Dean Jara Lecture Notes in Remedial Law 2013

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

Other aspects of jurisdiction governed by procedural law:

Jurisdiction over the person of the litigants governed by the RoC
Jurisdiction over the property involved governed by the RoC
Jurisdiction over the issues of the case governed by the RoC

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

BP 129 does not mention anything about the SC. It begins with the CA downwards, up to the MTC
and the Sharia Courts. Supreme Court exercises its authority from the Constitution. In the
Constitution, the SC exercises original jurisdiction and appellate jurisdiction. But the Constitution
does not say that original jurisdiction of the SC is exclusive, nor about the appellate jurisdiction
being exclusive. The basis for this is in the old Judiciary Act of 1948 where SC jurisdiction is
delineated in a very thorough manner, providing exclusive original and appellate jurisdiction of the
SC. Note that BP 129 did not repeal the old judiciary act and hence it is still in force. What BP 129
did repeal are provisions of Judiciary Act of 1948 that are inconsistent with BP 129. The best
argument to support this statement is Sec. 9 in BP 129.
Sec. 9 BP 129 last sub provides for the jurisdiction of the CA.
3. Exclusive appellate jurisdiction over all final judgments, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commission,
including the Securities and Exchange Commission, the Social Security Commission, the
Employees Compensation Commission and the Civil Service Commission, Except those falling
within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the
Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of
this Act, and of subparagraph (1) of the third paragraph and subparagraph 4 of the fourth
paragraph of Section 17 of the Judiciary Act of 1948.
The Constitution provides for a limited number of cases over which the SC can exercise original
jurisdiction and limited number of cases over which it can exercise appellate jurisdiction. These are
not exclusive.
Art. VIII Sec. 5
Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such
temporary assignment shall not exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts
and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

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

SCs Exclusive original jurisdiction:

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

Petition for Writ of Habeas Data

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

Among the basic principles of the enactment of BP 129 was to do away with the concept of
concurrent jurisdiction. BP 129 has not been able to do away entirely with concurrent jurisdiction.
BP 129 does not use the term concurrent in vesting jurisdiction upon courts. The law classifies
jurisdiction into original jurisdiction; appellate jurisdiction; exclusive original jurisdiction, and
exclusive appellate jurisdiction; unlike that under the old Judiciary Act of 1948 where the law

expressly contained provisions that conferred concurrent jurisdiction over different cases upon
different courts, which resulted in confusion. Generally, BP 129 has been able to do away with the
concept of concurrence of jurisdiction, except with respect to certiorari, prohibition, mandamus,
quo warranto and habeas corpus. Since the Constitution and BP 129 allocate original jurisdiction
upon 3 courts, then it is safe to conclude that these 3 courts exercise original and concurrent
jurisdiction over these petitions.

BP 129 WITH RESPECT TO THE COURT OF APPEALS:

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

The SC, despite being the supreme court of the land, is not a court of general jurisdiction, it
exercises only limited original jurisdiction as provided for under the Constitution. It is generally not a
trier of facts. The same is true in the CA. In Sec. 9 BP 129, the CAs authority is very limited.
CA has exclusive original jurisdiction over Annulment of Judgment of an RTC under Rule 47. Does
it mean that the CA can annul a judgment rendered by an MTC?
Since the CA is a court of limited jurisdiction, it is allowed to annul judgment only judgments from
the RTC. It cannot annul decisions of an MTC.
Would it mean that the judgment of an MTC is immune from annulment of its judgment?

Yes. The decision of an RTC can be annulled by the CA. But the decision of an MTC is immune
from annulment by the CA. But, the decision of an MTC can be annulled by an RTC. It is not so
provided in BP 129 that an RTC can annul a judgment of an MTC, but it is provided for under
Section 10 of Rule 47 on Annulment of Judgment in the Rules. Thus, jurisdiction is vested in the
RTC under the Rules for it to be able to annul judgments rendered by an MTC.
Can we then challenge the jurisdiction of RTC as BP 129, a special law, should take precedence
over a substantive law, as BP 129 does not expressly give the RTC the authority to annul judgment
of an MTC? Why?
We cannot. This is because, under BP 129 there is an allocation to the RTC of jurisdiction to
entertain and decide all kinds of actions which are not especially given to other courts. This is the
provision why an RTC can annul judgments of the MTC as well as the reason why the RTC is
considered as the real court of general jurisdiction in our justice system. Since no substantive law
has allocated to other courts the jurisdiction to annul judgments of an MTC, it follows now that the
RTC is the proper court to decide on the matter as provided under BP 129 for an RTC to entertain
and decide all kinds of actions not especially given to other courts.
Islamic Da'wah Case BP 129
The SC traced the history of annulment of judgment as an action. SC mentioned that before BP
129, the SC had recognized the regularity and propriety of filing a petition to annul an MTC
judgment in the RTC.
Can an RTC entertain and decide on cases of annulment of judgments of another RTC prior to BP
129? Why?
Before BP 129, SC held yes, because the RTC is a court of general jurisdiction. This is the reason
why in BP 129, Congress deemed it necessary to incorporate a provision giving exclusive authority
to the CA to annul a judgment rendered by the RTC to do away with the anomalous situation where
an RTC is able to annul judgments rendered by another RTC, as there was no specific substantive
law prior to BP 129 which allocated to other courts the authority to annul judgments of the RTC.
A person need not be a party to the judgment sought to be annulled. What is essential is that he
can prove his allegation that the judgment was obtained by the use of fraud and collusion and he
would be adversely affected thereby (Islamic Dawah Council v. CA, G.R. No. 80892, Sept. 29,
1989).
Can the SC annul the judgment of the CA?
No. The Constitution and BP 129 does not provide authority for the SC to annul judgments
rendered by the CA. There is no substantive law or special law authorizing SC to annul judgments
rendered by the CA.
It does not mean that the decisions of the CA are immune from annulment. The SC could still
exercise its equity jurisdiction, most likely under Rule 65, in order to annul a judgment of the CA,
based on the same grounds given under Rule 47, extrinsic fraud and lack of jurisdiction.

Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a
party from having a trial or from presenting his entire case to the court, or where it operates upon
matters pertaining not to the judgment itself but to the manner in which it is procured (Alaban v. CA,
GR no. 156021, September 23, 2005).
Extrinsic fraud or collateral fraud not a valid ground if it was availed of, or could have been availed
of in a motion for new trial or petition for relief.
Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over
the person of the defending party or over the subject matter of the claim.
Lack of jurisdiction over the subject matter and over the person May be barred by estoppels by
laches, which is that failure to do something which should be done or to claim or enforce a right at
a proper time or a neglect to do something which one should do or to seek or enforce a right at a
proper time. (1998 Bar Question)
What is annulment of judgment?
A: It is a remedy in law independent of the case where the judgment sought to be annulled was
rendered. The purpose of such action is to have the final and executor judgment set aside so that
there will be renewal of litigation.
Note: A co-equal court cannot annul the final judgment of a similar court. CA has exclusive
jurisdiction over actions for annulment of judgments of RTC. An action to annul a judgment or final
order of MTC shall be filed in the RTC having jurisdiction in the former and it shall be treated as an
ordinary civil action. (Secs. 1 &10, Rule 47).
Q: When may it be availed of?
A: The remedy of annulment of judgment may be availed of when the ordinary remedies of new
trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault
of the petitioner (Sec. 1, Rule 47).
Q: Who may avail this remedy?
A: A person need not be a party to the judgment sought to be annulled. What is essential is that he
can prove his allegation that the judgment was obtained by the use of fraud and collusion and he
would be adversely affected thereby (Islamic Dawah Council v. CA, G.R. No. 80892, Sept. 29,
1989).
The extraordinary action to annul a final judgment is restricted to the grounds provided by law to
prevent it from being used by a losing party to make a mockery of a duly promulgated decision that
has long become final and executory.
Q: Where should the petition be filed?
A:
Judgments of RTC

Judgments of MTC
Filed with the CA
Filed with the RTC
Basis It has exclusive original jurisdiction over said action under Sec. 9 (2), BP 129
Basis RTC as a court of general jurisdiction under Sec. 19 (6), BP 129
CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition.
RTC has no such discretion. It is required to consider it as an ordinary civil action.

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

petitioner has been deprived of his liberty unlawfully. It is not principally to set aside the judgment
rendered by the RTC in a criminal case.
The remedy of petition for habeas corpus in criminal case are more advantageous than that of an
annulment of judgment in civil cases. This is because an annulment of judgment in civil cases is a
direct attack against the judgment in the civil case, while in the criminal cases, the detainee can
challenge the validity of the judgment of conviction, although he is not attacking directly the validity
of the said judgment of conviction. He is attacking the validity of the deprivation of his liberty.
What is a collateral attack on judgment?
A: It is made in another action to obtain a different relief; an attack on the judgment is made as an
incident in said action. This is proper only when the judgment, on its face is null and void, as where
it is patent that the court which rendered such judgment has no jurisdiction(Co vs. Court of
Appeals, 196 SCRA 705).
Note that Rule 47 is inserted in between the rules governing appeals. The procedure for appeal
starts with Rule 40 up to 56. Annulment of judgment has nothing to do with appeals as it is a civil
action. Annulment of judgment is an original action that can be filed in the RTC and CA. And, in
Rule 47, when particularly applied to a petition for annulment commenced before the CA, you will
notice that some of the features of a special civil action are carried by a petition to annul the
judgment filed with the CA. For instance, if a petition to annul a judgment of an RTC in a civil case
is filed in the CA, the CA has the authority to outrightly dismiss the petition for lack of merit. This is
similar to Rule 65, where the petition for certiorari, prohibition or mandamus can be outrightly
dismissed if it is not meritorious on its face.
What if the decision in the RTC was already final and executory, can the petition to annul judgment
filed in the CA stop the execution of the said judgment?
No. The petition will not stop the prevailing party from moving for the execution of the final and
executory judgment in the civil case, notwithstanding the commencement of the petition to have the
judgment in the civil case annulled. The only remedies available to a petitioner for annulment of
judgment of an RTC in the CA is to apply for the provisional remedy of PI or TRO to stop the RTC
from proceeding with the execution of the said judgment.
Under Rule 47 in relation to BP 129 in the case of annulment of judgments of an RTC filed in the
CA, is it correct that only the litigants thereto can file the petition to annul a judgment in a civil
case?
No. As held in the case of Islamic Da'wah vs. CA, the petition for annulment of judgment in BP 129
and Rule 47 does not prohibit a stranger from filing a petition to annul judgment. He can do so, so
long as he can show he will be prejudiced by the judgment sought to be annulled.
Requirements:
1. All other Remedies of motion for new trial, petition for relief, appeal and other remedies are no
longer available or to do so will not redound to his benefit.
2. Through no fault of petitioner, remedies were unavailing

3. Petitioner is a stranger to the case (Islamic Dawah case)

In Islamic Dawah, in allowing a stranger to file annul a judgment, then he need not seek other
remedies since the stranger to a case cannot possibly avail of remedies that are available only to a
litigant in a case.
While CA has authority to outrightly dismiss annulment of judgment, RTC cannot. Insofar as RTC is
concerned, petition to annulment of a judgment by an MTC should be treated as any normal civil
case.
In Rule 47, if the judgment is annulled, it is declared void by the court. It is unenforceable, or if
already enforced, CA can order restitution if that is still possible.

Rule 47 in relation to BP 129 and Rule 132:

There are no grounds for annulment mentioned in BP 129.
Rule 47 Sec. 2. Grounds for annulment.
The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a
motion for new trial or petition for relief.
Judicial record must be discredited. Judgment of the court must be discredited by such
impeachment. In BP 129, there are no grounds for annulment mentioned at all. They are
mentioned in Rule 47 and Rule 132.
Rule 132 Sec. 29 . How judicial record impeached. Any judicial record may be impeached by
evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties,
or (c) fraud in the party offering the record, in respect to the proceedings.
3 grounds under Rule 132 to impeach judgment:
1. lack of jurisdiction
2. extrinsic fraud
3. collusion
Grounds under Rule 47to impeach judgment:
1. absence of jurisdiction over the subject matter
2. absence of jurisdiction over the person of the accused
3. Extrinsic fraud (this encompasses collusion as found under Rule 132)
Thus, there is no conflict between Rule 132 and Rule 47.

JURISDICTION OF THE RTC

Factors determining jurisdiction:

1. Whether or not action is capable of pecuniary estimation

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

JURISDICTIN IN REAL ACTIONS TITLE TO OR POSSESSION OF PROPERTY

This area is qualified by BP 129 as amended as it has expanded the jurisdiction of MTCs.
What are the possessory actions on real property?
A:
Accion Interdictal
Accion Publiciana
Accion Reinvindicatoria
Summary action for the recovery of physical possession where the dispossession has not lasted for
more than 1 year.
A plenary action for the recovery of the real right of possession when the dispossession has lasted
for more than 1 year.
An action for the recovery of ownership, which necessarily includes the recovery of possession.
All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid
rentals sought to be recovered should be brought to the MTC.
RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila.
MTC has jurisdiction if the value of the property does not exceed the above amounts.
RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila.
MTC has jurisdiction if the value of the property does not exceed the above amounts.
Accion reinvindicatoria and accion publiciana RTC exercising original jurisdiction if property is
worth above 20k/50k, as the case may be.
Is it possible a real action is at the same time one incapable of pecuniary estimation?
Yes. A good example of a real action that is incapable of pecuniary estimation is foreclosure of real
estate mortgage. It is not capable of pecuniary estimation as the determinative issue here is the
right of the mortgagee to foreclose, not the value of the property.

What do we do in determining jurisdiction of an action is a real action but is incapable of pecuniary

estimation? What factor will be determinative to determine jurisdiction of the court?
SC held that if the action carries the feature of real action and one incapable of pecuniary
estimation, then the determinative factor is the feature of incapable of pecuniary estimation. Thus,
RTC has exclusive jurisdiction of foreclosure actions, even if the assessed value of the property
involved is less than the jurisdictional amount of the RTC. As long as the action is foreclosure of
mortgage, the RTC has jurisdiction.
The feature of foreclosure of mortgage as a real action will only be important in determining the
venue, not the jurisdiction.
A similar action which applies the same principle is expropriation. Expropriation of a piece of land
is one involving real action, but it does not take into account the assessed value of the land in
determining jurisdiction. Thus, it is real action, although incapable of pecuniary estimation, as the
right to expropriate is the main issue, not the value of the land involved.
JURISDICTION IN MONEY CLAIMS
When it comes to personal actions, under BP 129, the determining factor will be the amount sought
to be recovered if it is a claim for money, or if it is recovery of personal property, it is the value of
the personal property as alleged in the complaint.
The determining factor for jurisdiction in a pure collection suit is the principal sought to be
recovered, exclusive of charges interest, attorneys fees, damages etc. If the amount sought to be
recovered by the plaintiff is 1M, it may be cognizable by the RTC if it represents the aggregate
amount of the claim, the principal amount being within the jurisdictional value of the MTC. If the
principal is only 200k and the rest are charges, damages, interest, etc., then the MTC has
jurisdiction over the case.
What if the plaintiff seeks only recovery of damages inclusive of actual, moral, nominal, etc.?
Ex. Plaintiff sought 100K actual, 500K moral and 500k exemplary damages. How do we determine
jurisdiction here?
Complaints purely for damages = the aggregate (total) amount of damages will determine
jurisdiction, not the specific amounts claimed. Thus, in the example, the RTC has jurisdiction. Even
if the complaint specified the amount of damages for each aspect, the aggregate amount shall
determine the jurisdiction.
JURISDICTION OVER RECOVERY OF PERSONAL PROPERTY
BP 129 as amended takes into account the assessed value only in the case of real properties.
Personal property values have no bearing in jurisdiction. The value as stated in the complaint shall
be determinative (whether the figure is true or not).
Ex. Plaintiff sought recovery (replevin) of the car, claiming that is worth 800k (even if it is not true).If
defendant challenges the value, stating the car is 30 years old, and willing to submit evidence to
show true value, will the court entertain the defendants motion?

No. The court shall rely only on the allegations in the complaint. Once the court acquires
jurisdiction, it cannot be ousted; the court proceeds with the case until finally adjudicated.
What if it is found during trial that the car is actually worth far less than the value claimed? Will the
court remand the case to the lower court?
No. It will continue to hear until final judgment. There will be adherence of jurisdiction of the court
over the case. The court will continue trying the case until it is finally adjudicated.
The only way to oust jurisdiction in this regard is if Congress files a law abandoning the principle of
adherence of jurisdiction over a particular case. Dean Jara
With respect to MTCs, notwithstanding the expanded jurisdiction thereof, practically all cases
decided by the RTC pertaining to personal property can also be decided by the MTC, depending
only on the value of the property involved.
Ex. Estate proceedings, accion reinvindicatoria, accion publiciana
Note: MTC is still a court of limited jurisdiction despite the expanded jurisdiction under BP 129 as
amended. It can try only the cases given to it under substantive law. The provision in BP 129
making the RTCs courts of general jurisdiction is not given to MTCs. BP 129 stated explicitly that
the RTC shall have exclusive original jurisdiction over all actions that are not specially assigned to
any other court. This is not contained in the allocation of jurisdiction of MTCs.
Vesting of authority to MTCs Sec. 33, the Totality test, is used in determining jurisdiction
Totality test is a proviso for ascertainment of jurisdiction, more encompassing than that provided in
the Rules.
Difference in Totality Test in the Rules vs. Totality Test in BP 129:
RoC totality test in Rule 2 concerns causes of action for money, as to the amount. The totality of
the money claims shall be determinative of jurisdiction of courts.
BP 129 the totality test refers to of all claims or causes of actions in a complaint, whether they
refer to the same or different parties or arising out of the same or differing transactions. This is
more encompassing in scope.

BP 129 has contained therein the provision on delegation of jurisdiction to the MTC and also the
special jurisdiction of the MTC.
The MTC, in its delegated jurisdiction, acts as if it were an RTC.
Ex. MTC acts as if it was a cadastral court (usually done by RTC). If the land registration or
cadastral case is contested, the assessed value of the contested property is determinative of
jurisdiction. If uncontested, MTC acts as a cadastral as if it were an RTC, there being no limitation
as to jurisdiction. But BP 129 clearly states that if MTC acts as a cadastral court the MTCs

decisions on cadastral cases shall be appealable in the CA, not to the RTC (hierarchy of courts is
not followed).
Habeas Corpus proceedings can be heard in the MTC, but only in situations where petition was
filed in the RTC, but no judges are available in the RTC, so the petition is transferred to an MTC
wherein a judge is available. The MTC gains jurisdiction as habeas corpus cases are urgent. In
fact, habeas corpus cases are always given special preference by the courts; and thus, if no RTC
judges are available to hear the petition, the clerk of court in the RTC must transfer the case to the
MTC, and MTC must hear the petition promptly. BP 129 does not authorize the filing of the habeas
corpus case directly in the MTC. Petition for habeas corpus filed in the MTC can be challenged on
jurisdictional grounds because BP 129 does not vest unto an MTC an authority to entertain a
petition for habeas corpus. It is only under circumstances where there are no RTC judges available
to entertain a petition for habeas corpus when an MTC judge can now analyze and study the
propriety the issuing of the writ of habeas corpus.

SPECIAL JURISDICTION OF MTCS.

Take note that the trial court still has residual jurisdiction to act on certain matters even if the case
is already on appeal. See
Rules 41 RoC. It is not correct to assume that if a case has been decided by the trial court. After an
appeal is perfected, the case is now under the jurisdiction of the appellate court. Do not assume
that the case is entirely divested from the jurisdiction of the trial court, even if there is a perfected
appeal. The trial court continues to exercise jurisdiction over certain matters for a limited period of
time in its residual jurisdiction. After the expiration of that period, absolute jurisdiction will now be
exercised by the appellate court.
In Primary Jurisdiction, this involves quasi-judicial bodies. What happens in primary jurisdiction is
that Congress enacts a law which vests jurisdiction unto a quasi-judicial body to try and decide
cases which are cognizable by regular courts under BP 129. The reason why Congress enacts
these laws is that Congress feels that the quasi-judicial body is better equipped to decide disputes
of litigants in certain cases than the regular courts.
Ex. HLURB has exclusive original jurisdiction to adjudicate disputes between subdivision buyer/s
vs. subdivision developers. In cases of breach of contract under the NCC on matters pertaining to
the jurisdiction of quasi-judicial bodies, the trial court cannot take cognizance of these matters,
although BP 129 gives jurisdiction to regular courts over such matters, given the fact that there is a
substantive law vesting jurisdiction to the HLURB to decide on such disputes. This is because it is
presumed that the HLURB is better equipped than a regular court to decide on such cases due to
its expertise.
What if the subdivision developer filed in the MTC a complaint for ejectment of a subdivision buyer
who allegedly violated the terms of the contract? The subdivision developer sought to recover the
property from the buyer, among other prayers. The subdivision buyer challenged that MTC has no

jurisdiction over the case, and that it is HLURB which is the proper body to take cognizance of the
complaint. Does HLURB have jurisdiction over the ejectment case?
SC held that the primary jurisdiction of the HLURB does not extend to complaints of ejectment filed
by one party against the other. In the case of primary jurisdiction vested by substantive law to
quasi-judicial bodies, the authority of the quasi-judicial body is interpreted strictly. Ejectment could
really be a dispute between developer and buyer, but since the complaint was for recovery of
physical possession of the property (or even accion publiciana), SC held that regular courts should
take cognizance.
Note: Complaint for ejectment by subdivision developer vs. subdivision buyer was actually a suit for
recovery of possession of property.
Residual Jurisdiction found in appeal cases (Rules 41 and 42); jurisdiction enjoyed by the trial
court to act on certain matters for a very limited period, even if the case is on appeal.
Constitutional limits provided in the Constitution limiting SCs authority in promulgating rules:
1. uniformity in all courts of the same grade
2. speedy and inexpensive determination of the case
3. does not modify, increase or decrease substantive rights
Any rule on procedure violating any one of the limitations given in the Constitution, the rule can be
properly challenged as to its validity and applicability.
A litigant challenged a rule on criminal procedure (Rule 115 Rights of the Accused). Litigant stated
that Rule 115 is not procedural, and modified substantive rights as espoused in the Constitution,
and should be deleted in the RoC.
SC denied the petition. SC said that while the authority of the SC is to promulgate rules on
proceedings, practice and procedure, and that substantive rights should not be covered by the
provisions of the Rules, SC said that it is practically impossible for rules of procedure to be devised
without incorporating certain provisions that are dealing substantive law. The standard is that we
take the Rules as a whole, and determine whether it is procedural in character. If the answer is yes,
and there are certain provisions speaking about substantive rights, that should not be a justification
of deleting these provisions in the RoC.
Also, SC noted that the NCC, a substantive law, contains procedural articles concerning court
processes such as those concerning unlawful detainer and forcible entry, but NCC still remain a
substantive law.
The civil code provisions shall not be affected by the procedural provision in the Rules concerning
the filing of claims (Recovery of creditor of the whole debt from surviving solidary debtors).
According to the Rules, the Rules of Court should be interpreted liberally. But the interpretation is
one not in favor of the plaintiff or defendant. The meaning of liberal interpretation is to promote the
ends of justice, to carry out the duty of the SC under the limitations given under the Constitution.

