on jurisdiction of courts.
With

respect

to

jurisdiction over civil actions, we have several laws governing jurisdiction of courts in civil cases.
Primarily, we have the Constitution. And then we have the Judiciary Act of 1948 - that is R.A. 296.
And

then

we

have

this

B.P.

129 - the Judiciary Reorganization Act - and its amendments. And then we have the law
creating

the

family

court - I think it was in 1997. And then the law creating the Sandiganbayan. Because we have
so

many

substantive laws governing jurisdiction of courts X X X identified the general law on jurisdiction in
this

country.

The general law on jurisdiction in our country is B.P. 129. All other laws are special laws
governing

jurisdiction.

So that if you find the conflict between B.P. 129 and the special law on jurisdiction, we just
apply

the

rule

on

statutory construction: the special law prevails over the general law. A good example is the
provision

in

B.P.

129

on the jurisdiction of a regional trial court. X X X In testing the jurisdiction of a regional trial court,
B.P.

129

says

that a Regional Trial Court exercises exclusive original jurisdiction over the enumeration of cases,
one

of

which

is cases which were cognizable by the then Juvenile and Domestic Relations Court. So we have
all

these

in

Juvenile and Domestic Relations Court and then B.P.


jurisdiction

the
129

provided

of

that,

thereafter,

the

the

Juvenile and Domestic Relations Court shall be exercised by the Regional Trial Court in the
concept

of

exclusive

original jurisdiction. But X X X in the Family Court law, which is a special law, it is provided that a

Family

Court

has exclusive original jurisdiction over cases involving marriage, adoption, guardianship of
minors,

criminal cases and civil cases that involve a minor. There is then a conflict now between B.P.
129

and

the

law

creating the Family Court. But since the law creating the Family Court is a special law, its
provisions

will

prevail

over that of B.P. 129. That is why these civil cases in adoption they are no longer cognizable
by

the

Regional

Trial Court. They are cognizable by the Family Court.

We also meet in our classroom discussion the legal maxim that jurisdiction is a matter of
substantive

law.

But

that is not necessarily true. What is governed by substantive law, in so far as jurisdiction
is

concerned,

is

jurisdiction over the subject matter and over the nature of the case. This is the aspect of
jurisdiction

that

is

governed by B.P. 129 and the other substantive laws on jurisdiction. There are other aspects of
jurisdiction

aside

from jurisdiction over the subject matter or over the nature of the action. One aspect of
jurisdiction

is

jurisdiction

over the person of the litigants. That is not governed by B.P. 129. That is governed by the
Rules

of

Court.

Another one is jurisdiction over the property involved. That is also not governed by B.P. 129.
Its

governed

by

the Rules of Court. Jurisdiction over the issues of a case - that is not governed by B.P. 129. That
is

governed

by

the Rules of Court. So jurisdiction, as part of substantive law, is limited to the authority of a court

to

decide

in

so

far as the subject matter is concerned or the nature of the action. But when it comes to
jurisdiction

over

the

person of the plaintiff, jurisdiction over the person of the defendant, jurisdiction over the
issues these are aspects of jurisdiction that are governed by procedural law - mostly, by the
Rules of Court.
Youll also notice that in B.P. 129 that B.P. 129 does not mention anything about the Supreme
Court.

B.P.

129

begins with the Court of Appeals and goes down to the Regional Trial Court, the inferior courts,
and

in

the

last

part, there is a mention of the Sharia Court. So where does the Supreme Court derive its
authority in exercising jurisdiction over the subject matter of the case or over the nature of
the

action?

Of

course,

it

is

vested

by

the

Constitution itself. But if we read the Constitution on the jurisdiction of the Supreme Court,
the

Constitution

classifies the jurisdiction of the Supreme Court only into 2 kinds, that is: original jurisdiction X X X
and

appellate

jurisdiction. But the Constitution does not say that the original jurisdiction of the Supreme
Court

is

exclusive

its just plain original. The Constitution does not also tell us that the appellate jurisdiction of the
Supreme

Court

is exclusive appellate. It only says that Supreme Court exercises appellate jurisdiction over the
following

cases.

We now ask whether the jurisdiction of the Supreme Court is exclusive or coordinate with other
courts.

And

yet,

in most law books, there is always an item concerning exclusive original jurisdiction of the
Supreme

Court

and

also exclusive appellate jurisdiction of the Supreme Court. The basis of all these commentary is

the

old

Judiciary

Act of 1948. The Judiciary Act of 1948 talks about the Supreme Court. It confers jurisdiction
upon

the

Supreme

Court in a very thorough manner such that the Judiciary Act of 1948 provides for
exclusive

appellate

jurisdiction, exclusive original jurisdiction of the Supreme Court. In other words, we still enforce
and

recognize

the Judiciary Act of 1948. It has not been repealed by the Judiciary Reorganization Act. B.P.
129

did

not

repeal

the old Judiciary Act. The old Judiciary Act is still in force. But whats repealed by B.P. 129, in so
far

as

the

old

Judiciary Act is concerned, are provisions of the Judiciary Act of 1948 which are inconsistent with
B.P.

129.

So

do

not be of the impression that we no longer have the Judiciary Act of 1948. We still enforce
and

recognize

the

Judiciary Act of 1948. The best argument to support this statement is found in Sec. 9 of B.P. 129.
If

you

read

Sec.

9, thats the section providing for the jurisdiction of the Court of Appeals. In Sec. 9 of B.P.
129,

there

is

an

enumeration of cases that are allocated to the Court of Appeals exercising original
jurisdiction

and

exclusive

appellate jurisdiction. It is in that last part of Sec. 9. That part which talks about appellate
jurisdiction

of

the

Court of Appeals. We notice a clause in Sec. 9 saying that the Court of Appeals exercises
appellate

jurisdiction

over cases decided by the Regional Trial Court or quasi-judicial bodies in said laws that are
assigned

to

the

Supreme Court under the provisions of the Judiciary Act of 1948. Thats the best proof that the

Judiciary

Act

of

1948 is still in force. It is expressly recognized as existing up to the present by the provisions of
B.P. 129.

When it comes to the jurisdiction of the Supreme Court under the Constitution as stated,
the

Constitution

provides for a limited number of cases over which the Supreme Court can exercise original
jurisdiction

and

over

limited number of cases over which the Supreme Court can exercise appellate jurisdiction.
And

as

we

said

earlier, these are not exclusive. The exercise of original jurisdiction is not exclusive. The
exercise

of

appellate

jurisdiction by the Supreme Court as provided by the Constitution is likewise not exclusive.
Why

do

we

say

this? We have to read the provisions of the Constitution together with the provisions of B.P. 129
in

allocation

of

jurisdiction with the other courts. The cases that are assigned to the Supreme Court in the
exercise

of

its

original

jurisdiction involve cases involving ambassadors, ministers and consuls. And then theres also
the

vesting

upon

the Supreme Court of original jurisdiction over cases involving petitions for certiorari, petition for
mandamus

X X. If we read the provisions of the Constitution together with B.P. 129, we will find out that the
same authority is given by B.P. 129 to other courts like the Court of Appeals. Again, in Sec. 9, B.P.
129

provides

that

the

Court

of

Appeals also exercises original jurisdiction over petitions for certiorari, prohibition, and
mandamus,

quo

warranto, or habeas corpus. And then under the Chapter on the jurisdiction of the Regional Trial

Court,

B.P.

129

also vests upon the Regional Trial Court a similar authority. The Regional Trial Court shall
exercise

original

jurisdiction over petitions for certiorari, prohibition, and mandamus, and quo warranto. So if
we

take

the

Constitution together with B.P. 129, there are, in effect, 3 courts in our judiciary which
exercise

original

jurisdiction over these petitions for certiorari, prohibition, mandamus, quo warranto, habeas
corpus.

They

are

the Supreme Court, Court of Appeals, and the Regional Trial Court. Which means to say,
theoretically,

that

if

petitioner feels that his rights have been violated lets say through a grave abuse of discretion
committed

by

lower court, he can file a petition for certiorari or prohibition or mandamus against this judicial
officer

with

the

Supreme Court, or with the Court of Appeals, or with the Regional Trial Court upon his choice.
Theoretically,
that is the implication where the Constitution and B.P. 129 have given 3 different courts a
similar

jurisdiction

over petitions for certiorari, prohibition, and mandamus. So for purposes of jurisdiction, there is
nothing

wrong

if, for instance, there is a case pending before an inferior court (a Municipal Trial Court or a
Municipal

Circuit

Trial Court) and this inferior court gravely abuses its discretion amounting to lack of
jurisdiction,

and

the

aggrieved litigant decides to file a petition for certiorari or prohibition or mandamus directly
to

the

Supreme

Court. There is nothing wrong with that theoretically in so far as the issue of jurisdiction is

concerned.

Because

the Constitution has vested upon the Supreme Court original jurisdiction to entertain these
petitions

together

with the Court of Appeals and together with the Regional Trial Court. But the choice given by
B.P.

129

and

the

Constitution over the jurisdiction of these petitions is only theoretical. It has been greatly
limited

by

certain

procedural rules. That is with respect to certiorari, prohibition, and mandamus. The
limitation

is

known

as

hierarchy of courts. Certiorari, prohibition, and mandamus, procedurally, are governed by Rule
65.

If

you

read

Rule 65, you will meet a section, I think its Sec. 4, which speaks about hierarchy of courts.
This

is

limitation

given to the right of a petitioner to file a petition directly with the Supreme Court. Thats a
petition

for

certiorari,

prohibition, or mandamus, or even quo warranto. While theoretically we can file the case
with

the

Supreme

Court, we should follow the procedural principle of hierarchy of courts. In Rule 65, it is expressly
provided

that

petitions for certiorari, prohibition, and mandamus would be filed directly with a Regional Trial
Court

or

the

Court of Appeals. If we analyze carefully Sec. 4 of Rule 65, that is a severe limitation of the right
of

an

aggrieved

party x x x as provided for in the Constitution. So although one of the basic principles why
Congress enacted
B.P. 129 was to do away with the concept of concurrence in jurisdiction, B.P. 129 has not been
able

to

do

away

entirely with concurrent jurisdiction. B.P. 129 does not use the word concurrent in vesting

jurisdiction
courts. The
jurisdiction,

upon
law

classifies

the

the

jurisdiction

only

into

original

original

jurisdiction, appellate
and

exclusive, appellate and exclusive. Unlike in the past, under the old Judiciary Act of 1948,
where

the

law

expressly contained provisions that conferred concurrent jurisdiction over certain cases upon
different

courts

which resulted, really, in confusion. Thats one of the purposes why we now have the Judiciary
Reorganization Act - to do away with concurrence in jurisdiction. Generally, B.P. 129 has been
able to do away with this concept in concurrence of jurisdiction except with respect to certiorari,
prohibition, and mandamus, quo warranto, and habeas corpus since the Constitution and B.P.
129 allocate original jurisdiction upon 3 courts X X X, then it is safe to conclude that these 3
courts exercise original and concurrent jurisdiction over these petitions.

With respect to the Court of Appeals, B.P. 129 classifies the jurisdiction of the Court of Appeals
into

original

and

exclusive jurisdiction, original jurisdiction, and then exclusive appellate jurisdiction. With respect
to

the

original

and exclusive jurisdiction of the Court of Appeals, there is only 1 case over which the Court
of

Appeal

can

exercise exclusive original jurisdiction. And that is annulment of judgment of a Regional Trial
Court.

Because

the Constitution as well as B.P. 129 provide for certain cases only that could be adjudicated
by

the

Supreme

Court and by the Court of Appeals in the exercise of their original jurisdiction, we cannot
classify

the

Supreme

Court and the Court of Appeals as courts of general jurisdiction although they are the 2
highest

courts

of

the

land. The Supreme Court, although it is the Supreme Court, is not a court of general jurisdiction.
It

is

still

court

of limited jurisdiction. Its authority is limited to those provided in the Constitution. Outside of
those

provided

in

the Constitution, the Supreme Court does not exercise jurisdiction over other cases. The same
is

true

with

the

Court of Appeals. In Sec. 9 of B.P. 129, the authority of the Court of Appeals is very limited in so
far

as

exclusive

original jurisdiction is concerned. There is, as we said, only 1 case over which the Court of
Appeals

can

exercise

exclusive original jurisdiction. That is a petition to annul a judgment of a Regional Trial Court.

If the Court of Appeals is given the authority to annul the judgment of a Regional Trial Court,
does

not

the

conferment of this authority carry with it the authority of the Court of Appeals to annul the
judgment

of

an

inferior court, which is lower in rank than a Regional Trail Court? That is a logical argument.
If

the

Court

of

Appeals can annul a judgment of a Regional Trial Court, it should be reasonable that the Court
of

Appeals

can

also annul the judgment of an inferior court. But that is not to construe jurisdiction over the
subject

matter

or

over the nature of the action since the Court of Appeals since a court of limited
jurisdiction.

The

Court

of

Appeals can only annul the judgment of a Regional Trial Court. It cannot annul the judgment
of

an

inferior

court. Does it mean to say that, while the decision of a Regional Trial Court can be annulled in a
case

filed

before

the Court of Appeals, that the decisions of an inferior court is immune from annulment by the
Court

of

Appeals?

That is right. The decision of a Regional Trial Court can be annulled by the Court of Appeals
because

that

is

what B.P. 129 provides. But the decision of an inferior court is immune from annulment
by

the

Court

of

Appeals. But the decision of an inferior court can be annulled by the Regional Trial Court. Why is
this

so?

Is

it

so

provided in B.P. 129 that a Regional Trial Court can annul the judgment of an inferior court?
There

is

really

nothing provided in B.P. 129. If you read B.P. 129, I think the jurisdiction of the RTC starts with
Sec.

19,

there

is

no provision on the Regional Trial Courts jurisdiction which expressly confers upon a Regional
Trial

Court

an

authority to annul a judgment of an inferior court. Nothing is provided in that matter in B.P.
129.

Since we are talking about annulment of judgment, we might just as well go to the procedural
principles

and

X X to Rule 47 - and thats the rule on annulment of judgment. You will notice it is Rule 47 of
the

Rules

which

gives us the procedure to be followed when it comes to annulment of judgment The


annulment

of

judgment

mentioned in Rule 47 is the annulment of judgment conferred by B.P. 129 to the Court of
Appeals.

In

Rule

47,

we

will notice that the 1 st part - the 1st few sections of that very short rule - speaks about how a
petition

to

annul

judgment of a Regional Trial Court is filed with the Court of Appeals what the Court of Appeals

can

do

after

the filing of the petition. But in the last 2 or 3 sections of Rule 47, the topic is suddenly changed
from

annulment

of judgment rendered by a Regional Trial Court to annulment of judgment rendered by an


inferior

court.

So

there is a jump from annulment of judgments rendered by the Regional Trial Court to
annulment

of

judgment

rendered by an inferior court. And in these last few sections of Rule 47, the Supreme Court says
that

judgment

of an inferior court can be annulled although there is again no mention B.P. 129. And the
court

that

has

jurisdiction - original exclusive jurisdiction - to annul a judgment rendered by an inferior court


is

Regional

Trial Court. Can we not challenge the Supreme Court under Rule 47 to a Regional Trial Court
of

authority

to

annul the judgment of an inferior court considering that B.P. 129 does not expressly give to
a

Regional

Trial

Court authority to annul the judgment of an inferior court? We cannot because, under B.P.
129,

there

is

an

allocation to the Regional Trial Court of jurisdiction to entertain and decide all kinds of actions
which

are

not

especially given to other courts. In other words, that provision of B.P. 129 is the justification why
our

books

treat

the Regional Trial Court as a court of general jurisdiction. In fact, it is only the Regional Trial
Court

that

is

considered as a court of general jurisdiction in our system and it is because of that provision in
B.P.

129.

If

you

conceive about an action and then you start asking yourself which court has jurisdiction over

this

action.

But

then you go through a process of elimination. If you entertain the idea of going to the Supreme
Court,

then

just read the Constitution.

And

you

then

authority

you

eliminate

the

Supreme

Court

under

if

it

has

no

the

Constitution. Then you go to the Court of Appeals. Then you read B.P. 129. If, under B.P.
129,

the

Court

of

Appeals does not have jurisdiction then it does not really have jurisdiction. Then you go to an
inferior

court.

If

an inferior court also does not have jurisdiction, then you can be sure it is a Regional Trial
Court

that

has

jurisdiction over the case. That is the principle is followed by Rule 47 when the Supreme Court,
in
sections of Rule
inferior

the

last

few

47, inserted a provision saying that with respect to the decisions of an


court,

it

is

Regional Trial Court that has exclusive original jurisdiction. Because while there is an action
known

as

annulment of judgment rendered by an inferior court, since substantive laws have not
allocated

authority

to

decide these cases to any other court, then it follows that it is a Regional Trial Court that has
jurisdiction

over

these cases.
In our study of Rule 47, the threshold case that you probably read or was assigned to read is that
case

of

Islamic

Dawah v. Court of Appeals. In that case, the Supreme Court traced the history of annulment of
judgment as an action. The Supreme Court mentioned that in the past, before B.P. 129, the
Supreme

Court

had

from

the

start

recognized the propriety, the regularity of filing a petition for the annulment of judgment

rendered

by

court.

And before B.P. 129, the Supreme Court said that annulment of judgment of an inferior court can
be

entertained

by a Regional Trial Court. How about a judgment rendered by a Regional Trial Court? Can it be
entertained

by

coordinate court? By another Regional Trial Court? The Supreme Court said yes because a
Regional

Trial

Court

is a court of general jurisdiction. Thats the reason why in B.P. 129, the Court deemed it
necessary

to

incorporate

this provision giving exclusive authority to the Court of Appeals to annul a judgment rendered by
the

Regional

Trial Court - to do away with the anomalous situation then obtaining, before B.P. 129, where a
Regional

Trial

Court can annul a judgment rendered by another Regional Trial Court. Because there was no
specific

provision

in substantive law which allocated unto other courts this authority to annul a judgment of a
Regional

Trial

Court. So, because of B.P. 129, we now have a situation where the Court of Appeals can annul the
judgment

of

Regional Trial Court expressly provided. And it is a Regional Trial Court that can annul the
judgment

of

an

inferior court.

How about the Court of Appeals? Can the Supreme Court annul a judgment of the Court of
Appeals,

given

that

the Supreme Court is the highest court of the land? The answer is no. Because there is nothing
provided

in

the

Constitution which gives to the Supreme Court authority to annul a judgment of the Court of

Appeals.

So

while

we have an action to annul a judgment of a Regional Trial Court, an action to annul the
judgment

rendered

by

an inferior court there is no recognized action, under the Constitution or under B.P. 129 or
under

the

Judiciary

Act of 1948, authorizing the Supreme Court to annul the judgment rendered by the Court of
Appeals.

Although

there is 1 isolated decision by the Supreme Court which mentioned that the Court of Appeals
itself

can

annul

its

own decision. But that is not so provided in B.P. 129. If we rely solely on substantive laws like
the

Constitution

and B.P. 129, there is no such action as annulment of judgment rendered by the Court of
Appeals.

It

does

not

mean to say that the judgment of the Court of Appeals is immune from annulment. There
could

still

be

an

annulment if the Supreme Court will exercise what we call its equity jurisdiction. Rule 65, most
likely,

could

be

remedy in order to annul the judgment of the Court of Appeals based on the same grounds
that

are

given

in

Rule 47. But there is no actual, recognized by substantive law, that is filed for the purpose
of

annulling

the

judgment of the Court of Appeals. But B.P. 129 recognizes the propriety of a petition to annul
the

judgment

rendered by the Regional Trial Court. It also recognizes the propriety of filing an action to annul
the
an inferior court.

judgment

of

If a judgment of a Regional Trial Court, if a judgment of an inferior court can be the subject of
annulment

by

the

Court of Appeals or by the Regional Trial Court, as the case may be, can we not also seek the
annulment

of

judgment rendered by a quasi-judicial body or an administrative agency? After all, these quasijudicial

bodies,

they also exercise the functions of a court. That is, the adjudicate; they determine the rights
and liabilities of the litigants in the cases that are presented before them. This is also a settled
issue. Annulment of judgment under
B.P. 129, as procedurally explained by Rule 47, does extend to annulment of judgment of quasijudicial

bodies.

There is no such thing as annulment of a judgment of a quasi-judicial body or an administrative


body

unless

the

law creating the quasi-judicial body or a chapter of that administrative body allows the
petition

to

be

filed

for

the annulment of these decisions of quasi-judicial bodies. In other words, we cannot file a
petition

under

Rule

47

for the annulment of the decision of a Civil Service Commission or a Securities and Exchange
Commission.

You

will notice that in Rule 47, which follows, literally, the provisions of B.P. 129, it is provided that
Rule

47

refers

to

an action filed by a petitioner to annul the judgment rendered by a Regional Trial Court in a
civil

case.

That

is

clearly provided in Rule 47, which is what, literally, what B.P. 129 provides. B.P. 129 provides
that

the

Court

of

Appeals can annul a judgment of a Regional Trial Court. Now, the procedure, as given in Rule 47,
is

the

Court

of

Appeals can allow the judgment of a Regional Trial Court in a civil action. So if the action is not a

civil

action,

it

is simply a criminal action or it is a decision rendered by a quasi-judicial body, then we cannot


make us of Rule
47.

Since Rule 47 says that the annulment contemplated in B.P. 129 - the authority given to the
Court

of

Appeals

to

annul the judgment - refers to a judgment of a Regional Trial Court in a civil action. Does it mean
to

say

that

the

judgment of a Regional Trial Court acting as a criminal court cannot be the subject of annulment
under

Rule

47?

You know very well that a Regional Trial Court could act as a civil court and it could also act as a
criminal

court

because the Regional Trial Court exercises original jurisdiction over both civil actions and criminal
actions.

With

respect to the exercise by the Regional Trial Court of authority over civil actions, the decision of a
Regional

Trial

Court in these civil actions could be the subject of annulment of judgment by the Court of
Appeals under Rule
47. But if the decision rendered by a Regional Trial Court is a decision in a criminal case,
even

if

we

can

challenge the validity because of the lack of jurisdiction or collusion or fraud, if the decision
rendered

by

the

X [Regional Trial Court] is a decision in a criminal case, we cannot use Rule 47. Rule 47 is not a
remedy

to

annul

a judgment rendered by the RTC in the exercise of its jurisdiction as a criminal court. So you do
away

with

the

impression that Rule 47 is a remedy to annul a judgment rendered by a Regional Trial Court

in

all

kinds

of

actions. Sec. 1 of Rule 47 is very clear. The decision of the Regional Trial Court must be in a
civil

case

so

that

it

can be the subject of annulment under B.P. 129, in relation to Rule 47. Does it mean to say
then

decision

of

Regional Trial Court in a criminal case cannot be annulled? The answer is yes, under Rule 47. But
a

decision

of

Regional Trial Court in a criminal case can be annulled but not under Rule 47. It can still be
annulled

by

filing

petition for habeas corpus. Habeas corpus is the equivalent of annulment of judgment rendered
by

the

RTC

in

civil case because B.P. 129 is very clear that, in relation to Rule 47, what can be annulled under
Rule

47

is

only

decision of a Regional Trial Court in a civil case. If a party desires to challenge the validity
of

decision

rendered by the Regional Trial Court in a criminal case, he should not resort to Rule 47. He should
file

petition

for habeas corpus.

Is there a difference actually between Rule 47, that is a petition to annul the judgment
rendered

by

Regional

Trial Court in a civil case, to a petition for habeas corpus, which is a special proceeding but
designed

to

set

aside

the decision of a Regional Trial Court in a purely criminal case? There are substantial differences.
Annulment

of

judgment under Rule 47 is what we call as a direct attack on a final and executor judgment.
The

only

purpose

why a party X X X resorts to Rule 47 is to have the decision declared null and void - nullified and

set

aside.

But

in a criminal case where the decision of the RTC may not be valid because of the same reasons
given

in

Rule

47

lack of jurisdiction or extrinsic fraud - the remedy is habeas corpus which is not a direct attack on
the

judgment

rendered by a Regional Trial Court. Habeas corpus, in other words, is an indirect attack on the
judgment

of

Regional Trial Court in this criminal case. Why is it an indirect attack unlike annulment, which is a
direct

attack

on a judgment? In habeas corpus, where it is filed in order to nullify a decision of a Regional


Trial

Court

in

criminal case, the principal relief which the petitioner in habeas corpus seeks is to declare that
the

petitioner

has

been deprived of his liberty unlawfully - unlawful deprivation of a right that is the principal
relief

which

habeas corpus seeks. It is not principally to set aside a judgment of a Regional Trial Court in
that

criminal

case.

So that if you compare these remedies which seek to nullify or set aside the judgment of a
Regional

Trial

Court

in a civil case and in a criminal case, the remedies of the petitioner in a criminal case are
more

advantageous

than simply compared to an annulment of judgment. Because annulment of judgment is a


direct

attack

on

the

judgment. While in a criminal case, the detainee or prisoner can challenge the validity of
the

judgment

of

conviction although he is not attacking directly the validity of the judgment of conviction. He
is

attacking

validity of the deprivation of his liberty.

the

You will also notice that Rule 47 is inserted in the 16 or 17 rules concerning appeals. In our Rules,
the

procedure

for appeal starts with Rule 40 and it ends up with Rule 56. So from Rule 40 up to Rule 56, the
topic

of

these

16

or

17 different rules is always cases on appeal. Except now Rule 47, thats why the insertion is
quite

scandalous.

Annulment of judgment should have been included in the enumeration of special civil
actions

because

it

is

incorporated in the Rules on appeal but annulment of judgment has nothing to do with
appeals.

B.P.

129

considers annulment of judgment as an original action to be filed with the Court of Appeals or
with

Regional

Trial Court. And in Rule 47, particularly applied to a petition for annulment commenced
before

the

Court

of

Appeals, 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 Court of Appeals. For instance, if a petition to annul a judgment of a
Regional

Trial

Court in a civil case is filed before the Court of Appeals, the Court of Appeals has the
authority

to

outrightly

dismiss the petition. That is similar to Rule 65 where a court can outrightly dismiss a petition for
certiorari

if

it

is

not meritorious on its face. That is, of course, provided in Rule 47. The Court of Appeals can
outrightly

dismiss

petition to annul a judgment. So if the petitioner has in mind stopping the execution or
preventing

the

execution

of a final and executory judgment rendered by the Regional Trial Court by making use of Rule 47,

there is a big chance he will not succeed because the Court of Appeals could outrightly dismiss a
petition to annul a judgment filed before the Court of Appeals.

Since the judgment sought to be annulled under Rule 47 is a final and executor judgment,
will

the

filing

of

petition to annul the judgment be a good reason for the trial court to deny a motion for
execution?

Even

if

there

is a petition to annul a judgment rendered by the Regional Trial Court, if that decision has
become

final

and

executory and it is not the subject of annulment of judgment, Rule 47 is not a justification for
the

trial

court

not

to execute its final and executor judgment. So the prevailing party can still move for the
execution

of

that

judgment, notwithstanding the commencement and pendency of a petition to annul the


judgment

of

the

Regional Trial Court. The only remedy available to a petitioner in annulment of judgment
before

the

Court

of

Appeals to stop execution is to apply for a provisional remedy of preliminary injunction


or

temporary

restraining order. Thats why in most petitions to annul a judgment filed with Court of Appeals,
the

petitioner

variably applies for the issuance of a TRO or preliminary injunction. Without these provisional
remedies,

even

if

there is a petition with the Court of Appeals for the annulment of judgment of a Regional Trial
Court

in

civil

case, that petition to annul a judgment will not prevent the execution of that final and executor
judgment.

Under Rule 47, in relation to B.P. 129, on annulment of judgments commenced before the Court
of Appeals, is it correct to say that only the litigants before the Regional Trial Court can make
us of annulment of judgment? That question has also been answered by the Supreme Court in
the threshold case of Islamic Dawah v. Court of Appeals. That case ruled that annulment of
judgment, as contemplated in B.P. 129 and also as envisioned in Rule 47, does not prohibit a
stranger from filing a petition to annul a judgment rendered by a Regional Trial Court although
the petitioner may not have been a litigant in that particular case. He can do so as long as he
can show that he will be prejudiced by the execution of the decision sought to be annulled.

You will also notice that the requirements in Rule 47 before annulment of judgment can be
properly

commenced

are very strict. 1 of the requirements is that the petitioner must show that the remedies for
motion

for

new

trial,

that is, petition for relief and appeal, are no longer available through no fault of his own. In
other

words,

if

the

judgment has not yet become final and executor, a litigant cannot make use of annulment of
judgment

because

he can still appeal. He has other remedies. He can file a motion for new trial. If he has filed a
motion

for

new

trial and that motion is denied and he neglects to appeal, so the judgment becomes final and
executory,

can

he

now properly file a petition to annul the judgment? Still no because his failure to appeal was
through

his

own

fault. He could just have appealed the judgment of the court. Let us say that the aggrieved
party

has

failed

to

appeal, has failed to file a motion for new trial and his failure to do so cannot be traced to
his

negligence

or

inexcusable conduct, can he now file a petition to annul the judgment in the Court of Appeals?

Still

the

answer

is

no because there is still an available remedy to challenge a final and executor judgment. And
that is a petition for relief from judgment. The rules in 47 which apply the provision of B.P.
129

on

annulment

of

judgment

rendered by a Regional Trial Court are very, very strict. All the other remedies must not have
been

availed

of

through no fault of the petitioner. So even if we cannot fault the petitioner, as long as petition
for

relief

from

judgment is still a remedy, still available, we cannot resort to annulment of judgment under
47.

In

that

case

of

Islamic Dawah, the Supreme Court said that if we allow a stranger to avail of annulment of
judgment

of

Regional Trial Court in a civil case where he is not a party, then we should not also require
the

petitioner

to

satisfy the requirements like availability, availment of new trial, motion for new trial, or appeal,
or

petition

for

relief from judgment. The reason, according to the court, is that a stranger to a case cannot
possibly

cannot

possibly make use of a motion for new trial or appeal or a petition for relief from judgment
because

these

remedies, under the Rules, are available only to a litigant in a case. If the petitioner is not a
litigant,

he

could

not

conceivably satisfy this requirement.

If you compare the procedure in Rule 47 between annulment of judgment that is commenced
before

the

Court

of

Appeals and annulment of judgment commenced before a Regional Trial Court, you will
immediately

notice

very significant difference. While the Court of Appeals has the authority to outrightly dismiss a
petition

to

annul

judgment, a Regional Trial Court cannot. So if there is a petition to annul a judgment filed
before

the

Regional

Trial Court and the subject judgment, of course, is one that has been rendered by an inferior
court,

the

Regional

Trial Court has no authority to outrightly dismiss that petition to annul the judgment. In so far
as

the

Regional

Trial is concerned in a petition to annul a judgment rendered by an inferior court, that petition
to

annul

should

be treated just like any other case. So after of the filing of petition to annul, the Regional Trial
Court

will

issue

summons and then, having served upon the respondents, let the respondents file the answer,
and

then

file

the

case, and then render the decision. That is the significant difference between annulment of
judgments
commenced before the Court of Appeals compared to annulment of judgment commenced
before

the

Regional

Trial Court.

In Rule 47, if the judgment is annulled, then it is declared void by the court. So it can no longer
be

enforced

or,

if

that judgment has already been executed, the Court of Appeals or the Regional Trial Court can
order

restitution

of properties if that is still possible. In analyzing Rule 47, the provisions of Rule 47 in relation
to

B.P.

129

on

annulment of judgment conferred upon the Court of Appeals and the Regional Trial Court, I
suggest

that

you

also read a rule in evidence. That is, impeachment of a judicial record which you must have
taken

up.

That

is

in

Rule 132 of Evidence. Impeachment of judicial record. In that evidentiary rule, impeachment of
judicial

record

means to discredit a judicial record. A judgment of a court if, of course, a judicial record. So we
can

discredit

or

set aside a judgment of the court under that principle of impeachment of judicial record. This is
related

to

Rule

47 as well as to the provisions of B.P. 129 on annulment. In B.P. 129, there are no grounds
for

annulment

mentioned at all. The grounds for annulment are contained in Rule 47 and also in Rule 132
of Evidence. If Im not mistaken, that would be Sec. 28 or 29 or 30 of Rule 132 in Evidence.
The topic is impeachment of judicial record. In that evidentiary rule of impeachment of
judicial record, there are 3 grounds

X X X:

1) lack of jurisdiction, 2) fraud, and 3)

collusion. If we compare that to Rule 47, there are only 3 grounds in Rule 47: 1) absence of
jurisdiction over the subject matter, or 2) absence of jurisdiction over the person of the
litigants, and then 3) extrinsic fraud. Rule 47 does not mention anything about collusion as a
ground to annul the judgment. Does it matter? It does not matter. Collusion is encompassed
by the term extrinsic fraud as a ground for annulment of judgment. So there is no conflict
between impeachment of judicial record and the grounds mentioned in Rule 47 for the
annulment of judgment.

We go back to B.P. 129 and talk about the jurisdiction of a Regional Trial Court. With respect to a
Regional Trial Court, the jurisdiction of a Regional Trial Court is founded on certain factors. The
1st one is whether or not an action is incapable of pecuniary estimation. The other one is if the
action is a real action - it involves title to or possession of real property. And then, if it does
not involve real property or the action does not within the concept of incapable of pecuniary

estimation, then it is the amount involved - whether it is properly for the recovery for money
or for the recovery of personal property.

The 1st factor is an action incapable of pecuniary estimation. So if you come across of an action
that

is

incapable

of pecuniary estimation, then that action is cognizable by a Regional Trial Court. Is it correct to
say

then

that

all

actions incapable of pecuniary estimation are cognizable by a Regional Trial Court always?
That

also

is

not

correct assumption. If you read again B.P. 129, there are several actions incapable of pecuniary
estimation
are

not

which
exclusively

cognizable

judgment

by

Regional

Trial

which

Court.

For instance, annulment of


we

discussed a minute ago Annulment of judgment is not capable of pecuniary estimation but B.P.
129

says

that

annulment of judgment rendered by a Regional Trial Court is cognizable only by the Court of
Appeals.

How

about annulment of an arbitral award by a barangay court which could also be the subject
of

annulment

of

judgment under the Local Government Code? That is not capable of pecuniary estimation.
Is

it

cognizable

exclusively by the Regional Trial Court? The answer is no. Annulment of a judgment or an
arbitral

award

by

barangay court acting as an arbitral body, although incapable of pecuniary estimation, is


cognizable

only

by

an

inferior court. This is so provided by the Local Government Code. So the Local Government
Code

is

special

law in this matter. If it conflicts with B.P. 129, then it is the special law that will prevail.

Certiorari,

prohibition,

and mandamus. They are actions incapable of pecuniary estimation but they are not
exclusively

cognizable

Regional Trial Court. So the provision in B.P. 129 which allocates to a Regional Trial Court
exclusive

original

jurisdiction over actions which are not capable of pecuniary estimation admits of several
exceptions.

And

these

several exceptions are also found in B.P. 129. So not all actions incapable of pecuniary estimation
are

cognizable

only by a Regional Trial Court. There are such actions not capable of pecuniary estimation
which

are

allocated

not to a Regional Trial Court but to other courts under the provisions of B.P. 129.

With respect to real actions, that is title to or possession of property this is now qualified by the
amendment to
B.P. 129 which expanded the jurisdiction of inferior courts. These are the actions involving title to
or

possession

of real property: accion reinvindicatoria, accion publiciana they are cognizable by a


Regional

Trial

Court

exercising exclusive original jurisdiction as long as the assessed value of the property is more
than

P20,000

or

P50,000, as the case may be. So you have to relate it to the expanded jurisdiction of the
inferior

courts.

But

with

respect to unlawful detainer and forcible entry - they are also actions involving possession of
real

property

then they are always cognizable exclusively by an inferior court, regardless of the assessed
value of the property.

Is it possible that an action is a real action and at the same time one that is not capable of
pecuniary

estimation?

The answer is also yes. We have such actions. They are real actions but they are also
incapable

of

pecuniary

estimation. A good example is foreclosure of real estate mortgage since the property in
mortgage

to

be

foreclosed is a mortgage constituted over real property, then that foreclosure of real mortgage
is

real

action

but, at the same time, it is not capable of pecuniary estimation because the issue to be resolved
by

the

court

by

the foreclosure court - is always this issue: does the mortgagee (the plaintiff) have the right to
foreclose?

That

issue is not capable of pecuniary estimation. So what do we do in determining jurisdiction if an


action

is

both

real action and one that is incapable of pecuniary estimation? What factor will be determinative
of

the

jurisdiction of the court? Will it be the assessed value of the property or will it be the fact that the
issue

involved

is not capable of pecuniary estimation? Again, this is a settle issue. The Supreme Court said
that

if

an

action

carries the feature both of incapable of pecuniary estimation and a real action, like foreclosure of
real

mortgage,

the determinative factor is the feature of incapable of pecuniary estimation. So it is a Regional


Trial

Court

that

will always have jurisdiction over foreclosure of real mortgage even if the assessed value of the
property

sought

to be foreclosed is only P1, 000. As long as the action is foreclosure of mortgage, the action
is

exclusively

cognizable by a Regional Trial Court. So if you find in one action the 2 features which could be
determinative

of

jurisdiction - incapable of pecuniary estimation and real action - the determining factor will
always

be

that

characteristic that it is not capable of pecuniary estimation. So it is a Regional Trial Court


that

will

have

jurisdiction. The feature of foreclosure of mortgage as a real action will only be important in
determining

the

venue of the action but not the jurisdiction of the court. A similar action which applies the
same

principle

is

expropriation of a piece of land. Expropriation of a piece of land is also a real action because it
involves

title

to

or

possession of real property. But expropriation of a piece of land will not take into account the
assessed

value

of

the land sought to be expropriated for purposes of determining jurisdiction over the case.
According

to

the

Court, expropriation, although it could be a real action, is also an action that is not capable
of

pecuniary

estimation. So expropriation of real property, even if the assessed value again is P1,000,
will

always

be

cognizable by a Regional Trial Court.

When it comes to personal action under B.P.


amount

sought

129, the determining factor will be the


to

be

recovered if it is purely a claim for money. Or if it is recovery of personal property, it is the value
of

the

personal

property according to the complaint. But when it comes to a pure collection suit - that is,
the

creditor

is

interested only in collecting money from the defendant - there are exclusions given in the
amendment

to

B.P.

129. Excluding charges, interests, attorneys fees, and damages. So the determining factor in a
complaint

for

the

recovery of money, in so far as jurisdiction of court is concerned, will only be the


principal

sought

to

be

recovered. So that if the amount sought to be recovered by the plaintiff in his complaint against
the

defendant

is

P1,000,000 - a total of P1,000,000 - the conclusion that the case is cognizable by the Regional
Trial

Court

will

not

be correct. A complaint to recover the totality of P1,000,000 could be cognizable exclusively by


an

inferior

court

if the P1,000,000 is the aggregate of the principal, the interest, the costs, the damages, the
attorneys

fees

then

we have to find out the principal which the plaintiff seeks to recover. If the principal is only
P200,

000

but

P800,000 represent interest, damages, costs, and other excluded items, that will be
cognizable

by

an

inferior

court. That is now settled.


Supposing that the complaint is for the recovery of damages. You know very well that in a
complaint

to

recover

damages, what is sought to be recovered is always money in terms of pesos and


centavos.

But

under

the

amendment to B.P. 129, we should exclude the item of damages. Supposing the complaint is
purely

for

damages, and the plaintiff seeks to recover actual damages, moral damages, temperate
damages,

exemplary

damages How will we now ascertain the jurisdiction of the court? We cannot use the rule of

exclusion

because

what the plaintiff seeks as are relief is the recovery of damages. Let us say that the plaintiff
seeks
P100,000

to
actual

damages,

recover

P500,000

exemplary

moral

damages,

and

then

another

damages.

P500,000

The

aggregate will be P1.1M but the complaint says that, principally, the plaintiff seeks to recover
actual

damages

of

P100,000. With what court do we file that complaint? Again, this is settled. It should be with the
Regional

Trial

Court. When it comes to complaints purely for damages, the determining factor, in so far as
jurisdiction

of

courts is concerned, is the aggregate amount of damages - the totality of the damages. So
even

if

the

complaint

has specified the amount of damages for each aspect - actual, moral, exemplary, temperate
damages

the

court

that will acquire jurisdiction is the court that has authority to rule on the aggregate totality of
all

the

damages

claimed by the plaintiff.

With respect to recovery of personal property For instance, the recovery of a car. Do we take
into

account

the

assessed value of the car in order to ascertain the jurisdiction of the court? The answer is no.
B.P.

129

and

the

amendment to B.P. 129 takes into account the assessed value for purposes of jurisdiction for
real

properties.

With respect to personal properties, the assessed value of that personal property has
nothing

to

do

with

jurisdiction of the court. So instead of using as a standard the assessed value, when it

comes

to

personal

property, the determining factor will be the value of the personal property according to the
complaint. In other words, in our complaint for the recovery of a car, replevin for instance If the
plaintiff

wants

the

case

to

be

tried

by the Regional Trial Court, all that he needs to do is state in his complaint is that the value of
the

car

is

P800,000

although it may not be true. Although it may be a false figure. When it comes to personal
property,

we

always

rely on the variation given by the plaintiff in his complaint. So the jurisdiction of the court will
depend

solely

on

the allegations in the complaint. Whether the allegation is true or false, the jurisdiction will be
determined

by

the

figure given in that complaint, with respect to personal properties. Supposing the defendant
challenges

the

valuation given by the plaintiff in his complaint by telling the court that the car could not be
worth

P800,

000

because it is a 30 year old car the true value of the car is only P100, 000. And then the
defendant

is

willing

to

submit evidence to show the true value of the car. Will the court entertain the defendants move?
No.

The

court

will not. The jurisdiction of the court will be based solely in the allegations in the complaint. In
civil

cases,

after

the court has acquired jurisdiction over this particular complaint, relying on the allegations
contained

in

the

complaint, it is very likely that, after trial, the evidence submitted by both sides will convince the
court

that

the

true value of the car is really P100, 000. Can the Regional Trial Court decide the case
although

it

is

now

the

conclusion by the Regional Trial Court that the value of the car is only P100,000? The answer is
yes.

If

Regional

Trial Court acquires jurisdiction over a complaint to recover a car which, according to the
complaint

is

valued

at

P800, 000, the Regional Trial Court continues to exercise jurisdiction over the case until it is
finally

decided,

regardless of the finding of the court that the value of the car is only P100, 000. You know
that

principle

very

well. That is called adherence to jurisdiction. Once the court acquires jurisdiction over the
car,

it

cannot

be

ousted of that jurisdiction. It will continue to exercise jurisdiction over the case until the
case

is

finally

adjudicated. The only means by which we can oust the court - the Regional Trial Court - of
jurisdiction

over

the

case is if Congress enacts a law saying that the jurisdiction of the court will not be based solely in
the

allegations

in that complaint. In other words, if Congress decides to abandon the principle of adherence to
jurisdiction

then

it is possible that the RTC will be deprived of jurisdiction. But as long as the principle of
adherence

to

jurisdiction is not abandoned by Congress, then if the court acquires jurisdiction over a
particular

case,

the

exercise by the court of the jurisdiction of that case continues until that case is finally decided.

With respect to inferior courts Notwithstanding the expansion of the jurisdiction of the
inferior

courts

Meaning to say that in the expanded jurisdiction of inferior courts, practically all cases that can
be

decided

by

Regional Trial Court can now be decided by an inferior court, depending only on the amount
involved

upon

the value of the property. So real actions - accion reinvindicatoria, accion publiciana - they are all
cognizable

by

inferior courts now depending upon the assessed value of the property. Even estate
proceedings

can

now

be

entertained by an inferior court under its expanded jurisdiction. Does it mean to say that an
inferior

court

which

exercises expanded jurisdiction can now be treated as a court of general jurisdiction? Its still a
court

of

limited

jurisdiction. It can only take cases that are given to it by substantive law. The provision of B.P.
129

which

makes

a Regional Trial Court as a court of general jurisdiction is not given to an inferior court. In B.P.
129, in the enumeration of cases exclusively cognizable by a Regional Trial Court is an item
which says the Regional Trial Court shall exercise exclusive original jurisdiction over all action
that are not especially assigned to any other court. That provision in B.P. 129 is not contained
in the allocation of jurisdiction to inferior courts. So inferior courts continue to exercise
jurisdiction only over cases that are assigned to it under B.P. 129 and special laws, or
amendment to B.P. 129.

You will also notice that in B.P. 129, with respect to the vesting of authority to inferior
courts, there is an identification in Sec. 33 of what we call the totality test in determining
jurisdiction. In Sec. 33, the totality test is just a proviso with respect to ascertainment of
jurisdiction of courts. The totality test given in B.P. 129 is more encompassing than the totality
test given in the Rules of Court. We also have a totality test in the Rules of Court. That is in Rule
2. There is a totality test with reference to the section of joinder of causes of action. If you
are going to compare the totality test given in the Rules of Court, under the section on joinder
of causes of action, the totality test in the Rules of Court appears to be of a more limited

scope. In B.P. 129, the totality test refers to all claims of causes of action that are embodied in
1 complaint, whether they pertain to the same or different parties or they arise out of the
same or different transaction. X X X If you compare it to the totality test in Rule 2, the totality
test in Rule 2 speaks only about causes of action for money. The totality of money claims will
be determinative of the jurisdiction of the courts.

In B.P. 129, with respect to inferior courts, we also meet the term delegated jurisdiction to
inferior courts. And also

the

interlocutory

jurisdiction

to

inferior

courts

or

special

jurisdiction to inferior courts. In delegated jurisdiction, the inferior court acts as if it is a


Regional Trial Court in deciding land registration and cadastral cases which are contested or
which will not be contested. If contested, the limitation is the value of the contested property. If
uncontested, the inferior court can act as a land registration court or cadastral court without
any limitation. But B.P. 129 is very clear in saying that if an inferior courts as a land
registration or cadastral court, the decision of the inferior court is appealable to the Court of
Appeal, not to a Regional Trial Court. Which is the rule that we follow in B.P. 129.

That is the delegated jurisdiction of an inferior court. In habeas corpus proceedings, there is also
a

mention

of

an

inferior court trying a habeas corpus proceeding. It does not mean to say that habeas corpus is
cognizable

also

by an inferior court. The authority of an inferior court to entertain a petition for habeas
corpus

refers

to

situation where a petition for habeas corpus is filed with the proper court - usually a Regional
Trial

Court.

But

there are no judges available to act on the petition. But that petition for habeas corpus is
filed,

still,

with

Regional Trial Court which has jurisdiction over petitions for habeas corpus. So the petition for
habeas

corpus

is

filed with the Regional Trial Court but the clerk of court finds out that there are no RTC judges
that

are

available

- they are absent or are on leave - that can entertain a petition for habeas corpus. This is the
remedy provided in B.P. 129. Attention to habeas corpus cases is urgent under our laws. In
fact, habeas corpus proceedings are always given preference by law. So if there are no RTC
judges that are available, the next best thing to do X X X is to transfer the petition filed already
with a Regional Trial Court to an inferior court. That provision in B.P. 129 does not authorize the
filing of a petition for habeas corpus directly with an inferior court. A petition for habeas corpus
filed directly with an inferior court can be challenged on jurisdictional grounds because B.P. 120
does not vest unto an inferior court an authority to entertain a petition for habeas corpus. It is
only under circumstances where there are no other RTC judges available to entertain a petition
for habeas corpus. X X X the judge can now analyze and study the propriety of issuing the writ of
habeas corpus.

We need a break in the meantime but before we have a break, I will give you this riddle and
then you try to answer it. Just like the riddle in grade school X X X. The question is: who am I?
I am just an object. A face in a crowd. Nothing outstanding about it about my form about my
look. But, usually, Im between 4 inches to 8 inches long. And both genders, both men and
women, young or old, adore me. And then I, on one end I have a forest of X X X but my friends
usually tell me that I am like a soldier X X X because I am on call 24 hours a day. If there is no
assignment given me, I just hang around I just lie down doing nothing. But when Im giving a
specific assignment, I see to it that Im always ready to complete the X X X. And when I am at
work, I usually go back and forth and that is warm and that is dark. And then when Im through
with my job, my assignment, I always see to it that I give out a sticky X X X white X X X and
then I return to my X X X and then just hang around and just lie doing nothing. Who is this
person or object?

Before we leave jurisdiction altogether, you have to know the meaning of primary
jurisdiction and residual jurisdiction

Residual Jurisdiction is found in appealed cases particularly Rules 41 and 42. It is the jurisdiction
enjoyed by the trial court to act on certain matters even if the case is already on appeal. It is
well explained in Rules 41 and 42. So it is not correct to assume that if a case is decided by the
trial court and the aggrieved party perfects an appeal on time and the jurisdiction over the case
is now assumed by the appellate court, like the Court of Appeals,

it is not correct to assume

that the trial court is divested entirely of jurisdiction even if there is already a perfected
appeal. In Residual Jurisdiction, the trial court continues to exercise jurisdiction over certain
matters for a very limited period of time. And after the expiration of that period, absolute
jurisdiction over the case will now be assumed 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 under the quasi judicial body to try and decided
cases

which

are

cognizable by regular courts under the provisions of BP 129. The reason why congress usually
enacts these laws is that congress feels that the quasi judicial body is better equipped in
order to decide disputes between the litigants. A good example of a Primary Jurisdiction
conferred by substantive law is the jurisdiction given to a quasi judicial body called HLURB,
this board is given original jurisdiction, in some cases exclusive original jurisdiction, to
adjudicate cases of disputes between a subdivision buyer and a subdivision developer, so if a
subdivision buyer feels aggrieved for the non-performance by the developer of his
commitments under the contract, the buyer should not file the complaint with a regular court
although under BP 129 the regular court may have jurisdiction, usually for breach of contract
the remedies given in the CC would Specific Performance, Recission of Contract or damages for
both cases or damages alone. In this rule on Primary Jurisdiction, these actions will not be

assumed by the regular court although BP129 gives the regular court such authority
particularly the Regional Trial Court. The jurisdiction is given by substantive law to the quasi
judicial body HLURB because the HU

presumably

is better equipped to adjudicate contests

between the subdivision buyer and developer so that there is a breach by the subdivision
developer of his commitments to the buyer, what the buyer will do is to file a complaint with the
HLURB.

There is one case however decided by the SC, where the subdivision developer filed a
complaint for ejectment against a subdivision buyer because it was the buyer who allegedly
violated the terms of the contract and the developer wanted to recover possession of the
property purchased by the buyer. The subdivision buyer challenged the authority of HLURB
to entertain a complaint for ejectment which under BP 129 is exclusively cognizable by an
inferior court. The SC said the primary jurisdiction of the HLURB does not extend to
complaints for ejectment filed by one party against the other. So that in 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 a subdivision
buyer and developer but then when the purpose is to recover physical possession of the property
or even in accion publiciana, the court said that it is the regular court who has authority over the
complaint.

Now we go the Rules of Court. In analyzing the provisions of the 1997 Rules of Court you should
always

bear

in

mind the constitutional limits that are provided by the Constitution to the authority of the SC
on

the

rules

on

pleadings, practice and procedure, like the ROC, the rules should be uniform in all courts of the
same

grade

and

then the rules should provide for a speedy and inexpensive determination of the case and then
the

rules

should

not increase, decrease or modify substantive rights. So if there is any rule on procedure which
violates

any

one

of these limitations given under the Constitution, we may then properly challenge the
applicability

and

validity

of these rules of procedure. There was one litigant who challenged the validity of a Rule in
Criminal

Procedure,

its Rule 115, and Rule 115 of Criminal Procedure really speaks not about procedure but more of
the

rights

of

the

accused. So the party said that Rule 115 should be excluded from the Rules of Court for it is not
procedural

but

substantive. It modifies, increases or decreases the rights of the person given by substantive law.
The SC denied the petition, saying that while the authority of the SC deals with the procedure,
pleadings

and

practice

and

that

substantive rights should not even be covered, the court said that it is practically
impossible

for

rules

of

procedure to be devised without incorporating certain provisions that are concerned with
substantive

law.

The

standard should be if we take the ROC as a whole: are the Rules of Court primarily procedural
in

character?

if

the answer is yes and there are certain provisions which speak about substantive rights or
its

coverage,

that

should not be the justification for deleting the said provisions in the rules of court. The other
justification

given

by the SC is the Civil Code, the CC is substantive law but if we go over the CC, it contains
provisions

which

are

not substantive in character, they are also procedural but that does not make CC a
procedural

law,

its

still

substantive law. Some articles cited by the court which refer to procedural matters are articles

concerning

the

issuance by the court of a preliminary mandatory injunction or preliminary injunction in


cases

of

unlawful

detainer and forcible entry. But the SC said that we cannot simply say that the CC is no longer
substantive

simply

because there are certain articles that speak about procedural matters. So if you come across
a

provision

of

the

rules of court which violates substantive law in the sense that the rules of court reduces
substantive

rights

or

modifies substantive rights there is a possibility that this provision could be challenged or
deleted

from

the

rules.

For instance, in special proceedings like the settlement of estate of a deceased person there is
a

provision

in

the

rules concerning the filing of claims. You are familiar with the rule that when a person dies and
then

there

is

settlement proceeding that is commenced with the court, the creditors for money arising from a
contract

which

is expressed or implied, should file their claims against the estate, they have no right to file a
civil

action

for

the

recovery of the money claim against the estate of the deceased or against the executor
or

administrator.