PLEADINGS
COMPLAINT
General Rule: A civil action is always commenced with the filing of a complaint. This is the general
rule. Some cases are commenced by a petition, most notably in special civil actions. The filing of a
complaint has given rise to the action that when the case is filed, the court acquires jurisdiction
over the action. The court will then have to gain jurisdiction over the person of the defendant.
Service of summons will gain jurisdiction over the defendant. A recent decision of the SC held that
if the person filing the case is not authorized to file the case, then the court does not acquire
jurisdiction over the person of the plaintiff, and will not acquire even the jurisdiction to decide the
case. The court can examine whether or not the person who filed the case is authorized. If not so
authorized, the court will not acquire jurisdiction over the person of the accused and it will not
acquire the authority to decide the case. The court will be absolutely without jurisdiction to try and
decide the case.
Amendment of the Complaint
In Complaints properly filed by the plaintiff, the plaintiff can amend the complaint as a matter of
right under Rule 10, provided an answer has not yet been filed. (Amendment as a matter of right). If
amendment is to implead a new defendant, the court will accept such amended complaint as it is a
matter of right. As to the new defendant, the period to file an answer will relate to the filing of the
original complaint (Relating Back Doctrine).
But, if a new cause of action is introduced along with the new defendant, it is not an amendment,
as a new cause of action is being included.
The classification of actions
Civil Actions
Criminal Actions
Special Civil Actions
Special proceedings
In the definition of a civil actions it is very clear that we do not necessarily follow the definition of a
cause of action as defined in Rule 2. A cause of action is a violation of a right belonging to the
plaintiff by a defendant. For a cause of action to accrue, the plaintiff must allege he has a right, and
then allege that the defendant had violated that right.
Elements:
Plaintiff must allege he has a right.
Plaintiff must allege the defendant has violated for that right.
The implication of given by the definition of a cause of action is that the right holder must wait for a
violation of his right before he can have a cause of action against such person who violated his
right and have a reason to go to court. That cause of action should always be related to the
definition of a civil action found in Section 3(a) Rule 1.

A civil action is one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong.
Rule 2 SEC. 2. Cause of action, defined.A cause of action is the act or omission by which a
party violates a right of another.
Civil action does not require prior violation of a right before right holder can proceed to court. A
plaintiff need not have his right actually violated before a case can be filed. Even a threat to violate
a right gives rise to a cause of action.
The Rules of Procedure becomes more complicated if there are several rights that are violated by
one and the same wrongful act. If there is just one wrongful act and there are several rights
violated, how will the causes of action accrue?
The standard given by the SC: In order to determine whether several causes of actions will arise, if
there is one wrongful act and there are several rights that are violated, is to determine whether
these rights belong to the same person or to different persons.
Common Standard: Determine whether these rights belong to the same person or to different
persons.
Several rights of one person violated by one and the same act = 1 cause of action = 1 complaint.
Several rights of several persons violated by one and the same act = several causes of action =
separate complaints.
If a person drives his car negligently, and causes damage or wrecks 3 cars, how many causes of
action accrue against him using the standard given by the court?
Using the standard, determine whether the three cars belong to one person only or the cars belong
to three different persons. If the 3 cars belong to only one person, only one cause of action will
accrue. The owner of the cars can only file one case against the negligent driver. Otherwise, that
will be splitting of causes of action. The owner had only one right that was violated by the negligent
driver. But if these 3 cars belong to 3 different owners, there are 3 separate causes of action.
Because there are 3 causes of action that arise, they can file separate complaints, and they dont
have to be joined. Conceivably, one owner can file his case in the RTC if he claims the damages
suffered by him amounted to more than 500k. Another owner can file his case in the MTC if he
claims that his car incurred damages amounting to 200k. The filing of these complaints by 3
different owners will depend on the amount of damages each will respectively claim in their
respective complaints. The fact that there are 3 different causes of action does not mean that they
should go to the same court in order to recover the damages suffered by them.
In the first example where the 3 damaged cars were owned by one owner, there is only one cause
of action. The owner of the 3 cars can only file one complaint for recovery of damages. Can he
properly and rightfully go to court right away?
No. If we rely solely on substantive law alone, it would seemingly be yes. But if we apply other
procedural principles, the owner may be precluded from filing a complaint right away. The owner

has to first satisfy certain conditions precedent before cause of action could accrue. If these
conditions precedent are not satisfied, the filing of the complaint shall be premature and shall
cause the dismissal of his complaint.
Conditions precedent given under procedural rules and substantive law are as follows:
1. prior barangay conciliation
2. arbitration clause
3. certification on non-forum shopping
4. exhaustion of administrative remedies
5. earnest efforts towards a compromise
Even if a right has been violated and a cause of action indeed accrued, if the action is covered
under the circular on prior barangay conciliation, the trial court can dismiss or not entertain the
case and order the parties to undergo barangay conciliation first.
Arbitration clause invariably provides that in case of breach of contract, the parties must first
undergo arbitration before a complaint can be filed by the innocent party.

Rule 7 Certification on Non-Forum Shopping

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

Exhaustion of administrative procedures is another condition precedent to the accrual of a cause of

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

Splitting a cause of action abhorred by the court.

Ex. Creditor filed separate actions for recovery of the principal and the interest earned by the
principal. Even if there are 2 different courts where these complaints are filed, there is still splitting
cause of actions.
Rule 2 SEC. 4. Splitting a single cause of action; effect of.If two or more suits are instituted on
the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others.
Rule 7 SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify
under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge, no such other action or claim is pending therein;
(b) if there is such other pending action or claim, a complete statement of the present status
thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission, of a false
certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If the
acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well
as a cause for administrative sanctions.
Sanctions for splitting causes of action:
1. filing of one could be used to dismiss the other due to litis pendencia
2. if one of the case has been decided, the other case can be dismissed due to res judicata
3. if there are 2 concurrent cases, the cases can be dismissed on ground of forum shopping.
It is now settled that if the party is guilty of splitting his cause of action, he is also guilty of forum
shopping. There is no need to elaborate as to whether there is forum shopping as long as it can be
shown that there is splitting causes of action.
Why does the Rules prohibit splitting?
It is because, the effect of splitting a cause of action could be harmful to our courts. If splitting is
allowed, and one case each will be filed for example in the RTC and MTC, there is the possibility
that one court will decide differently from the other and would result in the courts looking funny,
even if the same facts, the same parties and the same pieces of evidence were presented therein.

The rule on splitting is designed more for protecting the integrity of our courts. The likelihood that
different courts will render conflicting decisions involving the same issue, the same parties and the
same pieces of evidence and thus destroy the credibility of the judicial system is sought to be
prevented.
Consequences of splitting:
Suppose the plaintiff filed 2 complaints arising from the same cause of action, but the defendant
ignores this. Defendant did not act on the fact. Can the court motu propio dismiss the cases?
Yes. Res judicata and litis pendencia are both non-waivable offenses under Rule 9. Even if the
defendant did not waive these, the court motu propio can order dismissal of these cases once
these becomes clear during trial. But if the ground for dismissal is litis pendencia, only one of the
cases will be dismissed. If the ground for dismissal is res judicata, all cases filed will be dismissed.
In litis pendencia, movant cannot move for dismissal of all cases, only one can be dismissed.
Rule 9SECTION 1. Defenses and objections not pleaded.Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it appears from
the pleadings or the evidence on record that the court has no jurisdiction over the subject matter,
that there is another action pending between the same parties for the same cause, or that the
action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.
(Note: If you are counsel for the defendant, if cases are filed in 2 different courts [RTC and MTC],
move for the dismissal of the case in the RTC, as the amount involved in the MTC is smaller.
Hence, if the amount involved in total should have been 2.2M, and the amount involved in the MTC
is only 200k, only 200k will be extent of liability that your client will have in case of judgment against
him.)
Can we have the defendant have the remedy of dismissal of both cases filed in RTC and MTC?
Yes, on the ground of forum shopping. If a plaintiff is guilty of forum shopping, the court shall order
the dismissal of all cases. But the qualification is that the dismissal is without prejudice, not an
adjudication on the merits. Exception to the dismissal being without prejudice is that if the forum
shopping was DELIBERATE, then dismissal is with prejudice.
SUMMARY:
If the wish of the defendant is the dismissal of all cases, move for dismissal under Rule 7 on the
ground of forum shopping. Anyway, if the party is guilty of splitting of a cause of action, he violates
the rule on forum shopping.
But if one of the cases has been decided, the ground of dismissal should be res judicata, as long
as the decision in that previous case has become FINAL AND EXECUTORY.
Litis pendencia and res judicata are NON-WAIVABLE defenses. Courts can motu propio dismiss
the case on these grounds under Rule 9.
On Cases of Collection of Payments Payable on Installments

Larena vs. Villanueva old case but still applicable

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

RULE ON ANTICIPATORY BREACH

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

SWAGMAN RULE
If such anticipatory breach was not pleaded in the complaint filed, and defendant failed to file an
answer, the court will set the case for pre-trial. By the time the pre-trial was conducted, the first

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

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

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

SPLITTING VS JOINDER OF CAUSES OF ACTIONS

Splitting is prohibited, joinder is encouraged by the Rules.
The Rules encourages a plaintiff to incorporate as many causes of action he may have against the
same defendant, although his causes of action are totally unrelated to one another. This is allowed
so long as the parties remain the same.
A plaintiff can file a complaint against a defendant for accion reinvindicatoria, for recovery of money
arising from the loan, recovery of damages arising from a quasi-delict committed by the defendant,
although arising out of different transactions. There is nothing wrong if the plaintiff sets up three
different causes of action in a complaint that arose of different transactions.

The limitations to joinder of causes of action:

1. Jurisdiction
2. Venue
3. Joinder of parties
According to Rule 2, there could be joinder causes of actions which is valid as long as the plaintiff
SEC. 5. Joinder of causes of action.A party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have against an opposing party, subject to the
following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions governed by special rules;
(c) Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.

If the plaintiff files a complaint against the defendant for accion reinvindicatoria, and the assessed
value of the property is 1k only, and the second cause of action is the recovery of money, obviously
the actions are misjoined. This is because accion reinvindicatoria, the property being only 1k, is
cognizable only by the MTC.
SC decided a case where one of the parties contended joinder when there was actually misjoinder
of causes of action. The complaint filed by the plaintiff against the defendant, the first cause of
action was for partition, and second cause of action was for rescission of a donation. Both causes
of action were cognizable by the RTC.
If we rely solely on Sec. 5 Rule 2, is there misjoinder of actions? Why?
Yes. This is because a complaint for Partition is a special civil action while rescission is an ordinary
civil action. They are governed by different procedures, and thus there is misjoinder of causes of
action under Rule 2 Sec. 5(b).
On the same facts above, the defendant did not notice the misjoinder and did nothing, whereas the
court did nothing also. The judge most likely waited for the defendant to move to split the
misjoinder causes. But since nothing was done by defendant, the judge proceeded to try the two
misjoined cases.
Under the rules, can a court, motu propio, order the severance of one of the misjoined causes of
action?

Yes. The court can do so. Under the Rules, there is no need for a motion from the defendant if the
court finds out that causes of action are misjoined . It can motu propio order the severance of
cases. This is done for the benefit of the court, because if the court will wait for the defendant to
make a motion, to raise the misjoinder of causes, the court will find himself confused with the
procedure he will follow. This is because partition will involve a different procedure from ordinary
civil actions. In fact, under our Rules now, partition is a multi-stage proceedings. Rescission is an
ordinary civil actions.
The court went ahead and tried the case, until a decision was finally issued by the court. Only then
did the defendant raised, on appeal to the SC, the misjoinder of causes of action.
If nobody objected, the court may proceed in the disposition of the case. If the court decided on the
case, the decision will still be valid. SC made a qualification that these misjoined causes should be
within the jurisdiction of the trial court under BP 129. In other words, this rule on misjoined causes
could be a ground for severance of these causes. But it if it is not raised timely, and the court
decided on the case, the courts decision is valid as long as the trial court has jurisdiction over the
misjoined causes.
Does the RTC have jurisdiction over a complaint for Partition? Does the RTC have jurisdiction over
rescission of a donation?
Note that a case for partition is one incapable of pecuniary estimation. So even if there are
misjoined causes in one complaint, but this misjoinder is not raised before the trial court, the
parties are deemed to have waived this issue of misjoinder of causes of action, the judgment
rendered by the court is valid and the same can be executed if it is duly entered.
If the court does not motu propio order the severance, the defendant cannot blame the court for it.
It is the burden of the defendant to raise this as an issue before the trial court.
As long as one of the misjoined causes falls within the jurisdiction of the trial court, there is nothing
wrong if the trial court will eventually decide the case although there is misjoined causes of action.
Can a complaint be filed where these two causes of action are set up, first, petition for certiorari,
and then, as a second cause, petition for habeas corpus?
Yes, the petition is allowed, by way of exception, according to SC.
A complaint was filed in the MTC. The first cause of action was for accion reinvindicatoria, the
assessed value of the land was 1k. The other cause of action unlawful detainer of a condominium
unit, with value of back rentals being 2M. Can an MTC have jurisdiction over the action?
Yes. The value of the land in the accion reinvindicatoria where the assessed value was only 1K.
The recovery of possession by a MTC will be by a summary proceeding, regardless of the back
rentals sought to be recovered..
Are the causes properly joined?
No. There is still misjoinder, although both causes are cognizable by an MTC. This is because
accion reinvindicatoria, although cognizable by the MTC, shall be governed by ordinary
proceedings while unlawful detainer will be governed by summary procedure. We cannot join
causes of action which are governed by different Rules of Procedure, although they may fall within
the jurisdiction of that same court.

New case
Baylon Case. Even if there is misjoinder, if it is not raised as an issue, and the court has decided
upon the case, the decision rendered thereafter is still valid so long as the court has jurisdiction
over all causes of action that are misjoined in the same complaint.
Limitations to the prerogative
Unlike joinder of parties, there is a rule against misjoinder of causes of action, in the same way
there is a rule on misjoinder of parties. There is no rule on non-joinder of causes of action, while
there is non-joinder and misjoinder of parties. The reason why there is no rule on non-joinder of
causes is because it is permissive, it is always at the option of the plaintiff. The plaintiff can join as
many causes of action as he may have. The court cannot force him to do so. But there is a rule
against MISJOINDER of parties.
Misjoinder of causes occurs when the joinder of two or more causes violates the rules. Ex. Joinder
of special and ordinary causes of action in one complaint, it is prohibited for being in violation of the
rule that actions covered by different rules of procedure cannot be joined, although both may be
cognizable by the same court.
But the latest jurisprudence of the court is to the effect that even if causes are misjoined, if that
issue is not raised on appeal, the CA and SC will ignore the violation of the rule on misjoinder.
Judgment will not be disturbed, so long as the court deciding has jurisdiction on all causes that
have been misjoined.
Limitations:
1. Sec. 6, Rule 3, Permissive Joinder of Parties
- It envisions a situation where there are 2 or more plaintiffs, 2 or more defendants, or both, where
there is a series of transactions, with common questions of fact concerning the same parties.
Rule 3 SEC. 6. Permissive joinder of parties.All persons in whom or against whom any right to
relief in respect to or arising out of the same transaction or series of transactions is alleged to exist,
whether jointly, severally, or in the alternative, may except as otherwise provided in these Rules,
join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the action; but the court may
make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or
put to expense in connection with any proceedings in which he may have no interest.

The owner of a land discovered that his property has been occupied forcibly by 11 informal settlers
and they retained physical possession thereof. The informal settlers had constructed houses
therein. The owner wanted to recover the possession thereof. Should the owner file 11 cases of
forcible entry or just one against the 11, or one complaint wherein there is a joinder of parties?

SC said that the owner has the option of choosing any one of these remedies. Plaintiff can file 11
separate complaints impleading only one defendant in each complaint. If plaintiff chooses to file
just one action, in that complaint, he must allege 11 causes of action (First Cause of Action, etc.).
The last recourse will involve joinder of parties.
Why?
Sec. 6 Rule 3 is permissive in character. (use of the word may)
2. Compulsory joinder of indispensible parties party must be joined so that final adjudication of
the issue can be had.
- even if the court tries a case without impleading an indispensible party, such non-joinder will
render the proceedings void. The decision is void and will never be entered, and thus cannot be
made final and executory.
Indispensible partyparties in interest without whom no final determination can be had.
Rule 3, SEC. 7. Compulsory joinder of indispensable parties.Parties in interest without whom no
final determination can be had of an action shall be joined either s plaintiffs or defendants.
If there are 2 parties to the contract of sale, one vendor and one vendee. If in case there is a
violation of the contract of sale, the vendor and vendee are of course indispensible parties.
Necessary partythe joinder of such party is not compulsory.
Rule 3 SEC. 8. Necessary party.A necessary party is one who is not indispensable but who
ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a
complete determination or settlement of the claim subject of the action.

What is the sanction if the complaint is filed without impleading indispensible party?
It is not per se a ground for dismissal as very clearly stated in Section 11, Rule 3; but if the
defendant uses another ground used, specifically failure to state a cause of action, then the
complaint will be dismissed.
Rule 3 SEC. 11. Misjoinder and non-joinder of parties.Neither misjoinder nor non-joinder of
parties is ground for dismissal of an action. Parties may be dropped or added by order of the court
on motion of any party or on its own initiative at any stage of the action and on such terms as are
just. Any claim against a misjoined party may be severed and proceeded with separately.
SC held differently in several cases:
It held that failure to state a cause of action is evident when an indispensable party is not
impleaded. A cause of action envisions the existence of a right violated and a wrongdoer who did
such violation. The proceedings taken by the court are considered void in terms of those who were
not impleaded, being indispensable parties. Even if the court decided the case, the judgment

therein will be unenforceable since such decision will be subject to question by those parties not
impleaded.
There were also decisions stating otherwise. SC stated than non-joinder/misjoinder is not a ground
for dismissal. If a motion to dismiss is filed, SC stated that the court should order amendment of
the complaint instead of dismissing it. In Rule 16 on alternatives of a court on ruling a motion to
dismiss, SC says a trial court has 3 options: deny, dismiss or to order amendment of the complaint.
Thus, trial court can order denial of a motion to dismiss by ordering amendment.
4 alternatives to resolve misjoinder/non-joinder of indispensable parties:
1. Grant motion
2. Deny motion
3. Order amendment to the pleading
4. Refer the matter to arbitration or prior barangay conciliation
Hence, if a defendant moves for the dismissal of the case of non-joinder of indispensible parties,
the court can order amendment of that complaint to implead the indispensible party. Plaintiff also
has a choice; he can either ignore or comply with the order. If he complied, the defect is cured.
But if plaintiff disobeys the order directing him to implead an indispensible party, can the court do
something about it?
SC held that the case can be dismissed under Rule 17. If the dismissal was ordered by the court
due to disobedience of a lawful order, it shall be a dismissal with prejudice, an adjudication upon
the merits.
Adopt the 2nd set. Order amendment. If amendment order is not complied with, court will order
dismissal under Rule 17, unless the court orders otherwise.
What is the difference of a dismissal under Rule 16 and Rule 17?
If a complaint is dismissed under Rule 16 due to failure to state a cause of action from failure to
implead, dismissal is without prejudice.
If dismissal is by reason of Rule 17, for failure to obey lawful orders of the court, it is a dismissal
with prejudice unless the court orders otherwise.
NECESSARY AND INDISPENSABLE PARTIES
How do we distinguish whether a party is necessary or indispensable?
The rule to guide us in this fact is the NCC on liability of debtors.
In the case of debtor/creditor relations where there are 2 debtors to the same debt:
Plaintiff should evaluate liability, whether debtors liabilities are solidary or joint. In the NCC, in
absence of any other stipulations/factors, when there are two debtors of the same indebtedness,
the assumption will be that they are joint creditors. If there are stipulations referring to the debt as

solidary, then they are solidary debtors. The provisions of the NCC will be the guide in this
situation.
If we apply the provisions of the NCC, and the creditor filed a case to recover the entire debt, and
debtor A and B are joint debtors, do we consider both debtors to be indispensible parties?
Yes. If the purpose of the creditor is to recover the entire obligation, then both debtors should be
impleaded in the complaint.
Can the creditor file a case against only debtor A?
Yes, applying the provisions of the NCC, the creditor can go after A, but recovery can be had only
to the extent of the amount owed by A. In this example, debtor A is an indispensible party.
How about debtor B, is he a necessary party?
Yes. His presence in the case against debtor A is not indispensible. The court may require B be
impleaded to complete the determination the subject matter.
There is another presumption in the NCC that if there is no indication as to the extent of the debt of
two joint debtors the presumption will be that both shall share equal obligations to the creditor.
Hence, if the creditor loaned Debtors A and B 1M, there being no other stipulation, it is presumed
that Debtors A and B are joint debtors with individual liabilities of 500K each.

Indispensable Parties
Necessary Parties
Parties in interest without whom no final determination can be
had of an action shall be joined either as plaintiffs or defendants. (Sec.7, Rule 3)
Must be joined under any and all conditions because the court cannot proceed without him (Riano,
Civil Procedure: A Restatement for the Bar, p. 224, 2009 ed.)
A necessary party is one who is not indispensable but who ought to be joined as a party if
complete relief is to be accorded as to those already parties, or for a complete determination or
settlement of the claim subject of the action. (Sec.8, Rule 3)
Note: Should be joined whenever possible, the action can proceed even in their absence because
his interest is separable from that of indispensable party (Ibid p.224)
No valid judgment if they are not joined
Note: In the absence of an indispensable party renders all subsequent actions of the court null and
void for want of authority to act, not only as to the absent parties but even as to those present
(Riano, Civil Procedure: A Restatement for the Bar, p. 221, 2009 ed.)
The case may be determined in court but the judgment therein will not resolve the entire
controversy if a necessary party is not joined

Note: Whenever in any pleading in which a claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find
the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party
if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of the claim against such party.
The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the
dismissal of the action. The court should order the joinder of such party and non-compliance with
the said order would be a ground for the dismissal of the action (Feria, Civil Procedure Annotated,
Vol. I, p. 239, 2001 ed.)
Note: Parties may be dropped or added by order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are just. Any claim against a misjoined
party may be severed and proceeded with separately. (Sec. 11, Rule 3)

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

THE RULE ON ASSIGNMENT/TRANSFER OF INTEREST (RULE 3, LAST SECTION)

Ex.
There is a creditor who lent 1M to the debtor. The debtor defaults in payment. But before the
creditor filed a complaint, the creditor felt the need for money. He assigned his claim to another for
a certain value. Such person now stands in the shoes of the creditor, and may file a claim against
the debtor. The creditor sold his rights to X for 700K.
Can the assignor/original creditor, file a claim for 1M against creditor?
No, he is no longer a real party in interest, as he has assigned his rights to another.
What if assignee files a complaint against debtor?
Assignee is the proper party to file a complaint against debtor, so the case will prosper.
How much can assignee recover?

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

CLASS SUIT
There is a common interest among persons so numerous that it would be impracticable to bring
them all to court. It is not required that all be presented in court, but only enough to represent the
rest of those who are party to the same suit.
Ex. Oposa vs. Factoran is now enshrined in the Writ of Kalikasan via the Citizens Suit on behalf of
persons yet unborn. This is effectively a class suit.
Do we consider the class as indispensable or necessary parties?
SC held that all in the class involved in the litigation are considered indispensable parties.

Should they all be identified?

SC held that there is no need. Only a representative number can be impleaded as they represent
all of the class. Determination made on such representative class is tantamount to determination
for all of the members of the class.
Why did SC hold that all such members of the class are deemed indispensable?
SC stated that the last sentence of Sec. 12 Rule 3 states that Any party in interest shall have the
right to intervene to protect his individual interest. A member of a class in a class suit has a right
to intervene.
Note:
Intervention a matter that is subject to the discretion (allow or disallow) of the trial court.
Exception, court cannot deny intervention of a member of the class in a class suit.
Deceased Litigant
SEC. 16. Death of party; duty of counsel.Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty
(30) days after such death of the fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply with this duty shall be a ground for
disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party or if the one so named
shall fail to appear within the specified period, the court may order the opposing party, within a
specified time, to procure the appointment of an executor or administrator for the estate of the
deceased and the latter shall immediately appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by the opposing party, may be recovered as
costs.
A contract of agency is present when a lawyer is engaged by his client, an agency which exists
until the client dies. The lawyer has to inform the court about the death of his client. The court may
then cause substitution of the representatives of the estate of the deceased.

Rules on death of the plaintiff in marriage-related cases :

Dismissal death occurred before entry of judgment
Substitution of parties death occurred after entry of judgment

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

Rule 4 VENUE OF ACTIONS

One court that can disregard rules on venue SC
All other courts cannot disregard the rules on venue.
Trial courts can incorporate in their decision an advisory to the defeated party to appeal the matter
to the SC.
Venue can be subject to stipulation of parties.
Elements:
1. Stipulation has the feature of exclusivity
2. Written, and
3. It must have been entered into before the commencement of the action
Caveat: If the stipulation will cause undue inconvenience to parties, then such stipulation can be
dispensed with by parties.
In a real action, the venue, in absence of any stipulation designating a specific venue, is the place
where the property or a part thereof is located.

Mixed action action is both real and personal the venue in absence of stipulation is the same as
that of the rule in personal actions. (Whether Action in-rem real; Quasi in rem or In personam
personal)
Analyze the actions whether they are real or personal. For purposes of venue, we follow its
classification as a real action.
Accion reinvindicatoria and publiciana recovery of title or ownership a real action that at the
same time an in personam action.
Settlement of estate involving personal properties of the deceased personal action
Sweet Lines case(on venue)
The place where the principal office was located would cause undue inconvenience for the
complainants, hence the agreement stipulating that cases should be filed in Cebu is void. Rule 4 is
designed for the convenience of complaining parties, not for the benefit of defendants.
The rule on venue does not apply to CA, CTA and SC. It is only applicable to trial courts and other
lower courts.

Procedure before Barangay Courts

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

The barangay courts follow procedurally the same rules as that of court cases.
The pleadings could be verbal, although the barangay court usually asks for pleadings to be
written. They also require payment of minimal docket fees, regardless of the amount of claim.
If the complainant fails to appear repeatedly during the conferences called by the Barangay Court,
the Barangay Court can order the dismissal of the complaint, and that dismissal is with prejudice.
The complainant loses his right to recover against the respondent.
Rule of venue is different from Rule 4 RoC. The venue is the residence of the respondent. If the
complainant and respondent resides in different barangay, the complaint should be filed in the
barangay where the respondent resides.
This applies to civil actions, as well as special civil actions in appropriate cases.
Ex. Complaint for interpleader
Complaint for forcible entry and unlawful detainer, although these are special civil actions
This does not apply to:
~Rule 65 cases, nor in petition for relief cases.
~Cases that involve public officers or LGUs.
~Certiorari, Prohibition, Mandamus usually involves exercise of public duties (especially of a
judge)
~It does not apply to expropriation or quo warranto.
If they are unable to settle, the barangay court issues a certification that no compromise was
entered into. This enables the plaintiff to file a case in court. But if a compromise agreement was
filed, that agreement will be considered a final and executory judgment, subject to repudiation by
any party within 10 days from execution of the agreement. Grounds are any of the vices of consent.
If there is repudiation, the barangay court will issue certification allowing plaintiff to file the case in
court.
If parties agreed in writing that a barangay court shall be the arbitration court, this can be
repudiated within 5 days from filing said agreement.
The Barangay Court, as an arbitration court, can make arbitral awards. A party can cause
annulment of said award based on vices of consent. No other ground need be presented (such as
lack of jurisdiction, etc.)
There is no need for the barangay court to ask for confirmation of the compromise agreement.
After the lapse of the 10-day period, it becomes final and executory. It can become subject to
execution by the barangay court. If the terms of the agreement are not complied with, the barangay
court can execute the judgment, provided such judgment should be executed within six months
from signing of compromise agreement.

Execution of the barangay court.

While it can make a levy on execution, it is limited to personal properties belonging to respondents.
It cannot levy on real properties owned by respondents. It can also sell these levied personal
properties at public auction to satisfy the compromise agreement. If there is no satisfaction of the
claim, the remedy is for the judgment creditor to file a case of collection in the MTC to satisfy the
compromise agreement.
Montaez vs. Miguel enforcement of compromise agreement by barangay courts (2012)
The case substantially has the following facts:
The claim of the creditor was 500k. Both parties submitted the matter for conciliation in the
barangay court. The claim of 500k was reduced substantially in the proceedings, 250k paid in
installments. The debtor failed to comply. The agreement was not repudiated. The creditor filed a
complaint in the regular court for recovery of the 500k. CA held that the only recourse of the
creditor was to enforce the compromise agreement as provided in LGC and the implementing
circulars, the creditor having lost the right to claim the 500k.
SC HELD that the barangay court approved compromise agreement being final and executory, if
the debtor fails to comply, the failure to comply is considered as a repudiation of that compromise
agreement. SC cited Art. 2041 of the NCC which states that when a party fails to comply with the
compromise agreement, the agreement is rescinded by operation of law, and thus the creditor is
entitled to recover the original claim in the courts of justice.
There is no need to file rescission of the compromise agreement in this instance. The effect is that
the creditor who has agreed to the compromise agreement will be reverted to his original position
as a creditor claiming the amount in his original claim before the compromise agreement.
Mere refusal or failure to comply with compromise agreement is tantamount to repudiation of the
compromise agreement.
Note: Judgment based upon a compromise is immediately executory. A party can sought execution
thereof immediately. Failure to comply can lead to rescission of that compromise agreement.

SUMMARY PROCEEDINGS
It refers to the summary procedure followed by lower courts in unlawful detainer, forcible entry and
money claims up to 200k, exclusive of interest, etc.
Note:
Small claims proceedings involve claims up to 100k.
There are cases which follow summary procedure that is cognizable by RTC. However, these
cases involve family-related cases. They are not civil actions involving summary procedures under
the rules.

Summary proceedings prohibit filing of certain pleadings and motions.

The only Pleadings allowed:
Complaint
Answer
Compulsory Counterclaim/crossclaim
Motion to dismiss under Rule 16 is prohibited, unless the ground is absence of jurisdiction over the
subject matter and absence of prior barangay conciliation (failure to follow condition
precedent).Although prohibited, what is prohibited is a motion to dismiss filed by the defendant.
Summary Dismissal is allowed given, by the court itself, no motion being given.
The court itself will examine the contents of the complaint. If the court finds the case should be
dismissed under Rule 16, it can do so motu propio, without a correlative motion to dismiss filed by
the defendant.
Ordinarily, under ordinary procedures, a court cannot simply dismiss the case without a correlative
motion to dismiss.
The defendant is given time to file a responsive pleading for a shorter period than in ordinary
procedure. Period is non-extendible (10 days). If defendant ignores the period, but files a motion for
extension of 5 days to file an answer, the court can ignore it, considering it as if it was not filed. If
such a motion was filed, and there was failure of the defendant to file an answer within 10 days,
plaintiff can move for judgment on the pleadings.

If the defendant is prohibited from filing a motion to dismiss, but the defendant, after evaluating the
complaint that the case should be dismissed based on any ground in Rule 16, can he still make
use of these grounds to cause dismissal eventually?
Yes. The defendant should follow Rule 16 by making use of the grounds as an affirmative defense
in his answer, and later on raise these issues.
Motion to declare defendant in default a prohibited pleading in summary procedure.
If defendant failed to answer on time, the plaintiff can move for judgment on the pleadings.
In ordinary proceedings, a motion to declare defendant in default must be initiated by plaintiff
before the court can declare defendant in default. Unless such motion is made, the court can do
nothing.
The reason why the rules on summary proceedings does not allow the court to declare defendant
in default, it is because the rules under Rule 9 cannot be allowed in summary proceedings. It will

be tantamount to allowing a defendant in default to ask for lifting the order of default, defeating the
purpose of the rule on summary proceedings.
Motion for new trial, motion for reconsideration and petition for relief from judgment are prohibited
in summary proceedings. This does not mean the defendant has no remedy after judgment. The
only remedy available for a defendant is to appeal the judgment. Annulment of judgment under
Rule 47 can also be had under these proceedings. But, before he can avail of Rule 47, the rules
are strict insofar as the requirements for annulment of judgment are concerned. Such must be
complied with before it can be availed.
Preliminary conference identical to pre-trial in ordinary proceedings. Submission of affidavits and
position papers, no presentation of evidence.
A trial is not absolutely prohibited in summary proceedings, as certain criminal cases are governed
by summary proceedings. A trial has to be conducted. The court cannot deprive
defendant/accused from cross-examining the witnesses.
Why did not the SC adopt a common summary procedure for civil and criminal cases? Why
disallow trial in civil cases under summary proceedings?
This is because SC cannot violate the rights of an accused in a criminal case. The same right is
not availing to a defendant in a civil case under summary procedures.

Small Claims Proceedings

It contains prohibition against counsels appearing in court.
The scheme in Small Claims proceedings is that they are not required to prepare their own
pleadings. In Metro Manila, the MTC assigned to entertain these claims have ready forms for
complaints or answer to be filed in court. Minimal docket fee is paid.
Joinder of causes of action is allowed, so long as the aggregate should not go beyond 100k
exclusive of interest, damages, etc.
Prohibited pleadings and motions : similar to summary proceedings.
Judicial dispute resolution MTC encourage parties as much as possible to enter into a
compromise agreement.
Small claims procedure has nothing to do with criminal cases, only civil collection cases.
In small claims procedure, the judgment is immediately final and executory, no appeal available.
Motion for new trial, motion for reconsideration and petition for relief from judgment are not
available. The only remedy available to an aggrieved party is under Rule 65, Certiorari. Thus, there
is no appeal, plain, speedy or adequate remedy available.

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

Back to pleadings.
PLEADINGS AND CONTENTS OF PLEADINGS
Rule 6 and Rule 10 (Take them as one set, as they refer to the same thing, pleadings and content
of pleadings)
Pleadings should always be in writing.
The rules now allow a parties/litigants to make use of 9 pleadings, but numerous motions.
Classes of pleadings:
1. Claim pleading (7 kinds)
2. Responsive pleading (2 kinds)
Claim Pleadings:
1. Complaint
2. Counter-claim
3. Cross-claim
4. Third-party complaint
5. Amended pleading
6. Supplemental pleading
7. Petition
Responsive Pleading:
1. Answer
2. Reply
Defendant may make use of certain claim pleadings under appropriate circumstances. Ex. Answer
with counterclaim and cross-claim.
RULE 7 CERTIFICATION OF NON-FORUM SHOPPING

Classification of pleadings under Rule 7:

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

COMPLAINT
Ultimate facts In ordinary civil cases, ultimate facts should be alleged in the complaint. But
plaintiff is not sanctioned in case evidentiary facts are included therein, wherein the plaintiff also
presents evidence he intends to present in court.
In several circulars, in certain proceedings, a complaint need not state just ultimate facts. In a
complaint filed under summary proceedings, plaintiff is encouraged to include in his complaint
evidentiary facts and to attach his evidence in the document. In Kalikasan proceedings, the plaintiff
is required to attach to his complaints all the evidence that are in the possession of the plaintiff
(documentary, testamentary or object). In Kalikasan cases, the defendant should include his
evidence in the answer, aside from specific denials.
Take Note: Even Rule 6 does not prohibit alleging evidentiary facts along with ultimate facts. Rule 6
does not impose sanctions if evidentiary facts are included in the pleadings. But the inclusion in the
complaint of ultimate facts alone is sufficient.

The ultimate facts are those that constitute the cause of action, an allegation that the plaintiff has a
right, an allegation that the defendant has violated that right, or an allegation of compliance with
conditions precedent that gave rise to accrual of the cause of action.
Insofar as the answer is concerned, it is the pleading in response to a complaint. It may contain
positive or negative defenses or both along with evidentiary facts. The defendant, however, cannot
move for the court to order the plaintiff to present evidentiary facts in his complaint as the
statement of the ultimate facts alone in the complaint are sufficient.
Problems arise when an answer interposes a negative defense.
Negative Defense
In civil cases, a negative defense is always an important part of the answer. (Specific denial)
What is the standard to follow that a denial is specific?
It is found in Sec. 10 Rule 8 (Relate Rule 6 with this).
3 modes where a specific denial can be had:
1. Total denial of the allegations in the complaint with accompanying statements in which he will
have to rely his defenses on
2. Part denial and part admission
3. Just a statement by defendant that he has no knowledge or information about the truth of the
allegation and therefore defendant specifically denies the allegation
Theoretically, the defendant can make use of any mode of denial right away.
The court has in several cases discouraged the 3rd mode of specific denial, and imposed some
sanctions if a defendant insists in using the 3rd mode as the only mode contained in his answer.
SC has given sanctions in several cases. SC held that if the defendant had no knowledge or
information on the matter, defendant should explain why. Failure to do so, such denial will not be
considered a specific denial. A general denial will be treated as a judicial admission to the
allegations contained in the complaint. Thus, a judgment on the pleadings can be had upon motion
of the plaintiff.
Another form of denial frowned upon by jurisprudence are the following: I specifically deny
paragraph_ because I had not dealt with the plaintiff or I specifically deny paragraph _ of the
complaint. They are considered as negative pregnant. They are specific denials that contain no
ground relied upon in support of the denial, and thus are considered as general denial. The remedy
of the defendant is to amend the answer as a matter of right as provided in Rule 10.

Rule 10 Amendment as a matter of right

Done before a responsive pleading is filed or before expiration of the period to file such responsive
pleadings.

Note: A general denial is allowed in Habeas Corpus cases, but expressly prohibited in Writ of
Amparo and Habeas Data cases.

Counter-claim
It is a claim made by a defendant against a plaintiff.
Permissive vs. Compulsory counterclaim.
Study Compulsory Counterclaim as discussed in the Rules.
Compulsory Counterclaim
Permissive Counterclaim
One which arises out of or is necessarily connected with the transaction or occurrence that is the
subject matter of the opposing partys claim (Sec.7, Rule 6)
It does not arise out of nor is it necessarily connected with the subject matter of the opposing
partys claim
It does not require for its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction
It may require for its adjudication the presence of third parties over whom the court cannot acquire
jurisdiction
Barred if not set up in the action (Sec. 2, Rule 9)
Not barred even if not set up in the action
Need not be answered; No default
Must be answered,: Otherwise, default
Not an initiatory pleading.
Initiatory pleading. (Riano, Civil Procedure: A Restatement for the Bar, p. 336, 2009 ed.)
Need not be accompanied by a certification against forum shopping and certificate to file action by
the Lupong Tagapamayapa.
Must be accompanied by a certification against forum shopping and whenever required by law,
also a certificate to file action by the Lupong Tagapamayapa (Santo Tomas University v. Surla,
G.R. No. 129718, Aug. 17, 1998) (2007 Bar Question).
The court has jurisdiction to entertain both as to the amount and nature (Sec. 7, Rule 6; Ibid p.331)
Must be within the jurisdiction of the court where the case is pending and cognizable by regular
courts of justice otherwise, defendant will have to file it in separate proceeding which requires
payment of docket fee
Compulsory Counterclaim filed in the RTC vs. that filed in the MTC
A compulsory counterclaim filed in RTC cannot be a compulsory counterclaim filed in the MTC.
Ex. Counterclaim filed in the RTC states that the case filed was unjust and defendant claimed legal
expenses amounting to 200k. This is considered to be a compulsory counterclaim in the RTC even
if such amount is below the threshold for claims in the RTC. We cannot challenge the RTCs
jurisdiction by the amounts claimed in the counterclaim.

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

Reply
The filing of a reply is generally not necessary. It is in fact next to useless.
Note: If a party does not file such reply. All the new matters that were alleged in the answer are
deemed controverted (Sec. 10, Rule 6) (not deemed admitted).
The matters not answered in the reply are deemed controverted (not admitted). In a complaint, if
the allegations therein are not specifically denied or were not dealt with in the answer, they are
deemed admitted. If the defendant does not specifically deny or does not set up proper affirmative
defenses in the answer, the defendant is sanctioned by law. This will lead the court to conclude that
the defendant has admitted all allegations in the complaint, and thus will lead to a judgment on the
pleadings.
But if the defendant filed an answer properly crafted, introducing a new matter. The new matter
asserts a positive defense of extinguishment, for example, which is a ground for a motion to
dismiss. The plaintiff does not file a reply. Is the plaintiff deemed to have admitted the new matter?
No. The new matter alleged in the answer is deemed controverted even without a reply. Plaintiff
need not submit a reply as the law itself that the new allegation or matter is deemed controverted to
be subjected to trial in the court.
Under Rule 16, the defendant can now ask for a preliminary hearing to determine whether there
was extinguishment or not. But for purposes of a reply, there is no need for the plaintiff to controvert
the new matters. The second sentence of the definition of a reply is the most important. All matters
alleged in the answer are deemed controverted, and a reply need not be filed.
EXCEPTIONS:
1. Where the answer alleges the defense of usury in which case a reply under oath should be
made. Otherwise, the allegation of usurious interest shall be deemed admitted. (NO LONGER
APPLICABLE)
2. Where the defense in the answer is based on an actionable document, a reply under oath
pursuant to Sec. 8 of Rule 8 must be made. Otherwise, the genuineness and due execution of the
document shall be deemed admitted.

Under our present rules, allegations of usury MUST be contained in a complaint or similar
pleadings. The law is not specific, but given the liberal interpretation of the rules, it leads to the
conclusion that as long as the allegations of usury are contained in a complaint or similar pleading
like counter-claim or cross-claim, there is a need for specific denial. The responsive pleading would
be an answer, not a reply. If the allegation of usury is contained in a counterclaim/cross-claim, the
responsive pleading is an answer to the counterclaim/cross-claim. If the allegation of usury is
contained in an answer, there is no need to specifically deny in the reply.
The only exception applicable is when the answer is founded on an actionable document. The law
says that when the defense is founded on an actionable document, the plaintiff, if he wants to make
a denial of the actionable document, must do so specifically and under oath. Otherwise, the
genuineness and due execution of that actionable document will be deemed admitted (a judicial
admission).
What is an actionable document?
A: Referred to as the document relied upon by either the plaintiff and the defendant. (Araneta, Inc.
vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A promissory note in an action for collection of a
sum of money. (Riano, Civil Procedure: A Restatement for the Bar, p. 101, 2009 ed.)
Note: This manner of pleading a document applies only to an actionable document, i.e., one which
is the basis of an action or a defense. Hence, if a document does not have the character of an
actionable document, it need not be pleaded strictly in the manner prescribed by the rules (Ibid
p.102)
How are actionable documents pleaded?
A: By setting forth:
1. The substance of such document in the pleading and attaching said document thereto as an
exhibit
2. Include the contents of the document verbatim in the pleading (Sec. 7, Rule 8).
Note: A variance in the substance of the document set forth in the pleading and the document
annexed thereto does not warrant the dismissal of the action (Convets, Inc. v. National
Development Co., G.R. No. L-10232, Feb. 28, 1958). However, the contents of the document
annexed are controlling.
For example, the defendant alleges payment in his answer supported by a receipt issued by the
plaintiff, acknowledging full liquidation of the indemnity. Under law, if the claim or demand is based
on an actionable document, it is imperative upon the impleader to allege on the pleading the
actionable document.
Can the plaintiff simply file an affidavit in opposing the actionable document?
The only way that a plaintiff can make a specific denial under oath against the actionable document
alleged in an answer is by way of a reply. This is because, this is the only pleading that is available
that responds to an answer. If the plaintiff makes a reply setting up a specific denial, he should also

see to it that the specific denial is under oath. If he did not do so, the genuineness and due
execution of the actionable document is deemed admitted.
Take note of the exceptions in the Rules as to non-availability of the judicial admission of the
genuineness and due execution of an actionable document if there is no specific denial under oath.
There are 2 exceptions:
1. When the adverse party does not admit being a party to that document, or
2. Even if such party is a party to the document, there being an order issued by the court for the
inspection of the original document, the said party does not comply with that order.
The mode of impleading an actionable document was held by the SC to be mandatory. If the party
impleading such did not follow the modes provided in the Rules for impleading of an actionable
document, the party will not be allowed to present proof of his cause of action or defense as the
case may be, as the attachment of the actionable document or adding of the contents of that
actionable document in the allegations of the pleadings will adversely affect the other party.

Third/Fourth Party Complaint, Etc.

There can potentially be no end to the number of parties in the complaint as long as the allegations
in the pleadings have something to do with the claim of the plaintiff in his complaint. If you would
notice among the pleadings, it is only the third/fourth party complaint, etc. that would require leave
of court. The third/fourth party complaint, etc. must allege that the third/fourth party defendant is
liable to the said third/fourth party plaintiff, by reason of contribution, subrogation or any other relief
in relation to the subject matter of the claim in the complaint. The third/fourth party complaint is
always connected to the subject matter of the complaint.
If a complaint for instance is for the recovery of an unpaid loan, a third party complaint cannot
contain a claim for the recovery of ownership of a piece of land. The subject of the third party
complaint should always be related to the subject of the complaint.
Why do we need leave of court in order to file a third party complaint?
This is because a third party complaint will forcibly bring into the action a stranger to the case. The
third party defendant is a stranger to the case. This is why the rules require that the court should
be given discretion whether to allow or not to allow the third party complaint to see if there is a
need to bring a stranger to the case or even if there may be a need, the claim is unrelated to the
subject to the case. If the court denies the motion for admission of a third party complaint, the
remedy of the defendant is to file a separate complaint against the third party defendant.
It is in third party complaints that will best illustrate the meaning of ancillary jurisdiction of a trial
court.
Q: What is a third (fourth, etc.) party complaint?
A: A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file
against a person not a party to the action, called the third (fourth, etc.) party defendant, for

contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (Sec.11,
Rule 6)
Q: Distinguish a third-party complaint from the rules on bringing in new parties.
A: A third-party complaint is proper when not one of the third-party defendants therein is a party to
the main action. Whereas in bringing in new parties, if one or more of the defendants in a
counterclaim or cross-claim is already a party to the action, then the other necessary parties may
be brought in under the rules on bringing in new parties
Q: Why is leave of court necessary in third (fourth, etc.) -party complaint?
A: To obviate delay in the resolution of the complaint such as when the third-party defendant
cannot be located; or unnecessary issues may be introduced; or the introduction of a new and
separate controversy. (Herrera, Vol. I, p. 705, 2007 ed.)
Q: What are the tests to determine whether the third-party complaint is in respect of plaintiffs
claim?
A:
1. Whether it arises out of the same transaction on which the plaintiffs claim is based, or, although
arising out of another or different transaction, is connected with the plaintiffs claim;
2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part
of the plaintiffs claim against the original defendant; and
3. Whether the third-party defendant may assert any defenses which the third-party plaintiff has or
may have to the plaintiffs claim.
Note: Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third
party complaint, regardless of the amount involved as a third-party complaint is merely auxiliary to
and is a continuation of the main action (Republic v. Central Surety & Insurance Co., G.R. No. L27802, Oct. 26, 1968).
A third party complaint is not proper in an action for declaratory relief. (Commissioner of Customs
v. Cloribel, G.R. No. L-21036, June 30, 1977).
Note: The court is vested with the discretion to allow or disallow a party to an action to implead an
additional party. Thus, a defendant has no vested right to file a third party complaint (China
Banking Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p. 342, 2009 ed.).

Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get full
payment, Abby went after UNICAPs debtor Ben. Ben is a policy holder of Insular. The courts
sheriff then served a notice of garnishment to Insular over several account receivables due to Ben.
Insular refused to comply with the order alleging adverse claims over the garnished amounts. The
trial court ordered Insular to release to Abby the said account receivables of Ben under the
policies. Insular then filed a petition for certiorari with the CA alleging that the trial judge gravely
abused his discretion when he issued the garnishment order despite its adverse claim on the

garnished amounts. The CA gave due course to the petition and annulled the order of the trial
court. Is the Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a thirdparty claim. Since the third-party claimant is not one of the parties to the action, he could not,
strictly speaking, appeal from the order denying its claim, but should file a separate reinvindicatory
action against the execution creditor or a complaint for damages against the bond filed by the
judgment creditor in favor of the sheriff. The rights of a third-party claimant should be decided in a
separate action to be instituted by the third person (Solidum v. CA, G.R. No. 161647, June 22,
2006).