Otherwise, if the money claim is not submitted within the period fixed under the rules, the
claim

of

these

creditors will be barred. And then there is another provision that says that if the deceased is a
solidary

debtor

together with another one who is still alive, it is the duty of the creditor to file a claim against
the

estate

for

the

recovery of the whole indebtedness. That is a violation of a principle under the Civil Code which

says

that

when

there is solidary relationship between two debtors, the creditor is given by the CC the
authority

to

file

complaint against any one of the solidary debtors for the recovery of the whole indebtedness. So,
if

we

apply

the

Civil Code provisions, the creditor in the example could file a complaint for the recovery of the
whole

obligation

against the solidary debtor who is still alive, he does not have to file a money claim against
the

estate

of

the

deceased solidary debtor. In several cases which raised this issue, the SC said that the CC
provision

saying

that

creditor can file a complaint against any one of the solidary debtors will not be affected by the
provision

of

the

Rules of Court concerning the filing of claims. This is an example of a provision in the Rules
of
substantially
one

Court

which

reduces the right given by law to a creditor to file a complaint against any
of

the

solidary

debtors for the recovery of the whole obligation.

These 1997 Rules of Court should be interpreted liberally according to the Rules. But the
interpretation

is

not

liberal interpretation in favor of the plaintiff or in favor of the defendant. A court being an
impartial party to the dispute. The meaning of a liberal interpretation is to promote justice, to
carry out the duty of the SC under the limitations given under the Constitution.

Under the Rules now, a civil action is always commenced by the filing of a complaint. That is
the

general

rule.

There are certin civil actions usually special civil actions which are not commenced

by a filing

of

complaint.

Instead, we file for a petition. But it does not really matter whether we file a petition or a
complaint

when

an

action is sought to be commenced. The filing of a complaint has given rise to the action that
when

compalint

is

filed, the court automatically acquires jursidiction over the person of the plaintiff. So in that
action,

the

only

problem concerning the jurisdiction is the jurisdiction of the court over the person of the
defendant.

But

the

latest decisions, last year the court decided a case where it was held that even if a
complaint

is

filed

before

competent court, if the one who filed the complaint is not authorized to do so, the court
does

not

acquire

jurisdiction over the person of the plaintiff. In fact, the court said that the court does not
even

acquire

jurisdiction to try or adjudicate the case. So the rule that we follow in our procedural principles
which

says

that

the court acquires jurisdiction over the person of the plaintiff through the filing of a
complaint

will

not

necessarily give jurisdiction by the court over the person of the plaintiff. The court can examine
whether

or

not

the filing of the complaint is authorized by the plaintiff. If it is not authorized by the plaintiff, the
court

will

not

acquire jurisdiction over the plaintiff. The court will not even acquire authority to decide the
case.

The

court

is

absolutely without any jurisdiction to try and decide the case if it is demonstrated that the filing
of

the

is without authority given by the plaintiff.

complaint

In a complaint properly filed in court, that is one filed by the plaintiff himself or with the
authority

of

the

plaintiff, of course the plaintiff under rule 10 has the right to amend that complaint provided that
an

answer

not yet been filed by the defendant.


right.

has
The amendment made under Rule 10 is a matter of

If

the

plaintiff

amends that complaint by impleading another defendant, then the court will have nothing to
do

except

accept

the complaint since the amendment is a matter of right. And in so far as that new defendant is
concerned,

the

date of the filing of the complaint will relate back to the date when the original complaint was
filed

unless

new

cause of action is introduced in that complaint. In which case, we dont make use of that relating
back

doctrine.

The classification of actions under the rules is very simple as civil action, a special civil action,
criminal

action

and special proceedings. In the definition of a civil action, it is very clear that we do not
necessarily

follow

the

definition of a cause of action under Rule 2. In Rule 2 a cause of action is defined as a violation
by

the

defendant

of a right belonging to the plaintiff. So for a cause of action to accrue, the plaintiff must allege
that

he

has

right

and that the defendant has violated such right. The indication given by this definition is that
the

right

holder

must wait for a person to violate his right before he can have a cause of action to bring an
action

in

court.

That

concept of a cause of action should always be related to the definition of a civil action

under

section

1.

The

definition of a civil action does not require a prior violation of a right so that the
rightholder

may

have

justification to go to court. The definition of a civil action is one by which a person sues another
for

the

enforcement or protection for a violation or a threat to violate such right. So there is no need
for an actual violation of a right before a case can be properly filed in court. Under the definition
of a cause of action if there is a threat to violate a right, there is already a cause of action.

Our rules of procedure become complicated when 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 that are violated, how
many

causes

of

action will accrue? The standard given by decisions of the court is that in order to determine
whether

or

not

several cause of action will arise if there is one wrongful act and there are several right that
are

violated

is

to

determine whether these rights belong to the same person or to different persons. That is the
common

standard

that we apply now. For instance, if a person drives negligently his car, and then he causes,
as

result

of

the

negligent driving, damage or wrecks three cars, how many causes of action will accrue
against

the

negligent

driver? Using the standard given by the court, we have to determine whether the three
cars

belong

to

one

person or the three cars belong three different persons. If the 3 cars belong to only one person,
only

one

cause

of

action will accrue. In other words, the person owning the three cars cannot file an action

one

complaint

for

damages involving the first car and another complaint for damages involving the second car and
another

for

the

third car. That not possible. That is spitting a cause of action because we are talking about
violation

of

rights

in

the concept of a cause of action. The owner of the three cars has only one right that has
been

violated

by

the

wrongful act of the negligent driver. But if these three cars belong to three
the

owner

of

different owners,

the

first car has his own cause the owner of the second has another cause and the owner of the
third

has

his

own

cause of action. And because there are three causes of action that arise belonging to three
different

persons

then

it follows that these three different persons can file separate complaints. They do not have
to

be

joined

as

plaintiffs in one complaint. They can file their own separate complaints before the competent
court.

So

that

if

the

3 cars belong to three different persons, the first owner can file his complaint before the RTC if he
claims

that

damages suffered by him


before

the

amount to 500,000. The second car owner can file his own claim
an

inferior

court if the damages suffered by him about only to 200,000. So the filing of these complaints
by

the

different

owners will depend on the amount of damages which each will respectively claim in their
complaints.

The

fact

that there are 3 different causes of action does not mean that the 3 different parties should go
to

the

same

court

in order to protect their interest and recover damages suffered by them. In our first example

where

the

wrongful

act of driving has caused damages to 3 different cars but belonging to the same person, there is
only

one

cause

of

action. This owner of the 3 cars can only file one complaint for the recovery of damages of
his

cars.

Can

he

properly and rightfully go to court right away because his right has been violated by the wrongful
act.

If

we

rely

solely on substantive law, the answer is yes. As long as a right has been violated by the wrongful
act

of

another,

the right holder has the prerogative of going to court for protection and enforcement of his
right.

If

we

apply

procedural principles, the owner may be precluded from filing right away because other
procedural

rules

has

introduced several precedents before a cause of action may accrue and if these conditions are
not

first

satisfied,

the filing of the complaint will be premature. There could be dismissal by reason of prematurity.
And

what

are

these conditions precedents established by rules of procedure and sometimes by substantive


law? The first condition precedent given by procedural and substantive rules is prior barangay
conciliation.

So

even

if

right

has been violated and the rightful owner goes to court but the dispute is covered by the
circular

on

prior

barangay conciliation, then there could be reason for the court to dismiss the case or not to
entertain

the

case

and

just tell the parties to undergo barangay conciliation. The other condition precedent given by
both

procedure

and substantive law is an arbitration clause that is usually given in contracts. The arbitration
clause

in

contracts

invariably provide that there is a breach of contract, the innocent contracting party cannot
simply

go

to

court.

The dispute should first undergo arbitration proceedings. If the arbitration clause breached
by

immediately

filing a complaint in court, the court can refuse of try the case and the court can compel the
parties

to

observe

the stipulations under the arbitration clause. The other condition precedent that is purely
procedural

is

the

certification on non-forum shopping found in Rule 7. If a complaint or initiatory pleading is


filed

without

certification on non-forum shopping, and remember that this defect is not curable by
amendment,

the

court

acquires jurisdiction over the case under BP 129, but the court can order the dismissal of
the case for non-observance of the certification as a condition precedent. There is another
condition

precedent

that

is

given

under

political law: Exhaustion of administrative remedies for the accrual of a cause of action.
Under

the

civil

code,

another condition precedent for members of the same family. It must be shown earnest efforts
toward

compromise must have been resorted to before going to court. So in the definition of a cause of
action

under

the

rules of court is not qualified by certain condition precedents before going to court. He must
see

to

it

that

these

conditions, if applicable, must be observed. The court, although competent and may have
jurisdiction

over

the

case, will refuse to try the case and instead issue an order to the plaintiff to comply with the
conditions.

If

there

is already a cause of action and these conditions are applicable, the general rule is for every

cause

of

action

the

rightholder can file one complaint. If there are 2 causes, the right holder can file 2
complaints.
causes,
to

If

there

are

he can file 3 complaints. But what is proscribed by the rules of court is for the plaintiff
file

more

than

single complaint arising from a single cause of action. In other words, the rules abhor splitting a
cause

of

action.

Filing 2 or more complaints founded on the same cause of action is splitting a cause of action.
The

usual

example

given in splitting a cause of action is lets say that the creditor is entitled to receive from the
debtor

million

pesos. The obligation has matured, it has become due but not been paid. In the ordinary
cause

of

things,

the

creditor should file one complaint for the recovery of 2 million pesos plus interest that has
been

earned

by

the

principal, cost and damages if there are any. If the creditor files one complaint for the recovery of
2

million

pesos

as principal and this complaint will be filed before a RTC and then he files another complaint for
the

recovery

of

interest in the amount of 200,000 pesos in the MTC. That is splitting a cause of action regardless
of

whether

these

actions are filed before different courts. Since the rules prohibit a right holder from splitting a
cause

of

action,

thus the rule also provides for sanctions. These are given by the rules itself. The filing of one
could

be

used

in

order to dismiss the other by reason of litis pendentia, pendency of another action or if one of
the

causes

has

been

decided, the decision in one case can be used to dismiss the other by reason of res judicata. So

there

could

be

grounds for dismissal of complaints which are a product of splitting of a cause of action. There
is a third ground provided by rule 7, and that is forum shopping. So if a right holder splits his
cause

of

action,

he

can

move

for

dismissal either by reason of litis pendentia, res judicata or under Rule 7 on forum shopping. It
is

now

settled

that if a party is guilty of splitting of causes of action, he is also guilty of forum shopping.
There

is

no

need

to

elaborate on whether there is forum shopping as it can be shown that there is splitting of cause
of

action.

Why

does the rule in the first place prohibit splitting? If you look at the consequences there is
really

not

much

anything that can be suffered by the defendant. In our case the debtor is bound to file 2
million

pesos

plus

interest. So if the creditor files one complaint for the recovery of 2 million and the second
complaint

for

the

recover of interest and damages amounting to 200,000. Even if we assume that the plaintiff
will

eventually

win

in both cases, he will not enrich himself because in the first case he will be recovering only 2 M
and

in

the

second

cause only 200,000, his entitlement is merely the same even if he does not split his cause of
action.

so

in

the

point

of view for recovery of money due the creditor, the creditor will not have much benefit that
he

can

derive

by

splitting the cause of action. Why dont we just allow the the plaintiff to file as many
complaints

as

he

wants

involving the same cause? If we look at it, it can even enrich the government because everytime
we

file,

we

pay

docket fees. We can even encourage for as long as he pays docket fees. If we look at it in that
point

of

view,

there

is nothing wrong with splitting. But if we look at it at a broader point of view,


splitting

cause

the effect of

of

action could be very harmful not to the parties, but to our courts. In our example if we allow two
complaints

to

be filed based on one cause of action, and these cases is filed before 2 different courts,
there

is

very

strong

probability that the RTC may decide in favor of the plaintiff and there is also a strong probability
that

the

MTC

will decide not in favor of the plaintiff but against the plaintiff, so that our courts may look
funny

if

one

court

will decide will decide in favor of the plaintiff and the other will decide against him involving the
same

cause

of

action and same evidence that will be submitted. In other words, this rule on splitting is for the
protection

and

integrity of our courts. There is a likelihood that the different courts will be rendering
conflicting

decisions

involving the same issue and parties and that will destroy the integrity of our judiciary.
Supposing

that

the

plaintiff indeed splits his cause of action against the same defendant, but the defendant
ignores

the

breach

of

procedure by the plaintiff and does not ask for the dismissal of any one of the cases by reason of
litis

pendencia

or res judicata, can the court on its own order the dismissal of the existing cases? The answer is
yes

because

litis

pendencia and res judicata are both not waivable defenses and the defendant does not raise
these

issues

that

arise from splitting, the court, on their own, can order the cases pending before them. But if
the

dismissal

is

by

reason of litis pendencia, it is not correct to assume that both cases will be dismissed.
Only

one

will

be

dismissed. If by reason of res judicata, the remaining case which is pending will be dismissed.
So

if

both

cases

are pending, and the defendant files a motion to dismiss these two cases, only one case will
be

dismissed.

In

other words, in litis pendencia it is not possible for the defending party to move for dismissal
of

all

pending

cases. So that if you are the lawyer for the defendant and you are choosing which of the two
will

be

dismissed,

youd rather move for the dismissal of the case pending before the RTC because the
amount

involved

is

million pesos and let the cause before the MTC to deprive the RTC. If the MTC eventually
decides the case involving only 200,000 and the decision becomes final and executory, that is
the

end

of

the

creditors

claim

for

million pesos. He can no longer recover because there is now res judicata. Can we give to
the

defendant

remedy to have the 2 pending cases dismissed? The answer is yes. If the ground for dismissal is
forum

shopping

Rule 7. Under the Rules, if a plaintiff is guilty of forum shopping, the court can order the
dismissal

of

all

pending cases but the qualification is that the dismissal is without prejudice. So it is not an
adjudication

on

the

merits unless forum shopping is found to be deliberate. But nonetheless, if the wish of the
defendant

is

to

have

the all the cases dismissed, he can make use of Rule 7. Move for the dismissal on the ground of

forum

shopping.

Anyway, when a person violates the rule on splitting of cause of action he violates the rule on
forum

shopping.

But again one of the cases has been decided, the remaining could be dismissed by reason of
res

judicata

for

as

long as such decision has become final and executory. Litis pendencia and res judicata
are

non-waivable

defenses. We do not need for any motion from the defendant. For as long as it becomes
clear

before

the

trial

courts that there is litis pendencia or res judicata, the courts simply follow rule 9 which
provides

that

if

it

becomes clear during trial that there is litis pendencia or res judicata, it is moto proprio on the
part

of

the

trial

court to order the dismissal of the case. There are certain instances involving the existence of
certain

causes

of

action. If the obligation of the debtor in our example is payable on installments and then
principles

of

this

case

Larena vs Villanueva which was decided almost 100 years ago. In our example, if there is an
obligation

to

pay

million pesos on installment, each installment will have its own date of maturity. Under this
decision

in

Larena

vs Villanueva, it is a rule that for each installment that becomes due and unpaid, one cause of
action

arises

for

that installment. SO that if there are four installments of 500,000 each and the maturity
differ,

if

the

first

installment has become due and unpaid, the creditor will now have one cause of action. But the
cause

of

action

is for the recovery only of the first installment for the recovery of 500,000. Can the creditor

insist

that

if

he

files

complaint he should be able to recover 2 Million pesos? He cannot because the other
installments

are

not

yet

due. He still does not have the right which has been violated. But there are certain
mechanisms

in

Civil

Law

which will enable him to recover the entire obligation simply because one installment has been
due

and

unpaid.

We call it in civil law as the acceleration clause. If there is an acceleration clause in our
contract,

i.e.

the

non-

payment of the first installment will cause the whole obligation to be due, then the creditor will
have

one

cause

of action only. If the first installment has become due and there is an acceleration clause, if the
creditor

files

one

complaint only to recover 500,000 and then the case is decided in his favor and judgment is
entered,

and

later

on the second installment also becomes due and unpaid, he can no longer file another complaint
for

the

recovery

of the second installment by virtue of the acceleration clause. When an acceleration clause
works,

the

whole

obligation becomes due and that should be the subject in just one complaint as only a single
cause

of

action

accrues in favor of the creditor. But without the clause, the rule of thumb is that each
installment,

if

unpaid,

will

give rise to different causes of action. So it is possible that there could be different complaints
filed

by

the

same

creditor against the same debtor corresponding to different installments. The qualification
given

in

Larena

is

that if two installments are already due, then they should be the subject of just one

complaint. There is only one cause of action pertaining to these two installments that have
remained unpaid. The other installments which are not yet due cannot be the subject still of a
separate complaint. And then together with this case of Larena, the Court also decided another
case almost 100 years ago. This case is Blossom vs. Manila Gas. In our example, there is a
monetary indebtedness for the debtor to pay 2 million pesos in 4 separate installments. Lets say
that theobligation to pay the first installement will be due on or before December 31,2013. Since
you are still in May 2013, can the creditor file today a complaint against the debtor for
the recovery of 2 M or even the first installment? The answer is no because the plaintiff still
has no right which has been violated by the defendant.

So as of today, the creditor cannot complain that his right has been violated. Supposing that last
month,

the

debtor conferred with the creditor, and the debtor in writing formally saying that I have no
intention

of

paying

my obligation in your favor. So I disown my obligaion. Do not expect me to pay anything


between

now

and

December 31. Do not expect me to pay you any of the installments that are specified in
my

note.

have

absolutely nothing to do with this promissory note. I wont pay you a single centavo. If that is
the

attitude

of

the debtor in our example, you can apply the principle in Blossom vs. Manila Gas that is even if
the

obligations

are not yet due according to the terms of the agreement but the debtor his expressred formally
his

desire

not

to

pay and he tells the creditor that he should not expect any payment from him. The court
said

that

it

is

an

anticipatory breach of the contract. So that if there is an anticipatory breach of the contract,
the

creditor

can

rightfully file a complaint against the debtor for the recovery of the whole obligation of 2
million

account.

But

remember that this should be treated merely as an anticipatory breach. That the debtor
formally

tells

that

he

is

not going to pay the indebtedness. Supposing that there is no such anticipatory breach that can
be

shown

by

the

creditor. He files a complaint today for the recovery of the whole indebtedness, 2 M,
although

the

first

installment on or before Dec 31. He files the complaint. Does the RTC have jurisdiction?
Of

course

it

has

jurisdiction since the amount to be recovered is 2 million. The defendant after receiveing the
summons

and

he

does not file any responsive pleading or even if he files an answer but does not raise as an issue
the

propriety

of

filing a complaint where the obligation is not yet due. The Court will follow will the order of
things

in

civil

procedure and the court will set the case for pre trial and during the pre trial there is no
settlement.

Lets

say

that the pre trail will be scheduled next year, Feb 2014. By the time the pre trial is scheduled, the
first

installment

will become due. There is no amicable settlement. The court scheduled it for trial by the end of
2014

and

by

that

time let us say that the whole obligation has been due. So at the time the Trial Court conducts a
trial

on

the

case

the debtor has already defaulted but at the time of the filing of the complaint this obligation
has

not

yet

been

defaulted. Can the Court properly decide the case in favor of the plaintiff? The answer is no.
There

is

2005

case

with the same set of facts. The title of the case is Swagman Hotel vs. CA. In this case which is a
modification

of

the principle in blossom. The SC said that if a plaintiff files a complaint in court although he
has

no

cause

of

action at all, but the defendant does nothing and then the claim of the plaintiff matures at the
time

it

is

decided,

the court still has no authority to decide the case because at the time of filing, the plaintiff has
no

cause

of

action.

One of the issues raised by the defendant, can we not apply rule 10, that is amendment to
conform to evidence?
While the case is not final, the obligation became due already and of course the note must
have

been

presented

as evidence that the obligation at that time was already due and demandable. The SC said that
we

do

not

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. So it is essential that a complaint must be filed after the cause of
action

has

accrued.

If

there is no cause of action that has yet accrued and a complaint is filed, the court will have
no

authority

to

decide even if it matures and becomes defaulted during the trial of the case. We apply the rule
on

amendment

to

conform to evidence only if there is really a cause of action at the time of the filing of the
complaint.

So

you

take

note of these differences between the rule on anticipatory breach given in Blossom vs Manila Gas
and

the

much

later case of Swagman Hotels vs CA. The principle of Swagman has been reiterated by the
court

in

subsequent

cases. At the time of the filing of the complaint, the plaintiff must already have a cause of action.
He

must

show

that his right has already been violated at the time of the filing. Otherwise, he cannot make use
of

amendment

to

conform to evidence. Amendment to conform to evidence presupposes the existence of a cause


of

action

on

the

part of the plaintiff.

The opposite of splitting a cause is joinder of causes of action. Splitting is prohibited while
joinder

of

causes

is

encouraged by the rules. So in joinder of causes, the plaintiff is encouraged to incorporate as


many

causes

of

action as he may have against the same defendant although these causes of action are totally
unrelated

to

one

another, although these causes arise from different transaction as long as the parties to the
transaction

are

the

same plaintiff and defendant. So a plaintiff can file a complaint against a defendant for accion
reinvidicatoria,
recovery of money arising from loan, recovery of damages from quasi delict. Although they arise
from

different

transaction. So that is there is one plaintiff and one defendant. There is nothing wrong if the
plaintiff

sets

up

different causes of action although these causes of actions arise from different transactions.
The

limitations

of

joinder of causes can be summarized in three issues that is the issue of jurisdiction, the issue of
venue

and

issue

of joinder of parties. There could be joinder of causes of action according to Rule 2 which is
encouraged

as

long

as the party does not violate the rule on joinder of parties found under the next rule as long
as

these

cause

enjoined do not follow different rules of procedure and of course these causes of action
should

be

within

the

jursidiction of the Trial Court. So that if the plaintiff files a complaint against the same
defendant

and

his

first

cause of action is accion reinvidicatoria assesed at 1,000 and the second cause of action is
for

the

recovery

of

money, 2 Million pesos. Obviously, the causes are misjoined because the RTC does not have
jurisdiction

over

the

accion reinvidicatoria valued at 1,000. About 7 months ago, the SC decided a case where one
of

the

parties

in

August 2012, this case presented a joinder of causes where there was really misjoinder of
causes

of

action.

The

complaint filed by the plaintiff against the defendant set up as first cause of action a complaint
for

partition.

And

the second cause of action was for recission of a donation. Both causes of action are cognizable
by

the

RTC.

If

we

rely solely on rule 2 section 5, is there misjoinder of cause of action? the first cause is partition,
the

second

cause

is recission of donation. The answer is Yes. Why? because a complaint for partition is a special
civil

action.

If

you

look at the Rules, Partition is enumerated in the list of Special Civil Actions. While recission of
donation is an ordinary civil action. In other words, they are governed by different procedure.
So,

here

is

indeed

in

this

case

misjoinder of causes of action. But the defendant did not raise this assigned issue. The defendant
either

did

not

realize that partition is a special civil action while rescission in an ordinary action. The

defendant

did

not

do

anything and the worse is that the judge did not know any better. He most likely waited for the
defendant

to

raise this issue on misjoinder of causes of action but since no motion came from the defendant,
the

judge

said

will just try these two misjoined causes. Under the rules, can the court moto proprio apply
the

rule

on

misjoinder of causes by ordering the severance of one of the cases that is misjoinded? The
answer

is

yes.

Under

the Rules, we do not really need a motion coming from the defendant. On its own, if the court
finds

out

that

there is a misjoinder, the court is given the prerogative motu proprio to order the severance of
cases.

This

is

for

the benefit of the court because of if the court will wait for the move from the defendant to
raise

misjoinder

of

causes, the court will find itself confused with the procedure that will follow. Because partition
has

procedure

different from ordinary civil actions. In fact, partition under our rules now is a multi-staged
proceeding.

Thats

why it is a special civil action while rescission is an ordinary civil action. It is not divided into
several

stages

like

complaint for partition. But since nobody raised the issue of misjoinder and the court did not
realize

that

there

was misjoinder of causes, the court just went on to try these two cases until a decision was
finally

issued

by

the

court. When the matter appealed to the SC, the SC said that there was nothing irregular with the
performance

of

the court even if the causes of action are misjoined. But the issue is not raised before the trial

court,

and

the

trial

court goes again with the trial of these misjoined causes of action. The decision of the court
will

still

be

valid.

The only qualification given by the SC is that this misjoined causes should be within the
jurisdiciton

of

the

trial

court under BP 129. In other words, this rule of joinder of causes could be a ground for
severance

of

one

of

the

causes but if it is not raised timely and the trial court eventually decides the case, the decision of
the

trial

court

is

binding. Its perfectly in order as long as the trial court has jurisdiction over the misjoined causes.
Does

the

RTC

have jurisdiction over the complaint of partition? Does the RTC have jurisdiction over
recission

of

donation?

Recission is 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
misjoinder

of

causes

of

action. The judgment rendered by the court is valid and it can be executed if it is duly entered. If
the

court

does

not motu proprio order the severance of cases, we cannot blame the court for it. It is the bargain
of

the

defendant

to raise this as an issue before the trial court. So again, this is the attitude of the SC when it
comes

to

misjoinder

of causes of action. As long as the misjoined causes fall within the jurisdiction of the trial court,
there

is

nothing

wrong if the trial court will eventually decide the case although there is misjoinder of causes of
action.

Can the complaint be filed where these two causes of action are set-up? First, it is a petition
for

certiorari

and then as a second cause there is a petition for habeas corpus. If you read literally section 5
that

is

not

allowed.

But the SC allowed. A petition for certiorari which is a special civil action could be filed together
with

petition

for habeas corpus which not a special civil but it is in fact a special proceeding and therefore the
procedure followed by 2 different petitions are different. That should be disallowed under
Section 5, but that is allowed according to the court by way of exception.

A complaint is filed with an inferior court. The first cause of action is reinvidicatoria. Recovery of
title

to

of land. The assessed value of the land is


unlawful

piece

5000 pesos. The second cause of action is

detainer

of

condominium unit. The back rentals to be recovered is 2 Million pesos. So in this complaint
the

first

cause

is

accion reinvidicatoria of another piece of land or property whose assessed value is 1000 pesos
and

then

unlawful

detainer of a condominium unit the back rental sought to be recovered is 2 Million pesos. Does
the

inferior

court

over the 2 causes of action. The answer is yes. because an inferior court has jurisdiction over
a

case

of

accion

reinvidicatoria where the assessed value is only 1000 pesos. The inferior court also has
jurisdiction

over

unlawful detainer regardless of the back rentals sought to be recovered. So with respect to
jurisdiction

on

the

part of the inferior court, there is no problem at all. It really has jurisdiction. Are the two causes
properly

joined?

Although they are within the jurisdiction of the inferior, the answer is No. There is still misjoinder
although

both

cases are cognizable by the inferior court. Because accion reinvidicatoria, although
cognizable

by

an

inferior

court will be governed by ordinary procedure while unlawful detainer will be governed
by

summary

procedure. That is one of the limitations in joinder of causes of action. We cannot join causes of
action

which

are

governed by different procedures although they may fall within the jurisdiction of the same
court.

But

you

always refer to this new case of Baylon (?), even if there is misjoinder, if it is not raised as an
issue,

the

issue

is

waived and there is nothing wrong with a decision rendered by the court thereafter as long
as

the

court

has

jurisdiction over all the causes of action that are misjoined in the same complaint.

Good afternoon. To continue with the just todays discussion on joinder of causes of action,
you

should

be

conversant with the limitations to this prerogative given to the plaintiff. You also notice that,
unlike

joinder

of

parties, there is a rule against misjoinder of causes of action in the same way that there
is

rule

against

misjoinder of parties. But there is no rule which governs non-joinder of causes of action
while

in

joinder

of

parties, there is non-joinder and misjoinder of parties. The reason why we cannot conceive
of

rule

on

non-

joinder of causes is because joinder of causes is always permissive. It is always at the option
of

the

plaintiff.

Thats why the rules state that the plaintiff can join as many causes of action as he may have.
That

is

permissive.

If he does not want to join causes of action against the same defendant, the court cannot force
him

to

do

so.

But

there is a rule against misjoinder of causes and misjoinder occurs when the two causes joined
violate

some

of

the

limitations contained in Sec. 5, like rule on joinder of parties, rule which prohibits joinder of
causes

which

are

governed by different rules, such as when a special civil action is joined together with an
ordinary

civil

action

although both would be cognizable by the same court, the joinder is prohibited but as
to

the

mentioned

yesterday, the latest decision of the court is to the effect that even if the causes are misjoined,
if

that

issue

is

not

raised on appeal before the Supreme Court or Court of Appeals, these courts will just ignore
the violation on the rule on joinder of causes of action. The judgment rendered by the court
cannot be challenged provided that the court has jurisdiction over the two or more causes that
have been joined.
The first limitation to joinder of causes is the rule on joinder of parties. And the rule on joinder of
parties

which

serves as a limitation to joinder of causes is the rule in Sec. 6 of Rule 3 that is permissive
joinder

of

parties.

In

permissive joinder of parties, it envisions a situation where there are two or more plaintiffs,
or

two

or

more

defendants or both, and the right to relief arises from the same transaction or a series of
transactions

and

there

is

a common question of law or fact in so far as the defendants and the plaintiffs are concerned.
Usually,

joinder

of

permissive joinder of parties, issues when there are at least two causes of action, pertaining to
the

two

plaintiffs

or against the two defendants as the case may be. A good example is illustrated by case
decided

by

the

court

about 10 years ago. The owner of a tract of land discovered one morning that his property has
been

occupied

forcibly or through intimidation or any other means and that they retained physical possession of
this

property

about 10 or 11 informal settlers or squatters constructed their houses on that property.


owner

of

the

land

The

of

course wanted to recover physical possession of the property. The procedural problem that
they

face

was

this.

Can he file, should he file 11 complaints of forcible entry against each one of the informal settlers
or

squatters

or

can he file just one complaint against eleven defendants, eleven informal settlers, but in that
complaint,

he

will

allege eleven causes of action. Each one cause of action against each one of the informal
settlers.

The

SC

said

the

owner of the land has the option of choosing any one of these remedies. The owner of the
land

can

file

eleven

complaints for forcible entry but each complaint must implead only one informal settler. He can
also

file

just

one

complaint against eleven squatters but in that complaint, she should allege eleven causes of
action.

The

last

recourse will involve joinder of parties. There is just one complaint, against eleven squatters
but

in

effect,

in

filing effectively, he can be filing eleven separate complaints, but there is only one
complaint.

That

is

the

illustration of permissive joinder of parties. We should also note that joinder of parties in Sec.
6

of

Rule

as

limitation to joinder of causes of action is also permissive in character. The title of the
section

is

permissive

joinder of parties. In another section, in Sec. 7 of Rule 3, there is another concept of joinder
which

is

compulsory

joinder of parties. In other words, the joinder of parties in compulsory joinder is a must, it is a
mandate

required

by law. And this refers to compulsory joinder of indispensable party. In compulsory joinder of
indispensable
party, the definition of an indispensable party in the Rule is that it is a party without
whom

no

final

determination of a case can be had. Meaning to say that even if the court tries a case without
an

indispensible

party having been impleaded, the decision of the court is void, the proceedings of the
court

are

void.

The

decision will never be entered; it will never become final and executory. That is the message
given

in

rule

on

compulsory joinder of indispensible party. If there are only two parties in a contract of sale,
there

is

just

one

vendor and just one vendee and there is a violation of the conditions of the sale, the innocent
contracting

party,

will of course be indispensable and the party who has committed the breach will also be an
indispensable

party.

The opposite of indispensable party is a necessary or proper party. Rule 3 also gives us the
definition

of

necessary party. But we will know that the joinder of a necessary party is not compulsory. The
law does not require the plaintiff to implead a necessary party unlike in the case of indispensable

party. Because it is the law itself that compels the inclusion of an indispensable party, what is
the sanction if a complaint is filed without impleading an indispensable party?
indispensable

party is not impleaded,

If

an

either as plaintiff or as a defendant, and the

defendant files a motion to dismiss on that ground, that is the ground relied upon by the
defendant is an indispensable party has not been impleaded, will the court grant the motion
to dismiss? The answer is no. Because Sec. 11 in Rule 3 is very clear: non joinder or
misjoinder of a party is not a ground for dismissal. But in other cases, decided by the SC, the
motion to dismiss filed by the defendant for the reason that an indispensable party has not
been impleaded, is not failure to implead an indispensable party. The ground used by the
defendant is failure to state a cause of action.

In Rule 16, that is the rule on motion to dismiss, failure to state a cause of action is a
ground

for

dismissal.

Failure to implead an indispensable party is not a ground for dismissal under Rule 16. In fact,
Rule

is

very

clear in saying misjoinder or nonjoinder of a party is not a ground to dismiss. But if the defendant
uses

another

ground that is failure to state a cause of action, there are conflicting decisions of the SC when
the

SC

resolved

the

question of whether or not failure to implead an indispensable party is a good ground for
dismissal.

Remember

that the ground used by defendant is not failure to implead an indispensable party but the
ground

for

dismissal

is failure to state a cause of action. One set of decisions of the SC said that if an
indispensable

party

is

not

impleaded and there is a motion to dismiss founded on failure to state a cause of action,
the

case

would

be

dismissed on that ground. Because there is really failure on the part of the plaintiff to state a

cause

of

action

if

an

indispensable party-defendant is not impleaded. In the definition of a cause of action, the law
says

that

cause

of action exists when there is a violation of the right by another party. In other words, a cause of
action

envisions

the existence of a right and a violation of that right. If there is a wrong doer who has violated the
right

of

party,

that wrongdoer should be impleaded as a party defendant. The reason given by these one set of
decisions

of

the

SC in affirming the dismissal of a complaint where an indispensable party defendant has not
been

impleaded

is

that the proceedings taken by the court are void. With respect to the parties who are present in
the

case

and

with

respect to other parties who could have been parties to the cause. The judgment is null and void.
And

therefore

the court said if we dont dismiss the case, we allow the court to continue trying the case and we
allow

the

court

to eventually decide the case. The court will just be spending useless his time, because
the

judgment

to

be

rendered by the court, in a way cannot be enforced; it will never become final and
executory.

That

was

the

justification given by the court in this set of decisions which allowed the dismissal of a
complaint

for

failure

to

state a cause of action. Failure to state a cause of action because an indispensable partydefendant

has

not

been

impleaded. The other set, the second set of decisions of the SC is to the effect that if an
indispensable

party-

defendant has not been impleaded, and there is a motion to dismiss filed by the present

defendant

on

the

same

ground failure to state a cause of action, the court should not dismiss the case. The reason
given

by

the

SC

is

Section 11. Misjoinder or nonjoinder of a party is not a ground for dismissal. The court said: if an
indispensable
is not impleaded, and a motion to dismiss is filed by the defendant, what the court should do is
to order the amendment of the complaint. Is it proper for a court to order the amendment of a
complaint

if

the

motion

before

the court is a motion to dismiss? Should not the court either grant or deny the motion to
dismiss?

If

you

read

Rule 16, on the alternatives, the options given by Rule 16 to a court which is going to rule
on

motion

to

dismiss, Rule 16 really says that a trial court has three options. The first is to deny the motion,
the

second

is

to

grant the motion and the third is to order an amendment to the pleading. So this decision
of

the

SC

is

also

founded on an express provision of Rule 16. A trial court really can refuse to grant a motion to
dismiss

by

using

the third option that is order an amendment of the pleading. In fact as of now, there are four
alternatives

given

to a trial court in resolving a motion to dismiss. The first three: grant the motion, deny the
motion

or

order

an

amendment to the pleading and the fourth alternative introduced by a circular is that for the
court

to

refer

the

matter to arbitration or a prior barangay conciliation. There are now four options given to a trial
court.

But

we

are interested in the third option given in Rule 16. And the Supreme Court said if a person is an
indispensable

party to the case and he is not impleaded as a defendant, the person who has been sued in
that

case

can

move

for a motion to dismiss but the court will not grant the motion, the court will instead order the
amendment

of

that complaint. So the motion to dismiss will not be granted instead, the court will tell the
plaintiff:

you

amend

your complaint by impleading the indispensable party. If the plaintiff receives an order from the
court,

directing

him to amend his complaint by impleading an indispensable party, the plaintiff also has a choice.
He

can

ignore

the order of the court or he can comply with the order of the court. If the plaintiff complies with
the

order

of

the

court and the plaintiff amends his complaint, and impleads the indispensable party, then the
defect

in

that

case

is solved. There is no more procedural defect because an indispensable party has been
impleaded.

But

if

the

plaintiff disobeys the order of the court, directing him to implead an indispensable party,
can

the

court

do

something about the disobedience of the plaintiff? This other set of decisions said, the court
can

now

order

the

dismissal of the case but the dismissal of the case will not be founded on Rule 16 but it will be a
dismissal

found

on Rule 17. Rule 17 is also about dismissal of actions. And the court said if the dismissal
of

the

action

is

thereafter ordered by a court by reason of the disobedience by the plaintiff of a lawful order of
the
dismissal under rule
adjudication

court,

that

17 is a dismissal with prejudice. In other words, that will be an


upon

the

merits. If that order of dismissal is finally entered, then there will be res judicata and the plaintiff
will

be

barred

from further pursuing his claim in another complaint.

This issue as we said is a subject of conflicting decisions of the court and if by chance, this
is

asked

in

your

examinations, I would suggest that you adapt the second set, that is if an indispensable
party

has

not

been

impleaded and there is a motion to dismiss the court should not order a dismissal of a case.
The

court

should

order the amendment of that complaint. If the amendment is not complied with, the court
can

now

order

the

dismissal of the case not by reason of a motion to dismiss under Rule 16 but by reason of Rule
17,

dismissal

of

the action by reason of failure to obey a lawful order of the court. Is there a difference between a
dismissal

under

Rule 16 on that ground failure to state a cause of action and a dismissal under Rule 17 failure to
obey

the

rules

of

court or a lawful order of the court? There is a great difference. If a complaint is dismissed under
Rule 16 because of failure to state a cause of action and the failures to state a cause is founded
on the failure to implead an indispensable party, the order of dismissal under Rule 16 is a
dismissal without prejudice. The plaintiff can file another complaint. But in that other
complaint, he should see to it that the indispensable should now be impleaded. But if the
dismissal of the complaint is by reason of Rule 17, if you read the third section of Rule 17, it is
clearly provided that a dismissal for failure of the party to obey a lawful of the court or failure of
a party to obey the Rules of Court is a dismissal with prejudice, unless the court otherwise
provides. But generally, the dismissal under Rule 17 is a dismissal with prejudice. That should
be the thrust of your answer in the event that this problem is given in your bar examination.

Failure to implead an indispensable party is not a ground for dismissal of a case. Under Section
11 of Rule 3, nonjoinder or misjoinder of a party is not a ground for dismissal. But if the ground
used is failure to state a cause of action, you also say that under Rule 16, a court has an option
not to grant the motion to dismiss, not to deny a motion to dismiss but simply order the
amendment of the pleading or the complaint. If the order to amend is not complied with, there
could now be a dismissal not under Rule 16 but under Rule 17 - Failure to obey a lawful order of
the court.

How do we distinguish whether a party is an indispensable party or necessary party? This


matter

is

illustrated

usually in our textbooks with an illustration of a relationship between a creditor and his two
debtors.

Lets

say

that the creditor lends 1M pesos to two debtors: Debtor 1 and Debtor 2. And then the
obligation

is

defaulted.

If

the creditor files a complaint, should he implead debtor 1 and debtor 2? Or can he just file a
complaint

against

debtor 1, leaving out in a complaint debtor 2. In other words, in a complaint contemplated by the
creditor,

who

between debtor 1 and debtor 2 is an indispensable party and who between debtor 1 and debtor
2

is

necessary

party. That question will not be answered by the Rules of Court. That question will be
answered

by

the

Civil

Code. In several cases decided by the court, the plaintiff should first evaluate whether the
debtors

are

solidary

debtors or they are only joint debtors. So we are going to apply the provisions of the Civil Code.
And

in

the

Civil

Code, in the absence of any stipulation or some other factors given in the Code itself, when
there

are

two

or

more debtors of the same indebtedness, the presumption is that they are only joint debtors.
But

if

there

is

stipulation that they are jointly and severally liable, then debtors 1 and 2 will be considered as
solidary

debtors.

So we must first establish whether the debtors are joint debtors or solidary debtors. And in
determining

the

relationship of these two debtors to the creditor, it is not the Rules of Court that will
guide

us.

It

is

the

substantive law. It is the civil code to determine whether the parties, the debtors are jointly
liable

or

severally

solidarily liable. If we apply the presumption in the Civil Code that debtors 1 and 2 are joint
debtors,

and

the

creditor files a complaint for the recovery of the whole indebtedness of 1M pesos, do we
consider

debtor

and

debtor 2 as indispensable parties? The answer is YES. If the purpose of the creditor is to
recover

the

entirety

of

his claim that is 1M pesos, he can recover his credit from both joint debtors. But if the
plaintiff,

if

the

decides to run after Debtor 1 only,


is

creditor

can the complaint be prosecuted successfully? The answer

YES.

Because

the creditor has a cause of action against D1. The creditor has a right to compel D1 to pay but
from

the

point

of

view of the Civil Code, the issue is how much is the liability of D1? Again, applying civil code on
joint liability
of debtors, d1 is liable to pay only 500K pesos. If the debtors are jointly liable it is not possible for
the

creditor

to

recover from only one of the joint debtors 1M pesos. He can recover only the portion of the
obligation

which

has

been shared by d1. Why do we say that in our example, the creditor can recover from d1 500K
pesos?

Why

not

400 why not 800K pesos. Because there is another presumption in the civil code that if
there

is

no

express

stipulation between the parties, the debtors should share equally in the liability. So
we

are

applying

presumptions in the civil code. The liability of d1 could be 700k pesos, if that is so stipulated
among

the

parties.

But in the absence of stipulation, we assume that the liability of d1 is equal to the liability of
d2.

Again,

if

the

action is creditor vs. debtor1, the claim that should be recovered by the creditor is only
500K

pesos.

In

this

example, d1 is an indispensable party because without d1, it is then unlikely for the court to
render

judgment

in favor of the creditor directing d1 to pay if d1 is not made defendant to the case. So d1 is
an

indispensable

party. How about d2? Will he be considered as a necessary party in this complaint? The answer is
yes.

So

if

there

is a complaint filed by the creditor only against d1, the creditor is indispensable, d1 is also
indispensable,

but

d2

will only be impleaded as a necessary party. D2 satisfies all the requirements of a necessary or
proper

party

in

that even. If you read the rules, the presence of a necessary party is not indispensable. The
case

can

go

ahead.

But the presence of a necessary party could be required by the court if in order to give complete
accord

of

relief

to the parties in so far as the complaint is concerned or for the purpose of a complete
determination

of

the

subject matter of the action. The subject matter of the action for the purpose of satisfying that
phrase

complete

determination of the subject matter therein is the recovery of 1M pesos. Thats why d2
becomes

only

necessary party. But the rules do not compel the creditor to implead d2. Since d2 is only a
necessary

party,

even

if you dont implead him, the case can prosper, the court can try the case, but the decision of
the

court

will

be

limited to the awarding to the creditor 500K pesos. What is the duty of the creditor or the
plaintiff

if

he

has

not

impleaded a necessary party? The duty of the plaintiff is only to tell the court that he
has

left

out

in

his

complaint a necessary party. That is enough. So he may not be compelled. He is not


compelled

by

the

rules

to

implead a necessary party. All that he needs to do is to file a complaint against an


indispensable

party

and

in

that complaint, he will tell the court, I have not impleaded a necessary party. And it is up to
the

court

now

to

determine whether or not it is essential for the court to order that d2 must be impleaded to
this

action.

If

the

court does not issue an order requiring the plaintiff-creditor to implead d2, there is no need for
the

plaintiff

to

amend his complaint. But if the court orders the plaintiff -creditor to amend his complaint
by

including

by

impleading d2, the plaintiff again will have two options either to file in court or not to file in
the

court.

If

the

plaintiff follows eventually the order of the court, then we will have a situation where the
complaint

will

be

amended, the necessary party will be impleaded as defendant but the complaint will now be
for

the

recovery

not only for 500k but for the recovery of 1M pesos. If on the other hand, the plaintiff-creditor
ignores

the

order

of

the court, can the court now make use of Rule 17? Can the court also order the dismissal of the
complaint

under

Rule 17 because of the refusal of the plaintiff to obey a lawful order of the court? We dont apply
Rule

17

in

this

situation. We dont apply Rule 17 because Rule 3 itself already provides for a sanction if the
plaintiff refuses to obey an order of the court directing him to implead a necessary party. The
sanction

given

in

rule

is

simply

that

the plaintiff is deemed to have waived his right to recover from the necessary party. That is
expressly

mentioned

in rule 3 concerning impleading a necessary party. So you will also note that there is a
difference

between

the

effect of disobedience by a plaintiff to an order of a court to implead an indispensable party


compared

to

the

disobedience by the plaintiff to an order by the court to implead a necessary party. If the plaintiff
refuses

to

heed

an order of the court to implead an indispensable party, the complaint could be dismissed under
rule

17

and

the

dismissal general is a dismissal with prejudice. If the plaintiff ignores an order of a court to
implead

necessary

party, the court cannot order the dismissal of the complaint under rule 17. What the court
will

apply

is

the

sanction given in rule 3,that is failure to implead a necessary party if directed by a court. The
case

will

continue,

the case will not be dismissed, but in so far as the necessary party is concerned, the right of

the

creditor

against

him is deemed waived. But if you look further into the consequence of that sanction given in
rule

3,

if

later

on

the plaintiff creditor decides to file a complaint against d2, that complaint will no longer prosper.
Why?

Because

the d2 can now make use of rule 16, file a motion to dismiss on the ground that the claim has
been

paid,

waived,

abandoned or otherwise extinguished. So at the end,


Whether

the

effect could be the

party

same.

not

impleaded is indispensable or necessary. But the ground for the dismissal will be different. In
the

case

of

an

indispensable party, the ground for dismissal is rule 1 sec. 3, failure to obey a lawful order of a
court.

In

the

case

of a necessary party, the complaint again will also be dismissed under rule 16, that is the
claim

has

been

paid,

waived, abandoned, or otherwise extinguished. There are other sections in rule 3 which could
give

rise

to

an

occasion where we have to determine whether a party is indispensable or a necessary party or


whether

he

is

real party at all to the existing case. And we are referring to the rule on assignment or transfer of
interest

during

the litigation. I think that is the last section in rule 3, that transfer of interest pendente lite and
transfer

of

interest

before the complaint is filed.

We are going to make use of the same example: there is a creditor who has lent out 1M pesos to
the

debtor.

This

time, we will only have 1 debtor. The debtor defaults in the payment of the obligation. But

before

the

creditor

files a complaint against him, the creditor feels that he needs money right away. So he decides to
sell

his

claim

to

assign his credit to an assignee. Can the creditor do that. Of course the answer is yes.
That

is

covered

by

procedural law. That is covered by the civil code. That is simply assignment of right. So if the
creditor

who

has

claim for 1M, decides to assign his credit before a case is filed, he can assign this credit to
any

person

who

is

willing to assume the risk of indebtedness. That is what we call in civil law assignment of
credit.

There

is

an

assignor, there is an assignee. Usually in assignment of credit, the assignee pays or buys the
credit

for

an

amount

which is much less than the credit. So if the credit assigned is 1M and it is assigned, it is
very

likely

that

the

money to be paid by the assignee for the 1M credit will only be 700K pesos. So it is a claim to
recover

1M

pesos.

It is sold to the assignee for only 700K pesos. So in dealing up a claim of 1M pesos, the creditor
will

receive

only

700K pesos. But the indebtedness is already in default. Can the assignor, the original creditor
file

complaint

against the debtor for the recovery of 1M pesos? Of course not.

Because he is no longer the

creditor. He has already sold his right. He is no longer a real party in interest. So that if the
original

creditor

files

complaint

against the debtor, the court will dismiss the case. The original creditor is no longer a real party
in

interest.

He

has no right to enforce the payment of his claim that has already been assigned to another
person.

Supposing

it

is the assignee who will file a complaint against the debtor, will the filing of the complaint be
proper.

Of

course

it will be proper. The assignee is a real party in interest. Hes an assignee of the credit, and
therefore

he

stands

to

be benefited or injured by the outcome of the case. If it is the assignee who will file a
complaint

against

the

debtor, can the assignee recover 1M pesos from the debtor? The answer is yes. Because in civil
law,

the

assignee

merely steps into the shoes of the assignor, if the assignor was entitled to recover 1M pesos,
then

assignee

is

also

entitled to recover 1M pesos. But in this case, filed by the assignee, against the debtor, the
assignor

is

not

real

party in interest, he is not a necessary party. He cannot be a considered necessary party because
he

is

not

even

real party in interest.

But if we change the facts a little bit, the answer will also be different. If lets say that the
original

creditor

has

not assigned his credit for 1M. He files a complaint against the debtor for the recovery of 1M
pesos.

Is

the

filing

of the complaint proper? The answer is Yes. Because he is still the creditor. The owner of the
credit.

While

the

case is pending before the RTC, the plaintiff-creditor also feels the need for cash right away.
While

the

case

is

pending, can the plaintiff-creditor assign his claim? The answer is Yes. He can assign his claim.
Does

he

need

the

permission of the court? He does not need permission from the court. Because that is
not

governed

by

procedural rules. That will still be governed by substantive law, by the provisions of the civil
code.

So

while

the

case is pending before the RTC, the plaintiff creditor signs or executes a deed of
assignment

pendente

lite,

during the pendency of the case in favor of the assignee. The consideration for the assignment is
still

700K

pesos.

There is nothing wrong with the assignment. As we said, he doesnt even need permission from
the

court

for

the

plaintiff-creditor to assign his credit during the pendency of the case. So we now have a
plaintiff-creditor

who

has assigned his right to an assignee. Will the assignee be considered as an indispensable
party?

The

answer

is

NO. Will the assignee pendente lite be considered as a necessary party?

Still the answer is

No.

in

if

you

read

that section on transfer pendente lite, we find out that the court has the option not to order
the

amendment

of

the complaint. The court can go ahead with the original parties to the case. So the assignee
pendent

lite

is

not

an

indispensable party. The assignee pendent lite is not even a necessary party.

Let us say that after the assignment, the assignee may submit a manifestation to the court and
tells

the

court

that

during the pendency of the case, he acquired the rights of the plaintiff to recover 1M pesos for
only

700K

pesos.

Can the defendant now tell the court: I am willing to pay 700K right away to the assignee but the
complaint

will

have to be dismissed? Because the assignee purchased the credit during the pendency of the
case

for

only

700K,

although the credit is really for 1M pesos? Is the stand of the defendant correct? In other
words,

can

defendant

compel the assignee to receive 700K pesos as full payment for a 1M peso obligation? The
answer

is

YES.

Under

the civil code, you will read that is Art. 1634 of the civil code. That is the difference between
assignment

of

credit before a complaint is filed and assignment of credit while the case is pending before
the court. The defendant, the debtor in assignment pendente lite can compel the assignee to
accept

an

amount,

the

amount

paid for the consideration for the assignment for the full payment of the credit. That is
what

the

civil

code

provides. You always have to analyze whether the assignment takes place before a
complaint

is

filed

or

the

assignment takes place after a complaint is already filed. There is a big difference between the
consequences

of

assignment pendente lite and assignment before the case is commenced for the purpose
of

satisfying

the

indebtedness. And we are going to apply the provisions of the civil code on assignment
pendente

lite

when

it

comes to the manner of satisfying of full payment of the account. Remember that in assignment
pendente

lite,

if

the account is only 1M pesos, and there is an assignment only for 700K pesos, the
defendant

can

compel

the

assignee to receive 700K pesos as full payment for the 1M pesos account. And this is provided in
the

civil

code.

Another section in rule 3 which could give rise to the determination or ascertainment as to
whether

person

will

be treated as indispensable or merely a necessary party. It is the rule concerning husband

and

wife.

Rule

is

very clear in saying that in all actions, the husband and the wife must be joined together.
But

the

exception,

there is an exception, except as provided by law. So if we simply rely on the rules of court,
whenever

there

is

case filed by a husband as plaintiff, he should always join his wife as a co-plaintiff. Whenever
there

is

an

action

filed against the husband, the plaintiff should see to it that the defendants are both the
husband

and

the

wife.

That is the general rule under the rules of the court. The husband and the wife shall sue or
be

sued

jointly,

except as provided for by law. That exception, that phrase, except as provided for by law is
also

the

source

of

conflicting decisions of the court. If you will notice, the rules simply say except as provided by
law.

And

the

rule

itself does not provide for the exceptions. So the rule compels us to look for an exception, either
from

procedural

law or from substantive law. Now the Supreme Court in the latest decisions, said that the law
contemplated

in

the exception is the Family Code or the Civil Code as the case may be. And SC said, if we are
going

to

look

for

the exceptions to this procedural requirement that husband and wife should sue or be sued
jointly,

the

chapter

in family code or in the civil code as the case maybe that is most pertinent to this procedural
principle

will

be

the

rule on partnership or the rules on co-ownership as found in the family code or in the civil
code.

And

in

each

decision, the court said that it is not always correct to require the husband to include his wife

as

co-plaintiff

whenever the husband files a case against another person. The court said that under the rules
on

co-ownership

and the rules on partnership, the code, the civil code allows a co-owner or a partner to file a case
on

behalf

of

the

partnership; a co-owner can file a complaint on behalf of the other co-owners without impleading
the

co-owners.

So that if lets say the husband is in the retail business, and then a customer of the husbands
business

defaults

in

the payment of an obligation, can we allow the husband to file the case without including
his

wife

as

co-

plaintiff. Supreme Court said yes, its not necessary to include the wife. Why? Because the law on
co-ownership,
the law on partnership allows a co-owner a sole co-owner to file a case in order to protect the
interest

of

the

co-

ownership without impleading the other co-owners. In the family code, it seems even
if

the

property

relationship between the husband and wife is covered by conjugal partnership of gains or
absolute

community

of partnership between the husband and the wife, they are treated as co-owners. The husband
and the wife are treated for purposes of actions as co-owners of the properties acquired during
the

marriage.