Q: What is Doctrine of Ancillary Jurisdiction?

A: It involves the inherent or implied powers of the court to determine issues incidental to the
exercise of its primary jurisdiction.
Note: Under its ancillary jurisdiction, a court may determine all questions relative to the matters
brought before it, regulate the manner in which a trial shall be conducted, determine the hours at
which the witnesses and lawyers may be heard, and grant an injunction, attachment or
garnishment.
Let us say that the subject of the complaint is the recovery of 1M unpaid loan. The competent court
is an RTC. The defendant asks the court for permission to file an answer with a third party
complaint. In the third party complaint, the defendant asserts that Juan de la Cruz is bound to pay
defendant the sum of 200K by reason of contribution, indemnity, subrogation or any other relief.
With respect to the complaint, there is no question as to jurisdiction as the competent court is really
an RTC. It is with respect to the third party complaint where a jurisdictional issue is present. The
third party complaint is effectively a complaint filed by the defendant against a stranger to the case,
and the amount sought to be recovered is 200k, which is an amount not within the jurisdiction of
the RTC. Can the court, upon motion by the third party defendant, order the dismissal of that third
party complaint on the ground of lack of jurisdiction over the subject matter of the case?
No. We apply rule of ancillary jurisdiction of a trial court. If the trial court has jurisdiction over the
principal complaint filed by the plaintiff against the defendant, the same court will exercise ancillary
jurisdiction over all collateral pleadings, incidental pleadings that are related to the complaint. Thus,
the third party complaint to recover 200k is still cognizable by the same court.
Is it correct to say that third party complaint or fourth party complaint would be the only pleadings
which will enable a litigant to bring in a stranger to the case? Can a litigant bring in a stranger
without a third or fourth party complaint?
No. The Rule does not say that it is the only means/pleading available to bring in a stranger to the
case.
Can the defendant compel a stranger to be a party to the case by filing a counterclaim or crossclaim?

The law authorizes the defendant to bring in a stranger by filing a permissive or compulsory
counter-claim. The law authorizes the defendant to bring in a stranger to the case through the filing
of a cross-claim. Although the Rules defines a cross-claim as a claim by a defendant against his
co-defendant, the Rules does not say that in filing a cross-claim against a co-defendant that a third
person can be impleaded in the cross-claim.
In the definition of a counterclaim, the defendant could set up the counterclaim against the plaintiff
or against any party or person who is not yet a party to the case, as long as the court can acquire
jurisdiction over the person of the said person.
Why do we allow a defendant to bring in a stranger to the case by not using a third-party complaint
but by cross-claim or counterclaim, especially when such is compulsory?
Because there is another provision in the Rules which say that if there is a compulsory
counterclaim or cross-claim not set up in the answer, that compulsory counterclaim or cross-claim
are barred. If there is a need to implead a stranger, he should be allowed to implead a stranger,
although not via a third party complaint.
Sec. 11 Rule 6 provides a cross-claim or counterclaim could be the basis for the court to bring in a
stranger to the case for the complete determination of the issues.

FORMS OF A PLEADING
A pleading must always be signed. An unsigned pleading will be treated as a sham pleading. You
cannot submit an unsigned pleading. The court motu propio can order the striking out of the
pleading.
Who will sign the pleading?
The litigant can sign the pleading. Or, his counsel can sign for him. Either or both can sign the
pleading.
Are there pleadings that are inadmissible by the court if the only signature is that of the lawyers?
By way of exception, yes, in case of marriage annulment cases, according to the SC Circular, the
complaint and the answer must be signed also by the party himself. If signed only by the lawyer
alone, the court will not accept the pleading.
But generally, the signature of the counsel is enough for a pleading to be accepted by the court.
Q: What is the effect of lawyers signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the pleadings;
2. That to the best of his knowledge, information and belief there is good ground to support it; and
3. That it is not interposed for delay. (Sec. 3, Rule 7)

VERIFICATION
Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required by law or rule, pleadings need not be under
oath, verified or accompanied by affidavit. (Sec. 4, Rule 7)
Q: What is the significance of verification?
A: it is intended to secure an assurance that the allegations in a pleading are true and correct and
not the product of the imagination or a matter of speculation, and that the pleading is filed in good
faith. The absence of a proper verification is cause to treat the pleading as unsigned and
dismissible (Chua vs. Torres, 468 SCRA 358; Riano, Civil Procedure: A Restatement for the Bar, p.
60, 2009 ed.)
Q: What are the pleadings that should be verified?
A: The following should be verified:
1. Petition for relief from judgment
2. Petition for review from the RTCs to the CA
3. Petition for review from the CTA and quasi-judicial agencies to the CA
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or final orders and resolutions
6. Complaint for injunction
7. Application for appointment of receiver
8. Application for support pendente lite
9. Petition for certiorari against the judgments, final orders or resolutions of constitutional
commissions
10. Petition for certiorari, prohibition, mandamus, quo warranto
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful detainer
13. Petition for indirect contempt
14. Petition for appointment of general guardian
15. Petition for leave to sell or encumber property of an estate by a guardian
16. Petition for the declaration of competency of a ward
17. Petition for habeas corpus
18. Petition for change of name
19. Petition for voluntary judicial dissolution of a corporation;
20. Petition for correction or cancellation of entries in Civil Registry.
(1996 Bar Question)
Q: What are the effects of lack of verification?
A:
1. A pleading required to be verified but lacks the proper verification shall be treated as an
unsigned pleading (Sec. 4 as amended by A.M. 00-2-10, May 1, 2000). Hence, it produces no legal
effect (Sec. 3, Rule 7)

2. It does not necessarily render the pleading defective. It is only a formal and not a jurisdictional
requirement. The requirement is a condition affecting only the form of the pleading (Benguet Corp.
v. Cordillera Caraballo Mission, Inc., G.R. No. 155343, Sept. 2, 2005) and non-compliance
therewith does not necessarily render it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471,
Feb. 5, 2007)
3. The absence of verification may be corrected by requiring an oath. The rule is in keeping with
the principle that rules of procedure are established to secure substantial justice and that technical
requirements may be dispensed with in meritorious cases (Pampanga Sugar Development Co.,
Inc. v. NLRC, G.R. No. 112650, May 29, 1997)
If the law requires a pleading to be verified, but the pleading is not verified or there is insufficient
verification, the absence or insufficiency would mean that the pleading is effectively an unsigned
pleading. Therefore it produces no legal effect.
With respect to verification, the general rule is we do not require that pleadings should be verified.
It is only in instances where the law requires verification that the pleading should be verified. Also,
take note that Rule 7 is very emphatic as to how to verify a pleading.
Q: How are pleadings verified?
A: It is verified by an affidavit. This affidavit declares that the:
1. Affiant has read the pleading; and
2. Allegations therein are true and correct of his personal knowledge or based on authentic records
(Sec. 4, Rule 7)
If the verification is not according to the tone given in the Rules, that will be an inadequate or
insufficient verification. And under Rule 7, the absence or inadequacy of the verification shall result
in an effectively unsigned pleading.
But the SC keeps on ignoring the Rules on verification. Although it would appear in Rule 7 that
absence of verification could be a fatal defect, the SC keeps on ruling that the absence of
verification is only a formal defect. If you come across a question concerning the need to verify a
pleading or determining the adequacy of a verification in a pleading, and you are asked what is the
effect, based on rulings by the SC, in instances required by law for submission of a pleading with
an inadequate verification is only a formal defect.
A complaint, a permissive counterclaim, cross-claim, a third/fourth party complaint, all of these
being initiatory pleadings, must have a certification of non-forum shopping. Does it mean to say
that Verification of a pleading is now the general rule, given that in Rule 7, initiatory pleadings must
carry with them a certification of non-forum shopping?
No. Certification of Non-forum shopping is different from verification of a pleading.
Verification of a pleading refers to the allegations in the pleading. The verification states that one
has read the pleading and that it is correct based on his personal knowledge or based on authentic
records. The contents of certification of non-forum shopping does not have anything to do with the

contents of an initiatory pleading, as it simply certifies that no similar case had been filed in any
other court, tribunal or body, and to notify the court right away if one should come to know of such
fact.
In the case of a Certification of Non-Forum Shopping, the SC appears to have adapted the rule of
substantial compliance as to the requirements of the certifications contents. Take note that the
Rules say that all principal plaintiffs should sign the certification. Otherwise, the certification will be
ineffective. This defect is not curable by amendment under Rule 7.
There was a recent case wherein the complaint had 5 principal plaintiffs and only two of them
signed. The defendant challenged the authority of the court receive the case as the certification
was ineffective. The court refused to dismiss the case. The court said that it will go ahead with the
case but will drop the claims where the non-signing plaintiffs are concerned. In effect, the court
said the signature of the two plaintiffs will of substantial compliance with the requirement.
As to the issue of a lawyer signing the certification of non-forum shopping, the general rule being
that a party himself must sign, if the lawyer sign for the plaintiff, the lawyer must be able to show
his authority to do so via a special power of attorney authorizing him to sign in the stead of his
client.
REQUIREMENTS OF A CORPORATION EXECUTING THE VERIFICATION/CERTIFICATION OF
NON-FORUM SHOPPING
Q: What is the rule when the plaintiff is a juridical person?
A: The certification against forum shopping where the plaintiff is a juridical entity like a corporation,
may be executed by properly authorized person. This person may be a lawyer of a corporation. As
long as he is duly authorized by the corporation and has personal knowledge of the facts required
to be disclosed in the certification, such may be signed by the authorized lawyer (National Steel
Corporation vs. CA, 388 SCRA 85; Riano, Civil Procedure: A Restatement for the Bar, p. 70, 2009
ed.)
Q: Corporation XYZ is the petitioner in a civil case. Alexander, president of corporation XYZ, signed
the certification against forum shopping in behalf of said corporation without presenting any proof
of authority from the corporation. Is the certification against forum shopping valid? If not, how may
it be cured?
A: No. When the petitioner in a case is a corporation, the certification against forum shopping
should be signed by its duly authorized director or representative. The authorized director or
representative of the corporation should be vested with authority by a valid board resolution. A
proof of said authority must be attached with the certification (PAL v. FASAP, G.R. No. 143088,
Jan. 24, 2006).

RULE 9 (Effect of Failure to Plead) and Omnibus Motion Rule

Basic Principles contained in Rule 9:

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

Can there be a judgment in the alternative?

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

Non-waivable defenses in civil procedure

Res judicata
Prescription
Lack of jurisdiction over the subject matter

Litis pendencia
Non-waivable defenses in criminal procedure
Double jeopardy
Prescription of the penalty imposed
Lack of jurisdiction over the subject matter

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

PRINCIPLE OF AMENDMENT OF PLEADINGS TO CONFORM TO EVIDENCE

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

DEFAULT
Q: When is a declaration of default proper?
A: If the defending party fails to answer within the time allowed therefor, the court shall upon motion
of the claiming party with notice to the defending party, and proof of such failure, declare the
defending party in default (Sec. 3, Rule 9, Rules of Court). (Riano, p. 507, 2005 ed.)
Q: In what situations where declaration of default is proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or responsive pleading despite valid service of summons;
2. Defendant filed an answer or responsive pleading but beyond the reglementary period; and
3. Defendant filed an answer to the court but failed to serve the plaintiff a copy as required by the
Rules.
EFFECT OF AN ORDER OF DEFAULT
Q: What are the effects of an order of default?
A:
1. The party declared in default loses his standing in court. The loss of such standing prevents him
from taking part in the trial [Sec. 3(a), Rule 9];
2. While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of
subsequent proceedings [Sec. 3 (a), Rule 9]. It is submitted that he may participate in the trial, not
as a party but as a witness; and
3. A declaration of default is not an admission of the truth or the validity of the plaintiffs claims
(Monarch Insurance v. CA, G.R. No. 92735, June 8, 2000).
RELIEF FROM AN ORDER OF DEFAULT
Q: What are the reliefs from an order of default?
A:
1. After notice of order and before judgment The defendant must file a verified motion to set aside
the order of default upon proper showing that:
a. His failure to answer was due to fraud, accident, mistake or excusable negligence; and
b. That he has a meritorious defense. [Sec. 3(b), Rule 9] (2000 & 1999 Bar Question)
2. After judgment and before judgment becomes final and executory He may file a motion for new
trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the
law (Talsan Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 169919, Sept. 11, 2009)
3. After the judgment becomes final and executory he may file a petition for relief from judgment
under Rule 38 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) (2006, 1998 Bar
Question)
4. Where the defendant has however, been wrongly or improvidently declared in default, the court
can be considered to have acted with grave abuse of discretion amounting to lack or excess of
jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial

records, he may avail of the special civil action of certiorari under Rule 65 (Balangcad v. Justices of
the CA, G.R. No. 83888, Feb. 12, 1992)
EFFECT OF A PARTIAL DEFAULT
Q: What is the effect of partial default?
A:
GR: The court will try the case against all defendants upon the answer of some.
XPN: Where the defense is personal to the one who answered, in which case, it will not benefit
those who did not answer e.g. forgery. (1995 Bar Question)
EXTENT OF RELIEF
Q: What is the extent of relief?
A: The judgment shall not exceed the amount or be different in kind from that prayed for nor award
unliquidated damages [Sec. 3(d), Rule 9]. However, if the court orders submission of evidence,
unliquidated damages may be awarded based on such.
ACTIONS WHERE DEFAULT ARE NOT ALLOWED
Q: When is default not allowed?
A:
1. Actions for annulment;
2. Declaration of nullity of marriage and legal separation [Sec. 3(e), Rule 9]; and
3. In special civil actions of certiorari, prohibition and mandamus where comment instead of an
answer is required to be filed.
There are several instances where declaration of default is prohibited like mortgage, the rules on
summary procedures, Writ of Amparo, Writ of Habeas Data, and marriage related cases. It is not
correct to say that it is absolute in civil actions that if a defendant does not file his responsive
pleading, he can be declared in default. What is clear is the general rule: If a complaint is filed,
summons is served upon the defendant, but defendant does file an answer within the reglementary
period, the defendant can be declared to be in default upon motion of the plaintiff.
The court cannot motu propio declare the defendant in default. Motion must be made by the
plaintiff before declaration of default can be had. Failure to file the motion for declaration of default
by the plaintiff can result to the complaint being dismissed for failure to prosecute for an
unreasonable length of time under Rule 17. It is a dismissal with prejudice.
Suppose Plaintiff files a motion for declaration of defendant in default, but the motion was for that of
an ex-parte motion to declare defendant in default. The reasoning is that since the defendant had
not bothered to file an answer, there is no use of serving notice to the defendant. This is for the
plaintiff to prevent the defendant from entertaining the idea that he must file an answer to prevent
being declared in default. Is plaintiff correct?
No. Rule 9 is very clear that a copy of the motion to declare defendant in default should be served
upon the defendant. If such copy is not served upon the defendant, that motion will not be acted
upon by the court.

What if the defendant filed an answer after receiving a copy of the motion to declare him in default,
can the court still declare him in default?
Yes, if the court follows strictly Rule 9. But, as a matter of policy, an answer filed out of time will not
result in the defendant in being declared in default. SC held repeatedly that as much as possible
the technical aspects of default should not be applied strictly in the interest of furtherance of justice.
Even if the period to answer has already expired, but an answer is filed out of time, the courts will
still admit that answer and deny the motion to declare the defendant in default. The reason why SC
adopted this policy is because at present, under Rule 9, if defendant is declared in default, the
court can right away render a judgment in default against defendant without conducting a trial.
Under Rule 9, the court is given 2 choices: to render a judgment of default based on the complaint
(judgment on the pleadings), or to order the complainant to present evidence ex-parte in support of
his allegations. At least in the second option, there can be presentation of evidence, unlike in the
first option where only the pleadings will be the basis of the judgment. And if there is a trial ex-parte
on default ordered by the court, the defendant will not be allowed to participate in the proceedings,
unless he is able to secure an order to lift the default.
Rule 9 is very explicit in stating that the award in default judgments cannot be greater than that
prayed for in the complaint, even if there is an ex-parte presentation of evidence showing evidence
thereto. This limiting of award is only allowed in default cases where plaintiff is allowed to present
evidence ex-parte.
Default Under Rule 18 Pre-Trial
Plaintiff does not appear during pre-trial or failed to submit pre-trial brief = dismissal of the
complaint.
Defendant does not appear during pre-trial or non-submission of pre-trial brief on time = ex parte
presentation of evidence by plaintiff and court can render judgment based thereon.
Comparison between Rule 9 and Rule 18 Default
Rule 9
Rule 18
In Rule 9, defendant shall be declared in default for not filing an answer.
Under Rule 18, a plaintiff shall be declared in default for not appearing during pre-trial or failure to
submit a pre-trial brief, while a defendant shall be declared in default for not appearing or
submitting a pre-trial brief on time.
The court cannot grant a relief more than that alleged in the complaint.
The court can grant a relief more than that alleged, based on what the plaintiff can prove based on
his evidence presented.
In Rule 9, the defendant in default has not filed an answer at all. The court is considered to have
been taking pity on a defendant who had surrendered.
In Rule 18, the defendant already filed an answered. The defendants failure to comply with
attending a pre-trial conference or file a pre-trial brief is meted with severe sanction. Also, the fact
that the court gives the plaintiff the opportunity to present his evidence, what the plaintiff proves on
evidence shall be the basis of the judgment of the court.

During ex parte presentation during pre-trial, the plaintiff was able to prove damages of 2M.
However, the complaint alleges only 1M. The court awarded 2M. Is the court correct? Why?
Yes, the court is correct. This is because the defendant has failed to comply with a court order to
either appear in pre-trial or to submit a pre-trial brief, and thus the court can sanction defendant at
default. Also, since the court allows the plaintiff, as provided under Rule 18, to present evidence to
prove his allegations, what the plaintiff was able to prove shall be the basis of the courts judgment.
PARTIAL DEFAULT
Partial default one of several defendants, sued under a common cause of action, is declared in
default, while the others can still participate in the case.
Default is founded on the premise that the defendant has been served with summons but chose
not to response within the reglementary period.
Can there be a judgment in default against the non-answering defendants?
No, the court cannot do that. In case of several defendants, of which some have filed an answer,
the most that the court can do is to declare the non-answering defendants in default. The court
cannot declare the answering defendants in default as there is no reason to do that. Insofar as the
non-answering defendant is concerned, they shall be declared in default but there could be a
separate judgment that will be rendered.
Can the answering defendant call the defendants in default as witnesses?
Yes. Defendants declared in default can be witnesses, although he will not be allowed to
participate as a litigant.
If the court finds for the answering defendant, will that decision also affect the defendants declared
in default?
Yes. Whatever happens to the case, the defendants in default shall be subject to the decisions
rendered. Thus, if the answering defendant wins, the decision shall also be in favor of the
defendants in default. This is one situation where a defaulting defendant can prevail in the case.
The reason is that the non-answering defendants are sued under a common cause of action with
answering defendants.
In one case, the creditor who sued 2 defendants where one had answered and other failed to
answer, and subsequently ordered by the court to be declared in default, his counsel most likely
told him about this principle in default. The plaintiff moved for the dismissal of the complaint against
the answering defendant. The answering defendant did not object to the dismissal. The case
caption was then changed to plaintiff versus the defendant in default. Can the court now ask for
presentation of evidence ex-parte?
SC held that it is not necessary. Even if the answering defendant has been dropped from the case
upon the initiative of the plaintiff, what the trial should examine is whether or not the answering
defendant is an indispensable party to the case. If answering defendant is an indispensable party,

then the court should require the inclusion of such party. What the court should do is to order the
plaintiff to amend his pleadings and include the indispensable party. Failure to do so will be
dismissal of the complaint with prejudice under Rule 17. This is because if answering defendant is
an indispensable party but he is not around, the proceedings of the court could be void, it would be
useless for the court to try the case. And under the new doctrines enunciated by the SC, if an
indispensable party has not been included or has been dropped from the case, the court should
compel the indispensable party to be impleaded via an amendment to the complaint. Failure of
plaintiff to do so will allow the court to dismiss the case with prejudice under Rule 17 for refusal to
obey a lawful court order.
Since it is disadvantageous for a non-answering defendant to be declared in default, what are the
remedies given by law to the defaulting defendant?
To file a motion to lift the order of default at any time before judgment, the motion, filed with an
affidavit of merit along with his proposed answer, alleging the reasons of why he defaulted and
alleging that he has a good defense as stated in the proposed answer.
If the motion to lift the order of default is denied, it is inappealable, being an interlocutory decision.
Denial to lift order of default Rule 65 can be had, but appellant must show that the court acted
with lack or in excess of jurisdiction
If the court has already rendered judgment by default (after motion to life order of default has been
denied), defendant can appeal. A judgment by default is an adjudication on the merits, hence
appealable, Rule 65 is automatically non-available as a rule.
If court lifted order of default, the defendant should file the answer as soon as possible. The court,
as a matter of public policy, should allow the defendant who had been in default to file his answer.
The court should not deprive defendant the right to present his side before the court.

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

Plaintiff filed a case for accion reinvindicatoria. The assessed value of the property determined
jurisdiction. It was filed in the RTC. No allegation was included as to the value of the property. Can
RTC dismiss the case?
Yes. If the court is unable to determine that it has jurisdiction over the case, as in this instant, it may
dismiss the case for lack of jurisdiction over the subject matter of the case.
Plaintiff failed to make the necessary jurisdictional averment. Having discovered it, he amended the
complaint and submitted it prior to an answer made. Is the plaintiff correct?
Yes. The amendment was an amendment as a matter of right. The plaintiff has the right amend his
complaint once before a responsive pleading is filed, even to the extent of amending the averment
to confer jurisdiction. Thus, the plaintiff is correct to amend his pleading to include the jurisdictional
averment.

This is applicable for example in unlawful detainer, wherein the plaintiff failed to allege in his
complaint that a final demand had been made. Plaintiff may amend his complaint as a matter of
right to include the said allegation.
The plaintiff made a change in the cause of action in the complaint, and the amendment was as a
matter of right. Is this allowed? What if an answer was already filed?
If amendment is a matter of right, the plaintiff can change his pleadings cause of action.
If amendment is not a matter of right, the plaintiff must be authorized by the court (given leave) to
amend the pleading to include another cause of action or change a cause of action.
All pleadings can be amended as a matter of right or with prior leave of court.
Philippine Ports Authority vs. Gothong 2008 (Change from a complaint for specific performance to
one for injunction.)
If amendment is a matter of right, the plaintiff can change his pleadings cause of action.
If amendment is not a matter of right, the plaintiff must be authorized by the court (given leave) to
amend the pleading to include another cause of action or change a cause of action.
Change in the cause of action in the complaint is a matter of discretion upon the court once an
answer had already been filed. As long as the amendment gives the parties the opportunity to tell
the court what is the true dispute between the parties, and as long as it does not involve prejudice
to substantial justice. Hence, if the complaint was amended not as a matter of right, the defendant
can also amend his answer, if needed, to properly respond to the amended complaint. In the
Gothong Case, the SC encouraged trial courts to liberally the Rule on amendment of pleadings,
whether as a matter of right or as a matter of discretion.
Defendant can change his denials in his answer from general to specific by filing an amended
answer as a matter of right. 2nd, 3rd etc. amendment must be with leave of court.
Amendment as a matter of right can only be availed of once, and it can be availed of only before an
answer has been filed.
Can we amend pleadings if the case has already been decided and is on appeal either in the CA or
SC?
Yes. Amendments can be done if it is only formal in nature. But if the amendment is substantial,
appellate courts will hesitate as such amendment will injure the rights of parties who had not
appealed. What can be brought on appeal are issues that have been raised from the trial court.

AMENDMENT TO CONFORM TO EVIDENCE UNDER RULE 10

AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE
Q: When may amendment be made to conform to or authorize presentation of evidence?

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

Q: Distinguish an amended pleading from a supplemental pleading.

A:
Amended Pleading
Supplemental Pleading
Refer to the facts existing at the time of filing of original pleading
Refers to facts occurring after the filing of the original pleading.
Supersedes the original, causes of action may be changed
Merely supplements the original pleading.
May be amended without leave of court before a responsive pleading is filed.
Always with leave of court
Amendment must be appropriately marked.
There is no such requirement in supplemental pleadings (Herrera, Vol. I, p. 854, 2007 ed.)

EFFECT OF AMENDED PLEADING

Q: What is the effect of an amended pleading?
A: An amended pleading supersedes the pleading it amends. However, admissions in the
superseded pleading can still be received in evidence against the pleader. Claims or defenses
alleged therein but not incorporated or reiterated in the amended pleading are deemed waived
(Sec. 8, Rule 10).
An amended pleading takes the place of the original pleading. Will the court discard the original
pleading?
No, the court will retain the pleading for court record purposes. Admissions made in superseded
pleadings are considered extra-judicial admissions. They can be rebutted.
Admissions made in the original pleadings are still admissions, but cannot be considered as judicial
admissions. They are mere extra-judicial admission by the person making it.
A judicial admission is always conclusive. It cannot be subject to rebuttal by evidence.

PERIOD TO FILE PLEADINGS

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

BILL OF PARTICULARS

Motion for leave to file bill of particulars there is inadequacy of the allegations contained in the
complaint.
As a rule, Rule 16, as to a bill of particulars, the inadequacy of the allegations in a complaint is not
a ground for the filing of a motion to dismiss the complaint.
Can there be an instance when a trial court may dismiss a case on ground of inadequacy or
vagueness in the allegations in the complaint?
Yes, by way of exception. The only instance when a defendant may file motion to dismiss due to
vagueness or inadequacy of the allegations in the complaint, instead of filing motion for bill of
particulars, is when the RTC is sitting as a commercial court. In this case, where there is
indefiniteness or vagueness in the allegations of the complaint, defendant may file a motion to
dismiss. This is because, in commercial courts, a motion for bill of particulars is forbidden as
outlined in the circular for commercial courts.
In ordinary civil cases, motion for bill of particulars is available to both sides. They should be in the
form of a motion.
While a motion for bill of particulars should comply with the requisites of a motion, so as not to be
deemed as a useless piece of paper, when the motion is submitted to the court, the court can act
upon the motion right away, without waiting for the hearing set for the motion, either granting or
denying such motion.
By its very nature, a motion for a bill of particulars should be filed by a defendant before submitting
an answer, or in case of a plaintiff, a reply. It is useless if a defendant files a motion for bill of
particulars after he has already filed his answer. It is understood that if a defendant has filed an
answer, it would mean that he has understood fully the allegations stated in the complaint.
What is a bill of particulars and when can it be availed of?
A: Before responding to a pleading, a party may move for a definite statement or for a bill of
particulars of any matter which is not averred with sufficient definiteness or particularity to enable
him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed
within 10 days from service thereof(Sec. 1, Rule12). (2003 Bar Question)
Note: Its purpose is to aid in the preparation of a responsive pleading. An action cannot be
dismissed on the ground that the complaint is vague or definite. (Galeon v. Galeon, G.R. No. L30380, Feb. 28, 1973).
If denied, the movant should file the required pleading in the remaining period, which should not be
more or less than 5 days.
But if the motion is granted, in case of a defendant, the court will order the submission of an
amended complaint or a bill of particulars, which will form part of the allegations contained in the
complaint.
If the plaintiff does not obey the order of the court to submit a bill of particulars, what is the remedy
of the defendant?

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

SUBSTITUTE SERVICE OF PLEADINGS AND MOTIONS VS. SUBSTITUTE SERVICE OF

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

SUMMONS
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the action brought against him (Gomez vs.
Court of Appeals, G.R. No. 127692, March 10, 2004). An important part of that notice is a direction
to the defendant that he must answer the complaint within a specified period, and that unless he so
answers, plaintiff will take judgment by default and may be granted the relief applied for (Sec. 2,
Rule 14). (Riano, p. 411 , 2005 ed.)
Q: What are the purposes of summons?
A:
1. Actions in personam
a. To acquire jurisdiction over the person of the defendant; and
b. To give notice to the defendant that an action has been commenced against him (Umandap v.
Sabio, Jr., G.R. No. 140244, Aug. 29, 2000)
2. Actions in rem and quasi in rem not to acquire jurisdiction over the defendant but mainly to
satisfy the constitutional requirement of due process (Gomez v. CA, G.R. No. 127692, Mar. 10,
2004).
What is the effect of voluntary appearance before the court? Explain.
A:
GR: The defendants voluntary appearance shall be equivalent to service of summons and the
consequent submission of ones person to the jurisdiction of the court (Sec. 20, Rule 14).
Note: Voluntary appearance cures the defect in the service of summons.
XPN: Special appearance in court to challenge its jurisdiction over the person of the defendant and
the inclusion in a motion to dismiss of other grounds shall not be deemed a voluntary appearance
(Sec. 20, Rule 14; La Naval Drug Corp. v. CA, G.R. No. 103200, Aug. 31, 1994).

Sec. 20, Rule 14, RoC

Instances when appearance of defendant is not tantamount to voluntary submission to the
jurisdiction of the court:
(a) when defendant files the necessary pleading;
(b) when defendant files a motion for reconsideration of the judgment by default;
(c) when defendant files a petition to set aside the judgment of default;
(d) when the parties jointly submit a compromise agreement for approval of the court;
(e) when defendant files an answer to the contempt charge;
(f) when defendant files a petition for certiorari without questioning the courts jurisdiction over his
person.
PERSONAL SERVICE
Q: When is personal service of summons proper?

A: Only if the suit is one strictly in personam. The service of summons must be made by service in
person on the defendant. This is effected by handing a copy of the summons to the defendant in
person, or if he refuses to receive it, by tendering the copy of the summons to him (Sec. 6, Rule
14). (Riano, p. 423 , 2005 ed.)
SUBSTITUTED SERVICE
Q: When is substituted service of summons proper?
A: In our jurisdiction, for substituted service of summons to be valid, it is necessary to establish the
following:
1. The impossibility of service of summons in person within a reasonable time;
2. The efforts exerted to locate the person to be served; and
3. Service upon a person of sufficient age and discretion in the same place as the defendant or
some competent person in charge of his office or regular place of business (Sabio, Jr., 339 SCRA
243 [2000]; Hamilton vs. Levy, G.R. No. 139283, November 15, 2000). (Riano, p. 427 , 2005 ed.)
CONSTRUCTIVE SERVICE (BY PUBLICATION)
Q: Is leave of court required in constructive service of summons?
A: This service always requires permission of the court.
Summons is the writ available to a trial court to enable the court to acquire jurisdiction over the
person of the defendant. Although not the only writ available for the court to acquire jurisdiction
over the person of the defendant, it is the usual writ used. The court can acquire jurisdiction over a
defendant by compulsion, even though it has not issued a summons. An example is in the case of
a special civil action under Rule 65, certiorari, prohibition and mandamus.
Certiorari, prohibition and mandamus are special civil actions. They are distinct from the case from
which that order or decision has originated. But in Rule 65, the Rules do not allow the certiorari
court or prohibition court to issue summons to the defendant. What Rule 65 authorizes is to issue a
notice to defendant/respondent requiring him to submit a comment before the court. That comment
will enable the court to acquire jurisdiction over the person of the respondent.
There is even that mode of acquisition where the court need not do anything, wherein a party
makes a voluntary appearance in court.

Service of Summons upon a unregistered/unlicensed foreign corporation with no resident agent

that transacted in RP:
In a 2011 Circular, summons upon a foreign private corporation can be served in four ways, with
leave of court:
1. Personal service of summons upon a foreign private corporation not doing business in RP, with
assistance of DFA and the court of the country where the foreign corporations main office is
located;
2. Publication of the summons in the country where the foreign corporation has its office
3. By facsimile message or by any electronic device authorized by the trial court

4. A combination of any one of the three as authorized by the court.

With respect to domestic private corporations, service of summons must be effected as stated in
the Villarosa vs. Benito case. It must be served upon the officers of the corporation stated
specifically in the RoC (President, Managing Partner, GM, Treasurer, Corporate Secretary or inhouse counsel of the corporation).In the Villarosa case, the branch manager was the one served
with summons, which is not among those officers listed in the Rules. Thus, the trial court did not
acquire jurisdiction over the corporation. This is still the rule observed.
EB Villarosa & Partner Co. Ltd. Vs. Benito
It should be noted that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict
compliance with the rules has been enjoined. In the case of Delta Motor Sales Corporation vs.
Mangosing, the Court held:
A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a
corporation. The officer upon whom service is made must be one who is named in the statute;
otherwise the service is insufficient. x x x.
The purpose is to render it reasonably certain that the corporation will receive prompt and proper
notice in an action against it or to insure that the summons be served on a representative so
integrated with the corporation that such person will know what to do with the legal papers served
on him. In other words, to bring home to the corporation notice of the filing of the action. x x x.
The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal
requirements as to the manner in which summons should be served on a domestic corporation. x
x x. (underscoring supplied).
Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule)
has been held as improper. Even under the old rule, service upon a general manager of a firms
branch office has been held as improper as summons should have been served at the firms
principal office. In First Integrated Bonding & Ins. Co., Inc. vs. Dizon, it was held that the service of
summons on the general manager of the insurance firms Cebu branch was improper; default order
could have been obviated had the summons been served at the firms principal office.
And in the case of Solar Team Entertainment, Inc. vs. Hon. Helen Bautista Ricafort, et al. the Court
succinctly clarified that, for the guidance of the Bench and Bar, strictest compliance with Section
11 of Rule 13 of the 1997 Rules of Civil Procedure (on Priorities in modes of service and filing) is
mandated and the Court cannot rule otherwise, lest we allow circumvention of the innovation by the
1997 Rules in order to obviate delay in the administration of justice.
Accordingly, we rule that the service of summons upon the branch manager of petitioner at its
branch office at Cagayan de Oro, instead of upon the general manager at its principal office at
Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of
the petitioner.
The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon
its person. There is no question that the defendants voluntary appearance in the action is
equivalent to service of summons. Before, the rule was that a party may challenge the jurisdiction
of the court over his person by making a special appearance through a motion to dismiss and if in
the same motion, the movant raised other grounds or invoked affirmative relief which necessarily
involves the exercise of the jurisdiction of the court, the party is deemed to have submitted himself

to the jurisdiction of the court. This doctrine has been abandoned in the case of La Naval Drug
Corporation vs. Court of Appeals, et al., which became the basis of the adoption of a new provision
in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules. Section 20 now
provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a voluntary appearance. The emplacement
of this rule clearly underscores the purpose to enforce strict enforcement of the rules on summons.
Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant, his
authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of
the defendant can by no means be deemed a submission to the jurisdiction of the court. There
being no proper service of summons, the trial court cannot take cognizance of a case for lack of
jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will
consequently be null and void.
Service of summons in case of a partnership:
What the rules require is that summons must be made upon a GM or managing partner as the
case may be.
If there are 4 partners in the partnership, service upon any of the partners will be a valid service of
summons. All partners under the NCC are considered as managing partners. Since all partners
under the NCC are presumed to be managing partners, service upon anyone will be a valid service
of summons.
It is in the acquisition of jurisdiction over natural persons that there is conflict in jurisprudence.
2006 case
Defendant owed money to a corporation. Defendant lived in a gated subdivision. The sheriff was
not allowed inside the subdivision. What the sheriff did was to leave a copy of the summons,
together with the complaint, with the guards. Is there valid service of summons?
To be literal, no, there was no valid substituted service of summons. If the summons and the
complaint were left only with the security guard, it did not comply with leaving at the place of
residence of the defendant with some person of suitable age and discretion then residing therein.
The guards do not actually reside in the place of residence of the defendant.
The SC stated that the meaning of sufficient age and discretion does not mean that the person to
be served could be a minor. This person means that this person should mean a person at least 18
years of age with a relationship involving confidence with the defendant. So, if the service of
summons was given to a person who was only a visitor of the defendant, that will not comply with
this requirement.

In this 2006 case, the SC became very liberal. Although it was clear sheriff did not satisfy the
requirements of a valid service of summons, the SC ruled that the trial court did acquire jurisdiction
over the person of the defendant.

However, in 2009, the SC decided a case involving the validity of a substituted service of summons
not in accordance with the Rules. If substitute service of summons is not in accordance with Sec. 7
of Rule 14, the service is invalid, the court does not acquire jurisdiction over the defendant. Any
proceedings taken by the court are invalidated.
Concentrate on Sec. 14, 15 and 16 Rule 14
SEC. 14. Service upon defendant whose identity or whereabouts are unknown.In any action
where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts
are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be
effected upon him by publication in a newspaper of general circulation and in such places and for
such time as the court may order. (16a)
SEC. 15. Extraterritorial service.When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant has or claims a lien or interest,
actual or contingent; or in which the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the Philippines by personal service as
under section 6; or by publication in a newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the summons and order of the court shall be
sent by registered mail to the last known address of the defendant, or in any other manner the
court may deem sufficient. Any order granting such leave shall specify a reasonable time, which
shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a)
SEC. 16. Residents temporarily out of the Philippines.When any action is commenced against a
defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service
may, by leave of court, be also effected out of the Philippines, as under the preceding section.
Former Procedure
Citizens Surety vs. Herrera (Service of summons for an Action in personam publication of
summons with preliminary attachment of properties)
Sheriff stated that the summons could not be served personally or by substituted service. The
plaintiff filed an ex parte motion to issue a summons by publication. The court granted it. Plaintiff
caused the publication of the summons. After 60 days, there was no responsive pleading. Plaintiff
filed a motion to declare defendant in default. During the hearing of the motion, plaintiff presented
the court the order authorizing publication and affidavit of the publisher. Plaintiff expected the court
to grant his motion. The court did not, but instead asked the plaintiff to explain why the complaint
should not be dismissed. The court stated that publication did not enable the court to acquire
jurisdiction of the court. The requirement left out was a constitutional requirement of due process,
that the action was converted from one in personam to that one in rem or quasi-in rem. This could
be done, after causing the publication of the service of summons, by applying with the court for an
order for preliminary attachment of defendants personal properties in order to acquire jurisdiction
over the person over the defendant.

This conclusion by the plaintiff, aside from Rule 14 Sec. 15, this is supported by Rule 57 Sec. 1.
Rule 57 SECTION 1. Grounds upon which attachment may issue.At the commencement of the
action or at any time before entry of judgment, a plaintiff or any proper party may have the property
of the adverse party attached as security for the satisfaction of any judgment that may be
recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to his
own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for
a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring
the obligation upon which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication. (1a)
The court interpreted these provisions to mean that if there is publication of the summons, there
should be a proceeding accompanying preliminary attachment over the personal properties of the
defendant. Otherwise, the court will be unable to acquire jurisdiction over the person of the
defendant. If we are not able to convert the action in personam to that in rem, the court will not be
able to acquire jurisdiction over the person of the defendant, and therefore, the court will not have
authority at all to entertain the case.
Note: If the court still did not still acquire jurisdiction over the defendant despite the attachment of
the personal properties of the defendant, then the case will be archived. There can be no dismissal
of the case. No prescription will run, since the complaint is archived.

Citizens Surety vs. Herrera Digest :

Facts:

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

In 2008, Santos vs. PNOC was decided, which changed the principles held under Citizens Surety
vs. Herrera.
Santos vs. PNOC Defendant in an Action in personam can be subject to courts jurisdiction
(2008)
The defendant did not file an answer within the reglementary period. The lawyer of the plaintiff did
not move for publication of summons, but filed only a motion to allow him to present evidence ex
parte. The judge rendered a decision in favor of the plaintiff. When defendant learned of the
decision, he moved for reconsideration thereof. The Court then gained jurisdiction over the person

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

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

Since 2008, the lawyers have made use of Santos vs. PNOC as the authority to convince a trial
court that there is no need for a publication of summons for the issuance of a writ of preliminary
attachment before the court could acquire jurisdiction over the person of the defendant.
In 2010, SC resolved another case, Palma vs. Galvez. In the case of Palma vs. Galvez, the SC
held that we should literally apply what the Rules provides, particularly Section 16 of Rule 14. If you
read Section 16, the defendant is a resident of RP temporarily out of RP. In relation to Section 14, if
the whereabouts of the defendant is unknown, there could be publication of summons, and that
would enable the court to acquire jurisdiction over the person of the defendant.
Palma vs. Galvez (When the whereabouts of defendant is unknown, there is no need for
publication of summons.)
Reiterates Santos vs. PNOC there is no need , under Sections 14 to 16 in Rule 14, for the
conversion of an action in personam to that in rem before a court could acquire jurisdiction over the
person of the defendant.

Now on the merits, the issue for resolution is whether there was a valid service of summons on
private respondent.
In civil cases, the trial court acquires jurisdiction over the person of the defendant either by
the service of summons or by the latters voluntary appearance and submission to the authority of
the former. Private respondent was a Filipino resident who was temporarily out of the Philippines
at the time of the service of summons; thus, service of summons on her is governed by Section 16,
Rule 14 of the Rules of Court, which provides:
Sec. 16. Residents temporarily out of the Philippines. When an action is
commenced against a defendant who ordinarily resides within the Philippines, but who is
temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under
the preceding section. (Emphasis supplied)
The preceding section referred to in the above provision is Section 15, which speaks of
extraterritorial service, thus:
SEC. 15. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant has or claims a lien or interest,
actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the Philippines by personal service as
under section 6; or by publication in a newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the summons and order of the court shall be
sent by registered mail to the last known address of the defendant, or in any other manner the
court may deem sufficient. Any order granting such leave shall specify a reasonable time, which
shall not be less than sixty (60) days after notice, within which the defendant must answer.
The RTC found that since private respondent was abroad at the time of the service of summons,
she was a resident who was temporarily out of the country; thus, service of summons may be
made only by publication.
We do not agree.
In Montefalcon v. Vasquez, we said that because Section 16 of Rule 14 uses the words may
and also, it is not mandatory. Other methods of service of summons allowed under the Rules
may also be availed of by the serving officer on a defendant-resident who is temporarily out of the
Philippines. Thus, if a resident defendant is temporarily out of the country, any of the following
modes of service may be resorted to: (1) substituted service set forth in section 7 ( formerly
Section 8), Rule 14; (2) personal service outside the country, with leave of court; (3) service by
publication, also with leave of court; or (4) in any other manner the court may deem sufficient.

In Montalban v. Maximo, we held that substituted service of summons under the present Section 7,
Rule 14 of the Rules of Court in a suit in personam against residents of the Philippines temporarily
absent therefrom is the normal method of service of summons that will confer jurisdiction on the
court over such defendant. In the same case, we expounded on the rationale in providing for
substituted service as the normal mode of service for residents temporarily out of the Philippines.
x x x A man temporarily absent from this country leaves a definite place of residence, a dwelling
where he lives, a local base, so to speak, to which any inquiry about him may be directed and
where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the
hands of one who may be reasonably expected to act in his place and stead; to do all that is
necessary to protect his interests; and to communicate with him from time to time any incident of
importance that may affect him or his business or his affairs. It is usual for such a man to leave at
his home or with his business associates information as to where he may be contacted in the event
a question that affects him crops up. If he does not do what is expected of him, and a case comes
up in court against him, he cannot just raise his voice and say that he is not subject to the
processes of our courts. He cannot stop a suit from being filed against him upon a claim that he
cannot be summoned at his dwelling house or residence or his office or regular place of business.
Not that he cannot be reached within a reasonable time to enable him to contest a suit against him.
There are now advanced facilities of communication. Long distance telephone calls and
cablegrams make it easy for one he left behind to communicate with him.
Considering that private respondent was temporarily out of the country, the summons and
complaint may be validly served on her through substituted service under Section 7, Rule 14 of the
Rules of Court which reads:
SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendants residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copies at defendants office or regular place of
business with some competent person in charge thereof.
We have held that a dwelling, house or residence refers to the place where the person
named in the summons is living at the time when the service is made, even though he may be
temporarily out of the country at the time. It is, thus, the service of the summons intended for the
defendant that must be left with the person of suitable age and discretion residing in the house of
the defendant. Compliance with the rules regarding the service of summons is as important as the
issue of due process as that of jurisdiction.
Section 7 also designates the persons with whom copies of the process may be left. The rule
presupposes that such a relation of confidence exists between the person with whom the copy is
left and the defendant and, therefore, assumes that such person will deliver the process to
defendant or in some way give him notice thereof.

In this case, the Sheriff's Return stated that private respondent was out of the country; thus,
the service of summons was made at her residence with her husband, Alfredo P. Agudo,
acknowledging receipt thereof. Alfredo was presumably of suitable age and discretion, who was
residing in that place and, therefore, was competent to receive the summons on private
respondent's behalf.
Notably, private respondent makes no issue as to the fact that the place where the summons
was served was her residence, though she was temporarily out of the country at that time, and that
Alfredo is her husband. In fact, in the notice of appearance and motion for extension of time to file
answer submitted by private respondent's counsel, he confirmed the Sheriff's Return by stating that
private respondent was out of the country and that his service was engaged by respondent's
husband. In his motion for another extension of time to file answer, private respondent's counsel
stated that a draft of the answer had already been prepared, which would be submitted to private
respondent, who was in Ireland for her clarification and/or verification before the Philippine
Consulate there. These statements establish the fact that private respondent had knowledge of the
case filed against her, and that her husband had told her about the case as Alfredo even engaged
the services of her counsel.
In addition, we agree with petitioner that the RTC had indeed acquired jurisdiction over the
person of private respondent when the latter's counsel entered his appearance on private
respondent's behalf, without qualification and without questioning the propriety of the service of
summons, and even filed two Motions for Extension of Time to File Answer. In effect, private
respondent, through counsel, had already invoked the RTCs jurisdiction over her person by
praying that the motions for extension of time to file answer be granted. We have held that the filing
of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for
reconsideration of a default judgment, and to lift order of default with motion for reconsideration,
are considered voluntary submission to the jurisdiction of the court. When private respondent
earlier invoked the jurisdiction of the RTC to secure affirmative relief in her motions for additional
time to file answer, she voluntarily submitted to the jurisdiction of the RTC and is thereby estopped
from asserting otherwise.
Considering the foregoing, we find that the RTC committed a grave abuse of discretion
amounting to excess of jurisdiction in issuing its assailed Orders.

NOTE:
It would seem that the principle adhered to for a long time since Citizens Surety vs. Herrera is no
longer binding upon plaintiffs. They can ignore the requirement of prior attachment of personal
properties of the defendant before availing of a publication of summons to enable a court to acquire
jurisdiction over the person of the defendant. Read over Sections 14, 15 and 16, correlating them
with the cases of Palma vs. Sanchez. There is really no need for an action in personam to be
converted to an action in rem or quasi in rem, via a writ of preliminary attachment, in order for a
court to be able to acquire jurisdiction over the person of the defendant.