And

in

civil

law,

co-owner is authorized to file a case without including the other co-owners for the protection of
the

interest

of

the co-ownership over certain properties. In the civil code, as well as in the family code,
according

to

the

code,

co-owner can even file an action of unlawful detainer or forcible entry against a trespasser
who

co-owned

property without including the other co-owners. So as of now, if the husband files a complaint
alone,

without

joining his wife as a party-plaintiff, the filing of the complaint will not be a violation of the rules of
court

which

requires that husband and wife should sue or be sued jointly. We apply the provisions of the
family

code

on

co-

ownership as well as the rules of partnership. Either the family code or the civil code provisions
will

apply.

But

there is a caveat given by the SC in its decision. If the husband as a co-owner files a
complaint

against

wrongdoer, he should see to it that in that complaint, he is admitting that he is simply acting
as

co-owner

of

the property. That he recognizes the existence of the co-ownership. But if in the complaint filed
by

the

husband

alone, without the wife, the husband alleges that he is the sole owner, that there is no coownership

between

the

husband and the wife, then he should implead the wife because he is no longer filing
a

complaint

in

representation of the co-ownership but instead he now denies the existence of that coownership.

That

is

the

caveat given by the court in its latest decision concerning the propriety of the husband filing a
complaint

alone

without being joined by his wife. As long as one of the spouses who acts as plaintiff continues
to

recognize

the

existence of the co-ownership, there is nothing wrong if the other spouse is not included in that
complaint.

So

if

we allow the husband alone to file a complaint, do we consider the wife as an indispensable
party?

The

wife

will not be considered an indispensable party because the law authorizes the husband alone or
the

wife

alone

to

file the complaint. Is the spouse who was left out considered a necessary party? The court said
the

spouse

who

has been left behind in that case is not even considered a necessary party because the case can
be

adjudicated

by

the court and the adjudication by the court can become final and executory. There could
be

complete

determination of the case even without joining the absent spouse. So in this husband and wife
relationship,

if

the

law authorizes one of the spouses to file the complaint and when say the law its the substantive
law,

the

family

or civil code, the absent spouse will not even be treated as a necessary party.

Another provision in rule 3 which could give rise to a situation where we have to determine
whether

party left out is indispensable or necessary is the idea of class suit. In a class suit, the
requirement

is

that

there

is

a community of interest. There is common interest among persons that are so numerous it is
impracticable

to

bring them all before the courts. And in a class suit the law does not require that all the
members

of

the

class

should be impleaded as plaintiff or as defendants as the case may be. What the rule requires
is

only

number

enough to represent the members of a class should act as plaintiff or should act as defendant as
the

case

may

be.

But the most important feature in a class suit is of course community of interest. That is,
the

interest

of

the

members of the class are not specified. The interest of one member will also be the interest
of

the

rest

of

the

members. But if the interest of one member is different from the interest of the other
members,

that

will

not

be

considered as class suit. If youve read the case of Oposa vs. Factoran, that is an example of a
class suit. In fact, the doctrine in oposa vs. factoran is now formally a part of the rules of court.
That

is,

person

files

complaint

on behalf of children who are yet unborn. That is allowed. Because of the decision in oposa vs.
factoran,

that

is

now made a part of the rules of court. Under the circular on kalikasan, in fact, if you have
the

circular

in

kalikasan, there is the section called citizen suit, and that section on citizen suit have this
verbatim

the

decision

of the SC concerning the feasibility, the propriety of a person filing a case, a kalikasan case on
behalf

of

persons

who are yet unborn. You know the reason given by the court in oposa is that this is allowed
because

of

the

principle of intergenerational ethic responsibility. But from a procedural point of view, that will
be

class

suit

although the writ of kalikasan conceived a citizen suit that is effectively a class suit. In a
class

suit,

do

we

consider the members of the class as indispensable or necessary parties? According to the court,
in

class

suit

all

the members of the class are indispensable parties. But that is now settled. That is what the
SC

said

that

in

class suit, all the members of the class that is involved in the litigation are considered as
indispensable

parties.

If

the members of the class are all considered as indispensable parties, should we not identify

them

individually

in

the pleadings, in the complaint or in the answer? The SC said no, in a class suit the class may be
represented

by

sufficient number of the class but although the members of the class are all indispensable
parties,

they

need

not

be identified individually in the pleadings submitted to the court. In other words, the SC
has

inserted

an

exception to the rule on compulsory joinder of indispensable party. The general rule as we
said

while

ago

is

that an indispensable party must always be joined. He must always be impleaded because
without

him,

no

final

determination of the case can be had. But because of this decision of the Supreme Court saying
that

although

the

members of a class in a class suit are indispensable parties, they should serve as an
exception

to

our

rule

that

indispensable parties must be impleaded in an existing action. Why did the court conclude that
in

class

suit

the

members of the class are all indispensable parties? The reason given by the SC is the
last

sentence

in

the

definition of a class suit in rule 3 which is very logical. The last sentence in that section on
class

suit

says

that

member of a class in a class suit shall have the right to intervene. In other words, if there is a
class
there are
identified

suit,

let

us

1000 members of the class and only


as

say

20 members of the class have been

plaintiff

or

defendant in the class suit, so if we read the complaint, there are only 20 plaintiffs or 20
defendants

as

the

case

may be. But they represent 1000 members of the class. The 1000 members of the class

are

all

indispensable

parties according to the court itself. And if anyone of the members of this class decides to
intervene

in

the

case,

the trial court does not have any discretion to deny the motion for intervention of a member of
a

class.

Because

the language of the rules is very clear. A member of a class in a class suit has a right to
intervene,

which

also

now a modification to our concept of intervention.


to

is

Intervention usually is a matter that is given

the

discretion

of the trial court. Thats why, in a pending case if a stranger decides to intervene, he has to
file

motion

for

intervention; he has to get permission from the court. If the court decides not to allow the
intervention,

we

cannot accuse the court of abusing its discretion because the law gives to the trial court
discretion

in

allowing

an

intervention or not allowing an intervention. We leave anything to the discretion of the court.
Thats

why

the

general principle in intervention is it is up to the court to allow or not to allow an intervention.


But

because of this last sentence in the definition of a class suit which gives to a

member of a class a right to intervene. Whenever a member of a class in a class suit files a
motion for intervention, the court does not have a discretion to deny the intervention. A court will
be compelled to allow the intervention because the rule itself states that a member of a class
has a right to intervene. In other words, the court has no discretion in granting or denying the
motion for intervention by a member of a class in a class suit.

The other important topic in rule 3 is about the consequences of the death of a party

either the

plaintiff
or the defendant in a pending action. When a party dies, whether he is a plaintiff or defendant,

the

law

requires

the lawyer of the deceased litigant to give information to the court about the death of
his

client.

This

requirement stems from a provision also in civil code, the provision of the civil code on agency.
The

civil

code

looks at the relationship between a lawyer and his client as a contract of agency. The client is
the

principal

and

the lawyer is the agent. In the civil code, if either the principal or the agent dies, the
contract

of

agency

is

extinguished. So the relationship is cut off. Thats why the rule is very clear in saying that
when

client

or

litigant dies, it is the duty of the lawyer to inform the court about the death of his client. The
lawyer

will

be

telling the court, I am no longer an agent of my principal because my principal has already
died.

There

is

no

more principal-agent relationship between the two. The lawyer withdraws his right to
represent

his

client

in

court once his client dies. If the lawyer informs the court about the death of his client either the
plaintiff

or

the

defendant, it is now the duty of the court to order substitution if substitution will be proper.
So

if

it

is

the

plaintiff who dies, the court will require the presence of the substitute plaintiff, if it is the
defendant

who

dies

the court will require the presence of the substitute defendant. If the court is duly informed about
the

death

of

plaintiff or a defendant, but the court does not observe the process given in the rules
concerning

substitution,

and the court goes ahead with the trial of the case and then the court eventually decides

the

case,

will

the

proceedings taken by the court, will the judgment of the court be valid? The court said if the trial
court

does

not

observe the procedure mentioned in rule 3, after having been notified of a death of a
litigant,

there

is

no

substitution made by the court, the proceedings taken by the court as well as the judgment
rendered

by

the

court are void. So it is now the duty of the court to order substitution of parties. That is if
the

dismissal

of

plaintiff if the death of the plaintiff or the defendant does not result to the dismissal of the case.
There

are

certain

instances where the death of a plaintiff of defendant will automatically lead to the dismissal
of

the

case.

For

instance, in marriage related case, legal separation, annulment of marriage, an action to


declare

the

marriage

void, if either the husband or the wife who are the contestants dies during the pendency of the
case,

the

case

will

be automatically dismissed. That is also provided in the family code as well as in the circular of
the

SC

on

family

related cases. But according to the circular on marriage related cases, if the death of the
husband

or

the

wife

takes place after the judgment has been entered, the death of the husband or the wife
will

not

affect

the

judgment. So it is the death of the husband or the wife in marriage related cases which will lead
to

the

dismissal

of the case if the death takes place before entry of the judgment rendered by the court. So the
focal

point

will

be

the entry of judgment in marriage related cases. In cases where the death of the plaintiff or the

defendant will not lead to the dismissal of the case, the trial court will have to follow the
procedure

for

substitution

of

the

parties. Note that its either the plaintiff or the defendant who will die during the pendency
of

the

case

that

where we follow this procedural substitution of parties. If it is the plaintiff who dies and we
assume

that

the

lawyer for the plaintiff has duly informed the court about the death of his client, the court will
now

require

the

lawyer to submit to him a list of heirs of the plaintiff. And it is up to the court now to issue an
order

directing

these heirs of the plaintiff to appear before the court to act as substitute plaintiff. If the heirs
refuse

to

act

as

substitute plaintiff, can the court compel the heirs or anyone of them to act as substitute
plaintiff?

The

answer

is

NO. The court has no authority to compel an heir of a deceased litigant to act as a substitute
party

in

the

case.

If

the heirs refuse to act as substitute parties, then the court will have to go to the next step given
in

rule

3.

That

is

to require the other party, the defendant in the case to seek the appointment of an
administrator

or

executor

of

the estate. In the appointment of an executor or administrator of estate of course can


only

be

done

in

settlement court. We assume that in directing the defendant to seek the appointment of
an

executor

or

administrator of the deceased plaintiff, the defendant will be filing a petition for probate of a will
or

intestacy

as

the case may be. Because it is only in this proceeding where a court can appoint an
administrator

or

executor

of

the estate. Remember that in a settlement proceeding, the competent court could be an
inferior

court,

it

could

also be a RTC, depending upon the gross value of the estate. So if the first case is pending
before

RTC,

the

appointment of an executor or administrator could be secured from an inferior court acting


as

settlement

court. It is not correct to assume now under the circumstances that simply because the case is
pending

before

RTC, that the appointment of executor or administrator should also come from a coordinate
court,

another

RTC.

It depends on the gross value of the estate for the ascertainment of the competent court in the
appointment

of

an

executor or administrator of the estate. If an executor or administrator has already been


appointed

and

he

has

taken his oath of office, then the trial court, the RTC can now order the executor or
administrator

to

act

as

substitute plaintiff or to act as a substitute defendant. This time, the executor or administrator
does

not

have

any

option to deny, to refuse to act as a substitute party. That is one of the duties of an executor or
administrator,

to

represent the estate of the deceased litigant in pending litigations. So one of the
duties

or

executor

or

administrator of an estate. And this case will be pursued until the judgment is finally entered. In
other

words,

if

the death of the plaintiff or the defendant takes place while the case is undergoing trial and
there

is

an

appeal

from the decision of the trial court, the executor or administrator will be representing the estate
even

during

the

period where there is an appeal to the court of appeals or to the SC. The matter can only be
submitted

to

the

settlement court if there is already an entry of judgment. The settlement court will have to wait
until

this

case

is

finally decided and the decision in the case is finally entered. So what if the complaint is for
the

recovery

of

defaulted loan, and the amount sought to be recovered is 2M pesos and during the pendency
of

the

case,

the

defendant dies. Will the case be dismissed? The case will not be dismissed. Does not the civil
law

provide

that

the death of a debtor will extinguish the obligation? Theres no such provision in the civil law.
The

death

of

debtor does not extinguish an obligation. There are only few factors which are taken in
determining whether an obligation to pay money will be extinguished and the death of the
debtor

is

not

one

of

them.

So

if

the

debtor

dies

during the pendency of the case, and the court is notified about the death of the defendant, the
court

will

have

to

observe the procedure given in rule 3 for substitution of party. So if there is proper substitution,
the

executor

or

administrator of the deceased defendant will now be acting as a substitute defendant. The case
will

be

pursued

until the decision is entered. So if the decision is in favor of the plaintiff and the decision is
finally

entered,

the

decision in favor of the plaintiff has become final and executory and the decision directs
the

substitute

defendant, the executor or administrator, to pay 2M pesos, can the plaintiff-creditor, the
judgment

creditor,

file

motion for execution of that judgment? The answer is no. Rule 3 is very clear. If there is a

judgment

against

the

estate represented by the executor or administrator, a judgment for money, which has
been

entered,

that

judgment cannot be executed under rule 39. What the judgment creditor should do is to
submit

his

claim

supported by a final and executory judgment before the settlement court and in that settlement
court,

although

the judgment is already final and executory, there is no assurance at all that the judgmentcreditor

will

be

able

to

obtain satisfaction of judgment. It is axiomatic in settlement proceedings that when the


property

of

deceased

person is under the control of a settlement court, no court can issue a writ of execution against
the

estate

of

the

deceased person. We dont make use of rule 39 when it comes to a final and executory
judgment

for

money

against the estate of a deceased person. We follow the procedure for the payment of claims
outlined

in

special

proceedings - settlement of estate. We dont make use of rule 39; we dont allow the court
to

issue

writ

of

execution against the estate of a deceased person although the estate of a deceased person is a
party

to

the

case.

The satisfaction of judgment will have to be submitted to the settlement court. So after the case
is

decided

by

the

trial court, and then the decision in favor of the plaintiff becomes final and executory, the trial
court

has

done

its

duty. The trial court will have no authority at all to issue as a matter of right the writ of
execution

in

favor

of

judgment creditor if the defendant is a deceased defendant represented by his estate

which

is

in

turn

represented by executor or administrator.

Now we go to rule 4 on venue of action. Venue is one procedural principle which the SC allows
to

be

changed by the parties. Generally, our rules of procedure cannot be changed by an


agreement

between

the

parties. There is only one court that can disregard the rules of court in the application to pending
cases

and

that

is the SC. The CA, RTC cannot disregard the provisions of the rules of court although the CA or
trial

courts

feel

that application of the rules may lead to injustice. That is a prerogative that is enjoyed only
by

the

SC.

The

reason why the SC can disregard the rules of court is because it is the SC that is the author of the
rules

of

court.

The rules of court come from the SC. So if the court of appeals or the trial courts come to the
conclusion

that

the

application of the rules of court may lead to an injustice but they cannot disregard the rules of
court,

what

is

the

duty of the court of appeals or the trial courts? The trial courts can incorporate in their decision
that

is

written

in

accordance with the rules, an advisory to the defeated party to appeal the matter to the SC.
In

that

way,

they

comply with the provision of the rules of court and they give an opportunity to the aggrieved
party

to

bring

the

matter out to the SC. But in so far as the SC is concerned, if the SC concludes that an application
of a procedural principle is inequitable or it will lead to injustice, the SC can simply disregard
the

rules.

We

come

across

in

our

studies of procedure that even the principle or res judicata can be set aside by the SC although
res

judicata

is

concept that on the state policy, it is envisioned as part of the rules of court. If the rules say that
even

if

the

rules

say that intervention for instance can be done only before judgment is rendered by the trial court
and

therefore

intervention can no longer be had on appeal, if the SC thinks that an intervention should be
allowed

even

the

case is already on appeal, the SC will allow the intervention and the SC has done so several
times.

So

the

SC

can

disregard the provision of the rules of court if the SC thinks that it will lead and work equitable
solution

of

the

case. But with regard to venue, this is one procedural principle that can be a subject of
stipulation

between

the

contracting parties. In fact, if there is a stipulation between contracting parties concerning


venue,

which

is

in

conflict with rule 4, it is the stipulation between the parties that will prevail. So that, if you are
confronted

with

question on venue of actions, do not always look at the problem from the point of view of rule
4.

You

always

first determine whether there is a written agreement between the parties concerning venue
and

that

written

agreement has the feature of exclusivity; That agreement must be reduced in writing; The
feature

of

exclusivity

and it has been entered before the commencement of the action. Rule 4 on venue is the rule
which

recognizes

the

classification of actions into real action and personal actions. So you will notice that in rule 4,
there

is

venue

for

real actions, there is a venue for personal actions. But again, there is an express provision saying
that

the

parties

can change this rules on venue depending on an agreement reduced into writing with the feature
of

exclusivity

before the case is filed. So in a real action usually, the venue in the absence of an agreement
is

the

place

where

the property is situated or any portion thereof is situated. So if the land subject of the
controversy

is

located

here

in Manila, the venue should be Manila. But there is nothing wrong if the parties to a contract let
us

say

contract

of sale involving this parcel of land will agree in that contract of sale that the venue of an
action

that

will

arise

out of the breach of contract of sale, the venue shall be Quezon City or Makati or even Cebu City.
And

that

will

govern the rule on venue in so far as the parties are concerned. In personal actions, that is,
the

action

does

not

involve real rights or real property, the venue in the absence of stipulation is the residence of the
plaintiff

or

the

residence of the defendant, the principal plaintiff of the principal defendant at the option
of

the

plaintiff.

Supposing the action is called a mixed action, meaning some decisions of the SC, there is also a
classification

of

action into mixed that is aside from real and personal action, the court added the
classification,

3 rd

mixed

action. The action is both real and personal. What will be the venue of the action in the
absence

of

stipulation?

The venue will follow the rule on real actions. So the feature of an action as a real action will
prevail

over

its

feature as a personal action in so far as the matter concerning this is concerned.


Supposing

the

action

is

in

personam or the action is in rem, or quasi in rem, do we have a rule on venue under rule 4 if the
action

is

in

rem

or quasi in rem or in personam? Well if you read rule 4, the only classifications that are
relevant

or

material

to

venue is the classification of real and personal. So that if the action is in rem or in personam or
quasi

in

rem,

how

do we determine the venue of the action in the absence of stipulation? Thats not a problem. If
the

action

is

in

rem or quasi in rem or in personam, all you have to do is to further analyze whether that in
rem or quasi in rem or in personam action is real or personal. If an action is classified into in
rem,

quasi

in

rem

or

in

personam,

it

does not mean to say that that classification of in rem or in personam or quasi in rem
prohibits

further

classification of the same action into real or personal action. So we can have an in rem action
that

is

real

action

at the same time; we can have an in personam action that is a real action at the same time.
But

for

purposes

of

venue, we simply follow its classification as a real action. In the same way that an action in
personam

could

also

be real or personal. If the action in personam is a real action, then we follow its feature as
a

real

action

for

purposes of venue. For instance, action reinvindicatoria, that is, to recover title to or ownership
or

possession

of

a piece of land is of course a real action. The venue therefore is the place the property or any
portion

thereof

is

situated. But if the classification to action reinvindicatoria right away is in personam, you

have

to

further

determine if that in personam actin is either real or personal for purposes of venue. Action
reinvindicatoria

is

real action and at the same time in personam action. It is not correct to say that simply
because

title

to

or

possession of property is involved, that the action is a real action and at the same time it is an
action

in

rem.

real action could be in personam. We said that action reinvindicatoria, action publiciana, they
are

real

actions

but they are also in personam at the same time. A good example of an in rem action which is
personal

will

be

settlement of an estate of a deceased person when the only properties of the estate are personal
properties.

There

are no real rights; there are no real properties in the estate. That is in rem because a settlement
proceeding

is

an

in rem action but at the same time is only a personal action. You have to be reminded always
of

the

decision

of

the SC in that old case of Sweetlands (?). Although parties are generally given the prerogative to
stipulate

on

the

rules on venue as long as there is that the agreement is reduced into writing and there is a
feature

of

exclusivity

and the agreement is entered into before the action is commenced. That in the case of
Sweetlands(?),

the

courts

also have the power to determine the validity of an agreement concerning venue. According to
the

SC

in

that

old

case of sweetlands(?), if the agreement concerning venue will cause undue burden of
remedies

to

plaintiff,

then the agreement can be set aside by the court. In that case of sweetlands(?), the injured

parties,

the

plaintiffs

were heirs or representatives of a person who died as a result of an accident involving a vessel.
In

the

passenger

ticket issued by the shipping company which transportation company usually adhere there
is

embodied

stipulation saying that the venue of the action shall be the principal office, the place where the
principal

office

of

the shipping company is located. That is a valid agreement. But when the victims of this
accident

tried

to

file

cases in their respective provinces or cities where they were residents, the courts before these
complaints

were

filed told them that you have to follow the rule on venue. You have to file your cases, your
claims

for

damages

according to the contract at the place where the principal office of the shipping company is
located.

And

the

place where the principal office of the shipping company I think was Cebu City and the
victims

were

all

residents of Southern Luzon, of Northern Luzon, so it was practically impossible for the
victims

to

file

their

complaints in Cebu and attend trial in Cebu. So the court said, exercising its authority on liberal
construction,
that agreement is void. It is not valid although it is part of the ticket issued by the shipping
company

adhered

to

by the victims. The rule on venue in rule 4 is designed for the convenience of the plaintiff, to the
injured party. It is not designed to serve the interest of a defended party. Thats why it is
axiomatic when it comes to venue that the rule on venue is primarily for the benefit of a plaintiff.
Thats why in personal actions, the plaintiff is always given the choice, the option whether to
file the complaint in his place of residence or in the residence of the defendant at the choice

of the plaintiff. You will also notice that the rule on venue applies only to trial courts. They
dont apply to appellate courts so there is no rule on venue in so far as the SC is concerned
because there is only one SC unlike RTC or an inferior court where there are several regional
districts throughout the country so this is limited only to trial courts, RTC or inferior courts.

We said yesterday that prior barangay conciliation is a condition precedent to the accrual of
the

cause

of

action. Even if the rightholder can show that his right is already violated by other party, he
cannot

simply

commence an action in court without first undergoing prior barangay conciliation. As long as the
requisites

are

applicable. There are two requisites under the LGC: first is that the parties must be natural
persons

and

second,

they reside in the same city or municipality. As long as these requisites are present, prior
barangay

conciliation

is a must regardless of nature of action, i.e. real or personal. Or if it is a claim for money,
regardless

of

the

amount involved.
If the party is a creditor and the amount sought is 1 Million pesos, prior barangay conciliation is
necessary. It is easy to conclude after reading the LGC and The Implementing Rules approved
by the Supreme Court that prior barangay conciliation is a first layer set up by law to prevent
parties from bringing the action to any court. The reason is that the courts are loaded with cases.
IF there is a chance to settle amicably, then they must do so. After all in the Civil Code, amicable
settlement is part of public policy.

The barangay court is not really a court. It is part of executive department. In adjudicating
disputes

it

may

be considered as quasi-judicial body. Barangay courts are not allowed to adjudicate cases.

Their

only

role

is

to

conciliate, mediate and encourage parties to amicably settle and submit compromise
agreement

if

the

parties

agreed freely. Procedurally, a barangay court follows more or less the procedure we follow in
regular

cases.

The

barangay court sends notice to respondent if a complaint is filed against him. But the complaint
does

not

have

to

be in writing but barangay courts usually require a written complaint and a written answer. The
barangay

court

also requires payment of fees, but the fees are minimal. In Metro Manila, the highest fee
imposed

is

not

more

than 50 pesos. A barangay court has the authority to collect docket fee when a complaint is
filed.
If the complainant fails to appear when the barangay court calls for conferences, the barangay
court may order a dismissal and that dismissal is one with prejudice. Thus, the complainant
may lose the right to recover his claim against respondent.

There is also a rule in venue, but different in the rules set out in Rule 4. The venue before the
barangay

court

is the residence of the respondent if the complainant and respondent reside in different
barangays

of

same

cities

or municipalities. It does not matter what kind of action is as long as the contestants are
natural

persons

who

reside in same city or municipality. This applies to all civil actions. It is applicable also in
special civil actions like

in an action for unlawful detainer, forcible entry and interpleader. But we do not apply barangay
conciliation

in

an action for declaratory relief because there is really a dispute in such case, also in Rule 65
even

if

parties

reside

in same cities or municipalities. The reason is that in the enumeration of excepted cases, it
includes

public

officers in the performance of their duties. In certiorari, prohibition and mandamus, you expect
the

respondent

is always a judge performing judicial or quasi-judicial functions. We also do not apply it in


expropriation

or

quo

warranto.

The duty of the barangay court is just to convince the parties to settle amicably. If they do not,
the

barangay

court must issue a certification stating that no compromise occurred in matter or case under
conciliation.

And

this enables parties to file a case in court. But if the parties agreed to sign a compromise
agreement,

then

the

agreement later on could be considered as a final and executor judgement, that is, if there is
repudiation

made

by anyone of the parties. They may avail the execution of the same. The grounds for
repudiation

are

the

same

grounds given in the Civil Code and treated as vices of consent (fraud, intimidation etc). If there
is

repudiation,

the barangay court will issue a certification that the plaintiff is free to file a complaint in court.
In converting a barangay court in an arbitral tribunal, the parties must sign in writing
constituting

the

barangay court as such. That agreement may also be repudiated within 5 days from
submission.

If

not

repudiated, the barangay court will act as quasi-judicial body. It can receive evidence, and
render

decision

as

arbitral body. That decision may also be contested, not by repudiating but a petition to annul
before

an

inferior

court. The annulment here is different from that of Rule 47. The annulment in barangay
conciliation
on vices of consent.

is

founded

It is enough that there is fraud, intimidation or violence shown by the

aggrieved party.

If there is a compromise agreement submitted, the barangay court need not ask inferior
court to confirm compromise agreement. If there is no repudiation, the compromise agreement
becomes final and executory and may become a subject of execution by the barangay court..
So, the barangay court after it received compromise agreement, may wait for lapse of 10 days
and if there is no repudiation, the barangay court may consider the compromise agreement
as the law between the parties. If the terms of the compromise agreement are not
complied with by one of the parties, the barangay court may execute the judgement and the
period thereof is a very short period of 6 months compared to that of Rule 39, which is 5 years
from entry of judgement. And after 5 years there is another period of 5 years for the revival
of judgement. Insofar as compromise agreement in barangay courts, we do not follow the
same.

In the matter of execution in barangay court, while the barangay court may make a levy on
execution, the same is limited to personal property. The barangay court is authorized to
do so, it means to say that the barangay court may sell these in a public auction to satisfy
the claim. If there is no satisfaction of the terms of compromise agreement after selling the

properties, the remedy of creditor is to file a petition before inferior court for the enforcement
of judgement.

In one case decided by the SC, the SC decided a dispute concerning enforcement of compromise
agreement.
(Miguel v Montanez), it gives a manner in which execution may be done. Under LGC and
Implementing Rules, it is specified that a barangay court can enforce the compromise
agreement

that

becomes

final

and

executory

through levy of personal properties and sell them in public auction. In the case, the claim of
the

creditor

is

for

example 500,000 and the creditor and debtor reside in same city or municipalities. There Is
a

compromise

agreement submitted. And the claim of 500,00 was reduced to 200,000. substantially and the
creditor

admitted

that the claim may be paid in installments. The debtor did not comply but the creditor did not
repudiate

the

agreement. So, what the creditor did is not to ask for execution by barangay court but filed
a

complaint

for

recovery of the original amount. The trial court said that the only recourse is to enforce
the

compromise

agreement and cannot file an action for recovery. The Supreme Court said that when
compromise

agreement

becomes final and executory and the debtor fails to comply with the terms of the agreement, the
Court

said

that

such failure is a repudiation of the agreement. The SC cited Article 2041 of the Civil Code and in
this article, it

is provided that when a party to compromise agreement does not comply with his obligation,
the agreement is deemed rescinded. It is rescission by operation of law. Thus the creditor is
entitled to recover the claim before the courts of justice.

As long as the terms are complied with, there is no problem. But if the terms are not
followed,

the

failure

of

debtor to follow means repudiation and automatic rescission of the compromise agreement.
In
our study of rescission, there must always be a complaint filed. But in the article cited by SC,
there

is

rescission by operation of law and thus judicial decision is not necessary. The creditor then will
be

reverted

to

his original position insofar as the original amount is concerned even if he agreed to the
reduction

of

the

amount

of credit in the compromise agreement. The repudiation then may be manifested by mere
refusal

or

failure

to

comply with the terms of the agreement. Im not sure if this decision is applicable to
compromise

agreements

submitted before regular courts of justice. In regular courts if the parties submitted a
compromise
such

agreement

agreement,
becomes

the

basis

of

the

judgement

of

the

court (judgement

on

compromise) and it is
immediately executory. If the parties violate the terms of the agreement, the remedy is to move
for execution. In this case when the parties submitted the compromise agreement before the
court, that becomes the law between the parties and it cannot be set aside becased on failure to
comply with his obligations.

SUMMARY PROCEDURE

Summary Procedure refers to Summary Procedure followed by inferior courts in Unlawful


Detainer, Forcible Entry and claims for money not exceeding 200,000.
Small Claims involve claims for money that do not go beyond 100,000.

There are also cases that follow Summary Procedure even though cognizable by RTC. And these
cases are those that are mentioned in the Family Code.
The only pleadings allowed in Summary Procedure are complaint, answer, compulsory
counterclaim

and

crossclaim. So permissive counterclaim is not allowed. A defendant that has permissive


counterclaim must file

his own complaint for the enforcement of his claim. There are also motions which are prohibited
like Motion to Dismiss under Rule

16 unless the ground is absence of jurisdiction over

subject matter or absence of prior barangay conciliation. Since the motion to dismiss is
prohibited, does it mean to say that the case may not be dismissed on any of the grounds
mentioned in Rule 16? That is not so. What is prohibited is a Motion to Dismiss filed

by

defendant, but Summary Procedure allows dismissal based on Rule 16 as long as the
order of dismissal comes from court itself, without motion filed by defendant. The court is
given authority to dismiss without correlative motion filed by the defendant by examining
contents of the complaint. If the court finds that a ground under Rule 16 is present, it may
dismiss the case on its own. Thus Rule 16 is still applicable but it is the court that must order
dismissal of the case.

Ordinarily, a court in which a complaint is filed cannot simply dismiss the complaint without a
motion filed by the defendant, even if the court thinks that there is a ground for dismissal except
the

non-waivable

defenses.

The defendant is allowed to file responsive pleading. And the period to answer is non

extendible.
Supposing the defendant ignores the period, and files a motion for extension of 5 days. The
court will consider the motion as not having been filed and the defendant cannot expect the
court to issue an order denying the motion for extension because that is a prohibited pleading.
If there is such a motion filed and the defendant does not file an

answer within

the non

extendible period of 10 days, the plaintiff may ask the court to render judgement based on
the complaint and the evidence attached in the complaint. So it is a very risky move to file a
motion that is prohibited since it will not be acted upon. The court has the discretion not to act
on

it.
If

the defendant is prohibited from filing motion to dismiss except on grounds mentioned earlier,
and

the

defendant after evaluating the complaint is convinced that the case should be dismissed under
Rule 16, he may still use the grounds under Rule 16 as an affirmative defense in an answer. He
may then raise these issues and the court studies the case after submission of position papers.

If the defendant does not answer and the court will render judgement based on complaint and
evidence
attached, it means that the court will not issue an order that the defendant is in default since a
motion

to

declare

the defendant in default is a prohibited motion.


follows

An order of default is also prohibited. What

now

is

judgement rendered by the court in favor of the plaintiff based solely on the complaint and
attachments.
If you compare this to regular procedure, if the defendant does not answer, the court cannot
simply
declare the non-answering defendant in default. If there is no answer and the plaintiff does not
file

motion

to

declare the party in default, the court cannot issue an order of default on its own. It must be
initiated

by

plaintiff

by motion. In ordinary procedure, if defendant is ordered in default, he is prohibited from


participating

in

the

trial of the case.


The reason why Summary Procedure does not allow the court to issue an order of default is to
prevent the defendant from making use the remedy to file a motion to lift the order of
default, thus delaying the proceedings.

In Summary Procedure, some of prohibited motions are motion for new trial, motion for
reconsideration
and petition from relief from judgement. If there is judgement rendered and the defendant is
prohibited
filing those motions,
there

from
the only remedy of the defendant is to appeal from the judgement. But
is

remedy given, that is, by annulment of judgement


again,

before

another
under Rule 47 since it is not prohibited.

But

he

can make use of Rule 47, the Rules are very strict insofar as annulment of judgement are
concerned.
In Summary Procedure, we have preliminary conference similar to pretrial conference. There is
no actual trial. What the court would require the parties to do if there are triable issues is to
submit testimony of witness in a form of affidavit and position papers. These are the papers to
be evaluated by the court in deciding.
A trial is not absolutely prohibited since Summary Procedure includes certain criminal cases. If
the case is a criminal case, the court cannot do away with a trial. The court cannot deprive the
defendant of the right to cross examine the witnesses. What happens then is that the prosecutor
will submit affidavit of prosecution witnesses but they may be subject to cross examination. If

they dont go to court for that purpose, the court may strike out the affidavits insofar as such
witness is concerned.
The reason why trial is allowed in a criminal case is that the SC cannot violate the constitutional
right given to the accused to confront the witnesses against him and to cross examine the
witnesses in a criminal case. That right is not given to a defendant in a civil case.

SMALL CLAIMS
In Small Claims, lawyers are prohibited from appearing. The parties may still protect their
interest because they are not required to make their own pleadings. There are forms prepared by
the courts to be filled out by the parties. It is a matter of asking from the clerk of court of these
forms and the parties will just fill up the blanks and then submit it to the court. But payment
of docket fees is also necessary.
Joinder of causes of action is allowed as long as the causes of action joined will not go
beyond 100,000, exclusive of interest, damages, attorneys fees, litigation expenses, costs.
We also have similar section in prohibited pleadings as in Summary Procedure.
What is emphasized in Small Claims is the Judicial Dispute Resolution(JDR). The inferior court
will encourage the parties to enter into compromise agreement.

One of the differences between Small Claims and Summary Procedure is that there are no
criminal

cases

involved in Small Claims. Another important difference is that in Small Claims, the judgement
of

the

court

is

immediately final and executory. There is no appeal available. It also prohibits Motion for New
Trial,

Motion

Reconsideration and Petition for Relief from


aggrieved

party

for
Judgement.

All the remedies available to


to

challenge judgement is not available. The Circular says the judgement is immediately final and

executory.

The

only available relief then is Rule 65. While in Summary Procedure, appeal is available. If
appeal

is

available,

Rule 65 is not available. Availability of appeal forecloses availability of Rule 65. Availability of
Rule

65

is

not

really a benefit because petition filed under Rule 65 does not stop the court from rendering a
decision unlike in

appeal. In appeal, execution of judgement is not allowed except in Unlawful Detainer and
Forcible

Entry

because there is a provision that says that in these cases, the judgement rendered in
favor

the

plaintiff

is

immediately executory without prejudice to the filing of appeal. In unlawful detainer,


the

execution

of

judgement can easily be corrected by posting a supersedeas bond if necessary. These remedies
are

not

available

to defendant in Small Claims but he can avail of Rule 65. But when he avails Rule 65 it does
not

meant

to

say

that the inferior can no longer execute judgement. The only way by which Rule 65 can stop
immediate

execution

of judgement is if the court taking cognizance of Rule 65 will issue TRO or writ of preliminary
injunction

which

may not be complied with by defendant because in preliminary injunction or TRO since the
applicant

here

must

post a bond. So it is difficult for the defendant to prevent the execution of judgement in Small
Claims.

RULE 6 and RULE 10

In ordinary procedure, pleadings are always in writing even if the court is an inferior court. The
rules now allow a party to make use of 9 pleadings. If you compare it with motions, there is no
limit with respect to number of motions that may be filed.

The Rules classify pleadings

into claim pleadings and responsive pleadings. There are only two responsive pleadings:
reply and answer. But it does not mean to say that the defendant cannot make use of claim
pleadings like a counterclaim, crossclaim or third party complaint. Even if there is a
classification of these pleadings, there is no prohibition on the part of the defendant to make
use of these pleadings. If defendant files answer and he thinks he has claims against plaintiff, he
may file answer with counterclaim. He may also file a crossclaim against co-defendant.
In Rule 7, the classification of pleadings into initiatory and non-initiatory pleadings is necessary
for the purposes of determining whether or not the party must accompany his pleading with
certification of non-forum shopping. In initiatory pleadings, it is necessary that there is such
certification. Without which, the complaint may be dismissed, with prejudice or without
prejudice. Also, the classification is necessary to enable the court and the parties to know
whether there is a need to pay for docket fees since in initiatory pleadings, payment of docket
fees is necessary. If an initiatory pleading is filed without payment of docket fees, the court
does not acquire jurisdiction over these pleadings.

With respect to a compulsory counterclaim, it is not considered by the court as an initiatory


pleading for the purposes of payment of docket fees. If defendant files answer with permissive
counterclaim, and he does not pay, and the court has neglected to collect the payment and
has tried the case, and in such decision the relief prayed for in the permissive counterclaim is
granted by the court, the decision in that counterclaim is void for lack of jurisdiction over that
counterclaim. As such it can be subject of collateral attack.

With respect to a complaint, what the Rules require to be alleged are only ultimate facts. This
rule

is

not

followed in certain cases, like when the case is governed by Summary Procedure since in such
procedure,

it

is

necessary that the complaint is accompanied by evidence that the plaintiff decides to submit
to

the

court.

the circular on Kalikasan, the complaint must be accompanied

Also
by evidentiary facts(testimony,

documentary).

Thus when defendant files his answer, he must support it also with evidence that he intends
to present to the court Note that Rule 6 does not prohibit the plaintiff or defendant from alleging
evidentiary

facts.

Ultimate facts are facts which constitute cause of action. An allegation that plaintiff has a
right.

An

allegation that the right is violated by defendant. An allegation that there is compliance of
conditions precedent. For instance, an allegation that plaintiff has undergone prior barangay
conciliation is an ultimate fact if the case is governed by prior barangay conciliation.
Insofar as the answer is concerned, it is a pleading that responds to a complaint. The
answer must contain a negative defense, affirmative defense of both. The problems that
usually arise in an answer is with respect to a negative defense. A negative defense is an
important part of pleading, and when we talk about negative defense, it involves specific
denial. The standard to be followed in ascertaining whether denial is a specific denial or not a
specific denial is found in sec 10 of Rule 8.
There are three modes by which specific denial may be had. The first mode is the denial of
allegations
with accompanying grounds relied upon to support his denial. Second is part denial and part
admission.

Third

is just a statement that he has no knowledge concerning truth of allegations in the complaint.
If

you

analyze

Rule 8 on specific denial, the law does not require the defendant to file an order of reference. It is
a

choice

on

the

part of the defendant as to what mode he opts to choose. So that theoretically, the defendant
may

make

use

of

the third mode right away. Theoretically, the defendant may file answer that he has no
knowledge

and

information of the truth of allegations in paragraph 1, 2, 3 etc, I specifically deny paragraphs 1,


2,

etc.

But

the

SC discourages the defendant in using the third mode since it imposes some sanctions if
defendant

insists

in

using third mode as the only mode in his answer. If you note the allegations in paragraph 1, it
usually

contains

the legal capacity of plaintiff and defendant. If defendant make use of the third mode, it is
unreasonable

that

he

alleges that he does not know his citizenship, etc. there are certain allegations in complaint
that

is

known

by

defendant like his name and residence. If he denies it, he must make use of other modes of
denial.

To

avoid

the

possibility that defendant may abuse the use of third mode, the SC says that if the defendant
says

that

he

has

no

knowledge as to certain allegations in the complaint and therefore specifically denies them, the
defendant

has

to

explain why he has no knowledge with respect to such allegations. If he fails to do so, it will not
be

considered

as specific denial. It will be considered as general denial. And if it is a general denial, it will be
treated

as

judicial

admission as to the truth of the allegations contained in the complaint. The effect of judicial
admission

is

that

it

is considered as conclusive. It cannot be rebutted. If there is judicial admission, there is no


hope

to

rebut

the

same. The court then may immediately enter judgement on the pleadings upon motion of
the plaintiff.
Another form of specific denial frowned upon by jurisprudence is this kind: I specifically
deny paragraph 1 of the complaint because I have no business with plaintiff. I deny specifically
paragraph 2 because there is no contact between plaintiff and defendant that is not specific
denial. That is general denial and thus considered as general denial.

A negative pregnant is a denial in form since it uses the words specific denial but when you look
at

the

denial, there is no ground to support the denial. That is in violation of the first mode. Thus it
may

be

treated

as

judicial admission. If defendant files an answer with a general denial, and he uses the words
I

specifically

deny but he does not inform the court of the grounds relied upon to support his denial. It is a
specific

denial

in

form and insofar as the court is concerned that is a general denial. Does the defendant have any
remedy

at

all

to

convert the general denial into a specific denial? Yes. It is provided in Rule
pleader

feels

that

10. If the

he

commits an error, he may amend the pleading as a matter of right before a responsive pleading
is filed.
In some special proceedings we dont apply this rule on specific denial since we allow general
denial
like in Habeas Corpus. But the Circular on Amparo, Habeas Data expressly prohibits general

denial.

It

must

always be specific denial. A counterclaim is a pleading filed by defendant against the


plaintiff. There are two
kinds: permissive and compulsory. The Rules made a distinction between a compulsory
counterclaim

filed

before RTC and that filed before an inferior court. The requisites are the same. But we are
concerned

with

the

other qualification. A counterclaim may be a compulsory counterclaim if filed with RTC but not
a

compulsory

counterclaim anymore if filed with inferior courts simply because there is an amount
alleged

in

that

counterclaim. The usual example of compulsory counterclaim usually alleged in the answer is
that

the

filing

of

the complaint is unjust and without basis and therefore the defendant has been compelled to
avail

the

services

of a lawyer and forced to pay attorneys fees and because of the unjust filing of the
complaint,

he

damages in the amount of example,


counterclaim

suffered
200,000. If that is the tenor of a compulsory

filed

by

the

defendant in RTC, it is still treated as compulsory counterclaim by RTC even if the amount is only
200,000

which

is below the jurisdictional amount. If there is a complaint for the recovery of 1 Million and the
defendant

alleges

compulsory counterclaim where the amount is 200,000,


RTC.

We

that will still be entertained by


cannot

challenge the jurisdiction of RTC simply because the amount is below 400,000. But if the
complaint

is

filed

before

an inferior court and the amount sought is only 300,000 but the defendant sets up what he

calls

compulsory

counterclaim in the amount of 600,000.


or

Under the Rules, that counterclaim, although it arises

connected

with

the subject of the complaint, is treated as permissive counterclaim. Thus the inferior court
may

order

the

dismissal of the counterclaim for being outside of its jurisdiction. If the amount is beyond
the

authority

of

inferior court, the compulsory counterclaim will be treated as permissive counterclaim. But if
the

court

is

RTC

and the amount of the compulsory counterclaim is below its jurisdictional amount, it may still
hear

the

case

with

respect to counterclaim.
A

reply

is the disgusto of all the pleadings. It is practically

definition

of

particularly the second part of the definition.


the

useless, if you

read

the

reply,

It provides that even if the reply is not filed by

plaintiff

the

new matters alleged in the answer are deemed controverted. They are not deemed
admitted.

Usually,

what

happens in a complaint, for instance, is that if the allegations in a complaint are not specifically
denied

or

there

is nothing mentioned at all in the answer about the truth or falsity of such allegation, then the
allegation

in

the

complaint is admitted. That is a judicial admission. We dont follow that principle when it
comes

to

new

matter that is alleged in an answer filed by the defendant. For instance, the creditor files a
complaint

against

debtor for the recovery of an unpaid loan. We assume that the allegations in the complaint are
adequate,

that

the

creditor has a right to enforce collection against defendant. If the defendant does not
specifically

deny

or

does

not set up properly affirmative defenses in his answer, the defendant is sanctioned by law.
The

failure

of

the

defendant to make specific denial or properly set up an affirmative defense will lead the court
to

conclude

that

the defendant has admitted all the allegationsin the complaint and therefore the defendant will
have

no

chance

of winning the case, if his answer is not amended, should there be a judgment on the
pleading.

But

if

the

defendant files an answer properly crafted and he introduces a new matter in that answer the

new

matter

introduced is the assertion that the defendant has paid the debt. Is that a good defense? that is
good

defense.

In

fact it is even a ground for a motion to dismiss, that the debt has been paid with
abandoned

or

otherwise

extinguished. So instead of filing a motion to dismiss the defendant chooses to incorporate that
in

an

answer

as

an affirmative defense,which is also allowed by law. So the new matter introduced is the fact
of

payment.

The

plaintiff does not file a reply. Is the plaintiff deemed to have admitted that the obligation has
been

paid?

The

answer is no. This time we follow the definition of a reply. The new matter alleged in the
answer

is

deemed

controverted even without a reply. So the plaintiff does not have to submit his own pleading in
response

to

that

new matter alleged in the answer. It is the law itself which tells the court that the new matter in
the

allegation

is

deemed controverted. It will be deemed subject of a trial conducted by the court. If we are
going

to

follow

rule

16in our example, the defendant now can ask for a preliminary hearing in order to show that
there

has

been

the

payment of the debt. But for purposes of reply, there is no need for the plaintiff to controvertthe
new

matter.

So

whenever you go to the definition of a reply you must take into acounterclaimount the second
sentence.That

is

the most important part in the definition of a reply. If there is no reply the new matter is deemed
controverted.

It

is deemed denied by operation of law. Because of this definition of a reply, we always


consider

as

the

least

useful among the pleadings.

Are there instances where a party should file a reply not because it is mandated by the rule
but

in

order

to

protect his interest in the pending case? in the past there were two exceptions expressly
recognized

by

the

old

rules,where the filing of areply was mandatory because otherwise the plaintiff does not file
areply

he

would

suffer serious and adverse consequences. The first was when there was an allegation in answer
of

the

defendant

about usury. The second was where the answer of the defendant is founded on an actionable
document.

In

these

two instances in the past, the plaintiff was expected to file a reply For the reason that if he fails
to file a reply made a specific denial under oath the allegation of usury and the genuineness of
the execution of the actionable document are deemed admitted. And that is not good for the
plaintiff.

Under the present rules, there is only one exception. The first exception -if an allegation of
usury

in

an

answer

necessitates the following of areply - is no longer applicable because the 1997 rules have
introduced

new

rule

concerning allegations of usury which need specific denial under oath. Under our present rules,
an

allegation

of

usury contained in acomplaint or similar pleading is deemed admitted if not specifically denied
under

oath.

So

when an allegation of usury for the purpose of recovering the usurious interest is contained in
an

answer,

we

dont follow this requirement that there must be a specific denial under oath. The law is very
clear

on

this.

The

allegation of usury must be embodied in a complaint. the liberal interpretation of the rules
will

lead

to

the

conclusion that as long as the allegation of usury is contained in a complaint or a


claim

pleading

like

counterclaim or cross claim there is need for a specific denial under oath. But the responsive
pleading

is

not

areply. The responsive pleading to that complaint or counterclaim or cross claim will be an
answer.

reply

is

responsive pleading only to an answer. So if the allegation of usury is contained in acomplaint


the

denial

under

oath should be contained in an answer. If the allegation of usury is contained in a counterclaim


the

responsive

pleading of a counterclaim is also an answer. If it is contained in a cross claim, the responsive


pleading

to

cross

claim would still be an answer. If the allegation of usury is contained in the answer then the law

will

apply

the

rule which requires specific denial under oath. Theres no such provision now in the rules.
It is the second exception that is still applicable up to the present. When the answer is founded
on

an

actionable

document,the law says that whenever an actionable offense is founded on an actionable


document

the

adverse

party should, if he wants to make a denial of the actionable document, do so specifically and
under

oath.

For

instance, if the defendants defense again is payment and he alleges in his answer that the
fact

of

payment

is

supported by receipt issued by the plaintiff himself acknowledging full liquidation of the
indebtedness,

under

law if a claim or demand is founded on an actionable document, it is imperative upon the


pleader

to

allege

in

the compliant the actionable document. How does the pleading of a defendant allege an
actionable

document?

there are two ways of doing that. in the pleading whether in acomplaint or an answer the
substanceof

the

actionable document should be stated and then a copy of the actionable document should
be

appended

or

attached to the pleading, to the complaint or the answer. Or if he does not want to place a
summary

of

the

contents of the actionable document, the pleader can simply copy word for word the actionable
document.

On

the part of the adverse party, whether it is plaintiff or defendant who is confronted with
an

actionable

document, the law requires this party to make a specific denial under oath. So if it is the
defendant

who

sets

up

as his defense an actionable document, it is the duty of the plaintiff to make a specific
denial

under

oath.

Otherwise, the genuineness and due execution of the actionable document will be deemed
admitted.

And

again

that is judicial admission.

If it is the plaintiff who should make a specific denial under oath, so that he is not deemed to
have

admitted

the

genuineness and due execution of that receipt, can he not simply file an affidavit? After all he is
under oath. The only way by which the plaintiff can make a specific denial under oath of an
actionable

document

incorporatedin

an answer is by way of reply because reply is the only pleading available. The only pleading that
responds

to

an

answer is a reply. And if the plaintiff makes a reply and he sets up in that reply a specific denial,
he

should

also

see to it that that specific denial is under oath. If there is only specific denial without having been
verified
not enough.
take

that

is

There is genuineness and due execution of the it will be deemed admitted. We will
note

of

the

exceptions given in the rules with respect to the nonapplicability of this principle on judicial
admission

on

genuineness and due execution if there is no specific denial under oath, if the actionable
document

is

contained

in the answer. There are two exceptions in the rule. First, when the adverse party is not a party to
that

particular

document or even if he is party to that document, an order for an inspection of the original
issued

bythe

court

is

not obeyed by the defendant. In these two instances, we dont apply the rule on

judicial

admission

of

genuineness and due execution of the actionable document contained in the answer. The
rule

requiring

the

mode by which an actionable document must be alleged in apleading either to a complaint


or

an

answer

is

described by the supreme court as ?? . meaning that is mandatory. If the pleader does not
follow any of the modes in the rules for pleading an actionable document. The sc said the
plaintiff

will

not

be

allowed

to

present

proof of his cause of action. if it is the defendant who fails to do so, He will not be allowed to
present

proof

of

his

defense. So the attachment of the actionable document or copying the contents of that act
doc

in

itself is amust. It will

the

pleading

adversely affect the pleader if he does not follow either the modes of

pleading

an

act

doc.

Now we go to the third part of the complaint fourth party complaint or fifth party complaint. We
follow

literally

what the rule say it is third party complaint fourth party complaint etc. meaning to say there
is

no

end

To

the

number of complaint that can be impleaded, third party complaint fourth party sixth party
complaint.

As

long

as the allegations in these complaint has something to do with the claim of the plaintiff in the
complaint

you

will notice that among all these claim pleadings,


filing

it is only a third party complaint where their

requires

prior leave of court. We cannot simply file a third aprty complaint without leave of court.
There

is

need

for

leave of court. And the 3rd party complaint must allege that the 3rd party defendant is liable
to

the

3rd

party

plaintiff. The 3rd party plaintiff is always a defendant. The defendant-3 rd party pal is entitled to
recover

from

the

3rd party defendant by reason of contribution,subrogation or any other relief in relation to


subject

matter

of

the

claim in the complaint. so the 3 rd party complaint is always connected with the subject matter of
the

complaint.

If the complaint,for instance,is for the recovery of an unpaid loan,the 3 rd party complaint
cannot

pertain

to

recovery of the ownership of a piece of land. If the subject of a3rd party complaint should
always

be

related

to

the subject matter of that complaint. Why do we need permission from the court before the
defendant

can

file

3rd party complaint? Because the 3 rd party complaint will forcibly bring into the action a stranger
to

the

case.

The

3rd party defendant is not at present a litigant to the case. It is a stranger to the case. That is why
the

rules

require

that the court should be given discretion whether to allow or not to allow the 3 rd party complaint
because

there

may be no need at all in bringing a stranger to the case or even if there be aneed the claim
against

the

stranger

is

unrelated or unconnected to the subject matter of the complaint. If the court denies the motion
for the admission of the 3rd party complaint the remedy of the defendant- 3 rd party plaintiff is
just

to

file

separate

complaint

against the 3rd party defendant. It is in a 3 rd party complaint were we can best illustrate the
meaning

of

ancillary

jurisdiction of trial courts. Let us say the subject of the complaint is still the recovery of
loan,

1m.

So

the

competent court is the rtc. 1m figure is principal obligation. The defendant asks the court

permission

to

file

an

answer with a 3rd party complaint. In the 3rd party complaint, the defendant asserts that a
stranger,

juan

dela

cruz, is bound to pay him in relation to the


contribution,

1m loan the sum of

250T by reason of

indemnity,

subrogation or any other relief. With respect to the complaint, there is no jurisdictional
issue

because

the

competent court is really the rtc . It is with respect to the 3 rd party complaint were a jurisdictional
issue

could

be

raised. The 3rd party complaint is effectively a complaint filed by the defendant against a
stranger

in

case.

And

the amount that he seeks to recover is only 250k this amount is not w/in the jurisdiction of a
rtc.

Can

the

court

upon motion of the 3rd aprty defendant order the dismissal of the 3 rd party complainton the
ground

of

lack

of

jurisdiction? Remember the figure is only 250k. the answer is no. we apply the rule on ancillary
jurisdiction

of

rtc. If a trial court has jurisdiction over the principal case which is the complaint filed by the
plaintiff
defendant

against
the

same

court

will

also

the
exercise

ancillary

pleadings,

jurisdiction

over

all

collateral

incidental

pleading that are related to the complaint. So the 3 rd party complaint to recover 250k should
still

be

cognizable

by the rtc. Is it correct to say that a 3 rd party complaint, 4th party complaint are the only
pleadings

which

will

enable a litigant before the court to bring in by compulsion a stranger in a case? Can a
litigant

also

bring

in

stranger to the case w/o a pleading or 3 rd party complaint. The answer is no. that law does

notsay

that

3rd

the

party complaint is the only means available to bring a stranger to a case. What the law tells us
only

in

the

filing

3rd pc is that it is the complaint filed by the defendant- 3 rd party plaintiff against a stranger
with

court

because

the stranger is liable to the defendant for contribution, indemnity subrogation or other relief.
the

rule

does

not

say that the 3rd party complaint is the only means by w/c a stranger can be compelled to be a
[party
canthe

to

the

case.

defendant compel a stranger to be a party to the case by filing a counterclaim? Can the

defendant

make

use of a cross claim in order to bring in forcibly a stranger to the case. The answer to
thesequestions

is

yes.

The

law authorizes the defendant to bring in a stranger not by way of a 3 rd party complaint
but

by

way

of

counterclaim either permissiveor compulsory counterclaim.The law also authorizes the


defendantto

bring

in

stranger to an existing case thru the filing of a cross claim. Although the law defines a cross
claim

as

claim

by

defendant against his co-defendant, the law does not say that in filing a cross claim against a co
defendant

that

3rd person cannot be impleaded by a cross claim. in the definition of a compulsory counterclaim,
if

you

go

again

to the definition of a compulsory counterclaim the defendant could set up a COMPULSORY


COUNTERCLAIM
against the plaintiff and the party who is not a party to the case,as long as the court can acquire
jurisdiction

over

the person of this stranger. That is so allowed in the definition of a compulsory counterclaim. One

thing

allowed

a defendant in bringing a stranger to the case by not using a 3rd party complaint but by
using

cross

claim

or

counterclaim, preferably a compulsory counterclaim. Because there is another provision in the


rules

will

say

that

if there is a compulsory counterclaim orcross claimthat is not set up in an answer that


compulsory counterclaim or cross claim are barred. So if the defendant decides to set up a cross
claimagainst

co

defendant,

lets

say,a

case

filed by AvsB and C. the defendants are B and C. if defendant b has a claim related to the
subject

matter

of

the

complaintagainst C, B should file an answer w/ a cross claim. but it could happen that in that
cross

claimagainst

C thereis a necessity to bring x or y or z. so the problem of b when he files a cross claim


can

file

cross

claimagainst my co-defendant c plus x/y/z. he has to resolve this question right away because
if

he

fails

up a cross claim in this case


principle

to

set

he is barred from recovering a cross claim. That is a

in

the

rules

if

compulsory counterclaim and across claim are not set up they are barred. So the best to set up
this

cross

claim

otherwise his cross claim will be barred. If there is a need to implead a stranger it will be
allowed

to

implead

stranger although it is not using a 3rd party complaint. If you will read sec 11 of rule 6 it
provides

that

cross

claim or counterclaim it will be the basis of the court to bring in a stranger to the case
for
determination of the issues.

the

complete

Well discuss some aspects of the forms of a pleading - Rule 7. If we just literally follow rule 7,
we

can

arrive

at

this same principle. A pleading must always be signedbecause a pleading that is not signed
according

torule

will be treated as a sham pleading. It has no legal effect at all. It is deemed not rendered
filed.

So

pleading

must always be signed. If a pleading is unsigned it is asham pleading and the courtmotu
proprio

can

order

the

striking out of the pleading.Who can sign the pleading? the litigant can sign the plead or if he has
a

counsel,

the

counsel can sign the pleading, if anyone or the respective counsels or both of them the counsel
and

the

client

can

sign the pleading. are there pleadings which will not be admitted by the court if the only
signature

is

that

of

the

lawyer? Is the rules expect the plead to be signed by the party himself, not only by the
counsel?

by

way

of

exception the answer is yes. In Marriage related cases annulment of marriage or to declare
the

marriage

void,

the Sc circular says that the complaint and answer must be signed by the client, by the party
himself.

if

signed

alone by the lawyer the court will not accept this pleading for filing. But generally the signature
of

the

counsel

will be enough In order to have this pleading accepted by the court. Again if we literally follow rule
7,

if

the

law

requires a pleading to be verified but the pleading is not verified or there is insufficient
verification,

rule

says

that the absence or inadequacy of a verification meansthat that pleading is effectively an


unsigned

pleading

and

therefore it produces no legal effect.


the

With respect to verification, the general rule again is

law

requires

pleadings to be verified. It is only in instances that the law requires verification that the lawyer
should

have

his

pleading verified. And the rule 7 is also very emphatic in telling the lawyer how to verify.
The

pleading

is

verified by the verified statement of the affiant that he has read the contents of the
pleading,

that

these

allegations are true of his own personal knowledgeor it is an authentic document. if the
verification

is

not

according to the tone given in the rules that will be an inadequate or insufficient verification.
And

under

rule

the absence or inadequacy of verification carries with it the effect of an unsigned pleading. But
the

SC

keeps

on

ignoring the provisions of rule 7 with respect to verification.although it would appear in rule 7
that

absence

of

verification or inadequacy of verification would be a fatal defect of apleading. The sc keeps


on

ruling

that

absence or inadequacy of verification is only a formal defect. So if you come across a


question concerning the need to verify a pleading or to determine whether a verification given
in

the

question

is

adequate

or

inadequate

and then you are asked what is the effect. Then just adopt the rulings of the sc that theabsence
of

verification

in

instances required by law that the submission of a pleading with inadequate verification is only a
formal

defect.

In fact it has always been a formal defect. It is only in the 1997 rules that the sc inserted these
provisions

that

lack

of verification or inadequacy of verification is equivalent to the submission of an unsigned

pleading.

but

the

sc

did not change the doctrines and it follows without saying that lack of verification in instances
required

is

only

formal defect. You might be asked whether verification of a pleading is now the general rule
given

that

in

rule

all initiatory pleadings must carry with them a certification of non forum shopping. a
complaint
initiatory

being
pleading

will

always

an

carry

with

it

shopping.Permissivecounterclaim
also initiatory so we

certification

on

non

forum

is

need to append to

shopping.

permissivecounterclaim certification on non forum


Same

withcross claim, a 3rd party complaint, a 4 party complaintbecause these are all initiatory
pleadings.If

the

rule

requires a complaint or other initiatory pleadings to carry with them a certification on non
forum

shopping,

does it not mean to say that these pleadings must also be verified under rule 7? The
answer

is

no.

the

certification on non forum shopping is different from verification of a pleading. When you
speak

about

verification of a pleading, we refer to the allegations contained in the pleading. Thats why in
verification

the

verifier tells the court that he has read the pleading and that the allegations are true and
correct

of

his

own

personal knowledge. The contents of the certification on non forum shopping will not have
anything

to

do

with

the contents in the allegations in the initiatory pleading. the certification on non forum shopping
simply

certifies

under oath that no same action has been filed Before another tribunal, agency or court. That if

later

on

the

one

who signs the certification comes across such similar or identical action that he will so inform
the

court

right

away. So the contents of the certification on non forum shopping have nothing to do with what is
alleged

in

the

initiatory pleading . so we can have a pleading that is not verified but it must contain a
certification

on

non

forum shopping. With respect on this rule on non forum shopping, the court appears to have
adopted

the

rule

on substantial compliance With the requirements of certification on non forum shopping . In the
past

the

sc

was

quite strict. The sc will affirm the dismissal of the complaint because the provisions on
certification

on

non

forum shopping where not literally followed. In a case decided, there was a complaint
where

there

were

plaintiffs. The plaintiffs were all principal plaintiffs. If we follow strictly the rule on certification
on

non-forum

shopping, the certification should be signed by all the 5 principal.Otherwise it would be a


defective

certification

and under rule 7, this defect is not curable by amendment. If we would follow the rule on
certification

it

would

lead to the dismissal of the case.In this case, only 2 of the plaintiffs signed the
certificationon

non-forum

shopping. so the defendant challenged the authority of the court. The authority of the court
to

go

ahead

to

entertain the petition because the rule on non-forum shopping has been violated. the court
refused

to

dismiss

the case. The court says that we will go ahead with the case but we will just drop the claim of

the

non-signing

plaintiffs. so the case will go on insofar as the plaintiffs signed the certification on non
forum

shopping

are

concerned. The sc said that the signature of the two plaintiffs will be substantial
compliance

with

the requirement. With respect to the issue of a lawyer signing the

certification on non-forum shopping the general rule is the rules require that the party himself
must sign the certification on non forum shopping. If a lawyer signs the certification on non
forum shopping hes not aplaintiff/ defendant. Hes just a lawyer for the plaintiff and he signs the
certification non forum shopping he must be able to show a special power of atty authorizing
him to sign the certification on non forum shopping.

Somebasic principles in rule 8. We have taken up actionable document.


The first basic principle of rule 9 is the consequence of the omnibus motion rule. The
defense/

objection

is

deemed waived if it is not set up in pleading or in a motion to dismiss. Another basic principle
is

because

the

rules encouraged the joinder of causes or even the joinder of parties, there could be several
causes

of

action

that

could be alleged in a complaint. there could be several defensesalso set up in an answer


and

these

causes

of

action that are set up could be set up jointly or in the alternative so that there could be a
complaint

with

joint

causes of action. There could be a complaint with alternative causes of actions. There could also
be

defense

with

alternative defenses, an answer with alternative defense and answer with joint defenses. Rule 3
in

relation

rule says that since there could be


in

relation

to

this

alternative causes or alternative defenses, we can also have


to

rule

3 alternativedefendant so theaction can be filed and the captionis plantiff vsdefendant 1 or


defendant2.

in

this

ex

the defendants are impleaded as alternative defendants. since we allow alternative causes,
alternative

defenses

and also alternativedefendant, can the court also tender a decision where the dispositive
portion

also

be

in

the

alternative? That is also allowed. In some special cases, in replevin the last sec in rule 60
authorizes

the

court

to

tender a judgment in the alternative. what is not present in our rules is the propriety of a
complaint

where

the

plaintiffs are made in the alternative. nothing is mentioned in the rules. But there is no mention
at

all

in

the

rules

concerning complaint filed by plaintiff made in the alternative. so in our rule nothing is
mentioned

about

the

propriety of these complaints, plaintiff 1 or plaintiff 2 vs defendant. there could be plaintiff 1


and

plaintiff

vs

defendant. the plaintiffare named jointly. there is nothing mentioned in rules where plaintiffs
being

named

in

the alternative. so again the rules expressly authorize the filing of a complaint where the
pl

or

pl

vs

defendant. But if we follow the gen rule that pleadings should be liberally interpretedto provide
for

just

speedy

and inexpensive determination of the case,well if the court issues the sc might allow a
complaint

where

the

plaintiffs are named in the alternative, which is a principle that is followed by courts in the US.In
federal

rules

in

civil procedure theres an express provision saying that plaintiffs could benamed in the
alternative,defendants

could be named in the alternative, causes of action in the alternative.Defenses can also
be

alleged

in

the

alternative. Unfortunately, that provision on the federal rules on civil procedure were not
incorporated

in

our

rules with respect to plaintiffs being named in the alternative. But again we have defendants in
the

alternative

byexpress provision in the rules, causes of action alleged in the alternativedefenses alleged in
the

alternative.

There could also be a judgment where the dispositive portion is written in the alternative,
like

in

the

case

of

replevin. But with respect to the non waivable defnses given in rule 9,it is always better to
compare

the

non-

waivable defenses in civil actions and non-waivable defense in criminal actions. if you go to
criminal procedure, there are also 4 non-waivable defenses.They cannot be subject of waiver.
They

cannot

be

subject

of

application

of

the omnibus motion rule. In rule 9, the rule on non-waivable defenselack of jurisdiction overthe
subject

matter,

litis pendentia prescription andres judicata. if you compare this non-waivable defenses to a
criminal

case,

you

will immediately notice that there are similarities, there are also differences. for instance res
judicata

w/c

is

non-

waivable defense in civil case. It is also non-waivable defense in criminal case.


is

not

called

But of course it

res

judicata in a criminal case. In acriminal case it is called double jeopardy. There was a question
asked

in

the

bar

once. Explain the concept of res judicata in treason. That is double jeopardy. so in civil cases,
re

judicata

is

the

equivalent of double jeopardy in criminal cases.In prescription, prescription in a civil case is

alsonon-waivable
defense in a criminal case that is also non-waivable extinguishment or prescription of a
penalty.

so

in

both

prescription is non-waivable defense. The 3rd one where this grounds are similar the absence of
jurisdiction

over

the subject matter that is also non-waivable in a criminal case. It is in the 4 th ground that there
is

distinction

bet

these non-waivable grounds. In a civil case, the ground of litis pendentia is non-waivable.but in a
criminal

case,

theres no such thing because in criminalprocedure, the


information

does

4 thnon-waivable ground is the


not

charge an offense. That is a non-waivable defense. the only difference between the non-waivable
defense

in

civil

and criminal actions is with respect to a criminal action where the non-waivable defense is the
informationdoes
not charge an offense. but in a civil case the equivalent is the failure to state a cause of action.
litis

pendentia

is

not really non waivable defense in a criminal case. so there seems to be no litis pendentia that
is

applicable

in

criminal case. but when it comes to that non waivable grounds, theinformation does not
charge

an

offense

is

equivalent to a civil case if we make use of rule 16 will be failure to state a cause of action.
But

failure

to

state

cause of action is also a ground for a motion to dismiss under rule 16. That means to say that
if

the

complaint

fails to state a cause of action, that it can be remedied even w/o expressly or
formally

amending

the

complaint.Thecourt will decide still in favor of the plaintiff although the plaintiff has not at all

amended

his

in

order to allege a cause of action. Is that possible in a civil case? That is possible if the
complaint

does

not

properly allege a cause of act that defect must be remedied under rule 10 amendment of
pleading

to

conform

with the evidence if the complaint does really allege a cause of action the defendant does not
raise

as

an

issue

in

a motion to dismiss or does not raise as affirmative defense in answer if during the trial the
plaintiff

presents

evidence showing that he really has cause of action and this evidenceis admitted in the court
the

complaint

is

deemed amended by operation of law. Insofar as the court is concerned that complaint now
states

cause

of

action . that is the remedy if a complaint fails to state a cause of action. so the court cannot
consider

it

as

non-

waivable defense it is really a waivable defense in a civ case. Because it can easily be
amended

or

remedied

by

the principle in rule 10 about amendment to conform w/ evidence. can we not follow this in a
criminal

case?

Lets say that the info does not charge an offense during the trial the prosecutor presents
evidence

that

there

is

really a crime committed although the information does not accuse thedefendant of
committing

particular

offense cannot the court apply the rule on amendment to conform w/ evidence? That is not
allowed

because

that will violate constitutional right of the accused to be informed of the charges against him.
so the only reason why we dont allow amendment to conform w/ evidence in criminal case is
because it violates constitutional right of the accused. if he is arraigned for an information

which does not accuse him of any crime, then he is arraigned for nothing. That is what
criminal procedureprovides. In other words, it can apply amendment to conform w/ evidence
as long as we dont violate the constitutional rights of the accused. Unlike in civil case, if the
civil action does not state a cause of action but the defendant has not filed motion to dismiss.
it participates in the trial and during the plaintiff presents evidence that the he has cause of
action. that complaint is deemed amended by operation of law.

Another principle is the rule on default. And we have come across certaincases were the court
were

default

is

prohibited in summmary procedure, small claims, in amparo cases, in habeas data, default is
prohibited.

and

in

rule 9, in marriage related cases default also prohibited. So it is not correct to say that in
civil

action,

if

the

defendant has not filed his answer or a responsive pleading, he can be declared in default upon
motion

by

the

adverse party. That is not an absolute rule.If a complaint is filed,summons is


served

upon

the

defendant,defendant does not file an answer during the reglementary period, upon motion by
the

plaintiff,

we

can order a default. That is a general rule except in caseswhere the motion to declare the
defendant

in

default

is

prohibited or even in cases were the law directs the trial court
investigation

to assign somebody to make an

as

to whether there is collusion in marriage related cases. So in a complaintgoverned by ordinary


procedurelike
recovery of an unpaid loan. if the complaint seeks to recover from the debtor an unpaid loan of
1m

and

interest

and then the defendant after summons have been served does not file an answer, can the court

now

on

its

own

declare the defendant in default? the answer is no. default can be done only by the court if there
is

correlative

motion filed by the plaintiff. without the correlative motion, the court has no authority to motu
proprio

declare

the non answering defendant in default. We need a motion. If the plaintiff on the,other hand,
does

not

file

motion to declare the defendant in defaultwhen it is very clear from the records of the case
that

the

time

to

answer has already been expired and the plaintiff does not file a motion, what can the
court

do

now

if

we

prohibit the court from declaring the non-answeringdefendantin default motu proprio? insofar as
declaration

of

the courtis concerned, we need a motion coming from the plaintiff. w/o the motion, the
court

cannot

do

anything concerning the declaration of default. if the plaintiff keeps on ignoring that he has a
prerogative

to

file

a motion to declare the defendant in default. He does not exercise this prerogative, chances
are,

the

court

will

lose sympathy with the plaintiff and court might order the dismissal of the case for failure to
prosecute

for

unreasonable length of time.


What

an

So the rules expect a plaintiff to be active in filing a case.

happens

to

the

complaint that he has filed? If he does not receive an answer on time, he should avail of this
remedy

to

file

motion to declare the defendant in default. If he does not file a motion, hell end up receiving an
order

from

the

court dismissing the case for failure to prosecute. That is under rule 17.And under rule 17,

the

dismissal

by

reason of failure to prosecute is a dismissal with prejudice. That is certainly adverse to the
plaintiff

because

he

can no longer file another complaint for the recovery of his claim against the defendant.

Supposing that plaintiff initiates this move to declare the defendant in default, he files a motion.
but

the

motion

that he files is called an ex parte motion to declare the defendant in default


happens

in

trials.

which usually

The

theory of the plaintiff when he files a motion to declare the defendant in default ex
parte

is

because

the

defendant does not even bother to answer. why should he be served with a copy of the
motion

to

declare

in

default? If he is served with a copy of that motion, the defendant might entertain the idea of
filing

an

answer

in

order to preempt the granting of that motion. The sc said that it is not the correct argument. In
fact

rule

is

very

clear. A motion to declare a defendant in default will be served upon the defendant if it is not
served

upon

the

defendant that motion is a useless piece of paper. So if the defendant receives a copy of the
motion

to

declare

him in default and there may be signs to file an answer and his answer is now received can the
court

still

declare

him in default? The answer is yes. If the court follow strictly the rules of court. But as a matter
of

policy

if

the

answer is already been filed although it is filed out of time it is now part of the rec of the case.
Will

the

trial

court

still declare him in default? The answer is no. the sc has repeatedly informed the trial court

that

as

much

as

possible this very technical rule on default should not be applied strictly. Even if the period
to

answer

has

already expired, but an answer is filed out of time the court should still admit that answer and
deny

motion

to

declare the defendant in default. The reason why the sc has adopted this policy is because if
the

defendant

is

declared in default the court can right away render a judgment of default against defendant
without

conducting

a trial. In rule 9 if defendant is declared in default rule 9 gives the trial court 2 choices. 1 st is to
render

judgment

right away based on the allegations contained in the complaint. 2 nd is to require the plaintiff to
present

evidence

ex parte in support of his allegations. At least in the 2 nd option there will be a reception of
evidence.

Unlike

in

the 1st option the trial court will just rely on the allegations in the complaint. And if there is trial
ex

parte

where

the defendant is in default, the defendant will not be allowed to participate in the trial unless he
is

able

to

secure

an order from the court to lift the order of default. So if the defendant is declared in default
and

then

trial

is

ordered by the court even if defendant goes to court w/ his answer the court will not entertain
the

defendant

because one of the sanctions of a declaration of default is the defendant inability to participate
in

the

trial.

So

if

the defendant is in default there is 99% chance that he will lose the case because he has not
filed

an

answer

at

all.

And if theres going to be a trial, it is only the plaintiff who will be allowed to present

evidence

and

appear

during the trial because this is a likelihood in default in court cases rule 9 is also very
explicit

in

saying

that

when the defendant is declared in default although the judgment in default is favorable to the
plaintiff

the

trial

court should see to it that the award should not be more or different than that prayed for in the
complaint.

So

in

our ex where there is a complaint to recover an unpaid loan, the defendant is in default and the
court

orders

the

presentation of evidence ex parte, the plaintiff is the only one present in court and introduce
any

evidence

he

wants because nobody is around to object to his evidence. He presents evidence that the
indebtedness

of

the

defendant is not only 1M but 3M the court now decides the case if the court believes that there is
preponderant
evidence that will justify an award of 3m can the court render such judgment? The answer is
no.

in

rule

9,

the

award in default judgment by the court cannot be more than what is prayed for in

the

complaint. It could not be different from the relief prayed for on the complaint. It could be less
than

what

is

prayed

for

in

the

complaint,

it

could be equal but it could not be more than what is prayed for in the complaint. Even if
there

is

ex

parte

presentation of evidence. Do we follow this rule whenever the court authorizes the plaintiff to
present

evidence

ex parte? Because of the inability of the defendant to comply with certain rules/ orders of the
court.

we

follow

this rule limiting the award only to default cases. A similar case where there could be an ex parte
presentation

of

evidence is found in rule 18 on pre trial. In the rule on pre trial, the parties should present a pre
trial

brief.

And

they should also be present during the pre trial conf. if it is the plaintiff who does not appear
during

the

pre

trial

or does not submit a pre trial brief, the court can order the dismissal of the case. And that
is

dismissal

w/

prejudice. But if it is the defendant who does not appear during a pre trial or he does not submit
a

pre

trail

brief

the court can authorize the presentation of evidence ex parte by the plaintiff . so whether it is
under

rule

18

or

rule 9, the defendant has violated certain provisions of the rules in rule 9 the violation by the
defendant

is

his

not filing of an answer w/in the reglementary period. In rule 18, the violation by the defendant
consists

of

not

appearing during pre trial or non-submission of his pre trial brief. In these situation, that the
defendant

violates

the rules governing submission of certain papers and appearance during pre trial then rule
18

authorizes

the

trial court to allow the presentation of evidence ex parte by the plaintiff. Weve taken up
what

is

going

to

happen after an ex parte presentation of evidence under rule 9. The decision of the court
cannot

be

more

than

what is prayed. The decision of the court cannot be different from what is prayed. How about
in

rule

18?

The

complaint is still for the recovery of 1m. there is an ex parte trial allow by the court under rule
18.

The

plaintiff

presentation evidence ex parte. During the ex parte hearing the the plaintiff presentation
evidence

w/c

convinces the court that the entitlement of the plaintiff is not 1m but 2m. can the court later
on

award

to

the

plaintiff 2m although his complaint prays only for the payment of 1m? if we read carefully that
provision

in

rule

18 the answer will be the court can award 2m because in rule 18 what the court can do is
to

grant

relief

according to the evidence submitted by the plaintiff unlike in rule 9 w/c says that the extent of
the

relief

cannot

be more than what has been prayed for. It cannot be different from what has been prayed for.
But

insofar

as

rule

18 is concerned, after an ex parte presentation of evidence the relief will be based on what has
been

proven

by

the evidence. Although that relief could be more than or different from what has been
prayed

for

in

the

complaint. Why do we treat the default defendant in rule 9 with more flexibility with
more

compassion

compared to the defendant in rule 18. Well the significant different bet this 2 defendant is
that

in

rule

the

defendant has not filed an answer the court will take pity on the defendant who can be
considered

as

having

surrendered the case to the plaintiff for his failure to file his answer. In rule
defendant

has

filed

18, the

an

answer thats why the court holds a pre trial conf. the violation by the defendant in rule 18 is
not

his

failure

to

answer but his failure to comply with the requirements of rule 18. Remember these 2 different
bet

rule

and

rule

18 when it comes to the extent of the award after an ex parte presentation of evidence.

Another principle in rule 9 is the rule on partial default. In partial default, the factual antecedents
are

that

there

are at least 2 defendant sued under a common cause of action and then one defendant answer
and the other does not answer. Can the non-answering defendant be declared in default upon
motion

of

the

plaintiff?

The

answer is yes. He can be declared in default because default is founded on the premise that
the

defendant

has

been served w/ summons but does not file an answer w/in the reglementary period. So that is his
punishment.
He will be declared in default. Can the court also render judgment by default against a
non-answering
defendant? This time the court cannot do that. Partial default, the most that the court can do
is

to

declare

the

non-answering defendant in default. The court cannot declare the answer defendant in
default.

There

is

no

reason to declare him in default. So if there is an answer filed by one of the defendant, the court
will

be

forced

follow the ordinary course of the

to

the court will have to call a pre trial. The court will have trail if

necessary.

But

insofar as the non-answering defendant is concerned, he will be declared in default but


there

is

no

separate

judgment in default that will be rendered against him. So we follow the normal course. There is
now

trial.

And

during the trial the answering defendant will also be given a chance to present his evidence. Can
the

answering

defendant call the defaulting defendant to be a witness? The answer is yes. The answering
defendant

can

call

the

defaulting defendant as a witness. There is nothing in the rules according to the court

which

prohibits

defaulting defendant to testify in the case. Although he will not be allowed to participate as a
litigant

during

the

trial. After trial the court finds in favor of the answer defendant will that decision be also
in

favor

of

defaulting defendant? The answer is yes.


defendant

the

Whatever happens to that case, if the answer

wins

the

defaulting defendant wins. The answer defendant loses, the defaulting defendant also loses. this
is

one

situation

where a defaulting defendant can prevail in the case. The reason is because these 2 defendant
are

sued

under

common cause of action. Because this is the rule that we follow in our system where a defaulting
defendant

can

conceivably win in case of partial default, in one case the creditor who sued 2 defendant
where

one

of

the

defendant has answer and the other fails to answer. The court has already ordered the nonanswering

defendant

in default, his counsel most likely told him of this principle in rule 9 so the plaintiff-creditor asked
himself

if

go

ahead w/ the trial of the case and this answer defendant puts up a good fight, I might lose the
case.

Can

just

not move for the dismissal of the case so far as the answer defendant is concerned so I will
be

left

fighting

defendant who is already in default, who cannot participate in the trial.


pragmatically,

Well if you look at it

that

is a good move. because he avoids fighting a defendant who has already filed an answer. So
what

the

plaintiff

did was to move for the dismissal of the complaint against the answer defendant the answer

defendant

naturally

will not object to the dismissal of the case. So the caption of the case was change from
plaintiff

vs

defendant1

and defendant2 to plaintiff vs defendant2. Defendant1 is already out. Can the court now after
presentation

of

evidence ex parte rule against defendant2 who is the only defendant left on the case? Would it
be
trial court to .

proper

for

the

The sc said not necessarily. Even if defendant1 has been dropped from the case

upon

the

initiative

of the plaintiff, what the trial court should examine is whether defendant1 is an indispensable
party

to

If defendant1 is an

the

case.

INDISPENSABLE PARTY to the case, the court should require that

defendant1

be

impleaded in the case because if defendant1 is an

INDISPENSABLE PARTY and he is not

around

the

proceedings taken by the court could be void. So it is useless for the court to try the case. Under
the new doctrines enunciated by the sc, if an
has

been

indispensable party is not impleaded or if he

impleaded

he

dropped from the case the court should compel that the
There

should

is

indispensable party be impleaded.

be

an

amendment to the complaint. If the plaintiff ignores the order of the court compelling him
to

amend

complaint and therefore the


court

is

his

indispensable party is not yet impleaded the next move of the


to

make

use

of rule 17 order the dismissal of the case because of the refusal of the plaintiff to obey an order
of

the

court.

that

is a dismissal similar to dismissal for failure to prosecute, that is failure to obey a lawful order of
the

court

or

the

refusal to obey the provisions of the roc. So that in our ex what the court should do is to require
the

plaintiff

who

has dropped defendant1 to implead defendant1 in the complaint. That should be another
amendment

to

complaint. If defendant 1 is an
court.

that

indispensable party. We use the new doctrines given out by the

that

if

the

indispensable party is not made a party to the case what the trial court should do is to
require

the

implead the

to
of

to

indispensable party. If the order of the court is ignored what the court should do

is
dismissal

plaintiff

the

order

complaint.

And

advantageous

that

is

the
dismissal

for

w/

prejudice.
a

Since

it

is

not
non-

answering defendant to be declared in default because he is disallowed from participating in the


trial

of

the

case,

what are the remedies for the defaulting defendant? The first one is to file a motion to lift the
order

of

default.

That is before judgment based on fraud, accident, mistake or excusable negligence and together
w/

this

motion

he should already submit his proposed answer because rule 9 also requires him to convince the
court

that

he

has

a good defense. The only way to do that insofar as the defaulting defendant is concerned is to
submit

motion

with affidavit of merit and append to this motion his proposed answer to the complaint. His
answer

to

the

complaint shall be evaluated by the court and the court could be convinced that the defaulting
defendant

really

has a good and substantial defense. And the defaulting defendant if his motion to lift the order is
denied

cannot

appeal. He cannot appeal the denial of his motion to lift the order of default because the
denial

is

only

an

interlocutory order. That is not appealable. Supposing that the court has already rendered a
judgment

of

default

can he appeal the judgment by default? The answer is yes. He can appeal the judgment by
default

because

the

judgment by default is an adjudication of the merits of the case. Can he also file a petition for
cert

under

65

to

challenge the judgment by default? He cannot. If appeal is available then rule 65 is


automatically

not

available.

But if what is being challenged only is the denial of his motion to lift an order of default
because

the

law

does

not allow the defendant to appeal he can make use of rule 65. But he has to convince the
higher

court

that

the

trial court has acted w/o jurisdiction in excess of jurisdiction amounting to lack of jurisdiction.
Supposing

the

defendant simply tells the court pls lift the order of default and just allow me to file an answer
can

the

court

give

him the opportunity to file an answer although there is already a declaration of default the
court

should

not

allow the filing of answer unless the court lifts the order of default if the court orders the
lifting

the

order

of

default the defendant can now file an answer although the time has already expired. The
court

as

matter

of

public policy should not apply strictly the rules on default because the sc said if we allow
strictly

the

rules

default we are depriving a litigant of his opportunity to present his side.

on

Rule 10 on amended and supplemental pleadings lets say that the plaintiff files an action
reinvindicatoria
against the defendant in accion reinvindicatoria one of the jurisdictional allegations is the
assessed
property.

value

of

the

This complaint is filed before the rtc but there is no allegation concerning the

assessed

value

of

the

property. Can the court order the dismissal of the complaint for lack of jurisdiction. The answer
is

yes.

Because

by merely reading the complaint the court will be convinced that it has no jurisdiction the court
will

not

be

able

to determine if it has jurisdiction or not unless the assessed value of the property is
alleged.

So

there

is

something wrong jurisdictionally in our complaint. The rtc may not have jurisdiction over the
case.

The

plaintiff

discovers the error that he has committed. Can he amend his complaint so that he can alleged
in

the

complaint

the assessed value of the property and that will now confer upon the rtc the jurisdiction over the
case.

If

we

are

going to rely on the old doctrines of the sc, the plaintiff will not be allowed to do that. Because
the

old

doctrines

are to the effect that if the amendment will cure absence of jurisdiction that will not be
allowed

but

under

liberal interpretation under rule


simply

the

2. In our problem if the court does not have jurisdiction

because

of

failure of the plaintiff to alleged the necessary jurisdictional averment, he should be allowed
to

amend

the

complaint. Amendment will be a matter of right. A similar ex has already happened but that
case

is

one

of

unlawful detainer. Unlawful detainer is of course cognizable by an inferior court not by the rtc
and

in

certain

instances of unlawful detainer what terms jurisdictional allegation is the presence of a prior
demand

to

vacate

the property it is now settled that in unlawful detainer if there is no prior demand made by the
plaintiff

upon

the defendant for the defendant to vacate the property and pay the rental then that complaint
will

not

come

to

the jurisdiction of an inferior court so this averment concerning the plaintiffs prior demand upon
the

defendant

is according to the court jurisdictional w/o that allegation the inferior court will not acquire
jurisdiction

of

the

complaint for unlawful detainer. So if that is the defect in our complaint simply that there is no
allegation

in

the

complaint for unlawful detainer regarding the presence of a prior demand upon the
defendant

can

the

defendant amend his complaint as matter of right by simply inserting this allegation that the
plaintiff

before

the

filing of the case. Again under the present rules that is allowed. That is a matter of right. that
amendment

will

give to the inferior court jurisdiction over the case. So if you still use these old principles
probably

under

these

ex given you should allow the amendment as matter of right to that complaint even if that
amendment

will

confer jurisdiction upon the trial court. In amendment under rule 10 or even in supplemental
pleadings,

do

not

limit the term pleadings only to the complaint. All pleadings can be amended as a matter of
right.

They

can

be

amended w/ prior permission of the court. complaint can be amended as matter of right
answer

can

be

amended as a matter of right. counterclaim, cross claim, 3 rd party complaint can be amended
as

matter

of

right. The only limitation is that amendment should only be once. And before a responsive
pleading

is

filed.

So

you have to be conversant w/ the responsive pleading to w/c pleading it will relate to.
Complaint-

answer.

counterclaim- still an answer, same w/ cross claim and 3 rd party complaint. So in case of these
claim

pleadings,

the plaintiff can amend his respective pleading as matter of right once before the answer
is

filed.

Can

the

plaintiff amend his pleading as a matter of right or even w/ prior permission from the
court if he changes his cause of action? the answer is also yes. Under the present rules, and as
authorize

by

the

sc

cause

of

action

can

be changed in a complaint, in a permissive cc even if it is a matter of right as long as the


responsive

pleading

has

not been filed. Right after the efficacy of the


authorize

there was a case decided by the sc w/c

plaintiff

to

change his cause of action by simple amending his complaint under rule 10 that decision of the
sc

was

in

conflict

w/ old doctrines where under the old rules it does not allow the change in the cause of
action

by

simply

amending the complaint even if it is a matter of right. The latest case decided by the sc
affirmed

this

entitled phil ports authority v ??


authority

vs

1997

case

decided in 2007. Its relatively the same. The case of ports


??

the

court allowed an amendment to the complaint not as matter of right but as a matter of

discretion

of

the

court

even if there was already an answer filed by the defendant. Under rule 10, if there is already
an

answer,

the

amendment can no longer be a matter of right. It always w/ a leave of court. But this case of
ports

authority

vs

gozon, the plaintiff filed a complaint for specific performance after it was answered he filed a
motion

before

the

court to change his complaint to a complaint for injunction. There was really a substantial
change

to

the

action

from specific performance to an action for injunction. But this was thru a motion because an
answer

was

already

filed by the defendant the trial court allowed the amendment siting provisions of rule 10, and the
court

affirmed

the ruling of the trial court. So the rule that we follow at present is if it is a matter of right
the

plaintiff

can

amend his pleading by changing his cause of action if it is no longer a matter of right but a
matter

of

discretion

upon the court the court can still allow the amendment of a pleading by changing the cause of
action.

It

does

not

matter if an answer has been filed or not. The sc said that we follow this principle in order to give
to

the

parties

an opportunity in order to have the court adjudicate on the true dispute bet the parties as
long

as

it

does

not

involve prejudice to substantial justice there is nothing wrong if the trial court allows an
amendment

to

the

complaint where the plaintiff will change the cause of action. But the court also said that since
the

amendment

is

w/ leave of court then they are going to assume that the defendant has already filed an answer

to

1st

the

cause

of

action if the court allows the amendment naturally the defendant will be given an
opportunity

to

amend

his

answer. His answer now to the 2 nd cause of action. Theres nothing wrong w/ this procedure. In
fact

the

sc

in

this case encourage trial court to use liberally the rule on amendment to pleadings whether as
a

matter

of

right

or as a matter of discretion.

On the part of the defendant, if a defendant files an answer w/ a general denial thats bad for the
defendant

hes

going to lose the case the responsive pleading to an answer is a reply. If no reply has
been

filed

and

the

defendant amend his answer as matter of right w/o getting permission to the court by changing
a

general

denial

to a specific denial. The answer is yes. We give the same right enjoyed by the plaintiff to the
defendant.

So

the

amended answer will now contain a specific denial. But what is important to amendment as a
matter

of

right

is

that it should be exercised only once before the responsive pleading has been filed. If no
responsive

pleading

is

yet filed, but the amendment is already the 2 nd amendment, we need permission from the
court.

amendment

is

only a matter of right if it is exercised once before the responsive pleading is filed. Can we also
amend

pleadings

if the case is already on appeal to the ca or to the sc? particularly if the amendment is only
formal in nature.

With respect to substantial amendments appellate courts because that will injure the rights of
the

party

who

has

not appealed. What can be brought only to appeal are issues that can be raised before the trial
courts

even

if

it

is

only a matter of discretion trial courts are liberal in allowing amendments. there is a particular
rule

of

evidence,

in rule 10 w/c is amendment to conform to evidence. in amendment to conform to evidence,


if

the

evidence

presented by the plaintiff is not material to the allegations in his complaint then if there is an
objection

by

the

defendant, the objection should be sustained. but if the presentation of evidence does not
appear

to

be

material

and not objected to by the defendant, the court cannot tell on its own the plaintiff not to
continue

w/

with

the

presentation of the evidence. For instance the complaint accion reinvindicatoria, a case
where

the

title

to

or

possession of real property, during the trial the plaintiff does not present evidence which
shows

that

he

is

entitled to the possession of the property subject matter of the proceeding. instead the plaintiff
presents

evidence

which demonstrates that the defendant owes him 3M. if you are the lawyer for the defendant
in

this

case,

you

stand up and tell the court that the evidence concerning defendants liability for 3M is not
material

to

the

case

because the allegations in the complaint pertain to recovery of ownership of a piece of


land.

If

there

is

an

objection which is raised by the defendant the court will sustain the objection. So the
plaintiff

will

not

be

allowed to introduce this evidence concerning the defendants liability for 3M. But supposing
that

the

plaintiff

starts presenting evidence that he is entitled to 3M from the defendant, the defendant does
not

stand

up

and

does not object. The defendant keeps quiet about the reception of evidence. Can the court
refuse

to

admit

the

evidence? The court cannot because the court will always admit evidence although irrelevant
or

immaterial

if

not objected by the defendant so the court will now receive this evidence showing that the
plaintiff

is

entitled

to

recover from the defendant the 3M. You remember that the complaint is for the recovery
of

the

title

to

or

possession of real property. When the time comes for the court to render a decision, can the
court

simply

award

to the plaintiff the 3M, although the plaintiff has not amended his complaint? The answer is yes
and

the

reason

is that the amendment to conform to evidence in rule #10 and this is evidentiary principle. It
also

states

that

this

is no need for the plaintiff to formally amend his complaint. The amendment will take place by
operation

of

law

in order to conform on the evidence submitted by the plaintiff.

Even in supplementing pleadings, the principal difference between the supplementing and
amended

pleadings

is that in supplementing pleading we always need permission of the court. There is no


supplementing

pleading

as a matter of right and in supplementing pleading the pleader will not be allowed his cause of
action.

It

is

only

in amendment the pleader can change his cause of action. In supplementing pleading the
antecedent

facts

that

are given in the supplementing pleading have taken place after the original pleading has been
filed

and

it

cannot

give rise. A supplemental pleading cannot give a new cause of action in favor of the
plaintiff.

Also

for

the

purposes of evidence, an amended pleading takes the place of the original pleading. So an
amended

complaint

takes the place of the original complaint. An amended answer takes the place if the original
answer.

Will

the

court necessarily discard the original pleading, the original answer, the original complaint or can
they

remain

as

part of the records of the case? For evidentiary purposes, however, the admissions given
in the original complaint or in the original answer, any admission made in an original pleading
will

not

cease

to

be

judicial

admission. In rules in evidence, admissions made in pleadings even in motions for are
considered

as

judicial

admissions. They are conclusive upon the admitter. But if there is an amendment, the
amended

pleading

will

now take the place of the original pleading. How about the admissions made in the original
pleading?

Will

they

remain to be admissions? According to the court, they remain to be admissions but they are no
longer

judicial;

admissions. They could be treated as extrajudicial admissions. For instance, in the example
awhile

ago,

if

the

original answer contains a general denial, that is judicial admission of the allegations contained
in

complaint

and that will justify a judgment on the pleadings. If the defendant amends his answer by

converting

general

denial into a specific denial, then the general denial is construed as an admission will now be
converted

into

an

extrajudicial admission by the defendant. will that be beneficial to the defendant? if you tell him
that

his

judicial

admission has been converted into an extrajudicial admission simply because he has filed an
amended

answer?

That is so beneficial to the defendant because it will not be considered as an evidence against
him

by

the

court.

Where as if the admission remains to be a judicial admission, in the study of evidence, a


judicial

admission

is

always conclusive upon the pleader. It cannot be the subject of rebuttal evidence.

With respect to the preceding section there's not much discuss except that in the periods for
replevin

or

period

for the filing or issuing notice that there is nothing mentioned at all about the period as to
when

complaint

may be filed the periods begin with the period to file a responsive pleading but nothing speaks in
the

rules

as

to

when a complaint should be filed. The reason is because the filing of a complaint is solely
dependent

upon

the

claim of the plaintiff. We can't force him to file a complaint. It's not possible for the Supreme
Court

to

tell

the

plaintiff you should file this complaint within this particular period. If the SC does so the SC will
be

invading

the turf of substantive law. The filing of a complaint is dependent solely on the decision of the
plaintiff

and

if

there is ever a period fixed as to when that complaint should be filed it will not be determined

by

the

SC

it

will

have to be determined by substantive law. A complaint must be filed so that it can be prosecuted
successfully

as

long as the claim has not prescribed. Prescription is a matter of substantive law. Thats why in
the

rules

it

begin

with the period of when to file an answer but with respect to the other claim pleadings
a

cross

claim,

counterclaim a third party complaint there is a period fixed now in the rules. With respect to a
cross

claim

and

compulsory counterclaim they must be filed within the period fixed for the filing of an answer
because
crossclaim

even

if

a counterclaim or third party complaint are claim pleadings the rules do not allow

the

defending

party to file an answer separately from a counterclaim or a crossclaim or a third party


complaint.

These

pleadings must always be added or incorporated in the answer. So if defendant has claims
against

the

plaintiff

or against 3rd persons who are not litigants he should file an answer with a counterclaim an
answer

with

crossclaim or an answer with a third party complaint. The trial court will not allow the
defendant

to

file

an

answer today and then next week the defendant will file a compulsory counterclaim or even
a permissive counterclaim or a crossclaim. He will have to amend his answer and then
incorporate in that amended answer a crossclaim or counterclaim or a 3rd party complaint and
with respect to a thirdparty complaint you have to file a motion with the court asking for
permission to admit this third party. That is the way how these pleadings are submitted by the
defending party. Because this is the rule that we follow the filing of a compulsory counterclaim
generally should be together with an answer and an answer has to be filed within 15 days or 30

days or 60 days as the case may be. If there is an answer filed without a counterclaim but
later on the defendant feels that he should set up a counterclaim he will have to file an
amended answer with a counterclaim.

With respect to bill of particulars this is one of the mechanisms that are prohibited in small
claims

procedure

even in summary procedure and in our proceedings like amparo or habeas data. If the defendant
feels

that

there

is a need for the plaintiff to be more definite in crafting the allegations contained in the
complaint

the

remedy

of

the defendant is to file a motion for bill of particulars. If the defendant cannot fully
comprehend

the

subject

matter of the complaint because there are certain inadequacies or the allegations are not
definite

enough

can

the

defendant file a motion to dismiss on this ground? The answer is no Rule 16 does not include
as

ground

for

dismissal the inadequacy of the allegations contained in the complaint. May there be an
instance

where

defendant can rightfully file a motion to dismiss because of the vagueness or inadequacy of
the

allegations

contained in the complaint. that is instead of filing the motion for bill of particulars he should
file

motion

to

dismiss and the court grant dismissal because of the inadequacy or vagueness of the allegations
contained

in

the

complaint. The answer is yes. By way of exception, this happens when a RTC acts as a
commercial

court.

When

the trial court tries disputes in a corporate dispute or disputes among partners or among
members

of

an

association with a juridical personality and if there is indefiniteness or vagueness in the


allegations

contained

in

the complaint the remedy of the defendant is to file a motion to dismiss on this ground. The
reason

given

by

the

court is that in commercial courts applying the procedure outlined by the SC for RTC acting as
a

commercial

court, a motion for bill of particulars is prohibited. So if there is vagueness since motion for bill of
particulars

is

not allowed to be filed by the circular on commercial courts the remedy left for the defendant is
to

move

for

the

dismissal of the case on this particular ground, vagueness or indefiniteness in the allegations
contained

in

the

complaint. In ordinary civil cases where we allow a motion for bill of particulars, the motion is
available

to

both

sides the plaintiff and the defendant. If the allegations in the complaint are indefinite or vague
the

defendants

remedy is to move for bill of particulars. If the allegations contained in the answer are
likewise

vague

or

indefinite the remedy of the plaintiff is also to move for bill of particulars but they are also
in

the

form

of

motion. There is something special about a motion for bill of particulars filed by either party.
While

that

motion

should comply with the requisites of a motion under the rules so as not to be considered as a
useless

piece

of

paper and there should therefore be service upon the adverse party there should also be a
notice

of

hearing

when a motion for a bill of particulars is submitted the court, the court can act upon the
motion

right

away

without waiting for the hearing set for that motion. Usually we set a motion for hearing during
a

motion

day

which is usually a friday. We wait until that motion day so that we can submit to the court for
resolution this motion but not in the case of a motion for bill of particulars if we set the motion
day

for

bill

of

particulars

on

friday and it is received by the court on tuesday prior to this motion day on tuesday can right
away

resolve

the

motion it can grant the motion or to deny that motion. This is one of the few motions that can
be

acted

upon

right away by the court without waiting for the arrival of the date set for the hearing of the
motion.

And

motion for bill of particulars by its very nature should be filed by the defendant before he
submits

an

answer.

And it should be filed also by the plaintiff before he responds to the answer before he submits
his

reply.

If

the

defendant has already submitted his answer it is useless for the defendant to be asking for a
bill

of

particulars.

The filing of the answer means that the defendant has understood has comprehended fully
the

allegations

contained in the complaint. But if the defendant files a motion for bill of particulars and that is
denied

then

the

denial is still an interlocutory order what the defendant should do is to file an answer on
time

within

the

remaining period which should not be less than 5 days but if the motion is granted. The order
of

the

court

will

be directed to the plaintiff ordering him to submit an amended complaint or simply 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

directing him to submit a bill of particulars what is the remedy of the defendant? Either to move
for

the

striking

out of the allegations in the complaint which are vague or indefinite. The second more
practical

remedy

is

to

move that the whole complaint be stricken out and if that complaint in its entirety is stricken out
the

case

will

be

dismissed. If it is the plaintiff who is the movant for bill of particulars and the court directs
the

defendant

to

submit the bill or to amend his answer but the defendant disobeys the order of the court what
are

the

remedies

of the plaintiff? He can ask the court to strike out the allegations in the answer which are vague
or

indefinite

or

he can also move that the answer be stricken out as a whole. If the court authorizes or directs
that

the

answer

be

stricken out although it has been filed on time because of the refusal of the defendant to
amend

his

answer

or

submit a bill of particulars the situation will be as if the defendant has not filed an answer at
all

and

therefore

the next recourse of the plaintiff is to file a motion to declare the defendant in default. So this
is

one

instance

recognized in the rules where a defendant can be declared in default although he may have
already

filed

an

answer on time. Usually the filing by the defendant of an answer on time will preclude his
declaration

by

the

court in default. So it is not always correct to say that declaration in default is predicated on the
premise

that

no

answer has been filed by the defendant. This is one case where there could be a declaration of

default

even

if

the

defendant has filed an answer. The other situation is found in rule 29 the consequences of
failure

to

obey

an

order of the court related to the statute of discovery the modes of discovery. If you go to
rule

29

there

is

provision which says that if the defendant disobeys an order by the court relating to the use
and

availment

of

the modes of discovery, what the court can do is to strike out the answer filed by the
defendant.

And

if

the

answer filed by the defendant is stricken out the next move of the plaintiff should be to have
that

defendant

declared in default.

With respect to the filing and service of motions pleadings and other papers with the court we
should

always

have in mind the difference between substitute service of pleadings and motions and
substitute service of summons. The two are completely different from one another. The
substitute service of motions pleadings and other papers refers to a situation where the motion
or pleading cannot be served in person or personally there is failure to serve even if it is service
by mail by registered mail or ordinary mail. In substitute service of these papers motions
and pleadings what the movant should do is is to submit these motion or pleading with the
clerk of court with proof that personal service and service by mail has failed and when it is
received by the court that is the substituted service of motions and pleadings and other
papers is now completed. In the case of substituted service of summons it happens when
there is failure on the part of the sheriff to serve in person upon the defendant the summons.
If after several attempts the sheriff still could not serve summons in person upon the
defendant the next step for the sheriff to do is to substitute service of summons. So what the
sheriff does in substitute service of summons is to serve the summons at the residence of the

defendant upon a person of sufficient intelligence and discretion or if there is none at the place
where the defendant has his office upon a person who is competent and in charge of that office.
That is the meaning of substitute service of summons you distinguish it with substitute service of
motions and pleadings.

With respect to service of pleadings there is always a preference given by the court to personal
service

compared

with the other modes of service and if a movant or a pleader chooses a mode of service different
from

service

in

person the law requires that you should submit to the court an explanation.
mode

of

service

Why this

other

by

mail has been resulted to instead of personal service. The court in the past has been very
strict

in

this

order

of

preference in the use of the modes of service but recently the court has relaxed somewhat the
rule

depending

on

the nature of the motion that will be served in person or by mail as the case may be. In the
past

if

movant

for

instance files a motion but he chooses to serve upon the adverse party by mail and then he has
not

stated

in

the

motion the reason why he has not observed personal service, usually the court consider that
motion

as

scrap

of

paper because it does not comply with the provisions of the rules but as we said this rule has
been

relaxed

by

the court. It all depends on the importance of the motion that will be filed with the court and that
will

have

to

be

resolved by the court. And one such important motion is a motion to dismiss. Courts are very
strict

with

respect

to a motion to dismiss. The adverse party the plaintiff must be served with a copy by personal

service

if

he

is

not

served by personal service but by mail what the trial court usually requires the defendant to
do

is

to

submit

proof that the plaintiff has indeed received through the mail the motion to dismiss and this
can

be

done

by

submitting to the court the registry return and unless the registry return is submitted the
court

will

not

act

on

that motion to dismiss for failure to observe the requirements for service of this important
motion.

Now we go to summons. Summons is the writ available to the trial court in order to enable the
court

to

acquire

jurisdiction over the person of the defendant. Is it the only writ or process which will enable the
court

to

acquire

jurisdiction over the person of the defendant? Not so. Summons is the usual writ which
enables

the

court

to

acquire jurisdiction over the person of the defending party but the court can still acquire
jurisdiction

over

the

person of the defendant by compulsion even if the court does not issue the summons. For
example is the special civil action in Rule 65 certiorari prohibition and mandamus. They are
special civil actions distinct from the case from which that order or decision has originated but
in rule 65 the rules does not allow the certiorari court or prohibition court to issue a summons
addressed

to

the

defendant.

What

rule

65

authorizes

the

court

to

do

is

to

issue a notice addressed to the defendant requiring them to submit their comment before the
court.

That

order

to

comment if served upon the respondents will enable the court to acquire jurisdiction. So it is
not

correct

to

say

that summons is the only mechanism or process available to the court which will enable the

court

to

acquire

jurisdiction over the person of the defendant forcibly that is by compulsion. We don't have to
talk

about

these

writs or the notice if the defendant voluntarily submits to the jurisdiction of the court, in this case
the

court

will

acquire jurisdiction over the person of the defendant.


level

You should also take note of the entity

notification

given by a circular of the court concerning service of summons upon a foreign corporation which
has

transacted

business in the philippines but it is not registered as a foreign corporation or it has no


resident

agent

in

the

philippines. In this 2011 circular the summons to be served upon this foreign private corporation
may

be

done

four ways but always with the approval of the trial court.
upon

the

in
First is personal service of summons
foreign

private corporation not doing business in the philippines. But with the assistance of the
department

of

foreign

affairs and also the court of the country where this foreign corporation has its office. The second
mode

is

which

can also be authorized by a domestic trial court is the publication of the summons. It is not the
one found in rule
14. The summons will be published in the place in the country where this foreign corporation has
its office. So if the foreign corporation has its office in taiwan the publication should be in a
newspaper in taiwan. The third mode given by this 2011 circular is by fax message or any
electronic device authorized by the trial court for the service of summons upon this foreign
private corporation or entity. The fourth mode is a combination of any of the three as authorized
by the court.

With respect to domestic private corporations do not forget the rule on acquiring jurisdiction
through

the

service

of summons as explained in that old case of Villarosa vs UNECO. If you are going to sue a
domestic

corporation

you should see to it that summons is served upon the officers of that corporation or a domestic
association

with

juridical entity upon the officers enumerated in the rules of court but the decision of Villarosa
vs

UNECO

has

not been changed it has not been relaxed at all. So you have to know who these officers are they
are

enumerated

in the rules of court the president the managing partner the general manager the
treasurer

the

corporate

secretary or in house counsel of the corporation. Remember that in the case of Villarosa the
summons

was

served upon a branch manager of the defendant and the rules do not include a branch
manager

as

one

of

the

officer upon whom summons can be served and the court ruled that the trial court did not
acquire

jurisdiction

over the person of this corporation because the summons was served not upon anyone of the
officers

mentioned

in the rules of court. Again the doctrine in Villarosa has been affirmed by cases subsequently
decided

by

the

SC

involving corporations and partnership. But in the case of a partnership there could be a
revision.