What is the advantage of using these principle in Citizens Surety vs. Herrera? (Actions in rem that
is in personam at the same time)
The advantage is that if the plaintiff first moves for preliminary attachment over properties of the
defendant and then later ask the court for publication of summons, when compared to just the
plaintiff asking for publication of summons without asking for preliminary attachment, is that there is
a security enjoyed by the plaintiff when the property of the defendant is attached through a writ
preliminary attachment. If you read Rule 57, that is precisely the purpose of preliminary attachment
over the property of the defendant, to provide security to the applicant to whatever judgment
rendered in favor of the plaintiff.
But the present tendency of the court is not to apply anymore the principle in Citizens Surety vs.
Herrera insofar as publication of summons is concerned. There is no more need for converting an
action in personam to an action in rem or quasi-in rem.
If there is a preliminary attachment of a property belonging to the defendant, the act of actual
attachment of the property is the act which converts the case from in personam to that of in rem or
quasi-in rem. This is because the property is now within the jurisdiction of the trial court.

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

Notice of Hearing is usually addressed by lawyers to the branch clerk of court. This is an error. The
notice of hearing MUST be addressed to the adverse party or the counsel thereof. Remember that
the SC has emphasized that a motion that does not comply with the requirements set down in the
Rules shall be treated as a scrap of paper.
OMNIBUS MOTION RULE
Omnibus Motion Rule all objections that are not included are deemed waived if not set up in the
motion to dismiss.
Correlate with:
Non-waivable defenses: Res judicata; Prescription; Lack of jurisdiction over the subject matter and
Litis pendencia
In any civil proceeding, if there is an objection to any claim contained in the motion or in another
pleading, and these objections are not set up in a motion or in another pleading, these objections
are deemed waived, except for non-waivable defenses.

MOTION TO DISMISS
Motion to dismiss is prohibited in certain proceedings, as set down by the Rules or based on
circulars issued by the SC.
Summary Procedure and some special proceedings prohibit the filing of a motion to dismiss. But in
regular procedure, a motion to dismiss is allowed in civil cases. Motion to Dismiss under Rule 16
should be filed as a matter of general practice before an answer can be filed by defendant.
Can the defendant properly file an answer and a motion to dismiss at the same time?
Under Rule 16, it is allowed that the grounds for a motion to dismiss to be simply incorporated in
the answer. Under Rule 16, if the defendant does submit his responsive pleading right away, he
can incorporate in his answer the grounds in Rule as affirmative defenses. If a defendant files his
answer with affirmative defenses enumerated under Rule 16 as grounds to dismiss, he being
allowed to do that, once the answer is filed with the court, the defendant can ask to court to
conduct a preliminary hearing on his affirmative defenses. The court can grant it as if the defendant
has filed previously a motion to dismiss.
If the defenses are those that are non-waivable grounds for dismissal, it is possible for the
defendant to file motions to dismiss one after another without violation of the Omnibus Motion Rule.
Theoretically:
If the first motion to dismiss based on prescription is denied, the defendant is allowed to file a
second motion to dismiss based on litis pendencia. If that is again denied, the defendant files his
3rd motion dismiss founded on lack of jurisdiction over the person of the defendant. If it is again
denied, the defendant can file a motion to dismiss based on res judicata.
Because of the application of these non-waivable defenses, it is conceivable and it is proper for the
defendant to successively file motions to dismiss containing these non-waivable defenses. A

motion to dismiss founded on a waivable defense shall preclude the filing of another motion to
dismiss based on other grounds under Rule 16, except those non-waivable defenses. There will be
waiver of the other grounds because of the Omnibus Motion Rule, but not those defenses which
are non-waivable.
In the resolution of a motion to dismiss, Rule 16 gives to the court three choices: grant the motion,
deny the motion, or order an amendment to the pleading.
Currently, there are now 4 options for the court to resolve a motion to dismiss. The fourth option is
by virtue of the law on alternative disputes resolution.
4 options of the court:
1. grant
2. deny
3. order the amendment of the pleadings
4. refer the matter to conciliation or mediation or arbitration, as the case may be, and suspend
further hearings

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

With respect to lack of jurisdiction over the subject matter or over the nature of the case, this
ground is dealt with in Tijam vs. Sibonghanoy.

TIJAM vs. SIBONGHANOY Digest

January 08, 1963 5 days after the surety received notice of the decision, it filed a motion asking
for extension of time within which to file a motion for reconsideration. Appellees action was filed in
the Court of First Instance of Cebu, July 19, 1948 for the recovery of 1,908.00 Pesos.
RA 296, Judiciary Act 1948 Section 88 of which placed within the jurisdiction of MTC all civil
actions where the value of the subject matter or the amount of demand does not go beyond 2,000
Pesos, exclusive of interest and costs that the Court of First Instance of Cebu has no Jurisdiction.
The Court is in Opinion that Surety is now barred by laches from invoking the plea at this late hour
for the purpose of annulling everything done heretofore in the case with its active participation.
Definition of Laches:
Failure of neglect, for an unreasonable and unexplained length of time, to do that which, by
exercising due diligence, could or should have been earlier, it is negligence or commission to
assert a right within a reasonable time, warranting a presumption that the party entitle to assert it
has abandoned it or declines to assert it.
Tijam vs. Sibonghanoy
In this case, the trial court did not have jurisdiction over the subject matter of the case, but the
defendant kept silent about the issue of absence of jurisdiction, and allowed the case to proceed
up to the CA. Upon receipt of the adverse decision in the CA, the appellee challenged the validity
of the decision of the RTC and the CA, stating that the court had lacked jurisdiction from the start.
SC held that there was estoppel by laches. The case has been pending for 15 years up to the
appeal, the defendant appearing in the case for all those years. SC said that although the decision
may be challenged by lack of jurisdiction over the subject matter even for the first time on appeal,
the defendant is guilty of estoppel by laches, by his negligence to raise this issue as promptly as
possible. He can no longer challenge the decision of the court.
In Rule 9, there is no exception at all to non-waivable defenses, including lack of jurisdiction over
the subject matter.
In Rule 47 (Annulment of Judgment), the Tijam Doctrine was incorporated therein. Lack of
jurisdiction over the subject matter is excepted by estoppel by laches as a defense.
Rule 47 SEC. 3. Period for filing action.If based on extrinsic fraud, the action must be filed within
four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or
estoppel.
This is an application of the Tijam Doctrine in our present Rules. So, we still have laches or
estoppel as a defense against the non-waivable defense of lack of jurisdiction over the subject
matter.

In other cases, the SC also used another kind of estoppel in order to bar the party from raising the
issue of jurisdiction, although the trial court REALLY DID NOT HAVE jurisdiction over the subject
matter.
Soliven vs. Fast Forms 2004(Estoppel in pais is a good defense although there is lack of
jurisdiction over the subject matter)
The aggregate sum to be recovered was 800k. A complaint for collection of money was filed in the
RTC. The amount to be actually collected was less than the jurisdictional amount of the RTC based
on BP 129 (exclude interest, damages, cost and Attorneys fees). There was an answer by
defendant with a counterclaim. The court, unaware it lacked jurisdiction over the case, as nobody
brought it up. The court rendered a judgment in favor of the plaintiff. The counsel for the defendant
found that the court had no jurisdiction. The defendant filed motion for reconsideration and raised
lack of jurisdiction, praying for dismissal of the case. RTC denied the motion, as the defendant was
in estoppel to challenge the courts jurisdiction just because an adverse result was had. It reached
the SC. SC held that the defendant cannot challenge any more the jurisdiction of the court. SC
stated that there is estoppel in pais, the act of the defendant in actively participating in the case
and seeking affirmative relief via a counterclaim renders defendant in estoppel to contest the
jurisdiction of the RTC, although the court may not really have jurisdiction over the subject matter.
Facts: Marie Antoinette R. Soliven, petitioner, filed a complaint for sum of money with damages
against Fast-Forms Philippines, Inc., respondent. The complaint alleges that respondent, through
its president Dr. Eduardo Escobar, obtained a loan from petitioner in the amount of PhP 170,000.00
payable within a period of 21 days, with an interest of 3%. On the same day, respondent issued a
post-dated check in favor of petitioner in the amount of PhP 175,000.00. About three weeks later,
respondent, through Dr. Escobar, advised petitioner not to deposit the postdated check as the
account from where it was drawn has insufficient funds. Instead, respondent proposed to petitioner
that the PhP 175,000.00 be rolled-over, with a monthly interest of 5% which petitioner agreed.
Subsequently, respondent issued several checks in the total of PhP 76,250.00 in favor of petitioner
as payment for interests corresponding to the months of June, August, September, October and
December. Later, despite petitioners repeated demands, respondent refused to pay its principal
obligation and interests due.
Respondent, in its answer with counterclaim, denied that it obtained a loan from petitioner, and that
it did not authorize its then president, Dr. Eduardo Escobar, to secure any loan from petitioner or
issue various checks as payment for interests.
After trial on the merits, the court a quo rendered a decision in favor of petitioner.
Respondent then filed a motion for reconsideration questioning for the first time the trial courts
jurisdiction. It alleged that since the amount of petitioners principal demand (PhP 195,155.00)

does not exceed PhP 200,000.00, the complaint should have been filed with the MTC pursuant to
R.A. 7691.
Issue: Whether the trial court has jurisdiction over the case
Held: YES. While it is true that jurisdiction may be raised at any time, this rule presupposes that
estoppel has not supervened. The Court has constantly upheld the doctrine that while jurisdiction
may be assailed at any stage, a litigants participation in all stages of the case before the trial
court, including the invocation of its authority in asking for affirmative relief, bars such party from
challenging the courts jurisdiction. A party cannot invoke the jurisdiction of a court to secure
affirmative relief against his opponent and after obtaining or failing to obtain such relief, repudiate
or question that same jurisdiction. The Court frowns upon the undesirable practice of a party
participating in the proceedings and submitting his case for decision and then accepting judgment,
only if favorable, and attacking it for lack of jurisdiction, when adverse.
Is the Soliven case applicable to criminal cases?
No.
Figueroa vs. People 2009
The accused was arraigned for reckless imprudence resulting to homicide. This was filed in the
RTC instead of MTC. The prosecutor was not aware of the RTCs lack of jurisdiction. The counsel
of the accused also assumed the same. Nobody raised the issue of jurisdiction in the RTC, so the
case went on. Trial was had, where both parties presented their respective evidence. The accused
was found guilty. On appeal, the accused interposed the defense of lack of jurisdiction. The
solicitor general cited Soliven vs. Fast Forms as defense. Active participation means that the
litigant is in estoppel from challenging the validity of the proceedings. The CA agreed with the
solicitor general.
SC held that the judgment is void as estoppel in pais is inapplicable in a criminal case. Lack of
jurisdiction in a criminal case can be cited as a defense even on appeal. The rights of the accused
being at stake, estoppel in pais is inapplicable.
When is a litigant estopped by laches from assailing the jurisdiction of a tribunal? This is the
paramount issue raised in this petition for review of the February 28, 2001 Decision of the Court of
Appeals (CA) in CA-G.R. CR No. 22697.
*******
On July 8, 1994, an information for reckless imprudence resulting in homicide was filed against the
petitioner before the Regional Trial Court (RTC) of Bulacan, Branch 18. The case was docketed as
Criminal Case No. 2235-M-94. Trial on the merits ensued and on August 19, 1998, the trial court
convicted the petitioner as charged. In his appeal before the CA, the petitioner questioned, among
others, for the first time, the trial courts jurisdiction.

The appellate court, however, in the challenged decision, considered the petitioner to have actively
participated in the trial and to have belatedly attacked the jurisdiction of the RTC; thus, he was
already estopped by laches from asserting the trial courts lack of jurisdiction. Finding no other
ground to reverse the trial courts decision, the CA affirmed the petitioners conviction but modified
the penalty imposed and the damages awarded.
**********
The ruling in People v. Regalario that was based on the landmark doctrine enunciated in Tijam v.
Sibonghanoy on the matter of jurisdiction by estoppel is the exception rather than the rule. Estoppel
by laches may be invoked to bar the issue of lack of jurisdiction only in cases in which the factual
milieu is analogous to that in the cited case. In such controversies, laches should have been clearly
present; that is, lack of jurisdiction must have been raised so belatedly as to warrant the
presumption that the party entitled to assert it had abandoned or declined to assert it.
In Sibonghanoy, the defense of lack of jurisdiction was raised for the first time in a motion to
dismiss filed by the Surety almost 15 years after the questioned ruling had been rendered. At
several stages of the proceedings, in the court a quo as well as in the Court of Appeals, the Surety
invoked the jurisdiction of the said courts to obtain affirmative relief and submitted its case for final
adjudication on the merits. It was only when the adverse decision was rendered by the Court of
Appeals that it finally woke up to raise the question of jurisdiction.
Clearly, the factual settings attendant in Sibonghanoy are not present in the case at bar. Petitioner
Atty. Regalado, after the receipt of the Court of Appeals resolution finding her guilty of contempt,
promptly filed a Motion for Reconsideration assailing the said courts jurisdiction based on
procedural infirmity in initiating the action. Her compliance with the appellate courts directive to
show cause why she should not be cited for contempt and filing a single piece of pleading to that
effect could not be considered as an active participation in the judicial proceedings so as to take
the case within the milieu of Sibonghanoy. Rather, it is the natural fear to disobey the mandate of
the court that could lead to dire consequences that impelled her to comply.
The Court, thus, wavered on when to apply the exceptional circumstance in Sibonghanoy and on
when to apply the general rule enunciated as early as in De La Santa and expounded at length in
Calimlim. The general rule should, however, be, as it has always been, that the issue of jurisdiction
may be raised at any stage of the proceedings, even on appeal, and is not lost by waiver or by
estoppel. Estoppel by laches, to bar a litigant from asserting the courts absence or lack of
jurisdiction, only supervenes in exceptional cases similar to the factual milieu of Tijam v.
Sibonghanoy. Indeed, the fact that a person attempts to invoke unauthorized jurisdiction of a court
does not estop him from thereafter challenging its jurisdiction over the subject matter, since such
jurisdiction must arise by law and not by mere consent of the parties. This is especially true where
the person seeking to invoke unauthorized jurisdiction of the court does not thereby secure any
advantage or the adverse party does not suffer any harm.

Applying the said doctrine to the instant case, the petitioner is in no way estopped by laches in
assailing the jurisdiction of the RTC, considering that he raised the lack thereof in his appeal before
the appellate court. At that time, no considerable period had yet elapsed for laches to attach. True,
delay alone, though unreasonable, will not sustain the defense of "estoppel by laches" unless it
further appears that the party, knowing his rights, has not sought to enforce them until the condition
of the party pleading laches has in good faith become so changed that he cannot be restored to his
former state, if the rights be then enforced, due to loss of evidence, change of title, intervention of
equities, and other causes. In applying the principle of estoppel by laches in the exceptional case
of Sibonghanoy, the Court therein considered the patent and revolting inequity and unfairness of
having the judgment creditors go up their Calvary once more after more or less 15 years. The
same, however, does not obtain in the instant case.
We note at this point that estoppel, being in the nature of a forfeiture, is not favored by law. It is to
be applied rarelyonly from necessity, and only in extraordinary circumstances. The doctrine must
be applied with great care and the equity must be strong in its favor. When misapplied, the doctrine
of estoppel may be a most effective weapon for the accomplishment of injustice. Moreover, a
judgment rendered without jurisdiction over the subject matter is void. Hence, the Revised Rules of
Court provides for remedies in attacking judgments rendered by courts or tribunals that have no
jurisdiction over the concerned cases. No laches will even attach when the judgment is null and
void for want of jurisdiction. As we have stated in Heirs of Julian Dela Cruz and Leonora Talaro v.
Heirs of Alberto Cruz,
It is axiomatic that the jurisdiction of a tribunal, including a quasi-judicial officer or government
agency, over the nature and subject matter of a petition or complaint is determined by the material
allegations therein and the character of the relief prayed for, irrespective of whether the petitioner or
complainant is entitled to any or all such reliefs. Jurisdiction over the nature and subject matter of
an action is conferred by the Constitution and the law, and not by the consent or waiver of the
parties where the court otherwise would have no jurisdiction over the nature or subject matter of
the action. Nor can it be acquired through, or waived by, any act or omission of the parties.
Moreover, estoppel does not apply to confer jurisdiction to a tribunal that has none over the cause
of action. x x x
Indeed, the jurisdiction of the court or tribunal is not affected by the defenses or theories set up by
the defendant or respondent in his answer or motion to dismiss. Jurisdiction should be determined
by considering not only the status or the relationship of the parties but also the nature of the issues
or questions that is the subject of the controversy. x x x x The proceedings before a court or
tribunal without jurisdiction, including its decision, are null and void, hence, susceptible to direct
and collateral attacks.
Note from Dean Jara:
If you are confronted with a problem on lack of jurisdiction in a civil case, apply Soliven case. If it is
a criminal case, adopt Figueroa.
NAPOCOR vs. Province of Quezon 2010 reiterated the validity of Soliven in civil cases.

The NPC is estopped from

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

The defendant has a problem when a court issues a service of summons in violation of Rule 14.
The defendant must file a Motion to Dismiss on ground of lack of jurisdiction over person of the
defendant. If he does file such motion, does not the defendant admit that the court has jurisdiction
over his person?
No. The filing of a motion to dismiss on that ground is the only remedy available to him to tell the
court that the court had not acquired jurisdiction over his person. In court cases, what the
defendant can do is to tell that court right away that his appearance before the court in filing the
motion to dismiss should be considered as a special appearance only for the purpose of telling the
court that the court has no jurisdiction over his person.
Problem: Defendant must file a motion to tell the court of this defense.
Solution: Inform the court that his appearance is a Special appearance only.

This Special Appearance Rule stems from another principle in the past that when a defendant files
a motion to dismiss on ground that the court did not acquire jurisdiction over his person, when he
adds another ground found in Rule 16 by virtue of the application of the Omnibus Motion Rule, the
decisions of the SC then was then when another ground is added in the motion to dismiss aside
from lack of jurisdiction over the person of the defendant, he waives the ground of lack of
jurisdiction over his person. This has been changed in the present Rules.
Under Omnibus Motion Rule, defendant who files motion to dismiss plus any other ground in rule
16 is NOW deemed not to be a person over whom the court did not acquire jurisdiction over his
person. A defendant is free to file a motion to dismiss, citing as one of his grounds lack of
jurisdiction over his person, he is not deemed to have waived his argument that the court has not
gained jurisdiction over his person.
Let us say that the defendant who claims that the court has not acquired jurisdiction over his
person does not respond to the summons, as filing of an answer is a waiver of his defense of lack
of jurisdiction over his person. He received a copy of the order of the court, and then following the
Rules, the defaulting defendant files a motion to lift the order of default. The filing of a motion to lift
the order of default is acceptance by the defendant of jurisdiction of the court over his person. In
another instance, the defendant receives the copy of the judgment of default, the defendant files a
motion for reconsideration and a motion for new trial. The motion for reconsideration or new trial is
a submission of the defendant to the jurisdiction of the court over his person. This is the reason
why in Palma vs. Galvez, the defendant claims that the court did not acquire jurisdiction over his
person, and filed a motion for new trial, he must qualify the motion must not be treated as a
voluntary submission of the defendant to the jurisdiction of the court over his person. He must
always qualify his motion with that ground.
FAILURE TO STATE A CAUSE OF ACTION
SC in recent cases has emphasize the difference of lack of a cause of action and failure to state a
cause of action:
Failure to state cause of action
Lack of cause of action
Insufficiency in the allegations of the complaint
Failure to prove or establish by evidence ones stated cause of action
As a ground for dismissal
Raised in a motion to dismiss under Rule 16 before a responsive pleading is filed
Raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case
Determination
Determined only from the allegations of the pleading and not from evidentiary matters
Resolved only on the basis of the evidence he has presented in support of his claim
Failure to state a cause of action will be a ground to dismiss because of immaturity. It assumes that
the plaintiff really has a cause of action, and the fault will be due to the lawyer who crafted the
complaint.

If there is an accion reinvindicatoria filed in the RTC, but there is no stated assessed value of the
property involved, then the defendant may file motion to dismiss for lack of jurisdiction for failure to
state a cause of action. A hearing was had. The plaintiffs attorney failed to see what the motion
was about. The court will resolve the motion purely on the allegations in the complaint. (There is no
need to present evidence in this case, as no factual matter is in issue.) The court granted the
motion. The plaintiffs lawyer received the order of dismissal, and then he finally understood what
was wrong with his complaint. Can the lawyer for the plaintiff amend his complaint?
Yes. The plaintiff can still amend his complaint in order to incorporate the allegation the assessed
value of the property. This is because the order of dismissal will not be entered until after the lapse
of 15 days, and the plaintiff can still amend and rectify the error committed by inserting the
assessed value of the property. He can do so as a matter of right, because, according to SC, a
motion to dismiss is not a responsive pleading, and as long as the amendment is the first
amendment, under Rule 10, it is an amendment is a matter of right. The defendant will have to file
an answer to the amended complaint.
Note:
In a hearing of a motion to dismiss grounded to lack of jurisdiction over the subject matter, the court
will not allow presentation of evidence by the defendant. The reason is because lack of jurisdiction
over the subject matter is a purely legal question and the only evidence to be taken into account is
the complaint itself, applying the principle that the court acquires jurisdiction, under BP 129, based
on the allegations contained in the complaint. In the hearing of a motion, the court will allow
presentation of evidence ONLY if the question that will be raised is a factual issue like the
obligation has been paid, waived or otherwise extinguished. Thus, in a motion to dismiss on the
ground of lack of jurisdiction over the subject matter, the court will resolve the motion based on the
complaint itself. The court can easily resolve the said motion based on the allegations in the
pleading itself.
Based on the above problem, if the dismissal became final and executory, what can the plaintiff
do?
Under Sec. 5 Rule 16, the rule makes a distinction of an Order of Dismissal under Rule 16 under
letters f, h and i (in addition to laches under the NCC) compared to other grounds, the dismissal is
subject to the right of appeal. The remedy of the plaintiff is to appeal the order of dismissal.
If the case was dismissed on grounds not on letters f, h and I, it means that we should not treat
Rule 16 alone, but consult other Rules to arrive at the correct remedy. We consult Sec. 1 under
Rule 41. The dismissal is without prejudice. Therefore, the dismissal should not be appealed.
Rule 16, SECTION 1. Grounds.Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned,
or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the
statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with.
SEC. 5. Effect of dismissal.Subject to the right of appeal, an order granting a motion to dismiss
based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or
claim.
Grounds recognized under the law that will render dismissal with prejudice under Sec. 5, Rule 16:
Rule 16, f. Res judicata/statute of limitations
Rule 16, h. paid, waived, abandoned, or otherwise extinguished
Rule 16, i. unenforceable under statute of frauds
(NCC) laches (Should be included here. Dean Jara)
In analyzing Rule 16, 17, 18 and 33, we should always read these Rules in relation with Section 1
of Rule 41.
Rule 41, SECTION 1. Subject of appeal.An appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular matter therein when declared by these
Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
(b) An order denying a petition for relief or any similar motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent, confession or compromise on
the ground of fraud, mistake or duress, or any other ground vitiating consent.
(f) An order of execution;
(g) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the
court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
(i) Laches and any other means recognized under the NCC (Dean Jara)
In all the above instances where the judgment or final order is not appealable, the aggrieved party
may file an appropriate special civil action under Rule 65.

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

the claim has been paid, waived, abandoned or otherwise extinguished based on grounds
recognized under substantive law(enumerated in the NCC).
In fact, the court said that the results enumerated under Section 16 is not exclusive. We should
include laches. Under the NCC, laches could extinguish an obligation.
Remember that procedurally, in a hearing on a motion to dismiss based on a question of law to a
motion to dismiss founded on factual issue. If founded on a legal issue, the court will not allow
presentation of evidence. The court will simply read the allegations in the complaint. If the issue is
factual, the court will be forced to conduct a hearing for presentation of evidence therein.