When

the

association with juridical entity is a partnership what the rules require is that summons must be
served

upon

the

managing partner or a general manager as the case may be. So if the defendant is a partnership
duly registered with the securities and exchange commission 31:22 and the partnership is

composed of four partners service upon anyone of the partners will be a valid service of
summons. Because under the civil code in a partnership the presumption is that all the
partners are managing partners so we apply certain provisions of the civil code. Since all
partners under the civil code are presumed to be managing partners service of summons upon
anyone of the parties will be a sufficient compliance with the law.

It is in service of summons upon a natural person there is a conflict of decisions rendered by the
court

insofar

as

the decision of jurisdiction over this natural person is concerned. In one case decided in 2006
a

defendant

was

sued a natural person for the recovery of money. The defendant stayed in a gated subdivision
according

to

the

court it means that not anybody can enter the subdivision without obtaining the permission of
the

guards

on

the

gate or the owner of the house living within the subdivision. This defendant resided in this gated
subdivision

so

everytime that the sheriff would go to the residence of this defendant to serve summons the
guards

would

not

let the sheriff enter the property. The guards always told the sheriff that that person is not
around

he

cannot

be

served with summons personally. So we will not allow you to enter the subdivision. After so many
attempts

the

sheriff got fed up and what the sheriff did is to leave a copy of the summons together
with
complaint
Literally

copy

of

the

with the guards of the subdivision. Is that a valid substitute service of summons.
that

is

not

a valid service of summons if you will read rule 14 on substitute service of summons. It
means

that

the

summons should be served at the residence of the defendant upon a person of sufficient age and
discretion

then

living therein. If the summons and the complaint was left only with the security guards at
the

gate

of

the

subdivision this will not comply with the rules on substitute service because the guards do
not

reside

at

the

place of residence of the defendant. And then the court also said that the meaning of the phrase
of

sufficient

age

and discretion does not mean that the person to be served by substitute service could be a
minor

residing

in

the

residence of the defendant. The court said that this person of sufficient age and discretion means
that

this

person

is at least 18 years he is no longer a minor and that a provision there is a relationship of


confidence

between

this

person and the defendant himself. So if the person served is simply a visitor of the residence
that

will

not

be

sufficient service of summons. But in this 2006 case the SC became very liberal. Although it
was

clear

that

the

sheriff did not satisfy the requirements of a substitute service of summons the court ruled
that

the

trial

court

acquired jurisdiction over the person of the defendant so it would seem that in this case we
did

not

follow

strictly the substitute service of summons. But in 2009 another case was decided by the
court

involving

the

validity of a substitute service of summons that is not made in accordance with the provisions of
the

rules.

And

this time the court said if substitute service of summons is not in accordance with section 7 or
Rule

14

the

service

is not valid the court will not acquire jurisdiction over the person of the defendant and
therefore

if

the

court

does not acquire jurisdiction over the person of the defendant the proceedings taken thereafter
by

the

court

may

be invalidated the proceedings may be void for lack of jurisdiction over the person of the
defendant.

In summons you concentrate your study in section 14 15 and 16. These are the sections in
summons

which

has

been the subject of decisions of the supreme court that are really in conflict with one another.
Before 1997 it was firmly established that if an action is filed against the defendant that is purely
in

personam

and

also

personal

at

the same time like recovery of an unpaid loan and the defendant cannot be served by summons
either

in

person

or by substitute service the doctrine then which we follow was that the court cannot
simply

authorize

publication of the summons and after publication of that summons as directed by the court the
court

will

now

have jurisdiction to try the case. This is restricted by that old 1960s or 1970s decision of citizen
surety

vs

herrera.

This was the generally prevailing doctrine in this case a case was filed for the recovery of a
deficiency

arising

from a foreclosure of real estate mortgage. So that action was in personam it was also
personal

in

character.

Although previously the collateral owned by the mortgagor who is now the defendant in this
complaint

have

known address when this complaint for deficiency was filed and a summons was issued the
sheriff

reported

to

the court that it can no longer locate the defendant in the residence or in any other address
given

to

him

by

the

plaintiff so service in person of the summons could not be had substitute service also could not
be

had

because

the residence of the defendant was unknown. What the plaintiff did was to file a motion to
court

where

he

sought authority from the court to publish these summons of course this was in the form of an
ex

parte

motion

because summons has not yet been served upon the defendant the court has not yet acquired
jurisdiction

over

the person of the defendant. During the hearing of the motion it was only the plaintiff who was
present

and

the

lawyer explained to the court that several attempts were made but the sheriff have
failed

to

serve

these

summons in accordance with these modes so the plaintiff asked with the court for authority
to

publish

the

summons which the court readily granted. There was no opposition. After receiving the
order

of

the

court

authorizing the publication of the summons the plaintiff transacted with a newspaper of general
circulation

and

caused the summons to be published. The newspaper of course gave to the plaintiffs lawyer
the

affidavit

of

publication so that it can be presented with the court as evidence that the order of the
court

to

publish

the

summons has been complied with. After 60 days from the publication of the summons
the

court

has

not

received any responsive pleading any answer coming from the defendant. So what the plaintiff
did

was

to

file

motion to declare the defendant in default. In rule 14 the period within which to answer a
complaint

after

publication ordered by the court is a period of 60 days so what the plaintiff did there was in
accordance

with

the

rules. Since there was no answer filed the plaintiff thought to file a motion to declare the
defendant

in

default.

During the hearing of the motion the plaintiff presented to the court a copy of the order
authorizing

publication,

the proof that the summons was indeed published and the affidavit of the publisher of the
newspaper

saying

that there was indeed publication of the summons. The plaintiff obviously was expecting the
court

to

grant

his

motion to declare the defendant in default but much to the surprise of the plaintiff the trial
court

which

was

presided by judge Sereno who became chief justice of the SC she was then a trial court judge
asked

the

plaintiff

after presentation of evidence by the plaintiff to explain to me why your complaint should not be
dismissed.

So

the lawyer was taken aback he told the judge your honor we moved for authority to publish
the

summons

because the summons cannot be served in person or by substitute service. You allowed
us

to

publish

the

summons and we spent money for the publication of the summons we have done our part
and now you are asking us to explain why this case should not be dismissed is there
anything wrong with our case in the first place? And the judge told the plaintiff even if you
publish the summons that publication did not enable the court to acquire jurisdiction over
the person you should have complied with the requirements of the rules of court so the lawyer
asked himself what parts of the rules of court did I fail to comply with? And then it came up to

the decision that the requirement which appears not therein satisfied was what the SC calls the
constitutional requirement of due process that the action should have been converted into one
that is in personam into in rem
personam

and

also

or quasi in rem. And the means by which an action in

personal

at

the

same

time

could

be

converted from in personam is to apply to the court for the preliminary attachment of the
properties

belonging

to the defendant and of course after the court has granted the writ of preliminary attachment
that

there

should

be an actual attachment on personal properties of the defendant. The cases for this
conclusion

by

the

plaintiff

aside from Rule 14 section 15 where there is a mention of the issuance of a preliminary
attachment

over

properties of the defendant the other rule that supports this argument is rule 57 on
preliminary

attachment.

If

you read section 1 of rule 57 on preliminary attachment. The last situation enumerated
instance

where

preliminary attachment could be issued by the trial court when the defendant is not a resident of
the

philippines

and he is not found in the philippines and he could be served with summons by
publication. The court interpreted these provisions to mean that if there is publication of the
summons
accompanying

there
preliminary

Without

should

be

attachment

over

a
personal

preceding
properties

this

of

or
the

defendant.

actual

preliminary attachment of the personal properties of the defendant the court cannot acquire
jurisdiction

over

the

person of the defendant. In other words if we are not able to convert the action in personam to
one

that

is

in

rem

or quasi in rem the court will not be able to acquire jurisdiction over the person of the

defendant

and

therefore

the court will have no authority at all to entertain that case. This ruling of the SC in citizens
surety

vs

herrera

was issued in the 1960s or early 70s and that has been the rule that was always followed
when

it

comes

to

actions in personam that are also personal at the same time. The innovation introduced by the
citizen

surety

was

that if no preliminary attachment of properties belonging to the defendant could be had, it is


not

right

also

to

order the dismissal of the case. The court said instead of ordering the dismissal of the case
what

the

trial

court

should do is to order the archiving of the case. So there will be no dismissal of the case simply
archiving

of

the

case. The court explained that if we simply archive the case if we dont order the dismissal of
the

case

then

the

law on prescription will not start to run and therefore it is not possible for the defendant later
on

to

setup

the

defense of prescription which is one of the non waivable defenses. The defendant cannot
possibly

setup

the

defense of prescription if the complaint is archived not dismissed because under the civil
code

if

there

is

judicial demand for the payment of an indebtedness prescription will not start to run. And the
court

complaint

that is archived will constitute always as a judicial demand for the performance of the obligation.
From

that

time

on we followed this procedure whenever a defendant in an action in personam that is also


personal

cannot

be

served with summons in person or by substitute service. Until the 2008 this case of PNOC vs

Santos

was

decided

by the court and if you're not familiar with that case I suggest that you read. Because it is a case
that has all revised or changed the principles applicable to this situation where an action in
personam

can

be

filed

by

the

court even if there is no conversion into in rem or quasi in rem. PNOC vs Santos a 2008 case
involved

practically

the same claim it was a claim for money arising in fact from a sale. The defendant could not be
located

anymore.

So his whereabouts are unknown. And therefore summons cannot be served in person or by
substitute

service.

Instead of following the steps taken by the lawyer in citizens surety vs herrera the lawyer in pnoc
did

not

move

for the publication of summons. What the lawyer filed was a motion to allow him to present
evidence

ex

parte

because no answer has been filed by the defendant and the trial court allowed it. Evidence
was

presented

ex

parte and later on the judge rendered a decision in favor of the plaintiff directing the
defendant

to

pay.

When

the defendant learned of the decision he presented himself before the court and he
asked

the

court

for

reconsideration of the decision. That was a mistake of the defendant. Because the court said that
when

he

filed

motion for reconsideration he admitted the jurisdiction of the court over his person. So there was
no

more

issue

on absence of jurisdiction. The filing of a motion for reconsideration was voluntary appearance
on

the

part

of

the

defendant he's admitted himself to the jurisdiction of the court. From that time on since 2008
lawyers

have

made

use of PNOC vs Santos as the authority to convince a court the trial court that there is no
more

need

for

publication and for the issuance of a writ of preliminary attachment before the court could
acquire

jurisdiction

over the person of the defendant. In 2010 there was another case which the court resolved
Padua

vs

Galvez.

This

case practically reiterates the ruling in PNOC vs Santos. There is no need for the conversion
of

an

action

in

personam to in rem or quasi in rem before the court could acquire jurisdiction over the person of
the

defendant.

In this case of Padua the court explained that we should apply literally what the rules provide. If
you

go

to

rule

16 if the defendant is a resident of the philippines but is temporarily out of the philippines in
relation

to

section

14 if the whereabouts of the defendant are unknown there could be publication of summons and
that

will

enable

the court to acquire jurisdiction over the person of the defendant. So it would seem that the
principles

which

were adhered before as enunciated in citizens surety vs herrera are no longer binding upon
plaintiffs

they

can

ignore the requirement of prior preliminary attachment of properties of the defendant before
there

could

be

publication of summons to enable the court to acquire jurisdiction over the person of the
defendant.

So

14

15

and

16 are the sections involved in the case of PNOC vs Santos and Padua vs Galvez. There is really
no

need

for

the

plaintiff under 14 15 and 16 to make a conversion of an in personam action into in rem or quasi

in

rem

through

the process of a writ of preliminary attachment that is actually carried out by the court.

But what is the advantage of using this principle in citizens surety vs Herrera. Is there any
advantage

if

the

plaintiff first moves for preliminary attachment over the properties of the defendant and
thereafter

ask

the

court

for publication of summons. Compared to just the plaintiff asking for publication of
summons

without

an

accompanying writ of preliminary attachment. The advantage in the mechanism given in


citizen

surety

is

that

there is a security that is enjoyed by the plaintiff when the property of the defendant is attached
through

writ

of preliminary attachment. If you read rule 57 that is precisely the purpose of preliminary
attachment

over

the

property of the defendant to provide security in favor of the applicant for whatever judgment
the court may render in favor of the plaintiff. But again the present stand of the court is not to
apply anymore that principle in citizens surety vs herrera insofar as publication of summons is
concerned. There is no more need for converting an action in personam into one that is in
rem or quasi in rem. Again the court explained that 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 in personam action into in rem or quasi in rem. Because a property
belonging to the defendant is now within the jurisdiction of the trial court.

Now we go to motions. In motions the general rule is that if a motion is not made in open
court

it

must

be

reduced into writing and it must satisfy all the requirements given in the rules for the motion.
There

must

be

service upon the adverse and that motion should be set for hearing. That is always the general
rule

with

respect

to motions. So if there is a motion that is reduced into writing but it is entitled ex parte motion
that

motion

on

its

face already violates the rules. Because an ex parte motion is not served upon the adverse party
and

usually

it

is

not set for hearing in accordance with the provisions of the rules on motion. When it comes
to

the

notice

of

hearing of motions what some lawyers do is to address the notice of hearing to the clerk of court.
So

in

the

notice

of hearing it is provided the transfer of court RTC Manila the transferee and then the pleadings
this

include

the

foregoing motion and your schedule of motions for hearing on motion day and then
particular

day

for

that

motion day and then signed by the movant. And of course at the bottom there is proof of service
either

in

person

or by registered mail. The SC said that is not the notice of hearing that we require in
motion.

The

notice

of

hearing must be addressed to the adverse party. It should not be addressed to the branch
clerk

of

court

so

the

proper way of presenting a notice of hearing of any motion in general is to make the adverse
party

or

the

lawyer

of the adverse party as an addressee. Mr Juan Dela Cruz lawyer for the defendant please
take

note

that

the

foregoing motion will be heard with the RTC on particular motion day at 830 etc. That is a
proper

way

of

preparing a notice of hearing the notice should be sent to the adverse counsel and then at the
bottom

there

must

be proof of service by registered mail or by personal service as the case may be.
Remember

that

the

SC

has

repeatedly held that if a motion is submitted to court and the motion does not emit the
requirements

the

formalities the mechanisms and the rule as to service and notice of hearing that motion is a
scrap

of

paper.

The

court does not have to entertain that motion. So we should not expect the court to
consider

by

granting

or

denying the motion the court will simply ignore the scrap of paper that has been filed with the
court.
And then we have this omnibus motion rule which again emphasizes the non waivable defenses
in civil action. In any civil proceeding if there is an objection to a pleading or to any claim it
should be contained in the motion or in another pleading and if the objections are not setup
these objections are deemed omitted except for the non waivable defenses.

Now we go to a motion to dismiss. Which is always a litigated motion. A motion to dismiss is


prohibited

in

certain procedures and circulars of the court. In small claims, even in summary procedure and
in

some

special

proceeding amparo and habeas data like that they are also prohibited. But in regular
procedure

motion

to

dismiss is of course allowed in civil cases. And a motion to dismiss under rule 16 should be
filed as a matter of general practice before the defendant submits an answer. Can the
defendant properly file an answer and a motion to dismiss at the same time? in Rule 16 that
is

also

allowed

but

the

motion

to

dismiss

will

simply

be

incorporated in the answer we note that under rule 16 if the defendant does not have in mind
filing

separate

motion to dismiss but the defendant has in mind submitting his responsive pleading right

away

he

can

file

an

answer effecting the motion to dismiss by incorporating in his answer the grounds in rule 16
as

affirmative

defenses. In other words if the defendant files an answer with affirmative defenses these
affirmative

defenses

are those that are enumerated in rule 16 the grounds for a motion to dismiss. He is allowed to do
that.

And

once

the answer is filed with the court the defendant can ask the court to conduct a preliminary
hearing

on

this

affirmative defenses and the court can grant it as if the defendant has previously filed a
motion

to

dismiss.

So

there could be an answer together with a motion to dismiss. But these are not separate
submissions.

The

answer

is not separate from the motion to dismiss. There is just one answer and then in that answer
affirmative

defenses

are set up and possibly negative defenses but with respect to the affirmative defenses they
are

those

that

are

mentioned in rule 16 as grounds for a motion to dismiss. In this case there will be a preliminary
hearing

as

if

motion to dismiss has been filed by the defendant. But in the case of a non waivable defense
since

they

are

non

waivable if you give effect to this effect of non waivable defense it is possible it is proper for the
defendant

to

file

motions to dismiss one after another without violating the omnibus motion rule if these
motions

to

dismiss

are

founded on these non waivable defenses. The defendant can fila a motion to dismiss based on
prescription.

If

that is denied do we allow the defendant to file a second motion to dismiss based on litis

pendentia?

yes

if

the

second motion to dismiss is filed do we allow the defendant to file a third motion to dismiss?
This

time

on

lack

of jurisdiction over the subject matter? The answer is yes again and then if the third motion to
dismiss

is

denied

can the defendant again can file a fourth motion to dismiss founded this time on res judicata?
The

answer

again

is yes because of the application of these non waivable defenses. It is conceivable and it
is

proper

for

the

defendant to file successive motions to dismiss that contain of course distinct non waivable
defenses

and

we

do

not make use of the omnibus motion rule. So a motion to dismiss founded on lack of jurisdiction
over

the

person

only will be a waiver of the other grounds in rule 16 except litis pendentia lack of jurisdiction
or

res

judicata.

There will be waiver of course of the other grounds in rule 16 but not those contained in letters f
and

except

in

unenforceability under the statute of fraud which is a waivable defense. IN the resolution of a
motion

to

dismiss

rule 16 gives to the court 3 choices. Grant or deny the motion or order amendment of the
pleadings.

fourth

option now given to the trial court by virtue of these laws on Alternative Dispute Resolution
that

is

if

these

grounds are available what the court can do as a fourth choice is to refer the matter into
mediation

or

arbitration

as the case may be and suspend further hearings. So as of now there are 4 options available
to

trial

court

in

resolving a motion to dismiss under rule 16. Grant the motion deny the motion order an

amendment

to

the

pleadings and then refer the matter to conciliation or mediation as the case may be.

Is there any tactical advantage or procedural advantage if the defendant instead of filing a
motion

to

dismiss

under rule 16 will simply answer the complaint but in his answer he will set up affirmative
defenses those enumerated in rule 16? Is there a procedural advantage? Yes there is. There
is

procedural

advantage.

If

the

defendant files an answer with an affirmative defense and these affirmative defenses
are

the

grounds

enumerated in rule 16 for a motion to dismiss and after preliminary pleading on this
affirmative

defenses

the

court orders the dismissal of the case. The defendant will be given an opportunity to
recover

his

claim

for

damages if in his answer there are counterclaims permissive or compulsory together with
the

affirmative

defenses. So if the answer of the defendant is an answer with a negative defense with
affirmative

defenses

and

compulsory or permissive counterclaim and the defendant asks the court to conduct a
preliminary

hearing

on

the affirmative defenses and the court orders the dismissal of the complaint because the
affirmative

defenses

are

properly demonstrated by evidence the complaint will be dismissed but the defendant will have
an

opportunity

to recover damages or whatever relief he has sought in his permissive or compulsory


counterclaim.

We

note

that

in rule 16 the dismissal of the case will not affect any counterclaim or crossclaim or any other
claim

that

has

been

submitted by the defendant before the court and this can only be done if the defendant files
an

answer.

The

defendant cannot file a motion to dismiss with a counterclaim impossible. He cannot file a
motion

to

dismiss

with a crossclaim because a motion to dismiss is not a pleading it is only in an answer where
we

can

have

crossclaim or a counterclaim a counterclaim against the plaintiff as the case may be. So that
is

the

procedural

advantage if the defendant is advised by his counsel not to file a motion to dismiss as a
separate

motion

but

simply file an answer with a counterclaim and setting up negative and affirmative defenses.
In

motion

to

dismiss of course we can make use of any of the grounds mentioned in rule 16 but again with
the

exception

of

non waivable defenses if there is a motion to dismiss founded on grounds other than the non
waivable

defenses

the grounds not cited are deemed omitted. So if there is a motion to dismiss founded on lack
jurisdiction

over

the person of the defendant which is a waivable defense and then that is the only ground
that

is

setup

in

the

motion to dismiss and that motion to dismiss is denied, the defendant will be precluded from
filing

second

motion to dismiss on the ground of improper venue because these are waivable defenses.
What

we

said

earlier

there could be a second motion to dismiss if the second motion to dismiss or the succeeding
motions

to

are founded on the non waivable defenses.

dismiss

With respect to lack of jurisdiction over the subject matter or over the nature of the case, this
ground

it

is

the

topic in our case of Tijam vs Sibonghanoy. I assume all of us are familiar with this case. If the trial
court

does

not

have jurisdiction over the subject matter of the case normally the conclusion is that the
judgment

of

the

court

is

void because the court must have jurisdiction over the subject matter before it can properly
try

the

case.

If

the

court on the other hand does not have jurisdiction over the subject matter of the case but the
defendant

kept

silent about this issue about this absence of jurisdiction and then the defendant allows the
court

to

conduct

hearing on the case he allows the court to decide the case and the defendant thereafter
appeals

let

us

say

to

the

Court of Appeals and before the court of appeals the defendant also does not raise the
issue

of

lack

of

jurisdiction and then the CA renders its own decision affirming the decision of the RTC and after
receiving

the

decision of the CA the defendant asks for an extension of the period to file a motion for
reconsideration which at that time is allowed. And instead of filing a motion for reconsideration
the

defendant

this

time

challenges

the

validity of the decision of the trial court as well as the decision of the court of appeals on the
ground

that

the

trial court did not have jurisdiction from the very start . And lastly that case has been pending
before

the

courts

for 15 years. In Tijam the SC refused to resolve the issue of validity of the judgment. In the
case

of

Tijam

the

court simply said it is true that lack of jurisdiction over the subject matter can be raised at

anytime

even

for

the

first time on appeal but in this case we have to make use of the rule on estoppel by laches.
The

case

has

been

pending for 15 years and during this 15 year period the defendant did not challenge the
jurisdiction

of

the

court

in fact the parties litigated by filing submissions to the court of appeals. So it is not fair and just
according

to

the

court to declare the judgment as void and then to remand the case to the lower court to the
proper

court

to

try

it

all over again. The SC observed it might take another 15 years for the trial court to eventually
decide

the

case.

So

overall the SC observed we have a case that seeks to recover only 1900 pesos pending before
the
possibly for

courts

of

justice

30 years. It is not just according to the SC. The SC said that while the

decision

really

may

be

challenged because of the absence of jurisdiction over the subject matter the defendant is
estopped

by

laches

by

his act of negligence in failing to raise this issue as soon as possible. He is guilty of estoppel by
laches

he

can

no

longer challenge the validity of the decision of the court. The case of Tijam was decided in 1968
its

really

an

old

case. Our rules that we have now took effect in 1997 but under the rules that we are discussing
we

still

have

non

waivable defenses like lack of jurisdiction over the subject matter. And in rule 9 there is no
exception

as

to

this

non waivable defenses there is just an enumeration of these non waivable defenses and the
first

one

is

lack

of

jurisdiction over the subject matter. Rule 9 does not even mention the case of Tijam vs

Sibonghanoy

even

by

way

of exception to its character of a non waivable defense. So we argue that under the 1997 rules
Tijam

should

be

considered abandoned. We should forget about Tijam vs Sibonghanoy. That is not a good
argument

because

in

rule 47 in annulment of judgment the doctrine in Tijam was incorporated as part of the rules of
court.

If

you

go

to rule 47 one of the grounds for annulment of judgment is lack of jurisdiction over the subject
matter.

In

rule

47

there is an exception, except when there is estoppel by laches. That is an express recognition
of

the

1997

rules

about the applicability of the case of Tijam vs Sibonghanoy. So we still have laches by estoppel
as

good

defense

against this non waivable defense of lack of jurisdiction over the subject matter.

In other cases that are factually different from Tijam the SC also used another kind of estoppel in
order

to

bar

party from raising the issue of jurisdiction although the trial court really does not have
jurisdiction.

good

example is the 2004 case of Soliven vs Fastforms. In the case of soliven vs fastforms a case
was

filed

before

an

RTC after the effectivity of BP 129 and after the effectivity of the 1997 rules. The amounts to be
recovered

in

that

complaint was almost 800 thousand pesos. The court before which the complaint was filed was
a

regional

trial

court in Makati. So if we apply BP 129 in determining the jurisdiction of the court simply
because

the

amount

sought to be recovered was in the aggregate sum of 800 thousand should not lead us to the

conclusion

that

the

RTC really was the competent court. That is not what BP 129 tells us. In BP 129, in order to
determine

the

competent court in complaints for money we should exclude items like interests damages
cost and attorneys fees. And the remainder will be the basis in ascertaining the competent
court.

Obviously

in

this

case

at

the

start

the issue of jurisdiction was not raised at all. So the defendant instead of filing a motion to
dismiss

which

was

not expected of him because he also thought that the trial court really have jurisdiction over the
case.

He

simply

filed an answer and in that answer incorporated a counterclaim. So there was an answer by
the

defendant

together with a counterclaim. The judge unfortunately also did not study the complaint well so
the

court

also

was not aware that it did not have jurisdiction over the case. Because if the court read the
complaint,

the

court

could have discovered that the amount sought to be recovered by the plaintiff as principal
amount

was

less

than

300 thousand pesos. So that case is cognizable only by an inferior court. So nobody
brought

the

issue

of

jurisdiction with the regional trial court. Then later the court rendered a judgment in favor of
the

plaintiff

this

time the defendants lawyer studied thoroughly the records of the case. The lawyer arrived at the
conclusion

that

there is something wrong with the complaint. That the court did not have jurisdiction over the
case

and

he

can

easily prove to the court that the court did not have jurisdiction because the amount sought to
be

recovered

as

principal was less than 400 thousand pesos. What the defendant did was to file a motion for
reconsideration
before the trial court and he raised the issue of lack of jurisdiction. So he asked the trial court
to

reconsider

the

decision and order the dismissal of the case. On the ground of lack of jurisdiction over the
subject

matter.

The

trial court denied the motion and said you participated in the case you did not challenged the
jurisdiction

of

the

court and you presented evidence for the court in support of your counterclaim and now that you
have

lost

the

case you return to the court and tell the court that it does not have jurisdiction over the case.
That

is

not

fair

said

the RTC. So the RTC stood up to its evaluation that there is nothing wrong with the
decision.

The

case

eventually reached the SC and the SC said the defendant will no longer be allowed to challenge
the

jurisdiction

of the court. Remember that the factual setting of this case Soliven is not similar to Tijam.
The

case

in

soliven

was only about 3 years old at the time it was decided by the RTC so we cannot make use of the
15

year

period

that was capitalized by the SC in using estoppel by laches. We cannot make use of that
concept

of

estoppel

by

laches because the period was not similar to Tijam. But what the supreme court did here
was

to

introduce

another kind of estoppel. The court said there may be no estoppel by laches but there is
estoppel

in

pais

that

is

estoppel by deed. The act of the defendant in participating actively during the trial of the case
and

in

seeking

an

affirmative relief through a counterclaim contained in his answer makes the defendant in
estoppel

in

pais.

he

can no longer challenge the validity of the decision rendered by the court although the
court

may

not

have

jurisdiction over the case. So another kind of estoppel was now set by the SC in order to
prevent

party

from

challenging jurisdiction the first is estoppel by laches in Tijam and then the second one is
estoppel

in

pais

estoppel by deed.

We of course lawyers were contented with the explanation given by the court in these
two

cases.

Which

decisions were really fair its not good to allow a party to participate in the trial and then if he
loses

the

case

he

challenges all that the judge has done in rendering a decision. He should have set up these
issues

even

before

the case is decided or even through a motion to dismiss. But in 2009 another case which was
a criminal case Figueroa vs People this was a criminal case. In Figueroa there was a criminal
case

filed

against

the

accused

for

reckless imprudence resulting to homicide. If you recall under BP 129 these criminal cases of
reckless

negligence

are cognizable by an inferior court under BP 129. But unfortunately in Figueroa the information
was

filed

by

the

prosecutor before the RTC. Just like in Soliven vs Fastforms the prosecutor was unaware that
the

RTC

did

not

have jurisdiction. When the appeals was taken in the custody of the court. His lawyer the
defense

counsel

also

assumed that there was nothing wrong with the jurisdiction of the trial court although in truth

again

the

RTC

did not have jurisdiction over the case. So just like in Soliven vs Fastforms the judge also did not
know

because

nobody raised the issue of jurisdiction. He must have made use of the presumption in
evidence

that

there

is

regularity in the performance of the duty of the prosecutor and then his presumption
that

court

has

jurisdiction over a case that has been filed before it. Really under the rules of evidence the
courts

can

make

use

of these presumptions that it has jurisdiction over the case. There was trial where the court the
prosecution

and

the accused presented their respective evidence. The trial court convicted the accused. the
accused

appealed

to

the CA and then in the CA the accused moved for the dismissal of the information of the
criminal

case

on

the

ground of lack of jurisdiction. The solicitor general who is the lawyer of the people of the
philippines

cited

this

doctrine in soliven vs fastforms that when a party participates in the litigation before the trial
court

and

does

not

challenge the validity of the orders of the trial court he should be estopped from questioning
the

proceedings

taken by a trial court or even the validity of the judgment that is estoppel in pais. So active
participation

means

that the litigant who participates is estopped from challenging the validity of the proceedings
where

there

is

direct participation. The CA agreed with the Solicitor General because the arguments presented
by

the

sol

gen

is

applying the rule on estoppel in pais. The case reached the SC. The SC said the judgment is

void

because

we

cannot apply the rule of estoppel in pais in this case. So even if there wasactive participation by
the

accused

in

criminal case he still can challenge the validity of the information against him if the
court

really

has

no

jurisdiction over the case. Since this case of Figueroa is a criminal case but the case of Soliven is
a

civil

case

does

it really matter? I'm not saying that you follow Figueroa or you follow soliven vs fastforms
but

if

you

are

confronted with a problem on lack of jurisdiction and it is a civil case you apply soliven vs
fastforms

but

if

the

problem involves a criminal case then you follow Figueroa. There is reason really for the SC to
adopt

different

path in Figueroa because Figueroa was a criminal case and of course the liberty of the
accused

was

to

be

considered. In 2010 again there was another similar case which involved also estoppel in pais.
NAPOCOR

vs

the

province of Quezon. The SC adopted the doctrine in Soliven vs fastforms so there is a continuity
of

decisions

in

civil cases where the SC applies the principle of estoppel in pais in order to prevent the party
from

raising

the

issue of jurisdiction if the party has already participated during the hearing of the case. The
principle

is

we

still

have estoppel by laches and estoppel in pais that will preclude the party from raising the
issue
We continue tomorrow.

Motion to dismiss (Rule 16)

of

jurisdiction.

Another ground for motion to dismiss is lack of jurisdiction over the person of the defendant.
This

will

take

place if the defendant is not properly served by summons, in accordance with rule 14 either
service

in

person

or

substituted service. The problem of the defendant if he contends before the court that the court
has

not

acquired

jurisdiction over his person is that he has to file a motion before that same court. So he will then
file

motion

to

dismiss based on that ground, lack of jurisdiction over his person. If the defendant files a
motion

to

dismiss

before the court on the ground of absence of jurisdiction over his person does not the
defendant

admit

that

the

court already has jurisdiction over his person? The answer is NO. The filing by the defendant
of

motion

to

dismiss on that ground is the only mechanism available to him to manifest to the court that
the

court

has

not

acquired jurisdiction over his person. In old cases what the defendant did so that he can avoid
that

argument,

that by filing of motion to dismiss he in fact recognizes that the court acquires jurisdiction is
to

tell

the

court

right away that his appearance before the court in filling a motion to dismiss is considered
only

as

special

appearance. Only for that purpose of telling the court, that the court has no jurisdiction over
his

person.

This

special appearance rule, extend to another principle in the past, that when a defendant files a
motion

to

dismiss

on the ground that the court has not acquired jurisdiction over his person and then he has

another

ground

in

Rule 16, by virtue of the application of the Omnibus Motion Rule, the decisions of the court
then,

will

have

to

the effect that if he adds to a motion to dismiss another ground mentioned in Rule 16, he
may

not

use

this

ground of lack of jurisdiction. That has been changed by the present rules of court. A
defendant

who

files

motion to dismiss based on lack of jurisdiction over his person and another ground, is not
deemed

to

have

admitted jurisdiction of the court over his person. That is the present rule that we follow.

In other words, a defendant is free to file a motion to dismiss citing a s to one of the grounds lack
of jurisdiction over his person and other grounds in Rule 16. He is not deemed to have waived his
argument that the court has no 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 on the summons, on the belief that the filing of an answer will in effect make himself
liable
in the complaint.

for

the

claim

Then he is declared in default. He receives the order of the court and then

following

the

rules.,

the defendant files a motion to lift the order of default. The filing of a defendant of a motion to
lift

the

order

of

default is acceptance of the defendant of the jurisdiction over his person. Or on other
instances,

where

the

defaulting defendant has received a judgment of the order of default, and he files a motion for
reconsideration
or a new trial, the filing of the motion for reconsideration or the new trial in effect is submission

of

the

defendant

of the jurisdiction of the court over his person. This is the reason why in case cited Padua vs
Galvez,

the

Supreme

Court said that if the defendant claims that the court has not acquired jurisdiction over his
person

and

then

he

moves for reconsideration or new trial, he should in that motion specify to the court that the
filing of the motion for new trial or reconsideration, is not to be treated as voluntary submission
of his person to the jurisdiction of the court. He must always qualify the filing of such motion.

One the grounds is failure to state a cause of action. The Supreme Court has emphasize the
difference between failure to state a cause of action and lack of cause of action. Lack of cause of
action is not a ground for motion to dismiss. It is failure of the complaint to state the cause of
action. The difference according to the court is that if the plaintiff has no cause of action at all,
that is he does not allege a right, or even if he alleges a right there is no further that his right
has been violated, there is really no reason for the plaintiff to go to court. In this situation, the
complain will be dismissed for prematurity. The court will not acquire jurisdiction over the
compliant. In Rule 16 failure to state

a cause of action assumes that the plaintiff really has a

cause of action and the failure to state will solely be the fault of the lawyer who prepared the
complaint.

For instance, in accion reinvindicatoria, let us assume that there is really a plaintiffs right and
entitlement

to

the

ownership and possession to the land, and the defendant has failed to comply with his
obligation,

there

is

now

cause of action. But in the complaint prepared by the lawyer, the lawyer neglects to allege the
assessed

value

of

the property which is the factor which ascertain the jurisdiction of the court. There could be now
a

motion

on

the

part of the defendant to dismiss the case for failure to state a cause of action. If there is an
action

reinvindicatoria

filed before the RTC and there is no allegation as to the assessed value, the RTC will not acquire
jurisdiction

over

the case. The reason is under BP 129 there are two courts which are given jurisdiction, RTC and
inferior

court.

Let us say that there is accion reinvidicatoria before the RTC but there is no allegation as to the
assessed

value

of

the property, the defendant files a motion to dismiss for lack of jurisdiction, the plaintiff of course
will

be

given

copy of such motion, the plaintiffs counsel analyzes the motions but the counsel is self-centered
and

the

counsel

thinks that he could not commit such error, so the court hears the motion. But in hearing of a
motion

to

dismiss

founded on lack of jurisdiction over the subject matter, the court will not allow the parties to
present

evidence

in

support of the opposition. The reason is because lack of jurisdiction over the subject matter
is

purely

legal

question and the only evidence to be taken into account by the court is the complaint
itself.

Applying

the

principle that a court acquires jurisdiction based simply on the allegations of the complaint.

In the hearing of a motion there will be presentation of evidence only if the question that
will be raised is a factual issue, like if the ground is the obligation has been waived or paid or
abandoned. But if the issue is lack of jurisdiction over the subject matter, the only paper to be
examined is the complaint itself. The court can easily resolved by merely reading the contents
of the complaint.

So the parties submit this motion to dismiss. The court concludes that it really has no
jurisdiction.

The

court

grants the motion. So the case is dismissed. The lawyer of the plaintiff will receive the order of
dismissal

from

the court, he will be bothered this time. He will convert himself as a self-centered lawyer to
a

more

humble

lawyer, so he accepts his defeat. Can the lawyer for the plaintiff amend his complaint although
the

court

order

the dismissal based on the defendants motion to dismiss? The answer is YES. Why do we allow
amendment?

Because the order of dismissal will not be entered until the lapse of 15 days.

The case is still

pending before the court. The plaintiff may still amend the complaint. He can rectify the error
that he committed by inserting the assessed value. He may do so as a matter of right, no need
for the permission of the court. Because according to SC, a motion to dismiss is not a responsive
pleading, and under rule 10, amendment of a complaint is a matter of right as long as it is the
first amendment and no responsive pleading has been filed. The responsive pleading in Rule 10
is an answer.

In this situation, what is the effect of dismissal, if the order is eventually entered, it can no longer
be challenged and has become final and executory order. Does the plaintiff have any other
recourse? If we are going to apply Section 5 of Rule 16, you notice that the rule implicitly
makes a distinction between an order under rule 16 which is founded on letters f, h and i
compared to other grounds. If dismissal is based on f, h, i and the order has not been entered,
the remedy of the plaintiff is to appeal. But if order of dismissal is founded on other grounds,
nothing is mentioned. What is the remedy of the plaintiff?

The answer is provided by Rule

41, section 1. In analyzing rule 16, 17, 18, and 33 must relate to rule 41.

If you will go through the provisions of rule 41 section 1. There is an enumeration of orders,
which according to the rules, these final orders are not appealable, although final in
character.

If we relate rule 16 to 41, the dismissal that is closely related to rule 16 in rule

41 will be the last enumerated item, that is dismissal without remedies. In rule 16, a dismissal
under f, h, i is subject to appeal, such dismissal is with prejudice because rule 16 expressly say
that remedy of the plaintiff is to appeal. But if the dismissal is founded not f, h, I implicitly the
dismissal is without prejudice. Rule 41 tells the plaintiff one of his recourse, if his complaint
is dismissed is without prejudice. By simply reading rule 41, the plaintiff may immediately
conclude that if his compliant is dismissed by reason of Rule 16 or any other rule which talks
about dismissal without prejudice, appeal is not a remedy available. The plaintiff should not
appeal.

So if the order of dismissal is without prejudice and cannot be appealed. It is very likely that
the 15 day period will lapse without any action from the plaintiff. Can the plaintiff challenge the
order of dismissal even after the lapse of 15 days? The answer is YES. Under Rule 41, although
appeal is not allowed, the last paragraph tells the plaintiff what to do. The remedy is to file an
appropriate

petition

under

Rule

65,

certiorati

or

prohibition.

Why do we allow the plaintiff to allow petition for certiorari although the 15 day period has
lapsed? Under Rule 65, the filing of the petition is 60 days not 15 days. Thus even after 15 days,
he still have 45 days. But because the dismissal is without prejudice, the plaintiff may forget
to file to a higher court, he may opt to file a new complaint against the defendant.

We can easily understand why f, h and i is dismissal appealable. It is right a way a judgment on
the

merits.

If

the

claim of the plaintiff allege in the complaint has really been extinguished. That means he really
has

no

claim

to

the defendant. Therefore, it should be dismissed with prejudice. The motion will present a factual
issue.

During

the hearing of the motion, the defendant can prove that the obligation has been paid, waived or
otherwise abandoned. The hearing is as if the court is trying the case. They may present
witnesses and evidences to prove their allegations. The enumeration in h is not exclusive. Laches
may be included.

Remember that there is difference procedurally in a hearing on a motion to dismiss


founded

purely

on

question of law compared to a hearing on a motion to dismiss founded of a factual issue.


founded

on

If

legal

issue the court will not allow presentation of evidence. The court will simply read the
allegations

in

the

complaint. If the issue raised is factual the court will be forced to conduct a hearing s if it were a
hearing

on

the

merits.

Let us say that the motion to dismiss is founded in letter h, during the hearing the defendant
presents

evidence

and tells the court that he has no further evidence to produce so the motion is now submitted for
resolution,

the

court denies the motion. What is the next move of the defendant? Rule 16 tells him that he
should

file

an

answer

within the remaining period which shall not be less than 5 days. The defendant files an answer,
in

that

answer

can we incorporate as an affirmative defense the same grounds in the motion to dismiss? YES,
he

can

still

make

use it. Is that not repeating? He is merely repeating but it is allowed. This is because
according

to

the

rules,

if

there are grounds not raised in the pleading, these grounds will be deemed waived. He does

not

want

that

to

apply to him. Can the defendant after filing the answer with the affirmative defense, move the
court

to

allow

preliminary hearing with this affirmative defense? The court will not allow it because there
was

already

hearing on the same ground. During the trial, he may be allowed to present additional evidence.
Going back to Rule 41 in relation to Rule 16, in a dismissal with or without prejudice, that is the
court in Rule 41 in order for the party to determine whether his remedy is appeal or rule 65. If
the court orders the dismissal of a complaint, do we consider the dismissal as a final order?
YES. Any dismissal by the court is a final order. But what matters is whether the order is with
or without prejudice so that we can ascertain the remedy available. And the plaintiff should be
able to determine correctly.

Supposing that the plaintiff committed error. His complaint was dismissed due to f,h, I but he
concludes that the dismissal is without prejudice. So he has in mind to use rule 65. He reads
that rule 65 may be availed of for 60 days. On day 40 he files a petition for certiorari, such
will be dismissed. The court tells him that the proper remedy is an appeal. Can he make use if
the remedy of appeal? The answer is NO, because the period to appeal, for 15 day has already
expired. The order of dismissal has been entered. Can he file another complaint? NO, since
the dismissal is with prejudice.
If the dismissal is founded on Rule 17, we follow the same principle. In Rule 17, there are
several dismissals. It also speaks dismissal with and without prejudice. There is also a
dismissal in Rule 18, during the pretrial, the dismissal is with prejudice. The remedy of the
plaintiff is to appeal. The plaintiff failure to submit a pretrial brief or failure to attend the
preliminary conference. There is also another which is found in Rule 33, judgment on
demurrer of evidence. The dismissal is again with prejudice. That is an adjudication of the
merits.

Rule 17

Another rule for dismissal of actions. If you will recall, rule 17 is connected with an order that
can

be

issued

by

the court in relation to a motion to dismiss. If the defendant alleges that an indispensable
party

has

not

been

impleaded. The defendant can file a motion to dismiss, not on the ground of failure to implead an
indispensable
party but on the ground that the complaint has failed to state a cause of action.
ground

used

by

If that is the

the

defendant on the ground on the theory that an indispensable party must be impleaded so
that

the

court

can

have a final determination of the case, that motion to dismiss will be resolved by the court
using

Rule

16

but

availing of the other option given in rule 16. Remember that in Rule 16, if there is a motion to
dismiss

filed

by

the defendant, the law gives the court 3 options. The first is to grant the motion, the second is
to

deny

and

the

third is to order amendment. In our example where an indispensable party has not been
impleaded,

the

court

will not grant or deny the motion, but will simply order the plaintiff to amend his
complaint.

So

that

the

indispensable party will be impleaded. There court can now have the final determination of the
case.

If the court orders the plaintiff to amend his complaint so as to include an indispensable party,
if the plaintiff follows the order of the court, then he can just submit an amended complaint.
But if the plaintiff does not obey the order of the court, and not amend his complaint, can the

court now order the dismissal of the compliant? Yes. Under rule 17, that is a dismissal with
prejudice. Failure to comply with the order of the court. Therefore the remedy of the plaintiff is
to appeal.

There are 3 sections concerning dismissal in Rule 17, Sections 1,2 and 3. The section provides for
grounds

and

its

consequences of the dismissal. The dismissal contemplated in section 1 is the dismissal of a


complaint

upon

the

initiative of the plaintiff itself. If the plaintiff files a complaint today and changes his mind
next

week,

the

summons has not been serve upon the defendant, he can go to the court and file a notice of
dismissal

for

complaint, not a motion.


than

the

Is there a difference between the motion filed by the plaintiff


a

notice

of

dismissal? There is a big difference. If the plaintiff files a motion, that means to say that the
court

is

given

the

prerogative to grant or deny. But if simply a notice, the court is left without any discretion except
to

confer.

That

dismissal is without prejudice unless the plaintiff tells the court that the notice should be
considered

as

an

adjudication upon the merits.

If the dismissal of the complaint is confirmed by the court and he receives the notice of
confirmation and the plaintiff again change his mind, can he file another complaint? NO.
because the confirmation of the dismissal will be entered only after the lapse of fifteen days.
Within the 15 day period, the plaintiff can change his mind. He will just ask the court to revive
his complaint, he does not need to file another complaint. no need to pay another set of
docket fees.

Supposing that the defendant files a motion to dismiss under rule 16, and subsequently the
plaintiff files a notice of dismissal, which of the two submission should be resolved by the court?
This issue was resolved by the SC, what the court should do is to confirm the notice of
dismissal by the plaintiff.
Section 1 also give a concept of two dismissal rule. The creditor files a complaint against
the

debtor

for

the

recovery of an obligation for P500,000. A week after the filing of the complaint, and
upon receipt of the defendant of the summons, the defendant visits the plaintiff, and the
defendant

cries

on

the

plaintiff

and

pleaded and says that he promises to pay just dont proceed with the complaint. so the plaintiff
files

notice

of

dismissal. The case confirmed the dismissal. The court has a ministerial duty to conform with
the

notice.

The

defendant does not still pay. Can the plaintiff file a second complaint? YES the notice of
dismissal

is

without

prejudice. The plaintiff then files a second complaint. the defendant again pleaded.
files

The plaintiff

second

notice of dismissal. The court again confirms. That dismissal will now be considered with
prejudice.

So

that

if

the plaintiff files a third complaint, such complaint will be dismissed on the ground of res
judicata.

Can the court in the second notice of dismissal, confirm the dismissal and say that te
dismissal is without prejudice? NO it is the rule that tells that the second dismissal is with
prejudice, the court is not given discretion. But there could be a situation that the second
dismissal will not be considered with prejudice. The two dismissal rule refers to a situation

where the cases have been filed before a competent court. If one of the cases has not been
file before a competent court, that dismissal will not be with prejudice.
In section 2,involve another dismissal. This time not by mere notice of the plaintiff but
upon

motion.

The

plaintiff after defendant files an answer is not given a prerogative to file a notice of dismissal
but

must

file

motion.

In the ordinary course, if the plaintiff files a motion, the likelihood is that the defendant will
not object. But section 2 gives the defendant a chance to object. Why would a defendant oppose
the dismissal of the case upon motion of the plaintiff if it is favorable to him? Section 2 is clear in
saying that the dismissal is without prejudice. in other words, if the defendant does not object
and the court grants the dismissal, the plaintiff is later on allowed to file another a
complaint founded on the same cause. The defendant can insist that the dismissal should
be considered with prejudice. In section 2 the defendant also might have another good
reason. If the defendant has already filed an answer and has set up a counterclaim. He could
insist on the dismissal but the court should continue with his counterclaim. Dismissal of the
complaint does not dismiss the counterclaim, although it is a compulsory counterclaim. In
effect section 2 gives us a very rare situation where a compulsory counterclaim could survive
without the principal action.

Section 3 presents an instance where the case is dismissed but this time the case could be
dismissed

on

the

initiative of the defendant or the court itself. Dismissal for failure to prosecute, failure to
attend

trial

in

presenting his evidence in chief, failure to comply with the lawful order of the court or to obey
the

provisions

of

the Rules of Court. How can a court order a dismissal of the complaint upon the ground that the

plaintiff

failed

to obey the provisions of the Rules? A good example is Rule 18. It is provided expressly that it is
the

duty

of

the

plaintiff to set his complaint for pre-trial. Once the last pleading is filed. If the plaintiff fails
to

do

so

for

reasonable length of time, the case may be dismissed. The dismissal is with prejudice unless
the

court

makes

qualification.

In most courts, if the court calls the case for trial in the merits and the plaintiff does nit
appear.

The

defendant

may take advantage of the absence of the plaintiff. The lawyer for the defendant may ask the
court for the dismissal of the case on the ground of failure to prosecute or failure to appear
during presentation of evidence of chief. Usually the trial court in most instances accommodates.

The dismissal is upon the adjudication of the merits. In order to be valid the order of dismissal
should comply with the essentials requirements of a valid judgment under Rule 36 and also
under the Constitution. What are the requirements? Under Rule 36, one of the essential
requisite of a valid judgment of any court, is first there must be factual findings, conclusions
of law. If it decision does not have factual findings and conclusion of law applicable, that
decision is null and void. So if the court simply says for failure of the plaintiff to prosecute for
unreasonable length of time, that is not a factual finding of the court, it is a conclusion of the
court. The SC said for a trial court to render a valid judgment the court should explain why and
how it come to a conclusion that the plaintiff failed to prosecute. The court should give
circumstances based on the record of the case which convince the court to conclude that
the plaintiff indeed is guilty of failure to prosecute, without such explanation, the
judgment is null and void. Therefore it can be subject to a challenged at anytime. It can be
collaterally attack. Remember that if there is adjudication upon the merits according to the

rules, the order is simply an order of dismissal under Rule 16 or 17. For the validity of such
dismissal the court should explain. An order for dismissal with prejudice should comply strictly
with the requirements of Rule 36. If no compliance, it is not considered a valid judgment. It is a
void judgment.

RULE 18
Pre-trial is mandatory in all cases, civil or criminal. Even in summary procedure,we have
compulsory pre-trial, though it is called preliminary conference. Also in small claims there is a
semblance of a pre-trial because the small claims court will call the parties to a preliminary
conference wherein the court will make use the JDR rule, Judicial Dispute Resolution.

In all civil

actions a pre-trial is mandatory. In fact it is the duty of the plaintiff to schedule his complaint
for pretrial after the last pleading has been filed. And if he fails to do so, that could be a ground
for the dismissal of the case. The dismissal will be with prejudice.

This rule on pre trial has been modified by certain circulars of the SC, applying the principles of
mediation

and

conciliation. Usually if the trial court calls the parties to a pretrial and the parties present
themselves

to

the

court

for pretrial conference, what trial courts usually do now is to tell the parties that they
should

first

attend

mediation and conciliation by SC accredited mediators or conciliators. After the mediation


or

conciliation

process is terminated without an agreement. Then the parties are required to go back to
court

to

attend

the

formal the pretrial conference. During the mediation and conciliation process, the mediator or
conciliator

will

issue a notice to the litigants on the date scheduled for the mediation and conciliation. If the
plaintiff

does

not

appear he ignores the notice sent by the mediator or conciliator for the mediation or conciliation
conference

and

repeatedly ignores such notice, the mediator will submit a report to the trial court telling the
court

on

what

has

transpired in the mediation or conciliation proceeding. If the conciliator submits the report saying
that

plaintiff

has absented himself, then that is a ground for order of dismissal. And could be a dismissal with
prejudice.

So

if

the court issues a notice requiring the parties to attend a pretrial conference and during that
conference the court also
proceedings,

instructs

the

that

parties

mediation

to

attend

mediation

or

or

conciliation

conciliation

proceeding are part of the pretrial to be conducted by the court. If the party absents himself in
the

mediation

or

conciliation, it is as if the party absents himself in the pretrial conference. There can be a order of
dismissal

if

it

is

the plaintiff or the court may order the plaintiff to present evidence ex parte if it is the
defendant.
If the conciliator or mediator fails in his attempt to convince the parties to arrive at an
amicable

settlement,

he

will simply submit his report to the court and the record will be return to the court for a pretrial
conference.
If we based it purely in Rule 18, the parties have the common duty. The first is to submit a
pretrial

brief

and

the

second is to attend the pretrial conference. If the fail to submit a pretrial brief there are
serious

sanctions

that

may be imposed by the court. Even if they were able to submit a pretrial brief on time but they
failed

to

attend

the pretrial conference there could also be serious sanctions and consequences. In case of

the

plaintiff,

the

sanction is dismissal of his complaint with prejudice. In case of a defendant, the sanction is for
the

plaintiff

to

present his evidence ex parte. In other words, we do not observe anymore the principle that
if

the

defendant

does not attend the pretrial conference or fails to submit a pretrial brief on time, the court cannot
anymore

issue

and order telling that the defendant as in default.


on

the

The decision of the court will be based


evidence

presented by the plaintiff.

If a defendant is in default under Rule 9, the court may order the plaintiff to present evidence
ex parte, in the absence of the defendant. The same is true with Rule 18 , if the defendant
has filed an answer but neglects to submit a pretrial brief or fails to attend the pretrial
conference or even send a representative armed with SPA, what the court will order the
plaintiff to do is to present evidence ex parte.

In rule 9 when the defendant is in default and there is an ex parte presentation of evidence,
the court may only award what the plaintiff has prayed for in the complaint. But in rule 18,
the court may make an award in accordance with the evidence presented by the plaintiff. In
other words, we apply the amendment in pleading to conform to evidence in rule 18,in ex parte
presentation of evidence. But not applicable in rule 9. The reason is because the defendant is
not in default in rule 18, there is already in an answer.

Please also take note the difference of a pretrial conference in a civil and criminal case.,
particularly

in

the

stipulations of fact. In a civil case, the parties can stipulate on facts even without a pretrial
conference,

in

fact

the

parties can simply submit to the court joint stipulation of facts but during the pretrial conference,
the

parties

are

present together with the lawyer for one of the principal purposes is to enable to parties to
agree

on

the

existence of certain facts and that will be treated as a judicial admission on the part of the
parties.

These

facts

stipulated will be a part of the record of the case. They can be even made verbally. There is no
rule

that

the

facts

stipulated should be reduced in writing. But in a criminal case, the rules are stringent.
There

could

also

be

stipulations but procedure is very strict with regard to the admissibility and enforceability of
the

stipulation

of

facts. In Criminal procedure if the prosecution and defense stipulate on certain facts that
stipulation

must

be

reduced in writing, and must be signed by the counsel for the accused and the accused himself
and

such

must

be approved by the court.

After the pretrial conference is terminated, a trial court is required to issue a pretrial order. That
is a requirement for all courts. The last section of pretrial pertains that the pretrial order will
control the proceedings later on. In that pretrial order the court is required to specify the
issues that had not been stipulated upon and the issues that should be the object of the trial.
It is the pretrial order that will be followed by the court, when the court finds it necessary to
conduct a trial. The pretrial order is a very important document. If we follow decisions of the
SC, the issues specified in the pretrial order in a civil case since they control the proceeding
taken after by the court. The court can even disregard the pleadings submitted by the parties.

For instance, the plaintiff files a complaint against the defendant for the recovery of an
unpaid loan. The defendant files an answer and the issue that is raised by the pleadings is
whether or not the plaintiff is entitled to recover P 1 million from the defendant. The case is
scheduled for pretrial. The parties attended the pretrial and during the conference the plaintiff
and the defendant agree that the issue to be tried is not the right of the plaintiff to recover P
1M but the entitlement of the plaintiff to recover from the defendant a piece of land.

So we

start with a civil action but during the conference, the parties can tell the court that the issue
is whether or not the plaintiff is entitled to recover apiece of land from the defendant. And that is
the issue that is embodied in the pretrial order.

Is that pretrial order valid? YES, although it is in

conflict with the pleadings raised by the parties. It is because Rule 18 is very clear, it is the
pretrial order that will govern the course of the proceeding.

Even there is no amendment in

the pleadings. The issue as to recover the sum of money will simply be disregarded by the court.
The prevailing order will be the pretrial order issued by the court. Why do we allow the trial court
to change the issues without changing the pleadings? Remember that in a pretrial
conference both parties are present. Both parties must come into an agreement themselves.
The court will simply be following the desire of the litigants. However such procedure is not
proper in a criminal case.

Let us say that the court strictly follows its pretrial order and then it schedules the case for
trial. The court reminds the parties to present evidence limited to the issue on whether the
plaintiff is entitled to the piece of land. During the trial the plaintiff presents evidence that
he is entitled to recover the piece of land. There is nothing wrong with that. But what if the
plaintiff also presents evidence that he is entitled to recover P 1M. Can the plaintiff so present
evidence on such issue? He cannot if the defendant objects but if the defendant does not object,
the plaintiff will be able to present an issue not raised in the pretrial order. So in our
example, the plaintiff presents 2 evidence, one of which is specified in the pretrial order, the
other is not specified but has been raised in the pleadings. Why do we allow the plaintiff to
present evidence on an issue not raised in the pretrial order? It is because on the rule on

amendment to conform to evidence. In other words with respect to issues in the civil case, we
can jump from one issue to another as long as the parties agreed.

And the court will render a

judgment based on the evidence presented.

We go now to the remedies to appeal a judgement. If we are going to compare the remedies
available to the defeated party in a civil case, you must have noticed that the remedies
mentioned in civil procedure are also mentioned in criminal procedure but there are certain
instances where the consequences could be different from one another. There are also
remedied in a criminal case to appeal a judgment which may not be available in a civil case or
available in a civil case but not available in a criminal case.

For a civil case, the remedies available to the aggrieved party would depend primarily on
whether

the

judgment

has been entered or not. If the judgement has not been entered, following the provisions of Rule
36,

that

is

to

say

the period to appeal is not yet expired, the 15-day period is still running, and the remedies
available

to

the

aggrieved party in this instance would be Rule


reconsideration

37, motion for new trial, motion for

and

of

course, the last is appeal. But if the judgement has already been entered, it has become final
and

executory,

we

can no longer make use of appeal, new trial or reconsideration. We can make use of other
remedies

beginning

with 38, that is relief from judgement, then we can have annulment of judgment in Rule
47
instances, Rule 65.

and

in

certain

If you compare these remedies available in a civil case depending on whether the judgment has
been

entered

or

not, and we jump to a criminal case, you will notice that in a criminal case, before the
judgment

of

conviction

becomes final, we have the same remedies-- new trial, reconsideration, appeal but there is a
fourth

remedy,

that

is reopening of the case. Notice that reopening is available by express provision even after
a

judgement

by

conviction has been rendered. But in a civil case, there is no mention of the availability of
reopening

in

order

to

challenge a judgment that has been rendered in a civil case. It does not mean to say, however,
that

reopening

of

a civil case is not available in a civil case. It is still available in a civil case but before the
judgment

is

rendered.

If

there is already a judgement rendered by the trial court, reopening is no longer available to the
aggrieved

party.

The SC said that we also have reopening in a civil case as a remedy but since jurisprudence
requires

that

there

must be no judgment yet rendered by the court, the time frame for the remedy of reopening in
a

civil

case

will

be a short period, that is from the termination of the trial which is after the parties presented
their

evidence

and

before thr judgement is rendered by the trial court. That could be a long period depending on
whether

the

trial

court renders judgment promptly. But as long as the judgement has not yet been rendered by
the

trial

court

in

civil case, any one of the parties can move fore reopening of the case. Because reopening as a
remedy

in

civil

case should be held before a judgement is rendered, of course we cannot make use of the
grounds

mentioned

in

Rule 37 on newly-discovered evidence, judgement is contrary to law, we cannot make use of


these

grounds

to

justify a reopening of a civil case. The SC said that there are no grounds specifically mentioned
in

the

Rules,

in

fact, reopening a civil case is not expressly recognized. It is just a remedy accepted by
jurisprudence.

And

usually, reopening is a remedy availed of in a civil case after trial has ended but before
judgement

for

the

purpose of allowing the movant to offer evidence which he may have forgotten to present
during

trial

or

additional evidence. So reopening is available also in a civil case but the time frame is
before

judgment

is

rendere but after trial is terminated. If you compare that to a criminal case, you will
immediately notice the difference. In a criminal case, reopening as a remedy is expressly
recognized in criminal procedure. And reopening can be had by the accused even if there is
already a judgment of conviction as long as that judgement has not yet become final and
executory.

So in a criminal case, you also have new trial, reconsideration, appeal and reopening. But after
the

judgement

of

conviction has been entered, you will also notice that in criminal procedure, there is nothing
mentioned

about

petition for relief from judgement. It is not applicable. Also, there is nothing mentioned
about

annulment

of

judgement. And so the accused cannot make use of relief from judgement and annulment of
judgement.

The

remedies available to the accused if his conviction becomes final and executory could either be
habeas

corpus

or

a petition for certiorari in the exercise by the court of its equity jurisdiction. If the accused
only

feels

that

his

detention in prison is unlawful, his remedy is habeas corpus. The SC has made this very clear
already.

Rule

47

applies only to a civil case. It cannot apply to a criminal case. The SC in the exercise of its
equity

jurisdiction

could also entertain a petition for certiorari even if the judgement of conviction has become final
and

executory.

There is a case where the SC exercised this equity jurisdiction involving a criminal case. It was a
capital

offense

tried by the RTC, the accused was represented by counsel, there was a judgement of conviction
but

at

that

time,

death penalty was still allowed. The case eventually reached the SC because of the penalty
imposed,

death

penalty. The SC analyzed the records of the case and was convinced that there was nothing
wrong

about

the

judgement of conviction. So the judgement became final and executory. After the entry of that
decision

by

the

SC, the Executive Department started the process of putting to death the convict. And then,
there

came

time

when the date of execution was approaching. A journalist went to the hometown of the
accused

and

found

overwhelming evidence that the accused was insane. When this story came out, the Executive
Department,

the

DOJ and the SC sent investigators to find out the truth and their report was to the effect that the
court

may

have

committed an error in convicting the accused because the accused should not have been
charged

of

capital

offense in the first place. The SC allowed petition for certiorati to be filed which eventually
resulted

in

the

release of the accused. When questions were raised as to propriety of a petition for
certiorari

long

after

the

judgement has become final and executory, the SC said that certiorari as remedy is part of its
equity

jurisdiction.

So certiorari is available both in civil and criminal cases to challenge a final and executory
judgement

if

the

situation calls for the SC's exercise of its equity jurisdiction.

Now, with respect to new trial and reconsideration in a criminal case, nothing is mentioned
about

pro

forma

motion for new trial or pro forma motion for reconsideration. If you read Rule 37 for civil cases,
the

Rule

is

very

explicit in requiring that a motion for new trial or reconsideration must strictly comply with the
requirements

of

a motion so that that motion will not fall under the concept of a pro forma motion. A pro
forma

motion

will

always be denied and it could result to an instance where the losing party could lose all the
remedies

because

he

has filed a pro forma motion. This is possible in a civil case because if the aggrieved party
files

pro

forma

motion, the pro forma motion will not stop the running of the reglementary period to appeal.
And

if

the

denial

comes after the expiration of the 15-day period, then the aggrieved party would have lost the
remedy of appeal. Entry of judgement takes place by operation of law. He would only be left with

the remedies of petition for relief from judgement, annulment of judgement and certiorari
under 65. In a criminal case, the SC said there is no such thing as a pro forma motion in a
criminal case. So in a criminal case, the filing of motion for new trial or reconsideration will
always

stop

the

running

of

the

period

to

appeal,

even

if

it

is

pro

forma.

Another distinguishing feature of a new trial or reconsideration in a criminal case is that the idea
for the accused to file a motion for new trial or reconsideration could come from the court or the
court could even initiate a new trial or reconsideration as long as the accused gives his consent.
In a civil case, we always need a motion for new trial or reconsideration initiated by the aggrieved
party.

In Rule 37, the grounds for new trial are completely different from those of reconsideration.
This

is

the

reason

why these two motions are distinct and independent of one another. Supposing that a defendant
in

civil

case

is

advised while the period to appeal is running, we have three remedies--- motion for new
trial,

motion

for

reconsideration and appeal. Then the counsel avails of these three remedies. What happens? The
SC

said

that

if

the losing party files an appeal during the pendency of a motion for new trial or motion for
reconsideration,

the

motions are deemed abandoned. It is the appeal that will prevail. It is inconsistent for an
aggrieved

party

to

file

a motion for new trial and while waiting for the resolution, he would perfect an appeal. That
will

render

the

motion academic. Upon perfection of the appeal, the trial court loses jurisdiction, what would be
left

is

residual

jurisdiction. In another case, the winning party filed a motion for execution pending appeal under
Rule

39.

Then

the losing party filed a motion for new trial. The issue raised before the SC was can the court
act

on

the

motion

for execution pending appeal without first resolving the motion for new trial. The SC said it is
not

proper.

The

trial court should first resolve the motion for new trial. The court should always give preference
to

motion

for

new trial or motion for reconsideration.

In a motion for new trial founded on fraud, accident, mistake and excusable negligence (FAME)
which ordinary prudence could not have prevented and which probably impair the rights of the
movant, we need an affidavit of merit. The affidavit of merit should be executed by persons who
have personal knowledge of the circumstances surrounding these acts of FAME. So it is not
correct to say that in a motion for new trial, we always need an affidavit of merit. We only
need an affidavit of merit if thr grounds relied upon are FAME. If the ground relied upon is
newly-discovered evidence (NDE), we don't need affidavit of merit. What we need is an affidavit
of the witness who is going to give testimony if the motion is granted. But if the
evidence to be presented is documentary, an authentic copy should be attached to the motion
for new trial.

You are also familiar with the principle in new trial that the fraud contemplated in 37 is always
extrinsic

fraud.

If the fraud that is alleged in a motion for new trial in intrinsic fraud, that motion will be denied.
Rule

37

speaks

of fraud that could not have been prevented with the exercise of ordinary prudence. The phrase
"that

could

not

have been prevented with the exercise of ordinary prudence" will really imply the type of fraud
that

could

be

ground for new trial which is extrinsic fraud. So lawyers are allowed to cheat one another

as

long

as

it

is

confined to intrinsic fraud that could be avoided through the use of ordinary prudence.
For instance, the presentation of a forged document will not be a ground for new trial
because the presentation of a forged document by the plaintiff could be easily avoided by
the defendant through the use of ordinary prudence. He could have called witnesses to testify
that that document was forged. Another instance of dishonesty which the court did not consider
extrinsic fraud is when the plaintiff presented witnesses who were perjured. Extrinsic fraud is
that which deprived a party of his day in court. If we allow every act of dishonesty to be a
ground for new trial, there will never be an end to litigation.

With respect to mistake, the mistake of the lawyer is the mistake of the client. The SC is just
applying

the

rule

on

agency, the act of the agent is the act of the principal. But there is one situation when
the

SC

relaxed

the

application of this principle. The SC said that if the mistake of the lawyer amounts to bad faith,
that

there

is

an

insinuation that the lawyer committed the mistake to cause the defeat of his client, then that will
be

ground

for

new trial. If it can be proven that a lawyer sold out his client, that will be also be a ground for
new

trial.

In newly-discovered evidence, because of the requirement that if admitted by the court, it will
probably

alter

the

result of the case, we cannot consider corroborating evidence as NDE. This will not alter the
result

of

the

case.

The recantation of a witness is not NDE. The testimony of a witness given in open court reflects
the

truth.

In a motion for reconsideration under Rule 37, there are only 3 grounds. There is also a rule that
only

one

motion

for reconsideration will be allowed to the aggrieved party. A second MR will not be allowed
even

if

based

on

another ground. This rule is absolute, there is no exception unlike a motion for new trial where
rule

37

expressly

allows the movant to file a second motion for new trial provided the second motion is founded
on

different

ground. But whether it is a motion for new trial or motion for reconsideration, the court will
not

allow

an

extension of time to file these motions. The party must observe the 15-day or 30-day
period.

If

the

MR

is

favorably acted upon, what the court will do is to render an amended judgement. If the motion
for

new

trial

is

granted and it is not a partial motion for new trial, the judgement will be vacated but the
evidence

presented

during the trial of the case will not be disturbed. But if that motion for new trial is granted in
a

criminal

case,

judgement will also be vacated and the evidence presented during trial must be retaken.
Because

the

grounds

for new trial in a criminal case are serious irregularities or errors committed by the trial court.
In Rule 37, it is clearly provided that if a motion for new trial or motion for reconsideration is
denied,

the

denial

cannot be appealed. What should be appealed is the decision itself rendered by the court. It
cannot

even

be

the

subject of Rule 65. The only remedy of the aggrieved party is to appeal from the judgement in
the

merits

that

is

the subject of new trial or reconsideration. In appealing the judgement, the aggrieved party
can

assign

as

the denial of the motion for new trial or reconsideration.

error

Relief from judgement, that's rule 38. Relief from judgement is a remedy available to the
aggrieved

party

after

the entry of judgement. In Rule 38, there are two periods to be reckoned. The second period, the
6-month

period

is counted from entry of judgement. There was one case where the aggrieved party
before

the

entry

of

judgement filed before the trial court a petition for relief from judgement. The filing of that
petition

was

really

improper because a judgement has not been entered. The SC said that the trial court should
not have dismissed the petition but instead, it should have treated the petition for relief from
judgement as a motion for new trial because the grounds for motion for new trial are similar to
those of petition for relief from judgement which is a very liberal attitude adopted by the SC. So
even if a lawyer commits an error, he files a petition for relief from judgement founded on
FAME but the judgement has not yet been entered, the court will consider the petition as a
motion for new trial provided that the petition carries with it the requirements in 37, that is
an affidavit of merit that will prove that there was FAME.
Is a petition for relief from judgement considered similar to annulment of judgement? It is
not.

petition

for

relief from judgement is not an independent action. In fact, it is just a continuation of the original
case.

If

it

were

an independent action, a petition for relief from judgement should always be filed with the
RTC

because

it

is

incapable of pecuniary estimation. But since it is not considered an independent action, Rule 38
provides

that

petition for relief from judgement should be filed with the same court that decided the case. In
fact,

in

petition

for relief from judgement, we use the old docket number of the case. Rule 38 is also very

specific,

petition

for

relief from judgement should be filed in the same court. What is important is the time frame
provided in Rule
38. Because the judgement has already been entered, the winning party may have already
filed

motion

for

execution under Rule 39. Should the court grant the motion for execution? The answer is yes
because

that

is

ministerial duty of the court under Rule 39. If the court grants the motion for execution,
will

it

not

render

academic the relief from judgement filed by the aggrieved party? The answer is no. If you read
Rule

38,

it

says

that the executing court that granted the motion for execution can issue a TRO or a
preliminary

injunction

against the enforcement of the writ of execution. This is an exception to the principle in
injunction

that

to

enjoin

a court, the injunctive relief should come from a higher court. Here it is the same court that
issues

the

writ

of

execution that will issue an injunctive writ against its own order to carry out the execution.

If petition for relief from judgement is granted, can the winning party appeal from the granting
of the petition for relief from judgement? The answer is no because the granting of the
petition is only interlocutory. If a petition for relief from judgement is denied, is the denial a
final order? Yes. Can it be appealed? The answer is no. You refer to Section 1 of Rule 41, it is a
final order which is not appealable. The remedy of the petitioner is to file a petition under Rule
65.

Now we go to the third remedy when the judgement has not yet been entered, that is
appeal.

Appeal

as

remedy could be a matter of right or a matter of discretion. When we say that the aggrieved
party

has

the

right

to appeal, it means to say that when he is able to perfect the appeal, the appellate court
has

no

choice

but

to

render a decision as an appellate tribunal. When we say that appeal is a matter of discretion, we
are

giving

to

the

appellate court the discretion on whether or not to entertain the appeal. For a civil case, there
are

only

modes

of appeal, that is ordinary appeal, appeal by petition for review with the CA and appeal by
petition

for

review

on certiorari under Rule 45. If the case originates from an inferior court, the only mode of appeal
available

is

the

first one, ordinary appeal, even if the questions raised are purely questions of law. The
Constitution

does

not

give to the SC exlusive appellate jurisdiction to entertain appeals involving purely


questions of law. The procedure is provided in Rule 40. The aggrieved party will file a notice of
appeal

and

of

course

pay

the

appellate

court docket fees. In some instances, the aggrieved party is required to file a record of appeal.
The

payment

of

appellate court docket fees is jurisdictional. Let us say that the case pending before the inferior
court

is

unlawful

detainer which is exclusively cognizable by an inferior court, the inferior court is presented
with

motion

to

dismiss, is that allowed in Summary Procedure? No, unless the ground is lack of jurisdiction or
absence

of

prior

barangay conciliation. The defendant files a motion to dismiss based on lack of jurisdiction
which

the

inferior

court grants. In Rule 16, if the dismissal is founded on lack of jurisdiction over the dubject

matter,

the

dismissal

is without prejudice. If the aggrieved party wants to bring the matter to a RTC, will he
appeal

the

order

of

dismissal or should he file a petition for certiorari? If he is going to follow Rule 41 and the
dismissal

is

dismissal without prejudice, he should not appeal. The remedy is a petition under 65. But in
Rule

40,

if

an

inferior court dismisses a case which is within its exclusive jurisdiction on the ground of lack of
jurisdiction,

the

remedy of the plaintiff is to appeal, ordinary appeal, not Rule 41. Why don't we just follow
Rule

41?

Because

there is a provision in Rule 40 which says that if the matter is brought to the RTC and RTC affirms
the

dismissal

made by the inferior court, it is the duty of the RTC to assume jurisdiction over the case. In
unlawful

detainer

decided by an inferior court, there could be an appeal to the RTC on both factual and legal
questions.

Whenever

the mode of appeal used is ordinary appeal, the appeal is a matter of right.

Before the RTC as an appellate court, since the appeal by the losing party is a matter of right,
can the RTC also order the dismissal of the appeal because the appellant has violated certain
orders or provisions of the Rules of Court? The answer is 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 of the
RTC. One such order is given in Rule 41, that is the appellate court can require the appellant to
submit an appeal memorandum. If he does not submit an appeal memorandum, that could
be a ground for the dismissal of the appeal by the RTC.

If the RTC renders its own decision, can there be a second appeal? The answer is yes. This
time to the CA via petition for review. A second appeal is generally a matter of discretion. The
first appeal is generally a matter of right as long as the mode of appeal is ordinary appeal
but if the mode of appeal is Rule 45, that is always a matter of discretion on the part of the
SC. In the appeal from the RTC to the CA via petition for review, only questions of law could be
raised. From the CA, do we allow a third appeal? There could be a third appeal to the SC, but this
is always a matter of discretion in a civil case.

Before we push through with the discussion on appeal, I suggest that you should first
familiarize

yourselves

with some terms that are relevant to appeal which are usually found in the decisions of the
Supreme

Court

resolving propriety or impropriety of appeals. The first of course is a final order compared to an
interlocutory
order. You know the concept of these. Another one is the question of fact compared to question
of

law.

The

third

would be the material data rule in appeals. And then we have improper appeal and
erroneous

appeal,

a memorandum decision on appeal and rule on harmless errors. A

memorandum decision is found in Rule 51. The harmless error rule is also found in Rule 51.
The opposite of harmless error is of course harmful error.

With respect to material data rule, the material data rule is always an essential component
of

any

mode

of

appeal whether it is ordinary appeal or petition for review or petition for review on certiorari. The
material

data

rule simply tells the appellant that regardless of the mode of appeal chosen by him he should
see

to

it

that

in

this

appeal he should inform the court about the dates that when he received the decision, the date

when

he

received

a denial of his motion for new trial or reconsideration so that the court can immediately ascertain
if

the

appeal

is

perfected on time. So the material data rule will consists of dates when the decision is received
or

when

there

is

a motion for reconsideration when it is filed or when it is denied, if there is motion for new trial
when

it

is

filed

or when it is denied so that on the face of the mode of appeal used, the court can readily
ascertain

whether

the

appeal is timely perfected. This is always important in the appellate court because when
the

appeal

is

not

perfected on time, the appellate court has not acquired jurisdiction over the appealed case, it
has

something

to

do with the authority or jurisdiction of the Supreme Court or the Court of Appeals or even the
Regional

Trial

Court. This is not a new rule introduced in the 1997 Rules, this is an old doctrine we have been
observing

this

even before 1997 Rules. But there was a time, before 1997 when the Supreme Court dispensed
the

material

data

rule. Then in 1997, the Supreme Court decided to re-impose this as an essential so that
an

appeal

can

be

entertained by an appellate court. Again, the reason why we have the material the data rule is
the

question

of

jurisdiction of the appellate court is a judgment has been entered then it is obvious that this
issue

can

no

longer

be appealed so the only recourse for the court usually is to deny the appeal, to disallow the
appeal.

With respect to the concept of erroneous appeal and improper appeal, this is also mention in the
rules.

There

is

an improper appeal when the mode of appeal used by the applicant is the correct mode but
the

issues

or

the

questions raised in that appeal should not be raised during the appeal. So it has something to
do

with

question

of fact and question of law. So that for instance, if the trial court is a Regional Trial Court, from
the

decision

of

the Regional Trial Court there could be an appeal to the Court of Appeals, the mode of appeal
is

still

ordinary

appeal, a notice of appeal. So the notice of appeal is filed with the Regional Trial Court and
eventually

the

records are transmitted to the Court of Appeals. Under the rules, when there is an appeal by
ordinary

appeal

to

the Court of Appeals from a decision of the Regional Trial Court of questions of fact and of law
could

be

raised.

But the Rules says that if the only issue raised in that appeal is purely question of law, the Court
of

Appeals

has

no jurisdiction. So the Court of Appeals will only dismiss the appeal. That is the importance
of

knowing

the

meaning of improper appeal.

Erroneous appeal, on the other hand, refers to a situation where the mode of appeal used is
not

the

correct

mode. For instance, under the rules, the correct mode is ordinary appeal but the mode used
by the appellant is petition for review. That is an example of erroneous appeal. But as we
go on, we will conclude that unlike improper appeal where it could lead to dismissal of the

appeal there are certain instances where even if the appeal is erroneous the error committed
by the appellant will not lead to the dismissal of the case.

Yesterday, we said that if the court of origin is an inferior court, there could be an appeal to
the

Regional

Trial

Court. The mode of appeal is ordinary appeal just file the notice of appeal or notice of appeal
plus

record

on

appeal in certain instances where the law requires the submission of a record on appeal. From
the

Regional

Trial

Court as an appellate court we said that there could be a further appeal, a second appeal to the
Court

of

Appeals

but this time the mode of appeal is by petition for review. So we go back to the inferior court.
From

the

inferior

court the mode of appeal is a notice of appeal, which is ordinary appeal. Supposing the
aggrieved

party

chooses

the second mode which is a petition for review, which is the wrong mode. So immediately you
will

notice

that

there is something wrong with the way by which the appeal has been perfected. Can the
Regional

Trial

Court

dismiss the appeal on the ground that the appellant has chosen a wrong mode of appeal? The
Supreme

Court

said no. Even if the appellate court is a Regional Trial Court, and the appellant has chosen
wrong

mode

of

appeal, which is a petition for review, the Regional Trial Court cannot dismiss the petition, he
should

disregard

the error committed by the appellant the reason given by the Supreme Court, if you compare
the

contents

of

notice appeal to that of a petition for review, the contents of the petition for review more

than

satisfied

the

requirements of notice of appeal. If you have seen how the petition for review is drafted, it is
a

very

lengthy

document. In that petition for review there is also an application of the material data rule and
then

there

are

errors that are assigned by the appellant and there are arguments also that are embodied in
that

petition

for

review whereas in the notice of appeal, the appellant simply tells the court in one paragraph,
I

am

appealing

from the decision rendered by the court dated such and such and together with this notice of
appeal,

have

paid

the appellate court docket fee of so much. That is what a notice of appeal simply contains so
if

the

appellant

hopefully chooses a petition for review, the Supreme Court said the Regional Trial Court should
entertain

the

appeal because the essential of notice of appeal are already contained in the petition for
review.
other

But
way

around

such

if
as

exercising

where

it
the

Regional

is
Trial

Court

its

the
is

an

appellate

court

appellate

jurisdiction from its decision under the rules, the right mode is as we said petition for review,
the

appellant

instead of filing a petition for review with the Court of Appeals and serving a copy upon the
Regional

Trial

Court files simply a notice of appeal that appeal will be dismissed because the mode of appeal
used

is

erroneous

and it will not conferred jurisdiction anymore upon the Regional Trial Court. In other words there
are

instances

where a wrong choice in the mode of appeal will lead to dismissal of appeal. There also

instances

where

the

wrong choice will be disregarded by the appellate court.

Also under the rules, the only mode of appeal that is allowed in civil cases with the Supreme
Court

is

Rule

45

that is petition for review on certiorari or appeal by certiorari. The case is decided by the
Regional Trial Court exercising original jurisdiction, from the decision of the Regional Trial Court,
there

could

be

an

appeal

either

to

the Court of Appeals or to the Supreme Court depending on the choice of the appellant. The
appellant

decides

to go to the Supreme Court directly but instead of filing a petition for review on certiorari or
appeal

on

certiorari

under Rule 45, he simply files a notice of appeal. The Supreme Court will dismiss the appeal
because

the

choice

of mode of appeal is erroneous. Under the rules, if there is erroneous appeal, the Supreme
Court

will

dismiss

that appeal. A notice of appeal will never be able to satisfy the contents of petition for review on
certiorari

under

Rule 45. On the other hand, even if the rules are very keen in saying that in civil cases, the mode
of

appeal

to

the

Supreme Court is only through Rule 45, using the petition for review on certiorari or appeal by
certiorari.

If

the

appellant in avertedly calls his petition simply a petition for certiorari under Rule 65, the
Supreme

Court

has

also been very liberal in considering a petition for certiorari under Rule 65 as a petition for
review under Rule
45. The Supreme Court said, after all the contents of a petition for certiorari under Rule 65 are
exactly

the

same

as the contents of petition for review on certiorari under Rule 45. But the Supreme Court
cautioned

parties

that

petition for certiorari although in fact it should be a petition for review on certiorari should be
filed

within

the

time given for appeal that is within a period of 15 days. If you will recall, in a petition for
certiorari

under

Rule

65 the period provided is 60 days but in Rule 45 the petition for review on certiorari should be
filed

within

15

days. As long as it is timely filed even if the appellant wrongly calls his petition for review on
certiorari

simply

petition for certiorari the court shall just disregard the error committed by the appealing party.
In

the

Court

of

Appeals, the decisions that could be appealed to the Court of Appeals do not necessarily come
from

the

courts

of justice. The decision that could be appealed in the Court of Appeals could be penned by quasijudicial

bodies.

But whether the decision is issued by quasi-judicial body or a decision rendered by the
Regional

Trial

Court

in

the exercise of its appellate jurisdiction, there is just a common mode of appeal that is
petition

for

review.

Is

there any difference procedurally between petition for review filed before the Court of Appeals
if

the

appealed

decision comes from the Regional Trial Court and when the appealed decision comes from the
quasi-judicial
bodies? As to the contents of the petition for review, there is no significant difference. But as to
the

enforcement

of the decision appealed from, there is a great difference. If the decision appealed comes from
the

Regional

Trial

Court in the exercise of its appellate jurisdiction, the decision of the Regional Trial Court
cannot

be

executed

there could be no execution. There could be an execution but it has to be an execution pending
appeal.

motion

should be filed before the Court of Appeals and that motion must be supported by special
reasons

to

convince

the Court of Appeals to order execution of judgment. So generally, when there is an appeal
to

the

Court

of

Appeals from a decision of a court of justice like a Regional Trial Court the appealed decision
cannot

be

the

subject of execution. But when the decision appealed by way of petition for review to the Court
of

Appeals

is

decision rendered by a quasi-judicial body, the appeal will not stay the execution of the decision.
The

decision

of

the quasi-judicial will have to be enforced during the pendency of the appeal. There is only one
way

by

which

we can stop the execution of the judgment rendered by a quasi judicial body from being
enforced

during

the

pendency of the appeal that is to ask the Court of Appeals to issue a writ of preliminary
injunction. Why do we allow execution of a judgment that is being reviewed by the Court of
Appeals when the judgment is rendered by quasi-judicial bodies but we do not allow that when
the judgment is rendered by the Regional Trial Court? One reason given in the Rules is that in
quasi-judicial bodies the quantum of evidence is only substantial evidence whereas in the
Regional Trial Court the quantum of evidence is preponderance of evidence.

If we compare also the remedies available to the defeated party before the trial court and
before the appellate courts, like the Regional Trial Court, the Court of Appeals and Supreme
Courts we will also notice that if the appellate court becomes higher and higher, the

remedies available to the defeated party on that appeal is considerably lessen. Yesterday we
said that before the court of origin whether it is an inferior court or a Regional Trial Court, the
aggrieved party can file a motion for new trial, he can file a motion for recon and he can also
appeal, so there can be three remedies before judgment is entered.

From the inferior court we go to the Regional Trial Court. The Regional Trial Court also
renders

its

own

decision. Can a defeated party can still file motion for reconsideration? Yes. There could still
be

motion

for

reconsideration; there could still be motion for new trial before the Regional Trial Court, even
if

the

Regional

Trial has decided the case in the exercise of its appellate jurisdiction. There could be another
appeal

to

the

Court

of Appeals in fact this will now be the second appeal. If the Court of Appeals has rendered its own
decision,

can

the defeated party make use of the remedies that we mentioned? Can he file a motion for
reconsideration?

The

answer is also yes. There could be motion for reconsideration before the Court of Appeals.
Can

there

be

motion for new trial before the Court of Appeals? Yes there is still a motion for new trial
before

the

Court

of

Appeals. But this time, there is only one ground for new trial before the Court of Appeals. The
new
can

trial
be

founded

only

in

newly

accidents,

discovered

evidence.

the
We

cannot

mistakes

anymore

use

fraud,

and

excusable negligence. And if you read carefully the provisions of the rules on appeals to the
Court

of

Appeals,

you will notice that while a motion for new trial could still be availed of in the Court of

Appeals

it

is

not

necessary to wait for the Court of Appeals to decide the case. Even if the case has not yet
been

decided

by

the

Court of Appeals, the movant can already file a motion for new trial based on newly discovered
evidence

that

is

not possible when the case is before an inferior court or even before the Regional Trial
Court

acting

as

an

appellate court, in the Regional Trial Court we have to wait for the Regional Trial Court to
render

decision

before we can file a motion for reconsideration or motion for new trial. With respect to the Court
of

Appeals,

we

should also wait for the decision of the Court of Appeals before we can move for
reconsideration

but

when

it

comes to a motion for new trial we do not have to wait for Court of Appeals to render a decision
before

we

can

make use of a motion for new trial founded on newly discovered evidence that is clearly spelled
out

in

the

rules.

The availability of a motion for new trial before the Court of Appeals as long as the case is within
the

jurisdiction

of Court of Appeals. Even if the Court of Appeals has not yet decided the case, there could be a
motion

for

new

trial founded on newly discovered evidence and that is the only ground for new trial in the Court
of Appeals. We dont make use fraud, accident, mistake or excusable negligence. But when
the

case

finally

reaches

the

Supreme Court and the Supreme Court has decided the case, then the only remedy
available,

among

the

motions that we mentioned will be a motion for reconsideration. The Supreme Court does
not

entertain

motion for new trial regardless of the merit of that motion for new trial. The reason given by the
Supreme

Court

is that the Supreme Court generally is not a trier of facts and a motion for new trial, will
always

involved

question of fact based on newly discovered evidence. So this remedy of motion for new trial
will

end

to

the

Court of Appeals as an appellate court but remember the new trial with the Court of Appeals is
limited

to

only

one ground and it is newly discovered evidence. While a new trial filed before the Regional
Trial

Court

can

involve newly discovered evidence, it can involve fraud, accident, mistakes and excusable
negligence.
With respect to Rule 45, this is appeal by certiorari to the Supreme Court, in civil cases this
is

the

only

mode

used. In other words, we cannot use notice of appeal we cannot use a petition for review the
Supreme

Court

strictly applies this rule on appeal. It does not mean to say however that we cannot go up to the
Supreme

Court

by simply filing a notice of appeal or ordinary appeal, what the rules prohibit is ordinary appeal
to

the

Supreme

Court that is notice of appeal if it is a civil case if the case is a criminal case, there could be a
notice

of

appeal

to

the Supreme Court such as when the penalty imposed is life imprisonment or reclusion perpetua
by

the

Court

of

Appeals, the appeal from that criminal case will be by notice of appeal, it will not be an appeal
by

petition

for

review on certiorari. In a petition for review on certiorari filed before the Court of Appeals, it is
axiomatic

that

only question of law can be raised. So if we raised question of law and also a question of fact
before

the

Supreme

Court, the Supreme Court will not necessarily disallow the appeal, the rules say that if the
issues

raised

in

an

appeal under Rule 45 are both factual and legal, the Supreme Court has the discretion to remand
the

case

to

the

Court of Appeals but that is always a matter of discretion. And when the Supreme Court sends
the

case

to

the

Court of Appeals because the issues raised are both factual and legal the Court of Appeals will
have

the

duty

now to review the case and renders its own decision. But the opposite does not apply such as
when

the

Court

of

Appeal is the appellate court let us say there is an appeal to the Court of Appeals through
ordinary

appeal,

the

court of origin being a Regional Trial Court. The mode of appeal as we said is ordinary appeal
he

simply

file

notice of appeal with the Regional Trial Court and pay the appellate court a docket fee. It is
in

this

kind

of

appeal, that the Court of Appeals where the rules require the appellant to submit his brief on
appeal

that

is

why

sometimes in courts decisions you will meet the term brief for the appellant and brief for the
appellee,

these

submissions are required only if the appeal is by ordinary appeal the trial court is the Regional
Trial

Court

and

the appellate court is the Court of Appeals. If the trial court is an inferior court and there is
an

appeal

to

the

Regional Trial Court and from the Regional Trial Court we go up to the Court of Appeals we dont
use

ordinary

appeal, the mode is petition for review. If the court of origin is a Regional Trial Court
exercising

original

jurisdiction, the mode of appeal is by ordinary appeal, notice of appeal to the Court of
Appeals.

During

the

pendency of the appeal, the Court of Appeals will require the appellant to submit a brief,
called a brief for the appellant. Then the rules also provide for the contents of that brief for
the appellant. If the appellant does not submit his brief on time, that will be enough reason to
dismiss

the

appeal.

Even

if

the

submits

his

brief

on

time,

the appeal could still be dismissed if the brief submitted by the appellant does not
contain

the

essentials

mentioned in the Rules of Court. If you will read the provisions of the rules as to the contents of
the

brief

for

the

appellant, you will noticed that the brief for the appellant will be divided into several
chapters,

there

is

this

subject index there is this statement of the case there is this statement of facts, arguments and
errors

assigned

by

the appellant. If the brief for the appellant does not contain an assignment of errors, that is
fatal,

the

court

will

dismiss the appeal even if there is a brief submitted by the appellant if the brief does not
contain

assignment

of

errors. Why is the Court of Appeals is very much interested in that chapter in a brief that is the
assignment

of

errors, without which the appeal will be dismissed? The assignment of errors is essential in
an

appeal

to

the

Court of Appeals by ordinary appeal because in so far as the Court of Appeals that decision
appealed

from,

that

is the decision rendered by the Regional Trial Court is a correct decision. Remember that
in

our

Rules

on

Evidence there is disputable presumption that a decision rendered by any court is a


correct

decision,

presumption of regularity in the performance of official duty. So if the court decides a


case

there

is

presumption of regularity so there is a presumption that the decision rendered by the court is a
correct

decision.

The Court of Appeals will always be applying that disputable presumption whenever there is
an

appeal

in

civil case to the Court of Appeals. In fact that same attitude will be adopted by the Supreme
Court
there

whenever
is

an

appeal

brought

to

presumption

the

Supreme

Court

as

under

Rule

45,

that

to

disputable

the

correctness of the decision appealed from. Since the Court of Appeals will look at the decision
of

the

Regional

Trial Court as a correct decision, the only means by which the appellant can destroy
or

overturn

such

presumption is by convincing the Court of Appeals that serious errors have been committed
by

the

Regional

Trial Court. And the problem of the appellant is that he is not allowed to introduce evidence to
show

that

errors

are have been committed by the Regional Trial Court, the appellant will have to rely on the
records

that

have

already been submitted before the Regional Trial Court. So the only way by which he can possibly
convince

the

Court of Appeals that errors have been committed by the Regional Trial Court is to make an
assignment

of

errors. If the appellant cannot make an assignment of errors in his brief that means to say
that

the

appellant

finds nothing wrong with the decision rendered by the Regional Trial Court, therefore
the

disputable

presumption stays, it will still be used by the Court of Appeals. That is why this chapter in
a

brief

for

the

appellant about assignment of error is always essential. Its absence will be fatal in appeal.
The

appeal

can

be

dismissed if there is no assignment of errors in the brief submitted by the appellant. Can the
appellant

let

us

say

in his brief assign as an error first and only error assigned


committed

an

the Regional Trial Court

error

deciding the case against the appellant? That is not the assignment of error that is expected
by

the

Court

of

Appeals. The errors should be specified particular facts, conduct, orders issued by the court,
which

could

have

affected his substantial rights which brings us now to the concept of harmless errors in
appeal.

In

Rule

51

Section 6 that is the section on harmless errors with respect to appeals. In any litigation we could
expect that the trial court must have committed errors during the proceedings. After all the judge
is

also

part

of

humanity

so

he could commit errors just like lawyers who represented their clients they could commit errors
also.

But

in

that

principle of harmless error in given in Rule 51, it is expressly provided that only errors
committed

by

the

court

in admission of evidence, in issuing orders that affects substantial rights of the appellant will
be

considered

by

the appellate court. So if the error committed by court does not really affect the
substantial

rights

of

the

appellant, the error will be disregarded by the court even if it is made part of the assignment

of

errors.

This

requirement on assignment of errors gives the message that in civil cases that are
brought

on

appeal

the

appellate court will only resolve the issues raised in the assignment of errors no other issues
generally

will

be

resolved by the court only the errors assigned by the appellant in his brief. The only
exception

when

the

appellate court or Court of Appeals will resolve other issues not raised in the assignment is
when

the

Court

of

Appeals sees that an issue is closely related to one of the issues raised
brief.

That

is

by the appellant in his


why

we have also rule on appeals that the authority of the appellate court is only to resolve issues in
the

assignment

of errors made by the appellant. But again this rule applies only to a civil case it does not
apply

to

criminal

case. In a criminal case if there is an error committed by the trial court whether it is assigned
as

an

error

or

not

assigned as an error the Court of Appeals or even the Supreme Court can take that into
consideration

in

resolving the case. The appellate courts are very flexible in a criminal case that are brought
before

them

from

decision of a trial court unlike in a civil case where there is a provision which limits the
authority

of

the

appellate court to resolve only the errors or issues that are connected with the assignment of
errors
brief for the appellant.

made

in

the

If it is the appellant who does not submit a brief, the appeal will be dismissed. If it is the appellee
who

does

not

submit his brief, the appeal will not be dismissed. The appellee can choose not to submit a
brief

at

all.

If

the

appellee does not submit a brief, then the court will simply decide the case without a brief
coming

from

the

appellee. It is the brief for the appellant whose non-submission could lead to the dismissal of
an

appeal.

In

the

Supreme Court under Rule 45 although Rule 45 is very clear in saying that only questions of law
could

be

raised

in petition for review on certiorari the Supreme Court has recognized a number of exceptions.
As

of

last

count,

there are about 14 exceptional issues where the Supreme Court has allowed an appeal
although

factual

issues

were raised in that petition for review on certiorari. I suggest that you memorize about five of
them

and

that

will

probably be enough for you to answer problems on appeals concerning Rule 45. In fact you
can

immediately

point three exceptions which are not a product of jurisprudence but a product of the circulars
of

the

Supreme

Court where factual issues can be raised in a petition under Rule 45. The first one is kalikasan
cases,

the

second

one is amparo and the third is habeas data. Under circulars of the Supreme Court on these
three

proceedings,

kalikasan, amparo and habeas data, the appeal to the Supreme Court should also be by
petition

for

review

on

certiorari and the circulars also provide that both factual and legal questions can be raised

before

Court

of

Appeals under Rule 45.

Rule 39 is described by the decisions of Supreme Court as the rule that which gives life to the
law.

It

gives

life to the law in a 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 for the recovery of money and the court awards let us say 2
million

in

favor

of the judgment creditor, the creditor of course will not be satisfied unless the 2 million is
delivered

to

him.

It

is

not correct to assume that in order to satisfy the judgment we should always make use Rule
39.

Satisfaction

of

judgment as conceived in Rule 39 is a forcible satisfaction of judgment. So if the award in favor


of

the

judgment

creditor is for the payment by the judgment debtor of 2 million pesos, the judgment creditor does
not

even

have

to think about Rule 39 as long as he receives 2 million pesos from the judgment debtor. In
other

words,

judgment debtor can voluntarily pay


situation

the
2 million pesos to the creditor. It is only in that

where

the

judgment debtor refuses to pay where the only remedy of the judgment creditor to enforce
payment

is

to

make

use of Rule 39, that is to force the debtor to pay 2 million pesos by making a levy on his
properties

and

by

selling

this levied properties at public auction. That is the function of Rule 39 that is a forcible
satisfaction

of

final

and

executory judgment. In the ordinary course of things, if there is an appeal from the decision
rendered

by

the

trial

court and it has reached the Supreme Court even if the decision has been affirmed by the
Supreme

Court

and

the decision of the Supreme Court has been entered, it is not correct for the judgment
creditor

to

ask

for

execution from the Supreme Court. The matter of execution is a duty of the court of origin, if
it

is

the

inferior

court that originated the case it is the inferior court that will have the duty to enforce
satisfaction

of

the

claim.

The higher courts usually do not issue an order for the execution of judgment. What the lawyer
for

the

judgment

creditor should do is to wait for the records to be returned to the court of origin. It could take
time

before

the

records simply return to the court of origin. So if the records have not yet been received by the
inferior

court

and

the judgment creditor files a motion for execution there is likelihood that the inferior court will
tell

him

we

have

not yet received the record so we cannot act on your motion although the issuance of execution,
the

granting

the

motion for execution is already a ministerial duty of the court. Rule 39 has provided for the
remedy

in

this

situation. If there is an appeal that has reached the Supreme Court or Court of Appeals as the
case

may

be,

the

appellate court will simply issue a certified true copy of the entry of judgment and that certified
true

copy

will

be submitted immediately to the court of origin that could be the basis of the granting of a
motion

for

execution

that is enough proof that there is really a final and executory judgment. Is there a need for the
judgment

creditor

to file a motion for execution? Of course there is always a need, if the judgment creditor does
not

file

motion

for execution the court has no business issuing a writ of execution because the court will not
know

whether

there has been voluntary satisfaction of the judgment so there has to be a motion for
execution

filed

by

the

judgment creditor. Since the judgment has become final and executory and it is now the
ministerial

duty

of

the

court to grant the motion and to issue a writ of execution, can the motion for execution can be
heard

ex

parte?

This is without notifying the judgment debtor, without giving him a copy even with the
motion.

This

issue

which is the subject of conflicting decisions of the Court the latest that I know of says that a
motion for execution of a final and executory judgment can be heard ex parte by the trial court
but previous decisions are to the effect that the judgment debtor should also be given a copy of
the motion for execution because the judgment debtor may have grounds to oppose the
issuance of the writ of execution. You adopt that old doctrine that the motion for execution of a
final and executory judgment should always be furnished upon the judgment debtor and that the
motion cannot be heard ex parte.

In the Rules, there is a period fixed within which the court can grant a motion for execution
as

ministerial

duty. It is 5 years from entry of judgment. Then after the end of 5 years there could be revival of
judgment,

no

longer a motion but an independent action to revive the judgment but the independent
action

to

revive

the

judgment must be filed within the second five year period. The rules assume that the period of
prescription

for

the enforcement of a judgment is a ten year period.


yes

Is this a correct assumption? The answer is

because

that

is so provided in the Civil Code. The prescriptive period for the enforcement of a final and
executory

judgment

is really a period of ten years under the Civil Code. But what Rule 39 has provided is to
divide

the

ten

year

period into two parts. First five year and the second five year period, within the first five years
you

can

execute

the judgment through a mere motion, a motion for execution. After the lapse of the first five year
period,

can

the

judgment creditor still file a motion for execution? Not anymore. If he files a motion for execution,
let

us

say

on

the 7th year of the 10 year period, the court will deny the motion because the court does no
longer

have

the

authority to order execution through the granting of a motion for execution. The second five
year

period

is

designed to force the judgment creditor to file a separate complaint, an independent action for
the

revival

of

that

judgment. So the motion for execution should be filed within the first 5 year period of this 10
year

period.

Is

the

first 5 year period strictly implemented by the Rules? It is not. Can it be extended? It can be
extended

according

to the Rules. The Supreme Court has decided that if the execution of the judgment within
the

first

year

is

delayed and delay is attributable to the conduct or act that is traceable solely to the judgment
debtor

again

the

year period is correspondingly extended that is equal to the period of delay caused by the
conduct

of

the

judgment debtor. For example, within the first 5 years from entry of judgment, the judgment
creditor

files

motion for execution. Let us say that the motion was filed on the 3 rd year of the 5 year period.
The

judgment

debtor is given a copy of the motion, after receiving a copy of that motion for execution the
judgment

debtor

files a petition for the annulment of the judgment before the Court of Appeals. We assume
that

the

execution

court is the Regional Trial Court. There is now a petition to annul the judgment under Rule 47,
filed

with

the

Court of Appeals. And the Court of Appeals grants a preliminary injunction which is a relief
sought

by

the

judgment debtor in his petition of annulment of judgment. Because of this preliminary injunction
issued

by

the

Court of Appeals we cannot expect the Regional Trial Court to order the enforcement of that
decision.

So

it

will

take let us say the Court of Appeals a period of 2 years within in which to finally decide the case.
At

the

end,

the

Court of Appeals orders the dismissal for petition for annulment of judgment. So there is a
delay

by

years.

If

the 5 year period has already lapsed then we are going to add another 2 years with that 5 year
period. So the 5 year period will be deemed automatically extended up to 7 years within which
to

execute

the

judgment

to

the

filing of a mere motion. That is how the Supreme Court describes how this first 5 year and
second

year

period

should be interpreted. It is not a fixed period. It could be extended by circumstances that

could

arise

for

each

and every case where there is a delay in execution arising from the conduct of the judgment
debtor.

It

simply

means that the judgment debtor can really delay the execution of judgment. In fact he is
given

at

least

remedies under the Rules even if the judgment has already become final and executory. As we
said

yesterday,

Rule 38 is one means of delaying the execution of judgment. In Rule 38, the court that has
decided

the

case

can

issue an injunction against the enforcement of its own decision. Rule 47 is another remedy
available

to

the

judgment debtor in order to delay the enforcement of a final and executory judgment. As long as
in

that

petition

to annul a judgment there is a corresponding provisional remedy of preliminary injunction that is


issued

by

the

higher court. In annulment of judgment, the court where we file the case will always be a court
higher

than

the

trial court. If the trial is Regional Trial Court, the annulment court will be the Court of Appeals. If
the

deciding

court is an inferior court, the annulment court will be a Regional Trial Court. So there is no way
by

which

the

trial court can disobey the writ of preliminary injunction issued by this higher court. If the motion
for

execution

is granted, which is expected because the judgment has become final and executory, can the
judgment

debtor

appeal from the order granting the motion for execution? The answer is in Rule 41 section 1, an
order
execution is not appealable.

granting
Although it will be treated as a final order, the only remedy of the

judgment

debtor

is to file a petition under Rule 65. Supposing the trial court denies a motion for execution of a
judgment

that

has

already been entered. Is appeal the remedy of the judgment creditor? The answer is no.
The

remedy

of

the

judgment creditor is to appeal. That will be disadvantageous to the judgment creditor. The
creditor

should

also

resort to Rule 65 but the petition that he should file is a petition for mandamus because
mandamus

is

writ

that

will compel respondent to perform a ministerial duty and in Rule 39, as long as the judgment has
been

entered

it

becomes the ministerial duty of the trial court to grant the motion for execution. So that
is

an

act

that

is

compellable by a writ of mandamus. So that is the remedy of judgment creditor. Can the trial
court

rightfully

deny a motion for execution although the judgment has been entered or can the trial court
rightfully

quash

writ of execution that is issued because the judgment has become final and executory? The
general

rule,

the

trial

court cannot quash or rightfully deny a motion for execution if the judgment has been
entered

but

there

are

certain exceptions recognized by the court. First, when the judgment sought to be enforced has
been

novated

or

the judgment has already become dormant. The five 5 year period has already stared
and

no

motion

for

execution has been filed by the judgment creditor. When the only remedy left in so far as the
judgment

creditor

is concern is an independent action to revive the judgment he cannot substitute by a mere filing

of

motion

for

execution. He should avail of this independent action to revive a dormant judgment. Can
the

parties,

the

judgment debtor and judgment creditor enter into a compromise agreement after the judgment
has
and executory?

become

final

The answer is yes.

agreement

What happens to the judgment if there is a comprise

signed

by

both debtor and creditor and whose terms are not consistent with the award given; the effect is
the compromise agreement will novate the judgment. So if the judgment awards to the
judgment

creditor

million

pesos

but

because the debtor and the creditor are long-time friends and they agree to enter into a
compromise

agreement

where they provide that the entitlement of the judgment creditor is reduced from 2 million to
P1.5

million

and

that the debtor will have a period of 1 year within which to mitigate fully the obligation.
That

compromise

agreement is the law between the creditor and the debtor and that will have the effect of
novating

the

judgment.

So if the debtor does not still pay, the court will no longer grant a motion for execution of the
award

that

has

been given in the dispositive portion of the duly entered judgment.


by

the

act

of

So the parties can novate


the

parties the terms of a judgment that has been duly entered, it can still be changed that is an
application

of

the

rule on novation in the Civil Code. Novation is a means in which an obligation is extinguished.
Supposing

that

within the first five year period the court grants a motion for execution and the court
issues

the

writ

of

execution. The writ of execution is carried out by virtue of a levy on execution on the properties
of

the

judgment

debtor but the properties levied upon were not sold within the first five year period so at the end
of

the

first

five

year period there is a writ of execution, there is levy on execution of properties of judgment
debtor

but

these

properties were not been sold at public auction we are now in the 6th year or 7th year of the 10
year

period.

Can

the properties levied upon within the first 5 year period be sold at public auction on year six
or

seven?

The

answer is yes. According to the court, the first five year period does not require that the
execution,

the

actual

levy and sale of property must be done within the first five year period. It is enough that there
is

motion

for

execution filed, the motion is granted by the court, and there is an actual levy of properties
of

the

judgment

debtor. It does not matter if the actual sale of the levied property takes place after the end of 5
years.

So

what

is

important in so far as the first 5 year period is concern is that there must be an actual levy on
the

properties

of

the judgment debtor. So that the levy that carried out of the judgment can be enforced even
beyond

the

five

year

period. There was another case involving again this first 5 year period and second 5 year period
where

in

year

of the 10 year period the judgment creditor whom elected to file a motion for execution
filed

motion

of

execution on year 7 and then the judgment creditor furnish the judgment debtor of this
motion

and

the

judgment creditor convinced the judgment debtor not to oppose the granting of the motion
so

the

judgment

debtor will accommodate the judgment creditor even filed his written position that he is not
objecting

to

the

granting of the motion for execution. Because there is a manifestation by the judgment
debtor

that

he

is

not

opposing the granting of the motion for execution although it was already year 7 the court
granted

the

motion

for execution and then the writ was issued and properties of the judgment debtor were levied
upon.

When

the

judgment debtor saw that his properties were levied upon he changed his mind. He challenged
the

validity

of

the writ of execution issued on year 7 of the 10 year period. And the court sustained this stand
of

the

judgment

debtor. The court said that after the end of the first
jurisdiction

to

5 year period the court losses

execute

judgment by a mere motion. And the fact that the judgment debtor did not oppose the issuance
of

the

writ

does

not matter because the issue is now one of the jurisdictions. The jurisdiction cannot be
vested

upon

in

simply by inaction on the part of the parties.

court

So it is settled that when there is a writ of

execution issued by the court after the first 5 year period because the motion was filed also
after

the

first

year

period

the

proceedings

taken by the court will be irrelevant and will be void. The issuance of writ of execution is void and
therefore

the

writ can still be quashed for lack of jurisdiction.