Let us say that the defendants motion is founded on letter h. During the hearing, the defendant
presents evidence. Then, the motion was submitted for resolution. The court denies the motion.
What is the next move for the defendant if the motion is denied?
The defendant should file an answer during the remaining period to file, which should not be less
than 5 days from the receipt of the order of denial.
The defendant files an answer. Can he incorporate the ground in the motion to dismiss that was
denied as an affirmative defense?
Yes, the defendant is allowed to do that. Under our rules, if there are objections or grounds not
raised in the PLEADINGS, these grounds are deemed waived.
Can the defendant, after filing his answer with his affirmative defense move for a preliminary
hearing on his affirmative defense?
No, the court will not allow such a hearing anymore as there had been a prior hearing for the same
issue in the prior motion to dismiss that was denied. Thus, although a defendant is allowed to use
his ground under Rule 16 in a motion to dismiss that was denied as an affirmative defense, he is
not allowed to have another preliminary hearing as the said defenses had been already subject to a
hearing when the said defenses were contained as a ground for dismissal in the prior motion that
was denied.
So, during the trial of the case, the defendant may be able to present to the court additional
evidence in order to prove such ground under Rule 16 that he has relied upon.

RULE 41 SEC. 1 IN RELATION TO RULE 16 (DISMISSAL WITH OR WITHOUT PREJUDICE)

Determine whether his dismissal is appropriate for remedy under Rule 65 or an appeal.
Any dismissal by a court is a final order. But what matters is to find out if the dismissal is with or
without prejudice so as to ascertain the remedy available. In dismissals under Rule 16, if the
grounds are letter f, h or i, then the dismissal is with prejudice. The remedy of the plaintiff is to
appeal from the judgment.

Supposing the plaintiff commits an error in ascertaining the dismissal, the dismissal actually being
that with prejudice, and plaintiff opts for Rule 65. The judgment became final after 15 days. 40 days
after the judgment for dismissal was made, he files a petition for certiorari. The petition for certiorari
will be dismissed as the proper remedy was to appeal. At this time, he cannot appeal anymore as
the time to appeal was 15 days from receipt of the order of dismissal, it has long expired, and the
judgment has been entered and had become final. Also, he cannot file another complaint, as the
dismissal is with prejudice.
If a dismissal is found under Rule 17, we follow the same principle. Rule 17 also states about a
dismissal with and without prejudice. We follow the principle of dismissal under Rule 41 in relation
to Rule 16.
A dismissal under Rule 18 (failure to attend pre-trial or to file pre-trial brief, tantamount to
disobedience of court orders) is with prejudice, and thus plaintiff must appeal.
A dismissal under Rule 33 (judgment on demurrer to evidence) is a dismissal with prejudice as this
is an adjudication on the merits, and the remedy is to file an appeal from the order of dismissal.
But if the dismissal is without prejudice, the plaintiff has not much to worry. He can forget about
Rule 41. He can file a second complaint, but he must make sure it is properly crafted. If the plaintiff
files a second complaint, but it was again dismissed, there is the probability under Rule 17 Section
1 that it will be a dismissal with prejudice under the two-dismissal rule. Thus, if a complaint has
been dismissed twice, the second dismissal may operate as an adjudication of the merits.
Rule 17 SECTION 1. Dismissal upon notice by plaintiff.A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for
summary judgment. Upon such notice being filed, the court shall issue an order confirming the
dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a
notice operates as an adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the same claim.
Does it mean that a second dismissal is ALWAYS a dismissal with prejudice?
No. The second dismissal will still be without prejudice as provided for in Rule 17, unless there is a
statement of such dismissal being with prejudice in the notice of dismissal.
Dismissal under Rule 17, Sections 1, 2 and 3.
Indispensable party has not been impleaded = Dismissal for failure to state a cause of action.
The theory behind is that a complaint must implead an indispensable party at all times so as the
court can have a final determination of the case. This will be resolved by the court under Rule 16,
but availing of other modes of curing the defect aside from dismissing the case. In the resolution of
a motion to dismiss, Rule 16 gives to the court three choices: grant the motion, deny the motion, or
order an amendment to the pleading.

If an indispensable party has not been impleaded, the court may simply order the plaintiff to amend
his complaint to include the indispensable party. The plaintiff can then just file an amended
complaint, and then the case can proceed until the final determination of the case.
If the court ordered the amendment of the complaint to include the indispensible party, the plaintiff
failed to do so, can the court dismiss the case?
Yes, the court may do so under Rule 17, and the dismissal is with prejudice, under Section 3 of
Rule 17, for failure to obey a lawful order of the court. The remedy is to appeal.
Generally, the court is given discretion to state whether a dismissal is with or without prejudice. But
if the dismissal is not qualified at all, Section 3 of Rule 17 is very clear, that dismissal is with
prejudice. Therefore, the remedy is to appeal not to file a petition under Rule 65.
Note: Grounds for dismissal under Section 3 of Rule 17:
1. the plaintiff fails to appear on the date of the presentation of his evidence in chief on the
complaint,
2. failure to prosecute his action for an unreasonable length of time,
3. failure to comply with these Rules,
4. failure to comply with any order of the court
Sections 1, 2 and 3 of Rule 17 provides grounds for dismissal, and these sections also provides for
the consequences of the grounds of dismissal.
Section 1 Rule 17 provides for a plaintiff to dismiss his own complaint.
Rule 17 SECTION 1. Dismissal upon notice by plaintiff.A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for
summary judgment. Upon such notice being filed, the court shall issue an order confirming the
dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a
notice operates as an adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the same claim.
If Plaintiff files complaint today. Plaintiff changed his mind and moved to dismiss the case. The
summons had not been sent. What if the plaintiff dismissed his own complaint via a motion?
The court will have the discretion whether to grant or deny the motion.
The plaintiff should not dismiss his case via a motion. The means for a plaintiff to dismiss his case
is provided for under Section 1, Rule 17.
What if a notice of dismissal was given instead?
The court is left without discretion as to what to do with the complaint but to dismiss it. Filing of a
timely notice of dismissal will result in the dismissal of the case. The dismissal is without prejudice,
unless plaintiff tells the court that the notice of dismissal is to be considered an adjudication on the
merits.
The case had been dismissed by the court because of the plaintiffs notice of dismissal. What if
plaintiff changed his mind after the order of dismissal? What can he do?

He needs to wait 15 days after the order of dismissal and ask for revival of the case. No new
complaint need be filed, and no docket fees need be paid again.
Supposing the defendant filed motion to dismiss, and subsequently the plaintiff filed notice of
dismissal. How can this be resolved?
SC held that the court should confirm the notice of dismissal by the plaintiff. The plaintiffs notice of
dismissal prevails over the motion to dismiss filed by defendant.

TWO-DISMISSAL RULE
Plaintiff files a collection case for 500k against defendant. Defendant visits the plaintiff and asked
the plaintiff for the dismissal of the case, promising payment. Plaintiff acquiesced and files notice of
dismissal. Court dismisses the case. The defendant failed to pay. Can the plaintiff file another case
against defendant?
Yes, as the case was dismissed without prejudice.
The defendant again approached plaintiff, asking again for time. Plaintiff again agrees, and files
another notice of dismissal. It is again dismissed. What will be the effect?
The dismissal is with prejudice this time. If plaintiff files a case for the same defendant for the same
cause as the defendant again failed to pay, the case will be dismissed as the second dismissal is
one with prejudice, and res judicata will lie.
What if the defendant files motion to dismiss, but failed to allege res judicata, can the court proceed
to dismiss?
Yes, the court can do so, even if the defendant failed to allege it. It is a non-waivable ground of
dismissal, and anytime the court discovers such fact, it will dismiss the case.
Can the court say in its decision of dismissal that the second dismissal is without prejudice?
No. The court cannot say the second dismissal is without prejudice as the law itself dictates that
such dismissal is with prejudice, and the court will have no discretion as to such dismissal being
with or without prejudice. As long as it is the second dismissal of the same case, it will always be
with prejudice due to res judicata.
When can second dismissal is without prejudice under Section 1 Rule 17?
There can be two situations where dismissal under Section 1 Rule 17 is without prejudice?
1.If the first case was filed in a court which lacked jurisdiction thereto, then the 2nd one was filed in
the competent court and there was a 2nd dismissal, the 2nd dismissal is not res judicata. The twodismissal rule will be considered if the case had been filed in a court competent to hear it.
2. In Section 2 Rule 17, a plaintiff may dismiss his complaint via a motion to dismiss. Here, the
defendant had already filed an answer. If the plaintiff seeks to dismiss the complaint, he must file a
motion to dismiss his complaint, copy furnished to the defendant. The likelihood is that the
defendant will not object. If the defendant does not object, and the court dismisses the case
without prejudice, the plaintiff is allowed to file another case against the same defendant based on
the same cause.

The defendant, however, is given under Section 2 a chance to object. The defendant can insist that
the dismissal be one with prejudice. This is allowed as the dismissal is upon the initiative of the
plaintiff, and the defendant is given the opportunity to object. If you were the defendants counsel,
advise the defendant to object, and state that the dismissal should be one with prejudice. (I have
no opposition to the dismissal initiated by the plaintiff, as long as the dismissal is with prejudice.) If
that is the tenor of the dismissal, that is res judicata. It will preclude the plaintiff from filing another
case with the same claims against the same defendant.
What if the defendant has a compulsory counterclaim?
There can be a dismissal, but defendant can ask that the court should continue hearing on the
counterclaim set up by defendant in his answer. In the alternative, the defendant can ask the court
to try the compulsory counterclaim in a separate case. This is one of the rare instances wherein a
compulsory counterclaim could survive without the principal action.
The general rule is that if the complaint is dismissed, the compulsory counterclaim is also
dismissed. But not in Section 2 Rule 17. The complaint could be dismissed, but the compulsory
counterclaim could survive. In fact the survival of the compulsory counterclaim can even be
threshed out in a separate complaint, wherein there can be another complaint filed by the former
defendant against the former plaintiff. But this will be an independent action.
The other alternative is that the plaintiff can ask the court for the dismissal of the complaint but the
court will continue to exercise jurisdiction so that the court will continue to try the compulsory
counterclaim.
Rule 17, Section 3, Grounds of dismissal
~the plaintiff fails to appear on the date of the presentation of his evidence in chief on the
complaint,
~fails to prosecute his action for an unreasonable length of time (nolle prosequi),
~fails to comply with these Rules
~ fails to comply with any order of the court,
Under this section, the initiative for the dismissal of the case comes from the defendant or the court
itself.
How can the court order a dismissal under Section 3 of Rule 17 upon the ground that the plaintiff
failed to obey the provisions of the Rules of Court?
A good example can be had under Rule 18 on Pre-Trial. In Rule 18, it is provided expressly that
after the last pleading is filed, it is the duty of the plaintiff to set his complaint for pre-trial. He must
file a motion to have the complaint set for pre-trial. When the plaintiff fails to set the hearing for pretrial for, let us say, one year ago up to the present, and there is a finding that the plaintiff failed to do
so, the court can dismiss the case on the ground that the plaintiff failed to follow the provision set
upon in the Rules. This has been affirmed by the SC. So, if it is the duty of the plaintiff to set the
case for pre-trial, and he neglects to do so for an unreasonable length of time, there is every
reason for the court to make use of Rule 17, to order the dismissal of the case under Section 3

thereof. This is a dismissal with prejudice unless the court makes the necessary qualification that it
is a dismissal without prejudice.

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

Section 1. Rendition of judgments and final orders. A judgment or final order determining the
merits of the case shall be in writing personally and directly prepared by the judge, stating clearly
and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of
the court.
The December 16, 2003 dismissal order clearly violates this rule for its failure to disclose how and
why the petitioner failed to prosecute its complaint. Thus, neither the petitioner nor the reviewing
court is able to know the particular facts that had prompted the prejudicial dismissal. Had the
petitioner perhaps failed to appear at a scheduled trial date? Had it failed to take appropriate
actions for the active prosecution of its complaint for an unreasonable length of time? Had it failed
to comply with the rules or any order of the trial court? The December 16, 2003 dismissal order
does not say.
We have in the past admonished trial courts against issuing dismissal orders similar to that
appealed in CA-G.R. CV No. 83096. A trial court should always specify the reasons for a
complaints dismissal so that on appeal, the reviewing court can readily determine the prima facie
justification for the dismissal. A decision that does not clearly and distinctly state the facts and the
law on which it is based leaves the parties in the dark and is especially prejudicial to the losing
party who is unable to point the assigned error in seeking a review by a higher tribunal.
We thus agree with the petitioner that the dismissal of Civil Case No. 02-488 constituted a denial of
due process. Elementary due process demands that the parties to a litigation be given information
on how the case was decided, as well as an explanation of the factual and legal reasons that led to
the conclusions of the court. Where the reasons are absent, a decision (such as the December 16,
2003 dismissal order) has absolutely nothing to support it and is thus a nullity.
For this same reason, we are not moved by respondent FGU Insurances statement that the
disposition of the present petition must be limited to the issue of whether the CA had correctly
dismissed the appeal in CA-G.R. CV No. 83096. This statement implies that we cannot properly
look into the validity of the December 16, 2003 dismissal order in this Rule 45 petition. A void
decision, however, is open to collateral attack. While we note that the validity of the dismissal order
with respect to Section 1, Rule 36 of the Rules of Court was never raised by the petitioner as an
issue in the present petition, the Supreme Court is vested with ample authority to review an
unassigned error if it finds that consideration and resolution are indispensable or necessary in
arriving at a just decision in an appeal. In this case, the interests of substantial justice warrant the
review of an obviously void dismissal order.
A valid judgment must contain factual findings, it must have conclusions as to the law available. If
the court simply says that the dismissal was for failure to prosecute for an unreasonable length of
time, that is not a factual finding nor conclusion based on law, it is just a conclusion of the court.
The SC said that for a trial court to render a valid judgment, the court should explain why and how
the court came to the conclusion that the plaintiff is guilty of nolle prosequi. The court should give
instances pertaining to the records of the case that enabled the court to conclude that the plaintiff

has failed to prosecute for an unreasonable length of time. Without such explanation, even if the
judgment is entered, it can be subjected to direct or collateral attack.
If there is an adjudication upon the merits, when the order is simply an order of dismissal, under
Rule 17 or even under Rule 16, for the validity of that final order of dismissal, there should be an
explanation of how and why there is a dismissal of the case, the dismissal being a final
adjudication of the case.
An order of dismissal with prejudice under Rules 16, 17, 33 or even under any rule allowing
dismissal of the action, the order of dismissal, if it is going to be considered an adjudication of the
merits, must comply with the requirements of Section 1, Rule 36. Non-compliance thereto, the
dismissal is an void judgment which can be subjected to direct or collateral attack.

RULE 18 PRE-TRIAL
Mandatory in all cases, even in summary procedure, where it is called a preliminary conference. It
is present even in small claims procedure, where there is a semblance of pre-trial in the preliminary
conference under the Judicial Dispute Rule.
It is the duty of the plaintiff to schedule his complaint for pre-trial after the last pleading has been
filed. Failure to do so, the case may be dismissed with prejudice. But again, the order of dismissal
should order why and how the court has arrived at the conclusion that the plaintiff has waived or
not obeyed the RoC. This rule on pre-trial has been modified by the SC, applying the rules of
mediation and conciliation.
The Trial Court calls the parties to pre-trial. The parties are told to attend a mediation/conciliation
process by accredited mediators/conciliators. The case might be terminated while in this process.
The mediator/conciliator usually issues notices to the parties as to the schedule of the
mediation/conciliation conference. If the plaintiff does not appear for mediation/conciliation, he
repeatedly ignores such notices sent as to the schedule of the mediation/conciliation conference,
the mediator/conciliator will submit a report thereof to the trial court. It can be a ground of dismissal
with prejudice, according to SC Circulars. If a court orders that the parties should attend a
mediation/conciliation conference, such conference is deemed part of the pre-trial process. It is
tantamount to the plaintiff absenting himself from a hearing in the trial, and thus a violation of an
order of the court. Thus, such disobedience by the plaintiff shall be a ground for dismissal with
prejudice.
If mediator/conciliator fails in the attempt to settle, they will file a report and recommend proceeding
to a pre-trial proper. Parties will be ordered to submit pre-trial brief and attend the pre-trial
conference.
There are now several layers that the SC Circulars introduced that will enable a trial court to
enforce the state policy in the NCC which encourages the parties to settle their case amicably, one
of which is the mediation/conciliation conference as part of the pre-trial conference.

Basing on Rule 18, the parties have a common duty for purposes of pre-trial:
1. submission of a pre-trial brief
2. attend the pre-trial conference
If any one of them fails to submit a pre-trial brief, there are serious sanctions imposed. Even if they
have timely submitted their pre-trial brief but if one party was absent in the pre-trial conference,
there are serious consequences.
Sanctions for failure to attend pre-trial conference or to file brief:
Plaintiff = dismissal of complaint with prejudice;
Defendant = plaintiff is allowed to present his evidence ex parte.
We do not observe anymore the principle that if the defendant was unable to attend the pre-trial
conference, or he fails to submit a pre-trial brief on time, the court can no longer issue an order
declaring the defendant in default. What the court will do is order the plaintiff to present evidence
ex-parte. The decision of the court will be based on such evidence.

EX-PARTE PRESENTATION OF EVIDENCE UNDER RULE 18 VS. EX PARTE EVIDENCE

UNDER RULE 9
Ex Parte Evidence under Rule 18 Defendant has filed an answer but fails to submit pre-trial brief
or did not attend pre-trial conference, plaintiff can be ordered to present evidence ex parte, court
will make an award according with the evidence presented by plaintiff (application of amendment to
pleadings in order to conform to evidence).
Ex Parte Evidence under Rule 9 Defendant is in default, ex parte evidence can be presented,
and the court will only award those reliefs prayed for in the complaint.
Note: Amendment of pleading to conform to evidence is not applied in an ex-parte presentation of
evidence under Rule 9 when the defendant is in default.
Rules applicable to pre-trial conference in a civil vs. criminal case = usual Bar Q source
Effect of pre-trial in civil case and criminal case about stipulations of facts.
Civil case stipulations of facts can be had; joint stipulation of facts can be had; in pre-trial
conferences, parties are encouraged to agree on existence of certain facts, making them part of
the records of the case; Verbal stipulations of facts can be allowed and considered valid. These
stipulations need not be presented in evidence, as the court will take judicial notice of these
stipulations, and will be considered as judicial admissions.
Criminal case stipulation of facts should be reduced into writing, signed by the counsel of the
accused and accused himself, and approved in court. Otherwise, it will be inadmissible in court.

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

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

ALTERNATIVE DISPUTE RESOLUTION

NCC Compromises and Arbitration
NCC expresses the policy of the state that the courts should encourage litigants to settle disputes
amicably or to submit to arbitration if they cannot voluntarily agree to settle the dispute by
themselves.
Domestic Arbitration Act RA 876
Law on ADR gave autonomy to contracting parties in submitting their disputes to alternative
modes of dispute resolution, including prerogative to agree on the procedure to be followed in case
they enter into any mode of ADR.
There are 3 recent cases dealing with ADR. The principles formed in these 3 cases formed the
circular on arbitration.
Gonzales vs. RTC(2007 case)
Thus, the main issue raised in the Petition for Certiorari is whether it was proper for the RTC, in the
proceeding to compel arbitration under R.A. No. 876, to order the parties to arbitrate even though
the defendant therein has raised the twin issues of validity and nullity of the Addendum Contract
and, consequently, of the arbitration clause therein as well. The resolution of both Climax-Arimcos
Motion for Partial Reconsideration and/or Clarification in G.R. No. 161957 and Gonzaless Petition
for Certiorari in G.R. No. 167994 essentially turns on whether the question of validity of the
Addendum Contract bears upon the applicability or enforceability of the arbitration clause
contained therein. The two pending matters shall thus be jointly resolved.
***
We address the Rule 65 petition in G.R. No. 167994 first from the remedial law perspective. It
deserves to be dismissed on procedural grounds, as it was filed in lieu of appeal which is the
prescribed remedy and at that far beyond the reglementary period. It is elementary in remedial law
that the use of an erroneous mode of appeal is cause for dismissal of the petition for certiorari and
it has been repeatedly stressed that a petition for certiorari is not a substitute for a lost appeal. As

its nature, a petition for certiorari lies only where there is no appeal, and no plain, speedy and
adequate remedy in the ordinary course of law. The Arbitration Law specifically provides for an
appeal by certiorari, i.e., a petition for review under certiorari under Rule 45 of the Rules of Court
that raises pure questions of law. There is no merit to Gonzaless argument that the use of the
permissive term may in Sec. 29, R.A. No. 876 in the filing of appeals does not prohibit nor
discount the filing of a petition for certiorari under Rule 65. Proper interpretation of the aforesaid
provision of law shows that the term may refers only to the filing of an appeal, not to the mode of
review to be employed. Indeed, the use of may merely reiterates the principle that the right to
appeal is not part of due process of law but is a mere statutory privilege to be exercised only in the
manner and in accordance with law.
***
The situation in B.F. Corporation is not availing in the present petition. The disquisition in B.F.
Corporation led to the conclusion that in order that the question of jurisdiction may be resolved, the
appellate court had to deal first with a question of law which could be addressed in a certiorari
proceeding. In the present case, Gonzaless petition raises a question of law, but not a question of
jurisdiction. Judge Pimentel acted in accordance with the procedure prescribed in R.A. No. 876
when he ordered Gonzales to proceed with arbitration and appointed a sole arbitrator after making
the determination that there was indeed an arbitration agreement. It has been held that as long as
a court acts within its jurisdiction and does not gravely abuse its discretion in the exercise thereof,
any supposed error committed by it will amount to nothing more than an error of judgment
reviewable by a timely appeal and not assailable by a special civil action of certiorari. Even if we
overlook the employment of the wrong remedy in the broader interests of justice, the petition would
nevertheless be dismissed for failure of Gonzalez to show grave abuse of discretion.
***
Thus, we held in Manila Electric Co. v. Pasay Transportation Co. that a submission to arbitration is
a contract. A clause in a contract providing that all matters in dispute between the parties shall be
referred to arbitration is a contract, and in Del Monte Corporation-USA v. Court of Appeals that
[t]he provision to submit to arbitration any dispute arising therefrom and the relationship of the
parties is part of that contract and is itself a contract. As a rule, contracts are respected as the law
between the contracting parties and produce effect as between them, their assigns and heirs.
The special proceeding under Sec. 6 of R.A. No. 876 recognizes the contractual nature of
arbitration clauses or agreements. It provides:
SEC. 6. Hearing by court.A party aggrieved by the failure, neglect or refusal of another to
perform under an agreement in writing providing for arbitration may petition the court for an order
directing that such arbitration proceed in the manner provided for in such agreement. Five days
notice in writing of the hearing of such application shall be served either personally or by registered
mail upon the party in default. The court shall hear the parties, and upon being satisfied that the
making of the agreement or such failure to comply therewith is not in issue, shall make an order
directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the
making of the agreement or default be in issue the court shall proceed to summarily hear such
issue. If the finding be that no agreement in writing providing for arbitration was made, or that
there is no default in the proceeding thereunder, the proceeding shall be dismissed. If the finding

be that a written provision for arbitration was made and there is a default in proceeding thereunder,
an order shall be made summarily directing the parties to proceed with the arbitration in
accordance with the terms thereof.
The court shall decide all motions, petitions or applications filed under the provisions of this Act,
within ten days after such motions, petitions, or applications have been heard by it. [Emphasis
added.]
***
Implicit in the summary nature of the judicial proceedings is the separable or independent
character of the arbitration clause or agreement. This was highlighted in the cases of Manila
Electric Co. v. Pasay Trans. Co. and Del Monte Corporation-USA v. Court of Appeals.
The doctrine of separability, or severability as other writers call it, enunciates that an arbitration
agreement is independent of the main contract. The arbitration agreement is to be treated as a
separate agreement and the arbitration agreement does not automatically terminate when the
contract of which it is part comes to an end.
The separability of the arbitration agreement is especially significant to the determination of
whether the invalidity of the main contract also nullifies the arbitration clause. Indeed, the doctrine
denotes that the invalidity of the main contract, also referred to as the container contract, does
not affect the validity of the arbitration agreement. Irrespective of the fact that the main contract is
invalid, the arbitration clause/agreement still remains valid and enforceable.
The separability of the arbitration clause is confirmed in Art. 16(1) of the UNCITRAL Model Law
and Art. 21(2) of the UNCITRAL Arbitration Rules.
The separability doctrine was dwelt upon at length in the U.S. case of Prima Paint Corp. v. Flood &
Conklin Manufacturing Co. In that case, Prima Paint and Flood and Conklin (F & C) entered into a
consulting agreement whereby F & C undertook to act as consultant to Prima Paint for six years,
sold to Prima Paint a list of its customers and promised not to sell paint to these customers during
the same period. XXX
XXX The parties should be ordered to arbitration if, and only if, they have contracted to submit to
arbitration. Prima Paint was not entitled to trial on the question of whether an arbitration agreement
was made because its allegations of fraudulent inducement were not directed to the arbitration
clause itself, but only to the consulting agreement which contained the arbitration agreement.
Prima Paint held that arbitration clauses are separable from the contracts in which they are
embedded, and that where no claim is made that fraud was directed to the arbitration clause itself,
a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself
was induced by fraud.
There is reason, therefore, to rule against Gonzales when he alleges that Judge Pimentel acted
with grave abuse of discretion in ordering the parties to proceed with arbitration. Gonzaless
argument that the Addendum Contract is null and void and, therefore the arbitration clause therein

is void as well, is not tenable. First, the proceeding in a petition for arbitration under R.A. No. 876
is limited only to the resolution of the question of whether the arbitration agreement exists.
Second, the separability of the arbitration clause from the Addendum Contract means that validity
or invalidity of the Addendum Contract will not affect the enforceability of the agreement to
arbitrate. Thus, Gonzaless petition for certiorari should be dismissed.