With the respect to revival mentioned in the

rules

pertaining

to

the second 5 year period. This is an independent action. Since it is an independent action, if the

original

action

was a real action for the recovery of title to or possession of a property, can we consider the
petition

to

revive

judgment still as a real action?


action,

the

The Supreme Court said yes. If the original action is a real

the

action

to

revive that judgment will also be a real action and therefore the venue in Rule 4 still apply. If the
action

is

real

action the venue is the place where the property is situated.


judgment

should

So the action to revive that

also

be

the place where the property is situated. An action to revive the judgment since it is an
independent

action

will

always be cognizable by the Regional Trial Court because it is not capable of pecuniary
estimation.

So

if

the

decision sought to be revived is a decision rendered by an inferior court we do not file the
petition

to

revive

the

judgment before an inferior court. We always file the petition to revive the judgment with the
Regional

Trial

Court because we have to determine for purposes of jurisdiction whether the revival of a
judgment

is

capable

or

incapable of pecuniary estimation. It is incapable of pecuniary estimation and it is cognizable


therefore

by

the

Regional Trial Court under BP 129.


There is another section in Rule 39, section 34. It is more specific than section 6 when it comes
to

the

use

of

term

revival of judgment. If you read carefully section 34, there is a mention of revival of
judgment.

The

revival

of judgment in section 34 is not the revival of a judgment that has become dormant. The revival
of

judgment

that

is carried out after the end of the first five year period refers to a judgment that has become
dormant.

It

is

dormant judgment so we have to revive it. The term revival of judgment in section 34
does

not

refer

to

dormant judgment. In fact, section 34 refers to a judgment that has already been executed so
it

could

not

be

dormant judgment. It must be an executed judgment. But why does Rule 39 provide as a
remedy

revival

of

judgment although it has been previously executed? The situation contemplated in section 34 is
that

judgment

is

executed, properties are levied upon, and these properties had been sold in public auction but
the

highest

bidder

or anybody who thereafter acquires the property is not able to get possession of the
property

because

of

opposition or because of legal obligations that are related to the execution of judgment. So
there

is

difference

between revival contemplated in section 34 that a judgment has been executed and
revival

of

dormant

judgment wherein there is no execution that has taken place within the first 5 year of the
prescriptive
10 years.

period

of

Take note if these differences between revival mentioned in section 6 and revival

mentioned in section
34. The improvement given by Rule 39 in the 1997 Rules, in so far as the judgment creditor is
concerned

is

that

under the present rules, the writ of execution issued by the court by virtue of a motion for
execution

has

life

of

5 years. So judgment creditor does not have to keep on filing one motion for execution after
another,

which

was

the practice in the past. Because in the past the life of the writ of execution was a very short
period,
only 60 days.

think

it

is

But at present, it is has a period of 5 years. So at any time within the five year

period, the sheriff could enforce the writ. The sheriff could make a levy on the properties of
the judgment debtor at any time within the 5 year period. The only limitation enforced by the
rules is that the sheriff must make a periodic report to the court as to the progress of the
process of execution. So the life of the legal execution under Rule 39, at present, is a very
long period of 5 years. How does the court enforce a duly entered judgment through the
granting a writ of execution and the issuance a writ of execution? It all depends on the tenor of
the judgment. If the judgment awards money, there will be a levy on execution of properties. If
the judgment is on delivery of property or delivery documents, then there will be no levy on
execution of properties. The property ordered to be delivered will be seized by the sheriff and
then there is delivery of possession with the judgment creditor. If the judgment directs the
judgment debtor to sign a deed of conveyance or a deed of sale in favor of judgment creditor
and the judgment debtor refuses to sign the document, the court can appoint another person
usually the clerk of the court to sign the document on behalf of the judgment debtor.

If the judgment directs the debtor, the defendant to vacate a piece of land or building and he
refuses

to

vacate

building the court through the sheriff will forcibly oust him from the building, the court will
throw

out

the

things belonging to the occupant from that building. Can the court cite the judgment debtor
in

contempt

for

refusing to obey an order of the court which directs him to pay let us say 2 million pesos? In a
deed

of

execution

to be issued by the court in this case in a money award, the writ will be directed to the sheriff
but

the

writ

will

contain word for word the dispositive portion of the decision. So if the sheriff of the court goes to

the

debtor,

the

debtor can refuse to pay and the debtor can even go to court and tell the court that I have
money

but

dont

want to pay, I will get sick of pneumonia if I pay judgment creditor. Can the court cite him in
contempt?

No,

the

court cannot cite him in contempt. This was a question in the bar examination four years
ago.

Citation

for

contempt is not a remedy in Rule 39 generally to enforce a judgment because Rule 39


contemplates

enforcement

of a judgment by the sheriff of the court making use of the processes in Rule 39 which is levy
on

execution

of

properties so if a judgment debtor refuses to pay the creditor cannot go to court and ask the
court

to

cite

the

debtor in contempt of court that is not contempt of court because the according to the
court

the

writ

is

not

addressed to the judgment debtor, the writ is addressed to the sheriff of the court so it is the
duty

of

the

sheriff

to carry out the dispositive portion of the judgment. May there be citation for contempt if
there

is

an

award

of

money by way of exception? There is seems to be, that is in support cases. If the respondent
is

ordered

to

pay

support, he does not pay support, it is not only contempt that he will be facing but he will be
facing

criminal

case for failure to give support. But generally, we dont use the power of a court to cite a
person

in

contempt

simply because the judgment debtor has refused to obey a writ of execution issued by the court.
There

are

other

and more effective remedies under Rule 39 in order to carry out a forcible satisfaction of the

judgment

and

the

more effective remedy under Rule 39 is to levy on properties of the judgment debtor, seized the
properties of the debtor and sell them at public auction. In the levy of the properties
under

Rule

39,

the

levy

does

not

automatically mean that possession of the levied properties will be in the hands of the sheriff
or in the physical possession of the court. If the properties of the debtor levied upon are real
properties,

the

debtor

will

continue

to

be in possession of the real properties, he will not be ousted from the properties. What the
court

will

do

is

simply to submit to the registry of property a copy of the levy on execution and ask the registry
of

property

to

annotate the fact that this piece of land is already been a subject of levy on execution and this
levy

in

execution

will serve now as lien over the real property of the judgment debtor. But when the property
levied

upon

is

personal property that is when the physical possession of the personal property will be
turned

over

to

the

sheriff. The personal property will be literally in custodia legis. It is now under the control of
the

court.

What

happens after the levy has been implemented by the court? A levy on properties under Rule 39
should

always

be

followed by a sale at public auction of the properties. We cannot have an execution process
where

we

will

stop

at levying of the properties. The levy must always be accompanied by a sale at public auction.
If

there

is

only

levy without a sale at public auction then that levy can be considered as nullified later on by
the

court.

It

is

the

duty of the court to see to it that actual levy on the properties must be followed by public

auction

sale

of

the

properties. Under Rule 39 and some special laws, there certain properties of the judgment debtor
which

cannot

be the subject of a levy. If a property of the debtor is exempt from execution and it is levied upon
the

levy

is

void

and since the levy is void the sale is also void. The validity of a sale at public auction of levied
properties

will

always stem from the validity of a prior levy. If the levy is void the sale is also void. If the levy is
valid,

however,

it does not follow that the sale is also valid because under the rules there are some certain
requirements

that

must be complied with before a sale of a levied property could take place. For instance, if the
property

levied

upon is real property it cannot be simply be sold later on by the sheriff, there certain formalities
to

be

followed,

there could be a requirement on publication of the sale of the properties. So even if there is a
valid

actual

levy

on

real property if later on the property is sold but there is no compliance with the requirement of
publication

the

sale will be void, the buyer of the property will not acquire any title to that property. So if the
levy

is

void,

the

sale is also void. If the levy is valid, the sale could still be void if the requirements for its valid
sale

under

Rule

39

are not complied with.

We continue with rule 39, we talked about terceria-third party claim. The rule on terceria in
rule

39

is

also

contained in rule 57 in relation to writ of preliminary attachment. The principles in rule 39

and

57

governing

third party claim are practically identical. Terceria is predicated on the premise that the property
levied

upon

by

the sheriff for purpose of executing the duly entered judgment does not belong to the
judgment

debtor.

In

rule

39 for the validity of a levy, the property levied upon must belong to the judgment debtor. If the
property

levied

upon belongs to another person, the levy is not valid. If the sheriff sells the property,
nonetheless,

the

sale

is

not

valid. Rule 39 expects that the properties levied upon and eventually sold all belong to the
judgment

debtor

because rule 39 is the satisfaction of judgment against the judgment debtor. If the sheriff
makes

levy

on

properties which does not belong to the judgment debtor, you can expect the true owner
to complain- he can
even take an action by commencing a complaint for the recovery of the property from the
sheriff.

The

remedy

mentioned in rule 39 available to the owner is just one of the several remedies which the
owner

can

avail

of.

In

rule 39, the remedy of the real owner is to file a third party complaint. The other remedies
which

are

expressly

acknowledged by Rule 39 is the commencement of a separate and independent action for


the

recovery

of

the

property that has been levied upon. If the property levied upon is personal property,
capable

of

manual

delivery, the true owner can file a complaint for replevin against the sheriff who has
seized

the

personal

property. If the property levied upon is real property, he can file a complaint to prevent the sheriff

from

selling

the property and to compel the return of the property to the true owner. And rule 39 does not tell
the

true

owner

that he only has these remedies in the alternative.The owner can make use of these remedies
successively.

If

he

files a third party claim and he does not succeed in recovering the property by reason of the 3 rd
party

claim,

he

can avail of the remedy to file a complaint for the recovery of the real or personal property, as
the

case

maybe.

But the easiest and most practical remedy available right away to the third party claimant is
this

third

party

claim. A third party claim does not require the filing of a pleading, it is just an affidavit filed by
the

third

party

claimant to the sheriff or to the court

In the affidavit, one should also append supporting documents and papers that will justify
his

claim

to

the

property. What will the court do with this 3 rd party claim? Can the execution court study and
evaluate

this

third

party claim and eventually render a decision determining if the 3 rd party claim is a proper or just
claim?

Can

the

court render a judgment that will tell the sheriff that the true owner of the property is not the 3rd
party

claimant

but the judgment debtor? The court has no such authority because we are already at the
stage

of

execution

of

judgment. In so far as the court is concerned, the case is already completed, it has been
terminated.

The

third

party claim will just be an incident to the execution process that is being followed by the

court.Therefore,

the

court has no authority to resolve an issue of ownership involving the property that has been
levied

upon.

The

issue of ownership should be threshed out in a different and separate proceeding. So if the
execution

court

issues an order saying that the owner of the property is not the third party claimant but the
judgment

debtor

and the third party claimant does not assail the decision, that order will not be entered because
such

decision

is

not rendered on the merits, it is not a final order. It will not constitute res judicata in so far as
the

third

party

claimant is concerned. Regardless of the finding of the execution court that the true owner of the
property

is

the

judgment debtor, that will not be binding on the third party claimant. If at all, the consequence of
that

finding

of

the court is that the sheriff can proceed with the public auction sale of the property. If the
sheriff

schedules

the

property subject to a third party claim to a public auction sale, the remedy of the third party
claimant

is

to

file

an

independent action in order to prevent the sheriff from selling the property (complaint for
injunction

and

damages, for instance). That is one of the remedies available to the third party claimant. You
do

not

file

that

complaint in the execution court. If it is a complaint for injunction, you should file it in the
Regional

Trial

Court

which has jurisdiction over the case and the venue will depend on the residence of the third
party claimant or the sheriff or the judgment debtor. And it is the third party claimant who will
have the right to choose the venue of the action.

If the property levied upon, on the other hand, is a personal property, say a car in the
possession

of

the

judgment debtor but is really owned by the third party claimant, can the third party claimant file
a

complaint

for

replevin to recover the car from the sheriff? Of course, in that complaint for replevin, the
defendants

would

be

the sheriff and also the judgment creditor because the levy was a result of a motion for execution
that

was

filed

by the judgment creditor. If the execution court is RTC and the third party claimant decides to
file

complaint

for replevin, can he file the complaint before an inferior court? Yes, because a complaint
for

replevin

is

cognizable by the inferior courts depending upon the value of the personal property. So if the
execution

court

is

the RTC, but the car is valued at only 250,000 pesos and the true owner, the third
party

claimant

files

complaint for replevin, the complaint will have to be filed with the inferior courts. That
inferior

court,

in

the

complaint for replevin can issue a writ of replevin or a warrant of seizure before the sheriff and
the

judgment

creditor could file an answer. We would have a complicated situation where the sheriff has seized
a

property

by

virtue of a levy on execution in fact the sheriff has scheduled a public auction sale for the car
but

at

the

same

time there is a warrant of seizure or a writ of replevin issued by an inferior court which directs he
sheriff

of

that

inferior court to seize the car from the sheriff and the judgment creditor. Can the judgment

creditor

and

the

sheriff argue before the inferior court that the inferior court does not have the authority to
issue

the

writ

of

replevin or warrant of seizure because that is interfering with the processes issued by the
Regional

Trial

Court?

The answer is no. The sheriff of the inferior court can enforce the replevin. He can seize the car
from

the

sheriff.

Although the sheriff is in possession of the car, by virtue of a levy on execution, can not
the

sheriff

or

the

judgment creditor capitalize on the provisions of rule 60 that a writ of replevin cannot be
enforced

when

the

property is already subject to attachment or the property is under distraint by reason of nonpayment

of

taxes.

If

you go to rule 60 on replevin, that is really a requisite, an essential requisite in the issuance of a
writ

of

replevin.

The replevin court can issue a writ of replevin validly if the property to be seized by the writ of
replevin

is

not

under custodia legis, either levy on attachment or levy on execution. If that car is subject to
levy

on

execution,

then that car is under custodia legis. But notwithstanding that provision in Rule 60, the court
said

that

the

writ

of replevin issued by the inferior court will prevail over the levy on execution made by the sheriff
because

such

levy on execution is a void execution. The requirement in 60 which states that property under
custodia

legis

cannot be the subject of a writ of replevin assumes that the levy on execution is a valid levy
on

execution.

We

said a while ago, that for levy on execution to be valid, the property levied upon must be a

property

of

the

judgment debtor. If the judgment debtor is not the owner of the property levied upon, that
levy

is

void

and

therefore there could be a seizure or confiscation by another sheriff in compliance with the
writ

of

replevin

issued by another court or even an inferior court. In our example, it is also proper for the inferior
court

to

issue

writ of preliminary mandatory injunction against the sheriff so that the sheriff will be
prevented

from

going

ahead with the sale. So this could be a situation, an instance, where a process issued by an
inferior court can be enforced in order to defeat a process issued by a higher court. The levy
court is a RTC but the injunction court is an inferior court. But the injunction will not be directed
against the RTC, it will be directed against the sheriff of the RTC to prevent him from selling the
property which is the subject of a void levy on execution.

In Rule 39, if a property of the judgment debtor has been subjected to a levy on execution,
can

it

be

made

the

subject of another or further levy on execution? Yes. There could be several levy on execution
over

the

same

property of the judgment debtor. So if the judgment debtor owns a piece of land, there could
be

first

levy,

second levy or a third levy on that piece of land. The rule does not prohibit the enforcement of
several

levies

on

execution over the same piece of land owned by judgment debtor because a vendee does not
immediately

obtain

ownership of the property. Notwithstanding a levy on a land owned by the judgment


debtor,

the

debtor

remains to be the owner of the land. Under rule 39, a levy only creates a lien over the

property

similar

to

mortgage lien. Under civil law, we learned that the same property can be the subject of a first
mortgage,

second

and so forth. We apply that same principle to levy on execution. If we have three levies on
execution,

they

are

all

annotated at the back of the title, then we just follow the rule on seniority that we follow in
mortgages

and

other

encumbrances. The first levy will be superior to the second and third levy. The second and third
are

inferior

to

the first levy on execution. In fact the SC has also held that if a property of a debtor, a piece of
land

owned

by

the

debtor, is the subject of different levies and the judgment debtor sells the property, the
buyer

will

have

to

respect the annotation of levies at the back of the title. If the property is later on sold at public
auction

as

result

of levy on execution, then the buyer of the property could lose his title to the property. He
cannot

say

that

he

bought it in good faith because the fact of the levy is annotated at the back of the title of the
judgment

debtor.

If

this property of the judgment debtor is already mortgaged for instance with the PNB, if the
mortgage

in

favour

of PNB is still uncancelled or existing, can the sheriff levy on a mortgaged property of
judgment

debtor?

Yes,

because levy under Rule 39 does not affect ownership of the property. Levy only creates a
lien.

When

the

property of the judgment debtor is levied upon, he does not lose ownership of the property.
He

could

lose

ownership of the property if there is a public auction sale of the property and even if there is a

public

auction

sale of the property later on, the public auction sale does not necessarily mean that he will
automatically

lose

ownership of that levied and sold property especially if that property is a piece of land.
Under

rule

39,

the

judgment debtor can still exercise right of redemption so that he will still keep his title to the
property.

In cases where there are two different levies over the same piece of land owned by the jd,
usually

the

property

will be sold as a result of the first levy of property. If the property is later on sold at public
auction,

and

the

law

gives the jd a right of redemption, this right of redemption will also be enjoyed by the second
levy

owner.

Rule

39, in its definition of a redemptioner, names the jd and his successors-in-interest and any
creditor

who

holds

another levy or lien subsequent to that of the levying creditor who has caused the sale of the
property.

So

in

our

example, if this piece of land belonging to the jdis sold as a result of the first levy, the
judgment

debtor

can

redeem and the second levy holder can also redeem. The right of the jd to redeem is distinct
from the right of the

second levy holder to redeem the property. If it is the second levy holder who redeems the
property,

the

jd

can

make a further redemption of the property. There could be another redemption by the jd. But if
it

is

the

jd

who

redeems the property, then the second levy holder can no longer exercise the right of
redemption.

In

the

rule

of

successive redemption in Rule 39, when it is the jd who redeems the property from the highet
bidder,

further

rights of redemption are cut off by virtue of the redemption made by the jd. We can
speak

of

successive

redemption if the redemptioner is not the jd himself. If ht one who redeems is a redemptioner or
another

levy

or

lien holder, we can apply the rule on successive redemption which says that another
redemption
place within

could

take

60 days from the efficacy of the first redemption even if the period of

redemption

has

already

expired. For instance, if there are two redemptioners and if we include the jd, meaning to say
there

are

three

persons who can redeem the property. If the redemption is carried out by the jd, the other
redemptioners

will

lose their right to redeem. The period of redemption for all of them is 1 year from the
registration

of

the

certificate of sale. We are going to assume a redemption made should be within 1 year from
the

registration

of

the certificate of sale. If the second levy holder redeems then the third levy holder can also
further

redeem

from

him within 60 days from the date of the last redemption. But in any event, within that 1-year

period,

the

jd

can

always exercise his right of redemption. And if it is the jd who indeed exercises
redemption,

the

right

of

redemption given to others will be cut-off. Will it not prejudice these other levy holders if we cut
off

the

right

of

redemption? It could not prejudice the other levy holders. Since they are other levy holders if the
jd

redeems

the

property, they can still enforce their levy, 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

jd

or

the

redemptioner. But 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

personal

property, there is no ror. Because of these distinctions given in the rules, the SC has
also

come

out

with

principles that are applicable to redemption of real property and principles applicable
because

there

is

no

redemption as to real property.

One of these principles is that when the properties levied upon and sold at public auction is
personal

property

and the price is inequitably low at public auction sale, the sale is void. There has to be
another

sale

of

the

property. The personal property is a car owned by the jd, the market value of the car is

800,000.

At

the

public

auction sale, the highest bid is only 50,000. Here, the highest bidder can acquire a car worth
800,000

for

only

50,000. If we apply the principles given by the SC, the same is void. The highest bidder
does

not

acquire

ownership over the property, the court can issue an order declaring the same as ineffectual and
that

the

same

is

void because the price is inequitably low. So the sheriff must schedule another public auction
sale

until

the

price

that will not fall within the classification of an inequitably low price. But when the property
sold

at

public

auction is real property, it does not matter whether the highest bid is high or low or even if
the price generated is inequitably low. In fact the SC said we cannot use this concept of
inequitably

low

price

when

the

property

sold is a real property because of the principle of redemption- the right of redemption given to
the

jd.

And

the

court explained that even if the piece of land owned by the jd is worth 700,000 and highest bid is
only

50,000,

the

sale is valid. The highest bidder can acquire ownership over the property if redemption is not
exercised

by

the

jd. The SC said if the price is very low and the property is real, that is advantageous to the
judgment

debtor

because if he decides to redeem the property, he will only have to produce 50,000 and
then

he

will

get

his

property that has been sold at public auction. In instances where the judgment debtor has
say

redeems

the

property, the redemption will enable the jd to continue possessing the property and not lose
ownership

over

the

property. But the public auction sale of this piece of land could also result in a situation
where

the

price

generated during the auction sale will not sufficient to pay the claim of jc. For instance,
the

claim

of

jc

is

1,000,000. A piece of land owned by jd is levied upon and sold at public auction and the
price

generated

is

500,000 which is not enough to pay in full the jc. The 500,000 will of course go to the jc who
has

caused

the

sale

of the property but the jc has not yet been fully paid, there is still a residue or unpaid balance of
another

500,000.

When the jd redeems the property, should he deliver to the sheriff 500,000 or 1,000,000? The
jd

should

deliver

only 500,000. He need not deliver 1,000,000 because the redemption price is always the
highest

bid

of

the

property plus interest and other additional cost. So if in our example, the jd is able to redeem
the

property

by

producing 500,000 but the jc has not yet been fully paid, the jc will be tempted to have another
levy

on

the

same

property that has been redeemed by jd. The jc could do so because he has not yet been fully
paid

and

in

rule

39,

there must be full satisfaction of the award to put an end to the case. If the jc decides to have
another

levy

on

the

same property that has been previously levied upon as a result of his execution process but
this

property

has

been redeemed by the jd, can the same levy creditor impose or carry out another levy in the
same

property?

The

SC said, in this situation, the same levying creditor no longer levy on the same property. If
the

same

levying

creditor wants to get full satisfaction, he should make another levy on another property of the jd
or

he

can

resort

to other remedies provided for in rule 39 if he cannot get full satisfaction of the judgment.
But

the

SC

also

explained that this principle does not prohibit other creditors from making a levy on the
property

that

was

already redeemed by the jd. If the jd is able to redeem his property, that same property can
be

the

subject

of

levy to be made by his other creditors. But a subsequent levy cannot be made by the same
levying

creditor

or

the

first levying creditor who has caused the public auction sale of the property. With respect to the
issue

as

to

who

is entitled to the fruits earned by the property during the pendency of the levy and during the
running

of

the

period of redemption, rule 39 has settled that issue. The fruits of the property sold at public
auction

will

still

redound to the jd while the period of redemption. The basis is that the jd retains ownership
of

the

property

while period of redemption is running. If the jd is unable to redeem the property within
the

period

of

redemption, then the title will be consolidated in favour of the highest bidder of the
property.

During

the

auction sale of this levied property, anybody can bid even the jc can bid. In fact, it is usually the
jc

who

will

offer

the highest bid because the jc can give an amount equivalent to the award given to him by the
court. If the award in favour of jc is 1,000,000, the jc can give a bid as high as 1,000,000 and he
does not to turn over the task to the sheriff because he will just tell the sheriff I will consider the
1,000,000 bid as full payment of my claim. If a stranger is the highest bidder and he bids for

1,000,000, this stranger is expected to shell out 1,000,000 and deliver it to the sheriff. Can
the jc be forced to shell out cash equivalent to this highest bid even if the highest bid is the
exact equivalent of his claim? Generally, no. but if there is terceria or third party claim and
the highest bidder is the jc, the jc must still shell out cash in order to be declared by the court
and the sheriff as the highest bidder of the property. If the jc is not fully paid, there are other
options given in the rules- availment of which could lead eventually to full satisfaction of the
claim.

First is for the jc to file a motion with the court for the examination of the jd. Another remedy is
for the judgment creditor to file a motion with the execution court for the examination of a
debtor of the jd. And the third remedy is for the jc to file a motion for the appointment of a
receiver of the remaining properties of the jd. We will note that a receiver is one the provisional
remedies in the rules of court. And also receivership here is allowed by the court although the
case is already terminated, already at the stage of execution of judgment.so this is one
instance, where a provisional remedy can still be used even if the case has been decided by
the court. Usually our concept of a provisional remedy is that it is a remedy that can be
availed of during the pendency of a case before entry of judgment. But receivership
contemplated in rule 39, although it is the same receivership in provisional remedy, can still
be availed of even if there is no more pending case, meaning the case has already been
terminated in fact the judgment has already been entered.

The last topic in Rule 39 is of course one of the most important in procedure - the principle of
RES

JUDICATA.

Res judicata n rule 39 is covered by sections 47 and 48. Section 47 is the effect of a local
judgment

after

it

is

entered and then 48, is about the effect of a foreign judgment that is a judgment rendered by a
foreign

court.

In

our study of res judicata, we studied that there are principle requisites of rj: a) identity of

parties,

b)

identity

of

causes of action and c) identity of subject matter. But the effect of rj under section 47 depends
upon

the

nature

of

the action whether the action is in rem or in personam. What is the effect of a judgment in rem?
This

is

answered

by letter a of Section 47. The effect of a judgment in personam is letter


of

of

of Section 47. Letter

section

47

speaks about the principle of conclusiveness of judgment. If you want to have a clearer view
of

the

difference

between the effect of a judgment in rem compared to the effect of a judgment in personam
contained

in

letters

and b, all you have to do is look for conclusive in letter a and letter b. Letters a and b use this
word

conclusive

in

both instances and then you analyse the clauses that follow the word conclusive in letter a and
the

clauses

that

follow the word conclusive in letter b and you will immediately appreciate between a
judgment

in

rem

and

judgment in personam. In letter a, the law says the judgment is conclusive upon the title to the
thing,

upon

the

will or administration, upon the personal, political or legal condition of the person. Whereas in
letter

b,

the

word

conclusive is followed by the phrase upon the parties and their successors-in-interest
litigation

for

the

same

thing under the same title and in the same capacity. So that right away, when the judgment
is

judgment

in

rem, the judgment is conclusive not upon the parties, it is conclusive upon the title to a thing,
upon the personal political or legal condition of a person. This is the reason why a land
registration

or

cadastral

proceeding

is

considered as an action in rem because the judgment in these proceedings is conclusive upon
the

title,

it

is

not

considered conclusive upon the plaintiff or defendant. If the judgment is conclusive upon the
title

to

the

thing,

that judgment will be binding upon the litigants or anybody who might have an interest to the
title

of

the

thing

although these persons might not have been involved in the litigation process. In the probate
of

will

which

is

another proceeding in rem, where there is a decision by the court admitting the will to probate,
it

is

conclusive

upon the will or administration therefore anybody who might have an interest in the will will
have

to

respect

that decision by the court. The personal condition of a person, if a person has in his favour a
decree

of

adoption,

he is the adoptee of Juan Dela Cruz, the decree is conclusive upon the personal status of
that

adoptee

and

therefore, anybody who transacts with the adoptee will be bound by the decree of
adoption

issued

by

the

adoption court. But you will notice, there is a caveat in letter a when it comes to probate of a will.
The

probate

of

a will is not conclusive upon the fact that the testator is dead. It is only prima facie. If at all, it
can

serve

only

not

as a conclusive proof of the death of the testator but it could convince the court that the
testator

really

is

dead.

The reason for the caveat is because in civil law, as well as in rules of court, a probate of will can
be

commenced

even if the testator is still alive. Ordinarily, we conceive a proceeding for the probate of a will as
one

wherein

the

testator is already dead, that is not so, under the civil code and the rules of court. There could
be

proceeding

for the probate of a will even if the testator is still alive provided that it is the testator
himself

who

will

commence the petition for the probate of his own will. That is the reason for the caveat in letter
a

of

sec.

47.

The

probate of a will in so far as the common requirements of a will are concerned but in so far as
the

issue

as

to

whether the testator is dead or alive, it is not conclusive.

In letter b, when the rule says that the judgment is conclusive upon their parties and their
successors-in-interest
as to matters directly ajudged or as to matters which could have been ajudged, that phrase
as

to

matters

that

could have been decided or litigated in relation thereto, will refer for instance to a compulsory
counterclaim

or

cross-claim. Because we learned that a compulsory counterclaim or a cross-claim that is not


set

up

in

the

same

action will be barred. The reason for them being barred is that because they are matters which
could

have

been

raised in relation to the principal action. In a judgment in personam, the judgment is


conclusive

between

the

parties only as to the matters directly ajudged or any matter that could have been ajudged.
An

example

of

an

action in personam could be an action involving title to property by reconveyance of


property.

Plaintiff

vs.

defendant, the action for reconveyance of property, this is not in rem but in personam. Not all
actions

involving

real property is in rem. There are only very few actions involving real property that are
considered

by

the

law

as

in rem like cadastral or land registration proceedings but if the action is only for
reconveyance

or

accion

reinvindicatoria, although what is involved is real property, that action is still in personam. The
judgment

is

in

favour of the plaintiff. The judgment is entered. In so far as that case is concerned, the
plaintiff

is

the

owner

of

the property. Later on, can X as stranger file his own complaint against the plaintiff in the first
case for the recovery of real property? Can the plaintiff in the first case set up the defense of res
judicata? He cannot. Because the parties in the second case are not the same in the first case.
There is no identity in the parties between the first and second case. There is even no
identity of causes of action but the subject matter is the same piece of land. If there is
already an identity of subject matter, does it not follow that there will be identity of causes of
action? This is not a correct assumption. There could identity of subject matter but the causes of
action could be still different. For instance, in accion reinvindicatoria, the subject matter is of
course a piece of land, it involves title to a piece of land. There could be another complaint filed
involving the same piece of land but because of an action different but referring to the same
land. For instance, unlawful detainer involving the same piece of land. But although there is
identity of subject matter, the causes of action will be different- the first, accion
reinvindicatoria, the cause is for recovery of title to property, in unlawful detainer, the
cause is physical possession of property. So if the second case is unlawful detainer, the second
case cannot be dismissed by reason of res judicata. There is no identity of causes of action. When
the judgment is entered as contemplated in sec. 47, there is a judgment on the merits that is
rendered by a court of competent jurisdiction is as provided-judgment in rem and judgment
in personam. The collateral principle we adopt on this rule on res judicata is that the judgment
that has been entered becomes immutable-it can no longer be change or modified even by the
SC itself. So even if the judgment entered is a judgment of an inferior court and that judgment

has been entered, everybody will have to respect res judicata applicable to this judgment. That
entered judgment cannot be modified or changedby the inferior court, by the Regional Trial
Court or even by the Supreme Court. That is the general rule when it comes to res
judicata-the final and executory judgment enjoys now immunity from challenge or from being
assailed by parties to the original case. But it does not mean to say that the judgment that has
become final and executory can no longer be challenged, it can still be challenged by way of
exception to the general rule.

We have learned the propriety of filing a petition to annul a judgment under rule 47. Annulment
of judgment is a challenge, an attempt to change or modify a final and executory judgment. One
of the requisites of res judicata is missing, the element that is missing could be that the court
which decided the case is not a competent court because in rule 47, one of the grounds to
annul a judgment is because the court has no jurisdiction over the subject matter or over the
person of the parties.

Another remedy that could modify a final and executory judgment and which does not follow
res

judicata

is

Rule 38 or petition for relief from judgment on the ground of fraud, accident, mistake or
excusable

negligence.

suggest that you read the case in March 2011, F.G.U. Insurance. In that case the SC
summarized

four

instances

where a final and executory judgment can be modified, challenged or even set aside. The first
instance

is

when

there is modification of clerical errors of a final and executory judgment. The second
instance

is

when

the

judgment is what we call a nunc pro tunc judgment. The third is when the judgment is void.
And

the

fourth

is

when circumstances intervened after the final entry of judgment which makes the execution of

judgment

unjust

and inequitable. That is usually the reason applied by the courts when it entertains a petition for
setting aside a final and executory judgment. But in 2007, the SC also came out with another
decision

which

says

that

the

SC

has the inherent power to change or modify a final and executory judgment if substantial justice
so

requires.

So

you can consider that as the fifth exception. The SC is simply telling that us that we are the
author

of

the

Rules

of

Court so we can disregard it at anytime we want to. It seems easy to appreciate because the
Rules

of

Court

is

product of the Supreme Court. So the Supreme Court will be allowed to disregard the application
of

res

judicata

in any event where it sees that disregard of res judicata will yield to substantial justice. So there
are

five

known

exceptions now where a final and executory judgment can be modified, assailed or set aside
notwithstanding
application of res judicata.

Letter c of sec. 47 is about conclusiveness of judgment. It is a type of res judicata but with
limited

application.

There could be identity of parties and identity of subject matter but there is no identity of causes
of

action.

Thats

why the subsequent cases can prosper. They will not dismissed by reason of res judicata. The
usual

example

that

is given in textbooks about the application of conclusiveness of judgment involves a monetary


obligation

that

by

stipulation of parties will be subject to periodic payments-obligation to pay money on


instalments.

If

there

is

1,000,000 indebtedness payable in two instalments of 500,000 each, we learned that each
instalment,

if

violated

or if defaulted, will give rise to one cause of action. So if there are two instalments, it is possible
that

two

causes

of actions will accrue from the same promissory note because each instalment will give rise to a
cause

of

action.

We now apply this to sec. 47. If the debtor defaults in the payment of the first instalment, the
creditor

can

file

complaint to recover 500,000-only the first instalment that is due and unpaid. That is one cause
of

action.

Let

us

say that the court, the RTC, will try the case and then it will hear evidence to be submitted by
the

creditor

and

debtor. A defense set up by the debtor in his answer is that the promissory note upon which
the

complaint

is

based is a forged promissory note, it does not contain the genuine signature of the debtor.
After

the

trial,

the

court decides in favour of the creditor. So the court, in effect, says that the document is not a
spurious

document,

it is not a forged promissory note. The signature is a genuine signature. Then the judgment is
entered.

After

the

entry of judgment, the second instalment also becomes due. Can the creditor file a second
complaint

for

the

recovery of the second instalment? The answer is yes, because our principle is that each
instalment

if

unpaid

will

give rise to a separate cause of action so if the second instalment becomes due and unpaid, the
creditor

can

file

separate complaint against the debtor. The second complaint can prosper. The debtor will
again

raise

the

issue

that the promissory note contains his false signature-it is a spurious promissory note. Will the
court

still

make

adjudication as to whether that note is a forged promissory note or a genuine promissory


note?

Not

anymore,

the finding in the first case by the court that the promissory note is genuine will be conclusive
in

so

far

as

the

creditor and debtor is concerned in another case. Thats why in conclusiveness of judgment, the
subsequent

case

will not be dismissed, it will prosper but what the court cannot do is to make an adjudication on
the

issue

that

has already been decided in the first case. That is a conclusiveness of judgment in so far as
the

genuineness

of

the promissory note is concerned. That is the rule of conclusiveness in the last paragraph of
sec. 47.

In sec. 48 which, as we said, refers to a foreign judgment, this section also refers to a foreign
judgment

in

rem

and foreign judgment in personam if you read the first two paragraphs of sec. 48. In sec. 48, it
is

provided

that

the judgment of foreign court is conclusive upon the title to the thing and a judgment
against

person

is

presumptive evidence of the rights between parties. So the first part speaks also about a
judgment

in

rem

that

is

adjudicated by a foreign court, the judgment in rem is conclusive also upon the title to the
thing.

But

judgment is in personam
evidence

when

the

, the judgment of the foreign court is only a presumptive


of

the

rights

between the parties in the complaint. An illustration of that judgment in personam rendered by a

foreign

court,

there is a creditor and debtor suit in a foreign country, say, before a Japanese court. The relief
which

the

creditor

seeks before the Japanese court is for the recovery of an unpaid loan. The Japanese court in
favour

the

creditor.

So the debtor is required to pay the said sum of 100,000 US dollars. The Japanese court has
not

executed

the

judgment but somehow the creditor and debtor live in the Philippines, they are now in the
Philippines.

The

jd

has accumulated certain properties in the Philippines. Can the jc in that Japan case file a
motion

for

execution

before a Philippine court? The answer is no. you cannot file a motion before a Philippine court.
The

Philippine

court knows nothing about the Japan case. There is no basis for the Philippine court to issue a
writ

of

execution.

Is there a remedy available to the creditor in order to enforce the decision of the Japan court in
the

Philippines?

The remedy is the second paragraph of Rule 48 which says that the judgment of the Japan court
is

presumptive

evidence of the rights between the parties. How does the jc make use of the rule that the
decision

of

the

Japan

court is a presumptive evidence of the rights between the parties to the case? The
creditor

should

file

an

independent or separate complaint for the enforcement of the decision of the Japan court and
the

only

evidence

that he needs in order to convince the court that there is preponderance of evidence in his favor
is

certified

true

copy of the decision rendered by the Japan court. If he is able to present a certified true copy of

the

decision

of

the Japan court, the local court will now apply the presumption given in sec. 48 that the
decision

of

the

Japan

court is a presumptive evidence of the rights between the parties. That is enough to convince the
courts

that

the

creditor is really entitled to recover some amount from the defendant. But you will also notice
that

in

sec.

48,

there is a last paragraph which speaks about repelling a judgment by a foreign court whether it is
a

judgment

in

rem or a judgment in personam, the judgment of a foreign court can be repelled by


evidence

of

want

of

jurisdiction, want of notice, collusion, fraud or clear mistake of law or fact. In other words, if we
have

before

Philippine court, a separate action for the enforcement of a decision rendered by a foreign
court,

the

defendant

in this petition for the enforcement of foreign judgment can set up the defences given in the
last

paragraph

of

sec. 48. The decision of the Japan court can be defeated or repelled by evidence of want of
jurisdiction,

want

of

notice, collusion, fraud or clear mistake of law or fact. The defendant can set up properly the
affirmative

defense

that the Japan court did not have jurisdiction over the case or jurisdiction over his person
because

of

want

of

notice or that the decision the Japan court is void because of collusion or fraud or that the
decision

of

Japan

court

cannot be enforced because there is clear mistake of law or fact by the Japan court. Can we
make

use

of

these

grounds mentioned in Sec. 48 to repel a local judgment? Can we repel the execution of a

local judgment, say there is a motion for execution filed before a trial court because the
judgment

has

become

final

and

executory,

the jc has now filed a motion for execution, can the jd oppose the execution by claiming
that

the

judgment

entered by the court cannot be executed because the judgment is void by reason of absence
of

jurisdiction?

It

cannot be done if the judgment is rendered by local courts. The motion for execution cannot
be

defeated

by

setting up defense that the judgment is void because of want of jurisdiction over the person of
the

defendant,

it

cannot also be done. Why cannot the defendant in this local judgment oppose the execution
by

setting

up

the

defences that the judgment sought to be enforced under rule 39 and that judgment is rendered
by

local

court?

Why can we not the same defences that are available when the case involves a foreign
judgment?

We

do

not

allow a motion for execution to be opposes or to be denied on the argument that the
court

did

not

have

jurisdiction over the subject matter or jurisdiction over the person of the defendant,
because

that

will

be

collateral attack on the judgment. That is not a direct attack on the judgment. We can
directly

attack

the

judgment by filing a petition to annul the said judgment and the ground to be used is lack of
jurisdiction

over

the person or over the subject matter. But if we attack the judgment collaterally, not directly,
we

do

not

allow

that in our system. We can only directly attack the judgment on these grounds- lack of
jurisdiction

over

the

subject matter, over the person and extrinsic fraud. We cannot use these to collaterally attack
judgment.

When

we say collaterally, the person attacking the judgment does not file a separate complaint for
the

purpose

of

having the judgment set aside. If he only opposes the motion for execution and the ground of
his

opposition

is

that the court did not have jurisdiction over the case, that is not a direct attack, it is
collaterally

attacking

the

judgment because he is only setting up that defense in order to avoid execution of


judgment.

In

foreign

judgment sought to be enforced in the Philippines, sec. 48 appears to allow a collateral


attack

on

that

foreign

judgment which is not allowed in so far as a domestic judgment is concerned. With respect to the
other

grounds,

collusion and fraud, they are also grounds to directly attack judgment under Rule 47 even under
Rule

38-petitio

for relief from judgment. But what cannot be done our system is a collateral of final and
executory

judgment.

But there is one occasion, according to the Supreme Court, where we could collaterally attack a
judgment.

If

the

judgment is on its face a void judgment, for instance, a judgment rendered by a court contains
only

dispositive

portion, it does not contain findings of fact or conclusions of law, that judgment is, on its face, a
void

judgment.

It does not with the constitutional requirements of a valid judgment. That can be attached
collaterally.

So

if

there

is a motion for execution for that judgment, an opposition can be set up attacking the validity
of

the

judgment

because it does not with the constitutional requirements of a valid judgment. so in the matter of
attacking

local

judgment, as long as the judgment, on its face, appears to be a valid judgment, in writing,
there

are

findings

of

fact and conclusions of law, there is the signature of judge, there is presumption of correctness of
judgment.

The

only way to have it set aside is to file an action directly for the purpose of declaring that
judgment
-

null

and

void

annulment of judgment. You cannot do it by simply opposing a motion for execution. You

cannot

even

do

it

in

order to oppose the petition for a revival a judgment. A petition to revive a judgment is an
independent

action

available to a jc who has failed a judgment within the first 5 years from the entry of judgment.
If the jc files a petition to revive the judgment, the defendant will not be allowed to set up
the

defense

that

the

judgment

sought to be revived is not valid because of lack of jurisdiction, that is another example of a
collateral

attack

on

the judgment.If the argument that the judgment is void is only used as a defense in a separate
proceeding

other

than annulment of judgment, that is always a collateral attack of judgment and that is not
allowed in our system.

The term Provisional Remedies is considered synonymous to two other terms as per the
circulars

of

the

Supreme Court. And these two other terms are interim reliefs and provisional order. So the
terms

provisional

remedy, interim relief and provisional order refer to one and the same provisional
concept-a

provisional

remedy. So that we can rightfully conclude that the enumeration of provisional remedies in the
Rules

of

Court

beginning with Rule 57 up to support pendent lite in Rule 61 is not an exclusive enumeration
of

provisional

remedies. We have to include the enumeration of interim reliefs in other circulars of the
Supreme

Court

or

the

enumeration of provisional orders in a separate circular of the Supreme Court. The enumeration
of

interim

relief

could be found in the circular in amparo. There are four interim reliefs in amparo- protection
order,

production

order, inspection order, witness protection order. There are four interim reliefs in the circular on
amparo.

And

the circular on amparo itself says that amparo could be a provisional remedy under certain
instances.

Habeas

data could also be a provisional remedy under certain instances. So we can add in the
enumeration

the

interim

relief in the circular on amparo, the four interim reliefs plus amparo itself and habeas data.
There

is

another

circular issued by the Supreme Court which enumerates several provisional orders and this
circular

refers

to

provisional orders in marriage-related cases. There are seven provisional orders contained
in

this

circular-

spousal support, child support, visitation rights, custody of a minor, protection order, holddeparture

order

and

appointment of administrator of the co-owned properties of the spouses. These are


provisional

orders

in

marriage-related cases. They are also treated just like a provisional remedy in the Rules of
Court.

And

then

in

the latest circular issued by the Supreme Court, the Kalikasan, we also find some provisional
remedies

like

temporary environmental protection order, this is a provisional remedy under the writ of
kalikasan.

And

in

the

writ of kalikasan, if you have gone over the circular, there is a separate section on discovery
measures

and

the

kalikasan circular appears to consider the discovery measures also as provisional remedies or
interim

relief

like

inspection order, production order which are interim reliefs in the writ of amparo. They
should

also

be

considered interim reliefs in kalikasan cases. So there could be 3 or 4 additional provisional


remedies

if

we

include discovery measures that are specified in the writ of kalikasan. Whether they are treated
as

interim

relief

or provisional remedy or provisional order, their common element is that there must be a
pending

principal

action. You cannot use of these interim relief or provisional remedy or provisional order
unless

there

is

pending principal action except in those instances when the provisional remedy or
provisional

order

can

be

treated as the principal action. For instance, replevin is a provisional remedy but it can also be a
principal

action.

As we said earlier, amparo is a principal action by itself but it can also be treated as a
provisional

remedy.

Just

like habeas data, it is a principal action by itself but it can also be treated as a provisional
remedy. Since we always require an independent principal action before we can make use of
these

provisional

remedies,

it

follows

that we cannot an independent action solely for the purpose of obtaining as a principal

relief

any

of

these

provisional remedies. For instance, a creditor cannot file a complaint for the issuance solely
of

preliminary

attachment, that will completely be dismissed. The application for preliminary attachment
should

be

always

made to depend upon a principal action that is included in the enumeration of cases in sec. 1
of

Rule

57.

Thats

why in Rule 57, thats preliminary attachment, we immediately find actions that should be filed
in

court

where

we can properly ask for the issuance of preliminary attachment. You should also be careful
in

ascertaining

whether attachment is provisional or it is not a provisional remedy. Rule 57 is a provisional


remedy
the

word

because
preliminary.

Attachment

attachment.

is

of
a

provisional

But

remedy

if

it

is

if

preliminary

the

attachment is a final attachment, it is no longer a provisional remedy. It is now part of the


execution

process

under Rule 39. We kept on mentioning levy on execution in order to describe the process in Rule
39

to

execute

judgment. Levy on execution is just another term for levy on final attachment. But we use
the

term

levy

on

execution to differentiate it from levy on attachment. When we talk about levy on


attachment,

we

refer

to

preliminary attachment. But when we talk about levy on execution, we are referring to a final
attachmentattachment that is promulgated under Rule 39.

an

The enumeration of provisional remedies in the rules of court is no longer exclusive. The various
circulars of the Supreme Court have introduced provisional remedies but in a different way.
Instead provisional remedies in marriage related cases, the term used by the Supreme Court
is provisional order. In the circular on Amparo, there are also provisional remedies but the
term used is interim relief, and in the Kalikasan circular there are also provisional remedies but
the terms used are either provisional order or provisional remedy. But they are all provisional in
character because they cannot be the principal action itself.

These remedies are all incidents of the principal case just like the provisional remedies that we
have in the rules of court. When we say that provisional remedies cannot be the principal
action itself, there is no such principal action for issuance of preliminary attachment. There
can be no principal action of issuance of preliminary injunction. But in the case of replevin,
as a matter of fact, this replevin has been treated by the court as a main action, but the
provisional remedy is an action for the issuance of writ of replevin or a warrant of seizure.
Support pendente lite is also conducted in the principal action, the principal action could be an
action support with an application for support pendente lite.

Although the term used in the other circulars are now different from provisional remedy, still
the

concept

of

provisional remedy will apply in the provisional order or interim relief as the case may be.
In

the

case

of

marriage related cases, the following are the provisional orders. Spousal support, child
support,

visitational

rights, the custody of the minors, and the hold departure order, protection order or the
appointment
administrator

of
of the common property only common or those belonging to the conjugal

partnership of gains.

Under the writ of Amparo, and also the circular on Habeas Data, Amparo and Habeas Data
although principally they are considered as actions in special proceeding, they are treated at the
same time as provisional remedies. If you read the circulars on Habeas Data and Amparo, if
there is already a criminal case instituted in the court, involving the disappearance of a
person or extra legal killing of a person, that criminal action will be the principal case. In
that principal action, a party could move or apply for the issuance of the Writ of Amparo or
Habeas Data as the case maybe.
So there are four interim reliefs in Amparo, protection order, inspection order, production
order

and

witness

protection order. We include now the four interim reliefs, Amparo and Habeas Data. In
the
Kalikasan,

circular
the

provisional

orders

protection

or

of
interim

reliefs

are

temporary

order

environmental

and

preliminary attachment. And the circular also speaks of an optional protection order, cease and
desist

order,

and

production and inspection order. If you will notice in these two circulars of the Supreme Court
appears

to

detail

certain modes of discovery like the production of documents, inspections of things. They are
the

subject

in

the

modes of discovery as enumerated in the rules. They are now treated as provisional remedies. In
the

Kalikasan

court can issue a production order or inspection order. The same is true with the Amparo
circular

there

is

production order, and inspection order, although they are substantially of the same nature in that
we
in modes of discovery.

have

taken

Although we have now several provisional remedies and interim reliefs or provisional orders, it is
not correct to assume that they follow common rules. These different circulars have not
adopted the rules that are existing in the rules of court. That is 57 up to 61. If you analyze the
provisional remedies, found in the rules of court, one of the common elements is the
requirement for the applicant to post a bond. So we have an attachment bond, an injunction
bond, a receivers bond, and replevin bond. The only provisional remedy which does not require
the posting of a bond is support pendente lite.

But in the circular on marriage related cases, the premise is that the family court can grant
these

provisional

orders with or without bond. It all depends on the discretion of the family court. And then, on the
same

circular,

the law also provides that the family court can grant these provisional orders with or without a
hearing.

Which

can also be present in the rules of court, there are some provisional remedies that can be
granted

ex

parte,

there

are also provisional remedies which need a summary hearing before they can be issued by the
court.
In the Amparo circular, when it comes to the interim relief of production and inspection order,
there

must

be

motion filed by the applicant and there must be a hearing conducted by the court. In respect to
protection

order

and witness protection order, these provisional remedies can be issued by the court without a
hearing,

ex

parte.

In the Amparo circular, there is nothing mentioned about the posting of a bond by the
applicant,

so

it

would

seem that just like the circular on marriage related cases the court do not need a bond

before

the

court

can

validly issue this interim relief.

In the writ of Kalikasan, the usual provisional remedy that is issued by the court is of temporary
environment
protection

order. The

applicant is

not

required to post a bond

in

the

matter of

issuance of temporary environmental protection order, and just like the preliminary injunction,
there can be an ex parte issuance good for 72 hours, but the Kalikasan court can extend that
until the case is finally decided.

So if you compare that temporary environmental protection order to the temporary restraining
order, In TRO there is a definite time, and it is called a stag, it cannot be extended by the
court, but in Kalikasan cases the temporary environmental protection order can be extended
by the court until the case is finally decided. There is also no need for a bond.

What is original in this Kalikasan circular is the party who will be required to post a bond in the
TEPO is not the applicant, it is the adverse party, who will file a motion for the victim of
the TEPO. In most instances of provisional remedies where there is a need for the filing of a
bond, like attachment, preliminary injunction, or replevin or receiver, this can be defeated
by the filing of a counter-bond. The same is true with the environmental protection
order, but the difference is that the applicant is not required to post a bond, but the adverse
party moves for the victim of that environmental protection order, he will need to require to post
a bond to protect the interest of the adverse party.

Another rule that applies provisional remedy that is in common, the issuance of these interim
reliefs

is

always

interlocutory, the order is not the final order because it has nothing to do with the merits of the
case.

And

since

the granting of the provisional remedy is interlocutory therefore it is not applicable. The
accepted

remedy

to

challenge an order granting the provisional remedy is rule 65. But in some circulars that has also
been

changed

substantially. For instance, in summary procedure if in the cases that are cognizable by the
inferior

court,

where

the inferior court is governed by the summary procedure if the inferior court grants a
provisional

remedy

it

is

interlocutory, it is not appealable but the adverse party cannot file a petitioner under rule 65.
In

other

words

there is no remedy available to the adverse party. The reason is in summary procedure the
application

of

availment of rule 65 in order to challenge this interlocutory order issued by the inferior court is
prohibited.

That

is one of the prohibited pleadings in summary procedure, the availment of rule 65 to challenge
the

interlocutory

order issued by the inferior court.

In Amparo likewise, there is a section on prohibited pleadings, there is a similar provision in


Amparo circular that if the Amparo court grants a provisional order or an interim relief and
therefore that order is interlocutory, rule 65 is also not applicable. Because rule 65 is a
prohibited pleading in order to challenge interlocutory order issued by the Amparo court.

In the circular on Kalikasan the issuance of the TEPO is of course interlocutory can be
challenged

by

the

granting of this TEPO. Yes, it is allowed, the problem is, the challenge in the TEPO is that can only
be

filed

in

the

Supreme Court. In other words, if we avail of rule 65 in Kalikasan case we cannot file the

petitioner

with

the

RTC, CA, it is only in the SC that can entertain a petition assailing the issuance of TEPO. So,
do

not

get

the

impression that all of these remedies are provisional in character, they are governed by the
same

set

of

rules.

They are governed by different set of rules depending on the circular of the Supreme Court that
is

applicable

in

each one of them.

In respect to the authority of the inferior court to grant the provisional remedy, this matter has
now

been

issued

by BP 129. In the past, before BP 129, there was the question as to the totality or the
authority

of

the

inferior

court to grant provisional remedy. But this was settled by BP 129. If you read section 33 of
BP

129,

it

is

now

clearly provided that the inferior court has the authority to grant provisional remedy as
long

as

it

has

jurisdiction over the action. So there is no question at all that the inferior court can
grant

preliminary

attachment, preliminary injunction, replevin, receivership, as a provisional remedy. But the


problem

is

now

with

support because the support as a principal action is exclusively cognizable by the family court.
There

could

be

instances where the inferior court can grant support pendente lite but we have to look for a
principal

action

cognizable by inferior court, and one of the incidentals or collateral relief is support pendente
lite,

as

long

as

the

inferior court has jurisdiction over the principal case the inferior court has the authority to grant

this

provisional

remedies as long as the requirements given in the rules and in the circulars are complied with.

Going to rule 57, in section 1 there are 6 instances where the court can properly grant an
application

for

preliminary attachment. In respect to the first 5 instances, there is a common requisite, that
there

is

an

intention

on the part of the adverse party to defraud the applicant. It is only in the last instance where
there

is

no

such

requirement that must be shown that the adverse party has intention to defraud the
applicant.

The

only

requirement is that the defendant is a non resident and not found in the Philippines and
summons

can

be

served

upon him by publication. So even if there is no allegation that the adverse party have intention
to

defraud,

there

could still be a preliminary attachment issued by the court. The fact that the defendant is a
non-resident

and

is

not found in the Philippines, is closely related to the provision in rule 14 when the party can
properly

apply

for

publication of the summons in order for the court to acquire jurisdiction to try and decide
when

property

of

the absent defendant is a non-resident and is not found in the Philippines is the subject of
attachment

that

action

in personam against the defendant will be converted into quasi rem by virtue of the
preliminary

attachment

issued by the court implemented by the sheriff of the court. So instead of this last instance, the
sole

purpose

of

the applicant in moving for the issuance of PA is to enable to obtain a security for any

judgment

that

may

be

rendered later on by the court.

So if you envision a case that is pending in the trial court, there is a plaintiff who filed a
complaint

for

money,

there is no security that has been given to him and then the debtor according to the
applicant

is

dishonest

person and intends to leave the Philippines with the intention to defraud the applicant, or he
may

not

actually

defraud the applicant. If you will note in the cases mention in Section 1 the conduct of the
adverse

party

will

be

criminal in character, embezzlement, misappropriation or property entrusted to him. That is why


it

is

common

saying in preliminary attachment, that the fraud committed by the adverse party could be a
criminal

fraud,

that

is a crime under RPC or only a civil fraud, it is an act of fraud but it has not reached the level
of

crime.

And

that will justify the issuance of a writ of PA. So it is called a civil and criminal fraud, it will be
sufficient

for

the

issuance of the preliminary attachment. But the conduct should fall within anyone of the
instances

mentioned

in

section 1. So if the debtor instance draws a check and delivers the check in payment of his
obligation to the creditor and the check bounces, can the creditor file a complaint and ask for
the

granting

of

PA?

The

answer

is

yes, according to the court, because the issuance of a bouncing check is covered by section 1,
that

is

fraud

in

the

performance of the obligation. In section 1, when there is fraud in contracting the obligation, PA
can

be

issued.

If

there is fraud in performance that is fraud in contractum, that is dolo causante in civil law. When
there

is

fraud

in performance, there is dolo incidente in civil law. And in both instances that is a justification for
the

issuance

of

a writ of PA.

Supposing that the plaintiff as a creditor holds a collateral given by the debtor, there is
already

an

existing

of

security. If there is default in the payment, and the creditor files a complaint. And that debtor has
committed

an

act of dishonesty with the intention to defraud the creditor. Can the secured creditor
properly

move

for

the

issuance of PA? The answer is yes. The Supreme Court has ruled in a judicial foreclosure
in

real

estate

mortgage when the mortgagee holds a security for the payment of liability the mortgagee
can

ask

for

the

issuance of PA and the court can grant the application. Although the applicant admits to the
court

that

he

holds

a security. The reason is that if you read the section and contents of the verified application in
section

one

of

the matters that is incorporated in the verified application for preliminary attachment aside from
the

statement

that the applicant cause of action, the third averment in the application is that the applicant
does

not

hold

sufficient security for the payment of his claim. So even if there is a security held by the creditor,
if

he

can

prove

to the court that the security is not sufficient, he can also ask for a preliminary attachment. So
that

if

the

court

grants the PA, the creditor will now look for the other properties of the creditor that could be
the

subject

of

attachment. So if he holds only land by virtue of agreement, that security is not sufficient for the
indebtedness

of

the party, the court grants its application for preliminary attachment, he may have to look for
other

property

to

be attached. He should not be attaching the same property he already holds a collateral security.
So

instead

one

piece of land, he can attach another piece of land so the creditor now as security of payment of
his claim.

In PA, there is a rule that is applicable to PA and other provisional remedies where these
provisional

remedies

are granted ex parte. The first one or first principle that you should always remember in PA this is
applicable

to

other provisional remedies, this could be granted ex parte is the rule on prior or
contemporaneous

service

of

summons. The situation contemplated in rule 57 where it says that the court can grant ex parte
an

application

of

PA, is that there is an application that is filed after the filing of complaint. And even before the
court

acquires

jurisdiction over the person of the defendant through the service of summons, the court
may

already

have

approved the application for PA. Without notice, there is serious irregularity if rule 57
authorizes

the

court

to

grant the PA ex parte that is without notifying the defendant without giving him a notice and
even

before

the

court has acquired jurisdiction over the person of the defendant through the service of the

summons.

That

is

irregular procedurally. Because we learned in procedure that before the court can act validly,
the

court

must

have jurisdiction over the nature of the action, and also the person of the plaintiff and
defendant.

If

the

court

does not have jurisdiction over the person of the defendant, the proceedings stated are void.
So

in

rule

57

the

rule authorizes the court to approve PA even if the defendant has not been served with
summons, because the motion is ex parte without notifying the defendant. Since there is a
strong

possibility

that

the

defendant

later

on

might challenge the writ, the rules introduced the concept of prior and contemporaneous service
of

summons.

And the court explained, the issuance of PA is at 3 stage proceeding. First is the filing of the
verified

application,

the court will ex-parte grant it, and then the court will require the attachment which is always
essential

before

the court can issue the writ of PA. So that after the issuance of the court of a writ PA, as long as
all

the

conditions

have already been met, the only problem is the implementation or the carrying out of the writ of
PA.

If

the

writ

is already in hands of the Sheriff, the sheriff will not carry out by simply attaching the
properties

of

the

defendant. If that is what he is going to do, the attachment of the properties of the adverse
party

will

be

void

because the court has not acquired jurisdiction over the person of the defendant. So what rule
57

requires

is

to

observed the rule on prior and contemporaneous service of summons. If summons has not
yet

been

served

previously, at least the summons should be served contemporaneous with the actual attachment
of

the

property.

So if the properties of the adverse party have been attached, the sheriff should see to it that
the

summons

have

been served upon the defendant today and if the summons is served upon the defendant today
that

will

remedy

the irregularity of lack of jurisdiction. If the summons is served today, the court
automatically

acquire

jurisdiction over the person of the defendant. That is the reason why the Supreme Court
introduced

the

principle of prior or contemporaneous service of summons. And as we said earlier, this


rule

on

prior

or

contemporaneous service of summons applies to all provisional remedies which can be issued
granted

by

the

court ex parte even before the court has acquired jurisdiction over the person of the defendant.
So

we

can

apply

it in injunction, where the court issues ex parte a TRO or PI. Because in the pleading, the
provisional

remedy

is

granted by the court even if before the defendant answers meaning to say even if summons
has

not

yet

been

served upon the defendant. Since PA is carried out, it is derogation upon the defendants right of
ownership

over

his properties, the Supreme Court has also said that the rule on attachment should be strictly
construed

that

is

in

order to protect the rights of ownership of the adverse party.

If the properties of the defendant are now the subject of the PA and the properties are
personal

properties

capable of manual delivery, that could be prejudicial to the right of ownership of the defendant
if

the

personal

property that is subject to PA is a car, that car may no longer be in the possession of the
defendant,

it

will

be

seized by the sheriff. It will be in custody of the court as long the preliminary attachment is not
lifted.

But

the

car

will not be delivered to the applicant, it will be in the custody of the court. So if the court will
finally

decide

the

case after 3 years, during that 3 year period, the defendant will not be able to use it, it will be
used

by

the

sheriff

or of the court. That is why preliminary attachment is really derogation to the rights of
ownership.
If the property seized or attached is a piece of land, the defendants possession will not be
affected.

But

only

inconvenience to be suffered by the owner is that in the registry of the property, the
property

is

subject

of

preliminary attachment. It does not affect his title, there is only a lien, an encumbrance by the
PA.

SO

if

he

does

not loose ownership, it means to say that he can still sell the property, but the buyer of the
property

must

also

recognized the fact that the writ of PA can be later on sold on a public auction in which case
the owner or the buyer of the property could be conceivable loose his title later on. In other
words, the buyer of the land that is the subject of the PA cannot complain later on that he is a
buyer in good faith. He has notice of the existence of preliminary attachment.

If the defendant owns a sizeable bank account, the sheriff could issue a writ of garnishment and
served it upon the bank. And when the bank received the writ of garnishment, the bank will
freeze the account up to the amount of the claim. The defendant could no longer use his fund

anymore, if the defendant tries, the bank will not allow him to withdraw. If it is a checking
account, and he has issued checks to a current account, the checks will be dishonoured upon
presentment because the accounts are now frozen. Thats why PA is really a serious derogation
of the rights of ownership. In that writ of garnishment which is also applicable in execution, that
writ of garnishment will create a new relationship as an incident of the case called a force
intervention. The debtor of the defendant, whether he likes it or not will now be the subject to PA.
So when the bank is garnished, whether he likes it or not, the bank will be forced to intervene.
In the sense that the bank will have to follow now the orders to be issued by the court after the
order of garnishment.

The remedies in 57 so that the defendant will get his rights of ownership in full, no longer subject
to
following: First,

PA,

are

He can simply defeat the

equivalent

the

PA by putting up a cash deposit in the court

to

the

amount of the attachment bond. So if the attachment bond is 100k, the defendant has another
100k

in

his

pocket,

he must deposit it in court. And that will compel the court to lift the writ on preliminary
attachment.

If

he

does

not have that much cash, he can just file a counter-bond, issued by a surety authorized by the
Supreme

Court

also up to the 100k. The filing or a bond or payment of cash deposit will make it a ministerial
duty

of

the

court

to

lift the PA and that will enable to get back his properties. If the car has been seized the car will
be

returned.

His

bank account will now be unfrozen. Cash deposit or put up a counter-bond. The other remedy is
to

file

motion

the lifting of the PA on the ground of the issuance is improper or irregular. That is always a
remedy

in

order

to

challenge the provisional remedy. The granting of the attachment is improper or irregular.
But

this

needs

motion filed by the defendant. He has to file a motion. And that motion should be heard. When
he

files

motion

he must give notice to the applicant.

One question that was raised before the Supreme Court is if the defendant has already posted
a

counter

bond,

and therefore the preliminary attachment has already been lifted, can the defendant still
make

use

of

3rd

the

remedy. Otherwise, can he file a motion for the lifting of PA or reversal of the order
granting

the

PA.

Considering that the properties previously have been attached have only been returned to the
defendant?

The

Supreme Court answered yes. In other words, even if the defendant has caused the lifting of the
PA,

by

virtue

of

cash deposit or counter-bond, he can still make use of his 3 rd remedy, to file a motion for
the

lifting

of

the

preliminary attachment. The reason given is that instead of his properties acting now as a
security

for

the

claim

of the applicant, he has put up a counter-bond or a deposit. So there is still a security that is
involved

by

the

applicant. If the order granting the PA is lifted, the applicant will be left without security
because

the

counter-

bond liability will be lifted, the cash deposit will have to be returned. So that the applicant will
now be a debtor without any security at all if the court gives an order of PA, although the
attached properties have been returned, by virtue of the bond or the deposit.

Another principle mentioned in rule 57 which is applicable to other provisional remedies


where

there

is

requirement of a bond is the principle in section 20 that is the extent of liability of the applicant
when

it

turns

out

the granting of the remedy of the court is improper or irregular. Section 20 defines the procedure
to

be

followed.

In an action where the PA is issued by the court, the writ will only be lifted if there is a counterbond,

deposit

or

the court withdraws the order or reverses it. But ultimately the court will have to decide the
merits

of

the

case,

whether or not the plaintiff is entitle to recover. If there is judgment in favour of the applicant,
can

the

adverse

party move for the recovery of the damages even if he lost the case? Yes, if the applicant
wins

the

case

on

the

merits, he can still be held liable for damages because the issuance of the PA is improper or
irregular.

It

was

explained that if the applicant eventually wins the case it means the applicant has a cause of
action.

To

which

the

allegations contained in the verified application for preliminary attachment as stated in section
5.

That

verified

allegations contains some serious allegations. First one is that the applicant has a cause of
action,

but

if

the

applicant wins. It does not necessarily follow that he has complained with the second allegations
in

the

verified

application which is the applicant has a cause of action and that cause of action falls under
anyone

of

the

cases

mentioned in section 1 or rule 57. So if the applicant wins, definitely he has a cause of
action.

But

it

does

not

mean to say that his cause falls under anyone of the cases in section 1. He may not be able
to

prove

that

the

existence of dishonesty or the intention of the defendant to defraud the applicant. So if the
applicant

is

not

able

to demonstrate that his case falls under the any of the cases in section 1, that means to say
that

the

issuance

of

the PA is improper and irregular. The only instances where the court can grant PA are the
instances

mentioned

in section 1. If the defendant wins the case on the other hand, it means to say that the
applicant

does

not

even

have a cause of action, because the complaint is going to be dismissed. The liability of the
applicant

for

damages

will come as a matter of course, but section 20 provides the procedure to be followed in
rendering

the

applicant

liable for damages for the wrongful or improper issuance of PA.

The first principles in section 20, is that the recovery of damages should be had in the
same

case,

not

in

separate or independent civil action. So in that complaint filed by the applicant, the adverse
party

must

have

already submit an application for the recovery of damages arising from the wrongful improper
issuance

of

PA.

The most practical way or informing the court that the adverse party has a claim for damages is
to

set

up

in

the

answer a compulsory counter claim, for the recovery of damages. If he sets up a compulsory
counterclaim,

for

the recovery of damages, and then he eventually wins, he will just have to ask the court to
motion

for

the

court

to conduct a hearing to the extent of likability to which the adverse party is entitled. What rule
57

tells

us

then

is

that it is not possible for the defendant who has won the case to file a separate complaint
for

the

recovery

of

damages arising from the wrongful attachment. If he asks so that action will be dismissed
even

if

there

is

no

motion to dismiss filed in that second complaint because the ground for dismissal is res judicata
which

is

non-

waivable defense.

And section 20 also is now very clear that the extent of damages to be recovered by the
adverse

party

is

not

equivalent to the attachment bond. In the past if the attachment bond is fixed by the court at
100k,

there

is

an

assumption that if the adverse party will ask for damages, the amount of damages will be limited
to

100k

that

is

the value of the attachment bond. In section 20, there is nothing stated that the liability of the
attaching

creditor

will be limited to the value of the attachment bond by the court, there is nothing mentioned.
What

section

20

provides is that if the attachment bond is insufficient to answer for the liability of the
applicant

to

answer

for

damages then there could be an availment of writ of execution under rule 39. In other words if
the

attachment

bond is 100k, the court can fixed the liability of the applicant to 500k pesos, the liability of
the

bond

will

of

course be 100k but the 400k can be satisfied by making use of rule 39. We ask the court for the
issuance

of

writ

of

execution, there could now be a levy on execution of the properties belonging to the applicant.
Remember

that

in the section 20 is that it is followed in other provisional remedies like PI, Receiver and replevin.
Well

there

is

bond required before the court will grant this provisional remedy. The manner of collecting the
damages

on

the

part of the applicant if it turns out later that the issuance of provisional remedy is wrongful or
improper.

The next provisional remedy is preliminary injunction. And that the principal action could be any
civil

case

like

a principal action of injunction coupled with the application for TRO or writ of PI. A petitioner
of

certiorari

under Rule 65 is usually accompanied by verified application of TRO or writ of PI. Because one of
the

principal

relief, that is asked by the petitioner in rule 65, is to prevent or prohibit the respondent to
proceed
that is pending

with
in

interlocutory

the

court, in

the
the

case
order

case

of certiorari, to
of

set aside

decision

or

the

respondent court.

PI and TRO could be availed of in any civil action where the relief or principal relief sought is
to prevent the defendant from performing an act in the case of mandatory injunction to compel
a performance of an act. So we will not limit the principal action in preliminary injunction to
civil action, we can also make use of them in criminal case, even in a special proceedings.
As long as the principal is to prevent or prohibit a party from performing an act or to compel
him to perform an act.

In PI, there are in fact 2 provisional remedies that are contemplated. The first one is a TRO
and the writ of Preliminary injunction itself. Both now require an injunction bond. So even if the
TRO in exceptional cases can be granted ex parte, the injunction court should always require a
bond. It is not correct to say that it is only in preliminary injunction where you need a bond,
even if the case of the TRO, there is always a need for a bond fixed by the court. And the
general rule which we follow is that a court cannot grant a TRO and PI without a hearing,
unlike a PA. We should always expect a hearing conducted by the court even in cases of the
TRO. If TRO is granted ex-parte, it is only by way of exception. The general rule is that we need a
hearing. Although it is a summary hearing with notice to both party in case of TRO. There is an
exception however given in the rules, when there is grave and irreparable injury.

The court if it is a one sala court can grant a TRO that will not go beyond 20 days, not
extendible.

But

the

court

will fix a TRO bond. During the 20 day period, the court will conduct now a new hearing for the
purpose of determining whether or not the court will issue a PI. With respect to PI, the
presence

of

summary

hearing

is

absolute. A court cannot grant a PI, without a hearing, there is no exception. There must always
be

hearing

to

be conducted. It is only in TRO where there is an exception to the general rule, there can be an
issuance

of

TRO

ex parte as an exception. AN in the multi-sala court, that is where courts consists of different
branches,

there

is

an executive branch, the executive branch can issue a TRO ex parte, but the TRO ex-parte is
good

only

for

72

hours that is 3 days. And then, in a multi-sala court, what the petitioner usually files in the
court

is

motion

of

special raffle and then if the motion is granted by the raffle. In the meantime the executive
judge

will

issue

ex-

parte TRO good for 3 days and after the raffle is completed, the sala before which the action
has

been

assigned

will now conduct a summary hearing to determine whether or not it will issue a writ of PI. Do
not

forget

the

modification in rule 58 by the 2007 circular of the SC. It has something to do with the court that
has

issued

writ

of PI. The modification in 2007 is that if a court issues a writ of PI which has no term anymore,
that

is

it

is

good

until it is lifted or until the case has finally decide, unlike the TRO. That that court that issued the
writ

of

PI

must

decide the PI within a period of 6 months that is the modification introduced by 20067
circular.

The

idea

of

course is very easy to understand, if the court does not raised a need of 6 months to which the
principal

action

could be decided, the PI will be perpetual injunction, because it is good until the case has been
finally

decided.

So if the court grants a PI today, it has only a period of 6 months within which to decide the
principal

case.

And

in deciding the principal case, the court would either rule in favour of the applicant or
defendant.

If

the

court

rules in favor of the defendant, the PI is automatically lifted. That means to say that plaintiff
has

no

right

at

all.

Although the power of the court to enjoin the performance of the act is broad there are certain
instances

given

in

substantive law that is mentioned in the circulars of the Supreme Court where the court cannot
properly
the PI, even in some cases a TRO.

grant

The first situation wherein the court cannot grant a TRO or PI is in the enforcement of
Kalikasan

statutes.

court cannot prevent the enforcement of Kalikasan statutes decided by the Supreme Court, the
court

of

appeals

and RTC cannot prevent the enforcement of Kalikasan statues. Number two, if there is a TEPO
issued

by

any

court, it is only the SC that can prevent the carrying out of the TEPO. In the case of infrastructure
projects

of

the

national government, only the SC can issue an injunctive relief against the carrying out of
infrastructure.

When

it is a government owned bank that forecloses a mortgage like DBP, it is only the Supreme
Court

that

can

stop

the government bank from proceeding with the foreclosure of the mortgage, whether judicial
or

extra.

And

in

jurisprudence, the court has no injunctive relief against the bureau of customs because the BOC
is

an

agency

that

is tasked with collecting revenues, we cannot give a court the authority to enjoin the bureau
of

customs

from

performing its task to collect revenues for the government. Although the court cannot grant
injunctive

relief

against the bureau of immigration, against deportation proceedings. That is already beyond the
authority

of

the

injunctive relief.

If we are going to compare the remedies available to the defendant against whom an injunctive
writ

is

issued

to

that of a defendant in PA, we will notice right away that in rule 57, in the case of preliminary
attachment, if the adverse party posts or files a counter-bond, it is a ministerial duty of the

court to lift the PA, and therefore the properties will be returned to him. But in PI, if the
defendant posts a counter bond which he is entitled, it does not mean to say that the
injunctive court will have a ministerial duty to lift that PI. The court still has to study the merit
of the lifting of the injunction bond. The court cannot simply relief of the presence of the counterbond for the lifting of PI. So it is not a matter of right to expect the court to will lift because he
has filed a bond. There will be a motion for hearing and the court will determine the merit. The
reason where the rules do not make it a ministerial duty to the lift the PI simply because there
is an injunction bond is the ground that is grave and irreparable injury. And the meaning of
irreparable injury according to the court is that injury cannot be measured exactly in terms
of pesos and centavos that is no mathematical formula in determining the liability or damages
that could be suffered by the applicant in injunction.
In PI and PMI, we should always relate this to the situation stated earlier. That is in summary
procedure.

case

that is exclusively cognisable by an inferior court that is following the summary procedure is
unlawful

detainer

or forcible entry. The civil code contains some articles about procedure when there is a
complaint

pending

before an inferior court involving an unlawful detainer and forcible entry. And in the civil code,
it

is

provided

that the court may grant PI or PMI in cases of ejectment. If it is an inferior court that grants a
PI

or

PMI,

that

cannot be appealed that cannot be challenged under rule 65. In summary procedure rule
65

is

prohibited

pleading. If rule 65 is used in order to challenge an interlocutory order, and the granting of PI or
PMI

is

always

an interlocutory order that is the rule that we follow, as well as in civil code. In PI or PMI granted
by

an

inferior

court in ejectment cases cannot be appealed, cannot also be challenged by petitioner under

rule

65.

But

when

that ejectment case is appealed to RTC, that has jurisdiction in appellate jurisdiction, the civil
code

provides

that

the RTC as an appeal court can also grant a PI or PMI if applied by plaintiff. The PMI or PI
granted

by

the

RTC

is still not appealable because it remains interlocutory but it can now be challenged by Rule 65.
While

we

cannot

challenged an interlocutory order granted by an inferior court, in summary procedure, if the


same

interlocutory

order is granted by the RTC as an appeal court, but rule 65 is a remedy. So we can
challenged

PI

or

PMI

granted by the RTC in ejectment cases. The reason is that in ejectment cases. Summary
procedure

governs

the

case if it is still pending with the inferior court. But once it is appealed to RTC, the RTC will no
longer

observe

the summary procedure. It will now follow the regular procedure given in the rules of court
as

an

appellate

court.
The third provisional remedy is the receiver which is one provisional remedy that has future
not

present

in

other provisional remedy. Provisional remedies are contemplated to be used by litigants during
pendency

of

the

case, that there is a need, we must have an independent action where we can give to the
applicant

venue

for

the use of the provisional remedies. In receivers, the court can appoint a receiver during the
pendency

of

the

case if no judgement has been rendered but under the rules, the receivership court could appoint
a

receiver

after

the case has been finally decided and the receivership court can still appoint a receiver even if
there

is

process

of execution under rule 39. So if the judgement of the court has been entered, in fact if it now in
the process of execution and satisfaction of judgement, a court can still appoint a receiver as
provided under rule 39. After a case has been finally decided, there is no more reason for the
court to grant a PI, PMI, if at all, the attachment will be converted into a final attachment but
that will simply be a levy on execution. The PI will be converted into a permanent injunction. It
ceases to be a provisional remedy, but in the case of receivers even if the case has been finally
decided by the court on the merits, the decision has become final and executor, we are now in
the process of execution, the court can still appoint a receiver under the procedures or Rule
39, the court can still order the same. So there is no fix time in which the court can appoint a
receiver. If the case is still pending a receiver can be appointed, if the case has been decided
a receiver can still be appointed. If we are now in the process of execution, a receiver can still
be appointed.

We should relate this to the remedies of a judgment creditor in rule 39 when the judgment
creditor is not able to recover full satisfaction of his account. Under rule 39, one of the remedies
granted by the court is for the creditor to ask for the satisfaction and for examination of the
debtor, and the third is for judgement creditor to ask for appointment of a receiver of the
properties of a judgement debtor. So it is very clear, a receiver can be appointed even if the
cases are finally decided or undergoing execution.

A receiver cannot be appointed by the court ex-parte, there has to be a summary hearing. You
will also notice that the ground for the appointment of a receiver is quite broad. Whenever the
court feels that there is a need to appoint a receiver for the purpose of preserving of the property
under litigation. So there must be a property in litigation. And the rules also provided that in
foreclosure

of

mortgage,

again

the

foreclosure

of

mortgage assumes that there are

collateral, the mortgagee can move for the appointment of a receiver of the property that is

mortgaged. Even if there is no proof that the collateral will be loss or deteriorate, the
foreclosing mortgagee can file a petitioner for the appointment of a receiver, simply because in
the deed of mortgage there is a written stipulation authorizing the mortgagee to move for the
appointment of a receiver. But generally the purpose of a receivership is simply to preserve
the property from deterioration. So that the court does not consider the receiver as a
representative of the parties, the SC has classified a receiver as a representative of a court, an
officer of a court. He represents the court, he is an officer of a court.

Because he is an officer of a court, the receiver cannot file a case as a receiver without
the

consent

of

the

receivership court. If he decides to file a complaint, on recovery of certain properties under


receivership,

he

needs permission from the receivership court. On the other hand, if the third person has a
grievance

against

receiver in his capacity as a receiver, the third person must also get the permission of the
receivership

court.

So

we find in a situation where the commencement of the action, will need permission from the
court

who

has

appointed a receiver. If a permission is not granted, that action will fail, because it is deemed
filed

in

violation

under the rules given in receivership., We also notice that in the appointment of a receiver,
the

practically

the

issue is left at the discretion of the court. The qualification of a receiver, how many receivers
will

be

appointed,

how much will be paid to the receiver, it all depends upon the receivership court
because, of this broad

authority of the court it follows that since it is the court that appoints a receiver, it can also
fire and appoint a new one, as a receiver whenever there is a need for the preservation of the
property.

It is with respect to the bond where there is feature of receivership which is not followed in
other

provisional

remedies. We have an attachment bond, a PI/PMI bond. In receivership, there are two bonds that
are

filed.

The

first is required of the applicant for the appointment of the receiver. And if the court
eventually

grants

the

application, and the court appoints a receiver, the receiver will also be required to post a
bond.

So

there

is

an

applicants bond and there is a receivers bond. The receiver bond is designed to protect
the

parties

from

litigation from being abused and mislead by the receiver in the performance of his duties.
We go to replevin.
As we said earlier, replevin is accepted as a main action or as a provisional remedy at the
same

time.

SO

the

recovery of the possession of personal property capable of manual delivery is usually referred
even

in

the

cases

decided by the Supreme Court a complaint for replevin. Although the proper role of
replevin

is

that

of

provisional remedy, the principal action is action for recovery possession of personal property.
Since

that

is

the

principal action, it automatic rules out real action. In a real action we cannot make use of a writ
of

replevin.

In

personal action for the recovery of possession of personal property, the proper provisional
remedy

to

enable

of

the applicant to immediately recover possession is by applying a writ of replevin or a warrant


of

seizure.

So

in

replevin cases, it is always for the recovery of possession of personal property, without this writ
of

replevin

as

provisional remedy, the plaintiff will be able to recover the personal property only after the
court

has

finally

decided the case and judgment is in favor of the plaintiff so that if he files a complaint for the
recovery

of

car,

versus the defendant, if he files a complaint today, if he does not use of replevin as a provisional
remedy

there

is

no way by which he can obtain a possession of the car. While it the case is pending. The
only

time

when

the

plaintiff can get back the car is when the court has finally decided the case and the decision
is

in

favor

of

the

plaintiff. So that if the proper court will take 5 years to finally decide the case, during period of
5

years,

the

car

subject of the litigation will be in the hands of the defendant. Chances are by the time the case is
decided,

since

it

is in the hands of the defendant who expect probably to lose the case, when he turns the car, the
car

would

have

already been junk. That is the role made by a writ of replevin. So if the plaintiff files a
complaint

today

for

the

recovery of a personal property or car, which according to the plaintiff belongs to him or at
least

entitled

to

possess the car. If he wants to get the car right away, he should also submit a verified
application
replevin.

for

writ

of

And we will notice that in the rules, the principles governing replevin are treated always
in

favor

of

the

applicant. Why do we say that the rules are treated in favor of the applicant? He files a
complaint

today,

he

moves for the issuance of writ of replevin today, can the court grant the motion today or
tomorrow

although

the

defendant has not yet been served with summons? In other words can the court grant the
application

for

replevin ex-parte. And the answer is yes. In fact this is one provisional remedy which cannot be
granted

by

the

higher court. In PA,PI,PMI or receiver, the court of original jurisdiction or appellate jurisdiction
could grant these remedies except replevin. It could only be granted by the trial court because it
can be granted only before the defendant answers.

If the defendant has already answered, then it would be improper for the trial court to
grant

this

writ

of

replevin. So if file a complaint today for the recovery of a car, and then submit an
application

for

writ

of

replevin also filed today, and the court grants it today, the sheriff will look for the car. And if
the

sheriff

finds

the car in the possession of the defendant, the sheriff will seize the car from the defendant, but
following

again

the rule on prior or contemporaneous service of summons in order to cure any defect on
jurisdiction.

But

as

we

said earlier, the rule on prior and contemporaneous service of summons found in rule 57,
equally

applies

to

other provisional remedies that are granted ex parte. So the sheriff will seize the car, and then
after

seizing

the

car, the sheriff will take it for 5 days, that is five day holding period. If within that holding
period,

there

is

no

counter bond and there is no challenge to the court as to the sufficiency of the replevin, at the 6 th
day,

the

sheriff

will give the car to the plaintiff. So if the trial court will take 5 years to ultimately decide on
the

merits,

the

plaintiff will not suffer any harm at all because within the period it is the plaintiff who will be in
the

possession

of the car, not the defendant.

That is the advantage given by the provisional remedy of replevin. It enables the plaintiff
to

immediately

recover the possession of the personal property that is the subject of litigation. But
there

could

be

some

problems, concerning the service of the writ of replevin. One of the problems is as follows, the
court

not

always

the RTC but may be an inferior court, because if it is a personal property, the jurisdiction
depending

upon

the

value of the personal property alleged in the complaint. So if the complaint is worth 250k, it
will

be

filed

in

the

inferior court, if it is worth 600k, it will be filed in the RTC. But as long as it has jurisdiction,
these

courts

have

the authority to grant in our complaint to recover possession of the car with a writ of replevin.
The bond required is also different form the usual bond, in other provisional remedies. The
bond required is always double the value of the personal property. In other words, unlike in
PA PI where the court has the discretion to fix the amount of the bond, in replevin, the court
has no discretion, the replevin bond will always, be in double of the value of the property as
alleged in the complaint. So if the complaint alleged that the value of the car is 700k the

replevin bond will be 1.4 million. The court has no authority to further decrease or increase
the bond, it will be based on the value of the property according to the allegations contained in
the complaint. If all these requisites are met, the sheriff will seize the property from the
defendant, or from any person who claims to be entitled to its possession because of the
authority given by the defendant.

The problem arises when the sheriff seized the car, that the car is not in possession of the
defendant,

the

one

in

possession of the car, claims that he is the owner of the car, he is entitled to the possession of
the

car,

he

does

not

even know who the defendant is. If that is the situation, the sheriff will not seize the car. Because
the

authority

of

the sheriff to seize the car in replevin is very clear, he will seize the car if it is possession of
the

defendant

or

some other person claiming under the authority of the defendant. If it is in the hands of a third
person,

who

does

not raised his interest from the defendant, the sheriff will be committing a crime if he seizes the
car from the third person. So that is always a likelihood, that a writ of replevin even if granted
by

the

court,

can

easily

be

defeated if the sheriff submits a return to the court, informing the court that he could not seize
the

car

because

it

is in possession of a third person who is not a litigant in the case. In order to remedy this
situation,

lawyers

have

always advised the clients who are plaintiff that if they file a complaint should always implead
the

defendant,

the first defendant should be a known defendants. A person who according to the plaintiff is in
possession

of

the car and the other defendant to be impleaded is an unknown defendant, so we have a

complaint

where

the

caption is plaintiff vs. Juan dela Cruz and john doe, an unknown defendant, we also make use
of

that.

So

that

when the sheriff looks for the car, he does not find in possession of Juan de la Cruz, he finds it in
the

possession

of a third person, that third person will be John Doe. So the sheriff can rightfully seize the car
from

anybody

who might be in possession of the car. That solves the problem of the sheriff in enforcing the
writ of replevin.

You know the rule in unknown defendant, we have to give him name in the complaint
itself. John Doe... anybody who might be in possession of the car, who might be an unknown
defendant. If the car is seized, there is a holding period of a 5 days, within that 5 days period, the
defendant should do something if wants to recover the car. The defendant should file a motion
to challenge the sufficiency of the bond, although it is double the property. He can say that
the complaint is undervalued in order that the replevin bond became smaller. That could be
an issue raised. Or if there is a third party claim filed, if a third person claims to be the true
owner of the car, then he can file a third party claim just like in 39 and 57. But the difference
in 60 is that the third party claim in rule 60 must be filed within the 5 day period, if it is not
filed within the 5 day period, it becomes a useless third party claim. After the end of 5 days,
the sheriff has the duty to deliver the car to the plaintiff so while the case is going on it is the
plaintiff in possession and enjoying the car.

There was another case decided by the Supreme Court whose facts are as follows. A complaint
for

replevin

was

filed by applicant for recovery of personal property capable of manual delivery. The court
included

that

the

writ

that the sheriff cannot enforced the writ because the car can no longer be found, it seems

that

the

property

simply disappeared. What the plaintiff did after receiving the writ of return was to file another
application

this

time for preliminary attachment of the properties of the defendant. So based on the same
complaint,

he

moved

for replevin which cannot be carried about, he moved for the PA on the ground that the
defendant

has

gotten

old of the property and that he has hidden by the car because the car cannot be found at all. If
we

go

back

to

57,

that could be a ground for the issuance of PA. The SC said that the conversion of application
for

PA

could

be

properly filed so that the new provisional remedy from replevin could be done founded on the
same

allegation

in that complaint. The court said it is not proper. That if the plaintiff does not succeed the writ of
replevin

issued

by the court, he cannot simply file another application for the issuance of PA over the same
property

or

different

property. If the plaintiff decides to move for PA because of failure to carry out the replevin, he
should

overhaul

the complaint filed. The allegations contained in the complaint for the PA are different from
the

allegations

contained in the issuance of writ of replevin. In a complaint for replevin, the plaintiff tells the
court

that

he

is

owner of the car or entitled to the possession, whereas in the complaint for PI, the property
to be attached by the

plaintiff should not be the property belonging to the plaintiff. It should be a property belonging to
the defendant because attachment will be a security in favor of the plaintiff. So if we need a
security, we should have in the hands of the plaintiff a property belonging to the defendant
not the property of the plaintiff. So it could not be done unless, the complaint is amended so
that the amended of complaint change the substantial allegations contained in that
complaint.

Another feature of replevin as a provisional remedy is found in last 2 sections of 60, that is in
the complaint of replevin the decision of the court could be in alternative. The alternative in
replevin, that the property will be delivered to the property or the value that the property that
could not be delivered. It is only the replevin that the court is given an express authority to
render alternative judgment.

The last provisional remedy under the rules as I said is also mentioned in the circular of the SC
on

provisional

orders in marriage related cases. In fact the circular are more expansive because it does
not

mention

only

support pendente lite there is a classification in fact of support, spousal support and child
support.

Although

again in that circular, the family court which has the exclusive jurisdiction over complaint a
support

can

grant

spousal or child support even without hearing or without a bond, which is also a provision
in

provisional

remedy in support pendente lite. In support pendente lite, it is one of the provisional remedy
which

does

not

require the posting of a bond. We follow that principle in that circular, child support and spousal
support

could

be granted by the family court with or without a hearing, with or without a bond. That is a

principal

difference

between the provision on circular on marriage related cases pending in the family court and
support

pendente

lite that is tried and pending by the court which is not the family court. Because in the rules
of

court,

it

is

not

proper for a court to grant an order or application for support pendente lite without
conducting a hearing.

In the rules, the support pendente lite can only be allowed after conducting a hearing where
the

parties

are

given the change to explain, the reason why this is required in the rules of court under support
pendente

lite

is

that a court cannot conceivable issue an order granting support unless the court is able to
determine

whether

the

petitioner really needs a support and even if he really needs support, whether or not the
respondent

has

the

financial ability to grant support. Because if the court simply grants the application without
examining

the

financial ability of respondent, the provisional remedy will be useless. It will only end up with
the

respondent

who has no means of support to go to jail. This is one action where we can imprison a respondent
if

he

does

not

comply with the court to issue support although he may not have really the ability to do
so.

In

support

proceedings, there are three remedies given by substantive law which is certainly very
unfavourable

to

us

men.

We can be imprisoned for citation of contempt, there could be execution of our properties under
rule

39

and

the

third, we can be sent to jail not because of contempt but because we have committed a
crime.

So

that

in

most

cases, before a family court where the defendant admits that even if he wants to give support
and

that

he

is

not

financially able to do so and the court usually asks the petitioner. Are you willing that your
husband

go

to

jail?

And invariably he does not him to go to jail. And the court that the provision on substantive law
violates probably the constitutional provision on equal protection of laws. But in the rules of
court

on

support

pendente

lite, you will notice that the principle in section 20 rule 57, rule 57 is not followed at all.
We said earlier that the remedy in order to recover damages in a wrongful issuance of
attachment,

PI,

replevin

should be in the same case. It could not be held in an independent or separate action for
damages.

But

if

you

read provision on support pendente lite, it is expressly provided that there could be an
independent

action

for

the recovery of money that has been given as support in compliance with the order of the
court.

So

we

do

not

have to file a claim in the principal action, the one who gave support following the order of the
court

for

him

to

give support can file a separate complaint for the recovery of the amount that is needed in
compliance

with

the

order of the court.

Going back to the circular of the SC in marriage related cases, this is trial can only be made by
the family court. If you were ask why the family court can order child or spousal support
without a hearing the side of the parties, you will just there is no need for the family court to
determine the needs of the spouse, or the child, or the financial ability of the defendant.

Because it is in these family related cases, one of the requirements is that there must be
inventory of properties submitted to the family court to the petitioner. So if the family court
analyzes that the property owned in common by the parties, the family court can determine
how much the spouse is entitled to every month or how much given to the minors. So there
is also good reason why family court is not required to conduct hearing on the application of
spousal or child support.

Also in respect to the provisional orders granted by the family court in marriage related
cases, although the provisional orders are called by some other name, these provisional
orders partake of the nature of the injunction, an example is a protection order. A
protection

order

in

family

related

cases

is

effectively

a prohibitory

and

mandatory

injunction at the same time because in the protection order, the family court prohibits the
respondents from performing an act. The family court can tell the respondent that dont ever
visit your child in school, that is effectively a prohibitory injunction. It could also be in
form

of

mandatory injunction, the court can tell the respondent do not enter the conjugal

house, you just remove the clothing and dont

ever

show

your

face.

Effectively

the

protection order in the marriage related cases partakes of a prohibitory injunction and the
mandatory injunction.

We have also this concept of receiver in marriage related cases, instead of appointment in
the family court to appoint a receiver, the co-owned of property or common property, what
the court can do is to appoint an administrator. So the administrator is effectively a receiver of
this property under litigation in charge of solving the property owned in common by the husband
and wife.

With respect to the interim reliefs in Amparo, we said four of them, protection order,
witness

protection,

inspection and production order, and if we add in Amparo and Habeas Data. In effect we have six

interim

reliefs

available in Amparo. The circular does not mention anything of the filing of a bond before the
Amparo

court

can

issue these interim reliefs, with respect to the Kalikasan circular, when the court issues a TEPO
the

applicant

is

not required to post a bond, it is the adverse party who will be required to post a bond if he
files an application for lifting or dissolution of writ of Kalikasan. And as a security to protect the
interest

of

the

applicant,

it

is

the

adverse party who will be required to file a bond before the court will issue an order lifting or
desolving

the

TEPO.

I suggest that you read the circulars, but do not centre your attention on these provisional
remedies

or

interim

reliefs. Its better off if you centre your attention to the procedures in the civil cases and
criminal

cases

given

in

this different circulars. For instance in Kalikasan case, the procedure in civil case that we
have

learned

is

not

applicable in some cases and they are applicable only partially in other cases. For instance
in

the

circular

of

Kalikasan which can be filed before a RTC, an Inferior court. But the special civil action of
Kalikasan

and

continuing mandamus are cognizable only by CA and SC. In filing the complaint involving the
enforcement

of

Kalikasan case, it is not enough to file a complaint, of course the law requires the filing of a bond.
Together

with

that complaint, the circular requires the party already to append to his complaint the evidence
available.

The

same is true with the defendant, when he files an answer, he can already attach the evidence
in

support

of

his

defences. And in Kalikasan cases, civil action, if the defendant does not file an answer, we do not
require

rule

that is the motion to declare defendant in default, a motion to declare defendant in default is
also

prohibited

in

Kalikasan cases. If the defendant does not file an answer and the plaintiff is prohibited from
filing

motion

to

declare the defendant in default, do we expect the court to render a judgment just like in
summary

procedure

according to the tenor of complaint? The Kalikasan circular provides that if the defendant does
not

answer,

it

is

the duty of the court to declare the defendant in default, so there is default without the
corresponding

motion

of

the plaintiff in Kalikasan cases, it becomes the duty of the court to issue an order declaring
the

defendant

in

default, and thereafter receives evidence ex parte.

And in Kalikasan cases, while the courts totally used the state policy which encourages
the

compromise

agreement of settling the civil action. If there is a compromise agreement based in a


Kalikasan

civil

case,

the

judgement is not called a judgement based upon compromise, the circular has another term
that

is

consent

decree. That is just a judgement based on a compromise. I suggest you read the circulars,
the
should be read.

procedure

that

You will also notice that the rules on evidence are not necessarily followed in Kalikasan cases.
Although the action maybe a special proceeding, the quantum that usually apply could be near
substantial evidence. Which is also the same principle in Amparo. If you read the circular,
the quantum of evidence is only substantial evidence, same in quasi judicial proceeding
although Amparo is a judicial proceeding. So there is no problem if the Supreme Court changes
the quantum of evidence to be followed as in Amparo. But there is something irregular, if a
quasi judicial body will adopt a rule that quasi judicial body must support his stand with
preponderance of evidence. That act of is void, the rule on quantum of evidence is the turf of
Supreme Court. The administrative bodies cannot change the quantum of evidence.

We start with 63: Declaratory relief and other Similar Remedies.


Rule 63 enumerates four SPECIAL CIVIL ACTIONS.

The first is DECLARATORY RELIEF and

OTHER SIMILAR REMEDIES encompasses three special civil actions enumerated in the
Rules: 1. Reformation of Instrument; 2.Quieting of Title and; 3. Consolidation of Title under
1607 of the Civil Code. Although they are contained in the same Rule, they are governed by
different rules, by different procedures. So the procedure in declaratory relief is different from
the procedure in the other similar relief. The requirements of declaratory relief are not the
requirements of other similar remedies.

With respect to DECLARATORY RELEIF, the obvious nature of declaratory relief which makes it a
special

civil

action is that the petition must be filed must be filed before a breach or violation is
committed.

In

other

words, if we are going to apply the principles governing ordinary civil actions, petition for
declaratory

relief

will

be dismissed outright; because at the time of the filing of the petition, the petitioner does not
have

cause

of

action. There is no allegation in the petition for declaratory relief that there is a right that has
been

violated

by

the act or omission of another. If there is an allegation, the petition ceases to be a declaratory
relief.

It

becomes

an

ordinary civil action. In short, a petition for declaratory relief is a preventive mechanism in
order

to

prevent

contracting parties from getting involved later on in an ordinary civil action which could be
tedious.

Because,

in

declaratory relief, the petitioner does not allege that he has a right or even if he has a
right,

it

has

not

been

violated. And therefore, having no cause of action, the only relief which the petitioner seeks
from

the

Court

is

for the Court to determine what his rights are under a written instrument, deed or contract. The
petitioner

is

not

absolutely certain if he has rights under a certain deed or instrument; and he is asking the Court
to

declare

what

his rights are. So after the Court has declared what his rights are, that is the end. So we
cannot

have

petition

for declaratory relief with a prayer for damages. A prayer for damages in a declaratory relief
will

defeat

the

nature of declaratory relief. Damages are awarded by the Court if there is already a breach of a
right

belonging

to the plaintiff.

You will notice that there is an enumeration in 63 about the instruments which can be
subject

of

declaratory

relief; deed, will, contract, statute or an ordinance. With respect to statute or ordinance, the
same

principle

applies. So we cannot file a petition for declaratory relief involving a statute or ordinance if
there

has

been

violation of the statute or ordinance. So before the effectivity of the statute or ordinance, the
usual

prayer

for

petition for declaratory relief is to declare the statute or ordinance void or unconstitutional. So,
you

will

notice

in

some instances after the Congress enacted law, and the President has signed it into law, there is
always

date

of

effectivity given to that statute. If somebody wants to challenge the validity or constitutionality
of

that

statute,

he must do so before the law takes effect and before the violation and before a violation of the
law

is

committed,

solely for the purpose of determining if the statute or ordinance is unconstitutional or


constitutional.

So

you

will

meet decisions of the Court in certain declaratory relief to the effect that we cannot file a motion
for

execution

in

order to carry out the declaratory judgment. The judgment in declaratory relief is
usually

called

DECLARATORY JUDGMENT in order to differentiate it from what the Court usually renders after a
judgment has been entered in order to clarify a judgment. In the latter phase, we usually
call

the

latter

judgment

as

CLARIFICATORY JUDGMENT. In Clarificatory Judgment, there is already a judgment rendered by


the

Court,

it

has become final and executory but there are certain ambiguities which will make it hard for the
Court

of

origin

to execute that judgment. The remedy of the interested party is to file a motion for a rendition of
a
Judgment.

Clarificatory

In Declaratory Judgment, the Court will only tell the petitioner what is rights are, what his
duties

are

under

certain will, deed or contract. Or in the case of a statute or ordinance, the Court will tell the
petitioner

whether

statute or ordinance is constitutional or unconstitutional. So after the Court has done its duty,
there

is

more

need

for the prevailing party to move for execution. We dont apply Rule 39 to a petition for
declaratory.

So

that

is

the

first nature of Declaratory Relief which makes it a special civil action. So there is really no
cause

of

action

as

contemplated in ordinary civil action, where there is a right that has been violated by the
defendant.

The second procedural rule that we apply to declaratory relief, which is not followed in
other special civil actions or ordinary civil action, is the authority of the Court not to entertain
the petition for declaratory relief. The Court can outright tell the petitioner, I am not inclined
to entertain your petition. The Court can refuse to declare the rights and duties of the
petitioner or respondent under a deed, will or contract on the ground for instance that the
judgment of the Court will not bind parties who have not been impleaded a petition for
declaratory relief, which shows that a declaratory relief is not in rem but purely a petition in
personam, it cannot bind parties who have not been impleaded. Although, these parties who
have not been so impleaded may be contracting parties of the contract, subject matter of the
litigation.

What is the competent Court in Rule 63? If the petition is for declaratory relief, it is the
Regional Trial Court because a petition for declaratory relief is not one capable of pecuniary
estimation. But if we are going to look for the competent court for other similar remedies, it is

not always the RTC, we have to take into account in the provisions of BP 129. For instance,
reformation of instruments, is that cognizable solely by the RTC? Yes, because reformation
of instruments is not one capable of pecuniary estimation. What is the competent court for
Quieting of Title? It is not necessarily the RTC. It is because Quieting of Title involved title to or
possession of real property and under the standard provided by BP 19, actions involving title to
or possession of real property could be cognizable by the RTC or an inferior court depending
on the assessed value of that property. So, quieting of title could be cognizable by an Inferior
Court if the assessed value of the property is only P5000 or P10000. We apply the standard
provided in the provisions under BP 129.

The third special civil action is Consolidation of Title. The competent Court is also decided by the
assessed value of the property involved, because consolidation of title always involves a real
property. Using the standard applied by the Court in Quieting of Title, we have to allege the
assessed value of the property in order to give to the trial court jurisdiction over the case.

Why do we need to file a special action for Consolidation of Title? Does not Consolidation of
Title

come

matter of course if the period of redemption has expired and the redemption-er has failed to
exercise his right of
redemption? That is in fact the principle that we follow in Rule 39. In execution of judgment, if a
real

property

is

sold in a public auction by virtue of a levy or execution, the highest bidder will not get
automatically

title

in

his own name. Rule 39 provides for a period of redemption, which is usually one (1) year from
the

registration

of the certificate of sale. After the lapse of one year, if the sheriff is not informed by the highest
bidder

whether

or not there has been a redemption that is carried out, what the sheriff will do is to issue a

FINAL

DEED

OF

SALE. Initially, what the Sheriff issued in Rule 39 is a Certificate of Sale,that is the one that is
recorded

in

the

Register of Deeds. So the Register of Deed can easily determine if the period of redemption has
already

expired.

It is just a matter of counting from the registration of the Certificate of Sale. If there is no
redemption,

the

highest

bidder will naturally be interested in getting a title in his own name. The title of the judgment
debtor

will

have

to be cancelled and a new title should be issued by the Registry of Deeds in the name of the
highest

bidder.

The

highest bidder does not have file an action for the consolidation of title. The highest bidder will
only

secure

from

the Sheriff or the Court this Final Deed of Sale and when he records this Final Deed of Sale,
the

Registry

of

Deeds will simply cancel the title of the judgment debtor and issue a new one in the name of the
highest

bidder.

So the highest bidder now has in his hands Torrens Title in his own name. So in Rule 39 there is
no

such

thing

as

Consolidation of Title under Rule 63 as a Special Civil Action. This is also the procedure that is
followed

when

a Real Mortgaged in foreclosed.


there

is

The mortgage is foreclosed, it is sold at a public auction and


a

highest

bidder. The sheriff will execute a Certificate of Sale and will be recorded and from that time on
we

count

the

one

year of redemption. 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 Registry of Deeds will cancel the title of the Mortgagor and issue a

new

title

in

the

name of the highest bidder. So you will notice under special laws, The Mortgage Law and even
under

Rule

39,

in order to consolidate title we do not require an action to Consolidate Title. The only public
officer

who

is

going

to deal with the interested party is the Register of Deeds, who has a ministerial duty to issue a
title,

final

deed

of sale. Why do we require an action to consolidate title under 1607 under the Civil Code? If you
read

the

Civil

Code, 1607 also refers redemption rights, there is sale with a right redeem. It is a voluntary sale;
it

is

not

forced

sale not like the sale in Rule 39. But it is a voluntary sale if you compare it in a sale in a
foreclosure

of

mortgage.

Because in a foreclosure of mortgage, the mortgagee is given a special authority by the


mortgagor

to

sell

the

property. But suddenly 1607, the Rules of Court require an action, a special civil action for the
Consolidation

of

Title although the factual antecedents are the same. There is a right of redemption for a
certain

period,

but

the

right holder fails or does not exercise his right of redemption. Why do we require the
adverse

party

to

go

to

court in order to obtain from the court a decision directing the Register of Deed to Consolidate
the

Title

of

the

buyer with right to redeem? The fact that is present in 1607 is that right of redemption is
what

is

called

is

CONVNETIONAL REDEMPTION; but in Rule 39 and Foreclosure of Mortgage is LEGAL


REDEMPTION.

It

is

that classification of redemption into conventional which makes the distinction under the

Civil

Code.

In

the

Civil Code, when there is a sale with right of redemption, that redemption is called Conventional
Redemption.
It is not Legal Redemption. When the period expires, the period for Conventional Redemption is
also one year, the buyer of the property cannot go directly to the Registry of Deeds although
he

can

convince

the

Registry

of

Property that the period has already expired, there is no need to go to Court for the
Registry

of

Deeds

to

compute if the period has already expired, anybody can do that. So the buyer in
Conventional

Redemption

should be allowed to deal with the Registry of Deeds without requiring him to file
in

Court.

an action

The

reason why we suddenly provide a different remedy in a Conventional redemption is because


under

the

Civil

Code when a sale with a right to repurchase, is not a sale but an equitable mortgage. The Civil
Code

assumes,

disputable presumption, that the contract entered into is not a sale but an equitable mortgage.
So

in

so

far

as

the

Civil Code is concerned, the seller is not a genuine seller but is only a mortgagee. And the
buyer

is

not

true

buyer, but is really a mortgagee, notwithstanding the designation as buyers and sellers in a
Contract

of

Sale.

Also, the Register of Deeds has to observe this disputable presumption that a dead of
sale

with

right

of

redemption is presumably an equitable mortgage. So the party need to go to the Court to


declare

that

his

Contract Sale, in so far as consolidation of title is concerned is a genuine Contract of Sale.


This

is

the

special

feature with regard to consolidation of title under Artcile 1607 of the Civil Code, to give the buyer
the

chance

to

present evidence to defeat that disputable presumption under the Civil Code. If the plaintiff, who
is

the

buyer

In

that Sale, fails to defeat that disputable presumption, he can still obtain consolidation f title but
he

will

be

forced

to file another special civil action, this time Foreclosure of Mortgage. Hence, if he is not able to
obtain

decision

under Rule 63 in a Special Civil Action to consolidate an Action under 1607, because he is a
mortgagee

in

an

equitable mortgage, he has the right to foreclose the mortgage. And the only mean to
foreclose

the

mortgage

is

to avail another Civil Action which is a foreclosure of a Real Estate Mortgage. But the procedure is
quite

lengthy.

The Court is obligated to render three decisions.

NOTE: Although the Court can outright refuse to entertain a petition for Declaratory relief, it
cannot outright refuse to entertain Reformation of Instrument; .Quieting of Title and;
Consolidation of Title.