DOCTRINE OF SEPARABILITY OR SEVERABILITY

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

On Appeal, the Supreme Court affirmed the Court of Appeals ruling but for a different reason. On
the procedural issue, the Supreme Court ruled that ABS-CBN cannot simultaneously avail of the
alternative remedies under Rule 43 and Rule 65.
On the issue of the scope of judicial review, the Supreme Court disagreed with the Court of
Appeals position that an aggrieved party cannot seek recourse against an arbitral award directly
with the Court of Appeals.
According to the Supreme Court, a party aggrieved by an arbitral award has three (3) remedies, to
wit: (a) a petition in the proper trial court to issue an order to vacate the award under Republic Act
No. 876 (which applies to domestic arbitration); (b) a petition for review with the Court of Appeals
under Rule 43 of the Rules of Court on questions of fact, of law, or mixed questions of fact and law;
and (c) a petition for certiorari with the Court of Appeals under Rule 65 of the Rules of Court if the
arbitrator acted without or in excess of his jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction.
Section 24 of R.A. No. 876
The grounds to vacate under Section 24 are:
(a) The award was procured by corruption, fraud, or other undue means; or
(b) That there was evident partiality or corruption in the arbitrators or any of them; or
(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon
sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy;
that one or more of the arbitrators was disqualified to act as such under section nine hereof, and
willfully refrained from disclosing such disqualifications or of any other misbehavior by which the
rights of any party have been materially prejudiced; or
(d) That the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual,
final and definite award upon the subject matter submitted to them was not made.
Rule 43
The Supreme Court noted that Rule 43 of the Rules of Court expressly applies to awards,
judgments, final orders or resolutions of quasi-judicial agencies, including voluntary arbitrators
authorized by law.
Rule 65
As for the remedy under Rule 65, the Supreme Court stressed that it will not hesitate to review a
voluntary arbitrators award where there is a showing of grave abuse of authority or discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy remedy in
the course of law.
It should be noted that the Philippine Alternative Dispute Resolution Act of 2004 (ADR Law)
adopted and incorporated the provisions of the UNCITRAL Model Law on International Commercial

Arbitration (Model Law), which limits recourse against an international arbitral award only to the
grounds specified under Section 34 of the Model Law (e.g., incapacity of a party to the arbitration
agreement or the invalidity of the arbitration agreement under the applicable law). Neither the
Model Law, nor the New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, to which the Philippines acceded in 1967, recognize the setting aside of
international/foreign on the broader grounds of errors of law and/or fact or grave abuse of
discretion.
Notably, the ruling in ABS-CBN treated the case as a domestic arbitration even though one of
the parties, i.e., WINS, was a Japanese corporation and a substantial portion of the obligation, i.e.,
the distribution and sublicensing of the The Filipino Channel, was performed in Japan. Perhaps
this may be explained by the fact that the arbitral award in this case was rendered prior to the
enactment of the ADR Law. It was only under the ADR Law that a distinction was made between
domestic arbitration and international arbitration. Under the ADR Law, international arbitration shall
be governed by the Model Law, while domestic arbitration shall be governed by R.A. No, 876. The
ADR Law adopts the definition of international arbitration under Article 1(3) of the Model Law.
Domestic arbitration, on the other hand, defines domestic arbitration as arbitration that is not
international.

Koreatec vs. Lerma January2008

Korea Technologies Co., Ltd., v. Hon. Alberto A. Lerma, et al. (G.R. No. 143581, 7 January 2008),
the Supreme Court held that the ADR Law, being a procedural law, may be given retroactive
effective. Hence, there appears to be a conflict in this respect between ABS-CBN and Korea
Technologies.
For domestic arbitration proceedings, we have particular agencies to arbitrate disputes arising from
contractual relations. In case a foreign arbitral body is chosen by the parties, the arbitration rules
of our domestic arbitration bodies would not be applied. As signatory to the Arbitration Rules of the
UNCITRAL Model Law on International Commercial Arbitration[41] of the United Nations
Commission on International Trade Law (UNCITRAL) in the New York Convention on June 21,
1985, the Philippines committed itself to be bound by the Model Law. We have even incorporated
the Model Law in Republic Act No. (RA) 9285, otherwise known as the Alternative Dispute
Resolution Act of 2004 entitled An Act to Institutionalize the Use of an Alternative Dispute
Resolution System in the Philippines and to Establish the Office for Alternative Dispute Resolution,
and for Other Purposes, promulgated on April 2, 2004. Secs. 19 and 20 of Chapter 4 of the Model
Law are the pertinent provisions:
CHAPTER 4 - INTERNATIONAL COMMERCIAL ARBITRATION
SEC. 19. Adoption of the Model Law on International Commercial Arbitration.International
commercial arbitration shall be governed by the Model Law on International Commercial Arbitration
(the Model Law) adopted by the United Nations Commission on International Trade Law on June

21, 1985 (United Nations Document A/40/17) and recommended for enactment by the General
Assembly in Resolution No. 40/72 approved on December 11, 1985, copy of which is hereto
attached as Appendix A.
SEC. 20. Interpretation of Model Law.In interpreting the Model Law, regard shall be had to its
international origin and to the need for uniformity in its interpretation and resort may be made to the
travaux preparatories and the report of the Secretary General of the United Nations Commission
on International Trade Law dated March 25, 1985 entitled, International Commercial Arbitration:
Analytical Commentary on Draft Trade identified by reference number A/CN. 9/264.
While RA 9285 was passed only in 2004, it nonetheless applies in the instant case since it is a
procedural law which has a retroactive effect. Likewise, KOGIES filed its application for arbitration
before the KCAB on July 1, 1998 and it is still pending because no arbitral award has yet been
rendered. Thus, RA 9285 is applicable to the instant case. Well-settled is the rule that procedural
laws are construed to be applicable to actions pending and undetermined at the time of their
passage, and are deemed retroactive in that sense and to that extent. As a general rule, the
retroactive application of procedural laws does not violate any personal rights because no vested
right has yet attached nor arisen from them.

There are certain principles to keep in mind concerning arbitration proceedings:

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

Some Principles to familiarize in ADR:

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

Principle of Separability
Arbitration clause is treated as an agreement independent of the other terms of the contract of
which it forms part. A decision that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause. (Uncitral Model Law, Sec. 16(1); Special ADR Rules 2.2)

If there is a judgment by a court that the container contract is unenforceable, that will not affect the
arbitration clause as it is a separate contract by itself. This clause will still govern the relationship of
parties concerning the filing of cases in court or arbitration board as the case may be.
If the arbitration clause is still valid, and one of the parties filed a case in court, allegedly for the
enforcement of his right, then the court, confronted with the arbitration clause/contract, will have to
either dismiss the complaint or suspend the proceedings and compel the parties to go into
arbitration.
Under the decisions of the 3 cases, the court also emphasize that there could be a complaint to
declare the unenforceability of or to declare void the arbitration contract. It is an RTC that has
jurisdiction to do so. But even if there is a pendency of such a case to declare unenforceability of or
to declare void the arbitration contract, it shall not serve to prevent the parties from proceeding to
arbitration. In fact, these cases came out with a principle which the court called the Principle of
Anti-Suit Injunction.
The Principle of Anti-Suit Injunction means that the court has no authority to issue a writ of
injunction to prevent an arbitration from proceeding or an arbitration board to be constituted for the
purpose of enforcing the arbitration clause.

Competence-Competence.
What is the Competence-Competence Principle?
Power of arbitral tribunal to initially rule on the question of its jurisdiction over a dispute including
any objections with respect to the existence or validity of the arbitration agreement or any condition
precedent to the filing of a request of arbitration.
The Special ADR Rules recognize the principle of competence-competence, which means that
the arbitral tribunal may initially rule on its own jurisdiction, including any objections with respect to
the existence or validity of the arbitration agreement or any condition precedent to the filing of a
request for arbitration. A.M. No. 07-11-08-SC Special Rules on ADR
Restatement of the Rule:
Before the arbitral tribunal is constituted, the regular courts have jurisdiction to determine the issue
of competence of a tribunal. The moment the arbitral tribunal is constituted, the arbitral tribunal has
jurisdiction.
There arises a policy of judicial restraint, such that the finding of the court on the jurisdiction of the
arbitral tribunal is at best prima facie.
Note:
There is a before Arbitration Tribunal, after Arbitration Tribunals finding, and after-after.

Competence-competence means that the arbitral body has the authority to rule on the issue as to
whether or not it has jurisdiction over the case and the enforceability and validity of its decisions. IT
IS NOT EXCLUSIVELY GIVEN TO A COURT. There could be a situation that an RTC will declare
that the arbitration clause is unenforceable, but the arbitration board declared such clause
enforceable, the decision of the board will prevail.
The RTC may have the authority to entertain a petition to declare void or unenforceable an
arbitration clause. But the decision of the RTC is merely prima facie. We will rely the findings later
on of the arbitral tribunal. This is the principle of competence-competence. (Dean Jara)
Does the prima facie finding of the court mean that the arbitral tribunal can still be formed?
Yes. If the court finds that the arbitration agreement is null and void, inoperative or incapable of
being performed, a party may nevertheless commence arbitration and constitute the arbitral
tribunal.
So where does prima facie finding of the court come in? How is it prima facie?
This means that the same issue may be passed upon by the arbitral tribunal, which has the effect
of superseding the previous of the court. (This is the AFTER ruling.)
What about the after-after ruling?
The same issue may be passed upon in an action to vacate or set aside the arbitral award (Rule
3.11) In this case, it is no longer a prima facie determination of such issue or issues, but shall be a
FULL REVIEW of such issue or issues with due regard, however, to the standard of review for
arbitral awards.
But how may arbitration commence if it the court has made a prima facie finding that the arbitration
agreement is found null and void, inoperative or incapable of being performed? Will the other party
who got the favorable ruling of the court participate / cooperate?
Get an appointment of arbitrator - sole arbitrator, ad-hoc, institutional.

Principle of Judicial Restraint there should be least intervention by courts of courts of justice
insofar as arbitration proceedings are concerned. So, if there is an ongoing arbitration, or even if
there is a pending case there is a right to compel one of the parties to submit to arbitration, the
court should not interfere in the constitution of the arbitral board. The reasoning behind is that
when the parties crafted the arbitration clause, there is an implicit understanding between the
parties is that an arbitral board, and not a court of justice, should resolve their dispute. The court
deems this as a valid contract as it is the policy is to give autonomy to the parties in choosing the
manner to adjudicate their disputes. They do not need to go to a court of justice. They can go to an
arbitration body, which is a faster and practical means of settling their disputes.
Rule 2.4. Policy implementing competence-competence principle.The arbitral tribunal shall be
accorded the first opportunity or competence to rule on the issue of whether or not it has the
competence or jurisdiction to decide a dispute submitted to it for decision, including any objection

with respect to the existence or validity of the arbitration agreement. When a court is asked to rule
upon issue/s affecting the competence or jurisdiction of an arbitral tribunal in a dispute brought
before it, either before or after the arbitral tribunal is constituted, the court must exercise judicial
restraint and defer to the competence or jurisdiction of the arbitral tribunal by allowing the arbitral
tribunal the first opportunity to rule upon such issues.
Where the court is asked to make a determination of whether the arbitration agreement is null and
void, inoperative or incapable of being performed, under this policy of judicial restraint, the court
must make no more than a prima facie determination of that issue.
Unless the court, pursuant to such prima facie determination, concludes that the arbitration
agreement is null and void, inoperative or incapable of being performed, the court must suspend
the action before it and refer the parties to arbitration pursuant to the arbitration agreement.
A.M. No. 07-11-08-SC Special Rules on ADR

Can an arbitral body or arbitrator grant provisional remedies?

The circular on arbitration as well as jurisprudence states that yes, arbitration board can be allowed
to grant provisional remedies or interim relief. Art. 17 J of UNCITRAL Model Law on ICA also
grants courts power and jurisdiction to issue interim measures. Thus, a panel of arbitrators can
issue a writ of preliminary injunction, a writ of preliminary attachment, they can appoint a receiver,
and even can issue a protection order so that the property in dispute may be preserved.
If a court of justice grants interim relief or provisional relief that is in conflict with the relief granted
by the arbitral body, it is the relief granted by the arbitral body that shall prevail. This emanates from
the principle of Anti-Suit Injunction and Principle of Judicial Restraint.
Principle of Anti-Suit Injunction
~The remedial device available in common law systems to restrain a party from instituting or
continuing with proceedings in a foreign court.
~Refers to an extraordinary procedure where a court issues an order to the effect that proceedings
in a second jurisdiction should not precede. It is necessary to prevent an irreparable miscarriage of
justice.
The Complaint in the arbitration board must contain the evidence (attachments) and the legal brief,
an argument supporting the partys stand as to why his claim must be given weight and granted.
Defendant must file a response of similar composition to such complaint (with legal brief). The legal
brief is similar to a memorandum (In ordinary civil procedure, when there is an appeal, then we
require filing of a brief in the court.).In short, this is a short cut of the civil procedure.
There is no summons issued by the arbitration board, just a notice for filing a response. Service
thereof can be had by private courier.

Because of the requirement of prior submission of evidence together with the filing of pleadings
and legal brief, it is easy to appreciate how the arbitration board can easily grasp what the issues
are all about and they can right away render an arbitral award. But it can require the submission of
additional evidence if needed. There is a provision in the ADR rules which states that the technical
rules of evidence will not govern proceedings therein.
Let us say that the winning party wants the arbitral award to be treated like a judgment of the court,
he simply files with the RTC to confirm arbitral award. He can do it at any time. If arbitral award is
confirmed by the RTC, the arbitral award ceases to be such and is now a judgment that can be
executed under Rule 39. Violation thereof can cause winning party to file motion for execution of
judgment. In arbitration, an arbitral award is final and executory, especially if confirmed by the RTC.
The losing party can file a petition with the same RTC which has authority to confirm the award for
purpose of vacating, correcting or modifying said award.
Supposing the RTC vacates award, setting it aside. Can the RTC make its own decision concerning
the merits of the decision?
Not possible. Although a court of justice can vacate, modify or correct an arbitral award, it has no
authority to render its own judgment on the merits. The domestic arbitration law and the SC
Circular said that if the court decides to vacate the award, the court does not have the authority to
change the conclusions of law of the arbiter. The principle is a court cannot render its own decision
on a case already submitted for arbitration. While it can vacate, modify or correct the award, and it
does so, the court should return the decision to the arbitration panel for further study, or the parties
can opt to have a new arbitration panel constituted. The court cannot impose its own judgment on
the merits of the case. The court can review the case, and modify, vacate or correct the AWARD,
but it cannot reverse the findings of facts and conclusions of the arbiter.
Supposing the RTC affirms the arbitral award, does the losing party still have a recourse?
The recourse of the losing party is to appeal in the CA via Petition for Review under Rule 43. The
justification for this remedy is that in the enumeration of quasi-judicial bodies whose decision can
be reviewed by the CA, it includes the review of an award made by arbitrators. From Rule 43, there
can be an appeal to the SC via a Petition for Review under Rule 45.
There is a judicial review for reviewing arbitration cases. But the reviewing courts will have limited
authority concerning the manner by which the judgment could be held. The court cannot change
the factual findings of an arbitral body. In case of a review brought to the RTC, CA or SC involving
arbitral award, there are few grounds mentioned. We cannot raise Questions of law or fact. We
have to follow the grounds mentioned in RA 876.
Grounds for justifying a court of justice in issuing an order to vacate the award:
1. arbitrator engages in corrupt practices
2. arbitrator resolved issues not brought before him
3. arbitrator exceeded his authority
4. failure to disclose his relationship to one of the parties within 6 degrees.

Note :These are not the usual grounds of appeal in civil cases. The courts should see to it that
causes should be founded on these grounds for granting the vacation of an award.
With respect to International Commercial Arbitration, which can be held in RP or outside. A foreign
arbitral award will be treated like a domestic arbitral award, not a foreign award. It is not considered
a judgment rendered in a court of justice. Even if confirmed by a foreign court, the prevailing party
must petition for the recognition of the award in the RTC. It can be enforced in RP by filing in RTC
for a petition of recognition and enforcement of the arbitral award. Its execution will fall under RTC
jurisdiction, under Rule 39. The last section of Rule 39 talks about the judgment rendered by the
foreign court.
Rule 39, SEC. 48. Effect of foreign judgments or final orders.The effect of a judgment or final
order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order, is
as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order is
conclusive upon the title of the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact.
The remedy of a winning party in a case decided by a foreign court, for the enforcement thereof in
RP, is to file a petition for the enforcement of the foreign judgment. There is no need to file a
petition for recognition of a foreign judgment. Our laws do not recognize a foreign arbitral award as
a judgment of a foreign court, it is just an arbitral award. Thus, the prevailing party in an arbitral
award cannot make use of Section 48 under Rule 39. He must avail of another remedy provided by
the SC Circular, which is a petition for recognition and enforcement of foreign arbitral award in the
RTC.
The court can refuse to resolve a petition for recognition and enforcement of a foreign arbitral
award; unlike in the case of a foreign judgment rendered by a foreign court, where the decision is
conclusive upon our courts, subject to the last paragraph of Sec. 48, Rule 39. But we do not apply
Section 48, Rule 39 to a foreign arbitral award, as it is not a judgment rendered by a foreign court.
Supreme Court has inserted in the rules remedies made available to the parties in ordinary cases.
If a local court or an arbitral body makes a finding that the arbitration clause is valid and binding, it
is inappealable. But if the arbitral body makes a finding that the clause is invalid, the decision is
appealable to a trial court. If there is a finding that the arbitrator is qualified, the motion for
reconsideration, appeal, or a petition under Rule 65 against such finding are all prohibited. This is
to emphasize the policy of judicial restraint insofar as arbitration proceedings are concerned.

If there is an appeal in the higher court for a petition for review of an arbitral award, the ADR law
also provides that the appellant should file a bond equal to the award given by the panel of
arbitrators; whereas in ordinary appeal, there is no need to file an appeal bond. In ordinary court
procedure, there is no need to file an appeal bond as it has been done away by BP 129 (requiring
only the filing of the mode of appeal and docket fees).
Read the SC Circular and the cases.
Intervention
4 kinds of intervention expressly recognized by the court:
1. Intervention upon courts discretion
Rule 19 intervention upon courts discretion; a stranger to a case voluntarily introduces himself
as a party, but must seek court permission to do so via Motion for Intervention.
Motion for intervention should show:
1. intervenor had direct interest, or
2. he has a grievance against both parties in the pending case, or
3. he wants to side with one of the parties, or
4. is situated in a very unfortunate position wherein the judgment of the court could adversely affect
his properties.
In this situation, intervention is not a matter of right as he is required to file a motion subject to the
courts decision. In the resolution of the motion, the court has the discretion to grant or deny the
motion. If the motion is denied, the intervenor can file a separate case against any one, or both,
parties. If his case is already filed, he can seek to have the cases consolidated, in the instance that
consolidation is proper. If there is a consolidation, then the intervenors desire is also satisfied, as
he can no participate in the proceedings.
If motion is granted, intervenor is required to file a pleading (either a complaint- or an answer-in
intervention).
Complaint-in-intervention filed if the intervenor either wants to side with the complainant or is
filing a complaint against both complainant and defendant in the main complaint.
Answer-in-intervention filed if the intervenor wants to side with the defendant.
The filing of these pleadings do not preclude the intervenor from availing of the other pleadings
allowed in a civil case (counter-claim, cross-claim, third-party complaint, etc.).
Do we recognize a motion to intervene as a matter of right on the part of the intervenor, wherein
the intervenor can insist or compel the court to allow his intervention?
Yes, this is found in a class suit, where any member of the class has the right to intervene, and can
ask the court for the authority to intervene. The court has no option but to grant the intervention.
2. Court-mandated intervention court itself directly induces the party to intervene in an existing or
pending litigation. (Rule 9, in marriage-related cases)

In marriage related cases in Rule 9, if the defendant in a marriage-related case does not answer,
the court has no authority to declare a non-answering defendant in default, but can direct the
prosecutor to intervene in order to determine that there is no collusion between parties.
3. Forced intervention a person becomes an intervenor by operation of law, Rule 57 and Rule 39.
Rule 39 when the court issues writ of execution and the properties of the losing party have been
levied upon, and sheriff also issues the ancillary writ of garnishment. When the properties of a
judgment debtor in the possession of a 3rd person are subjected to a writ of garnishment, that 3rd
person becomes a forced intervenor in the proceedings. That person will have to obey the orders
of the court issued in relation to the execution, whether the 3rd person likes it or not, he will be
forced to act as an intervenor to the case.
Rule 57 Preliminary attachment forced intervention; if there is a writ of preliminary attachment
issued by the court, a supplemental writ of garnishment is issued, and the writs were enforced by
the sheriff upon a 3rd person, that 3rd person becomes a forced intervenor in the proceedings.
4. Court-encouraged intervention
Writ of Kalikasan cases it is a court-encouraged intervention for NGOs and other parties to
intervene whenever there is a petition filed under Kalikasan laws.. The court cannot compel the
intervention of these bodies, only to encourage them.
There are some cases whose positions it appears to be in conflict with one another in reference to
the intervention under Rule 19.
Before the court grants a motion for intervention, the principal case was dismissed with the motion
unresolved. What happens to the motion for intervention?
It will render the motion academic. The motion presupposes the presence of a principal action.
Absent thereof, there can be no intervention allowed. Intervention is always ancillary to a principal
action.
Metrobank vs. CA (Dismissal of the main action will not render intervention moot and academic)
A motion for intervention was filed while the case was pending. The court granted the intervention.
After receipt of the order allowing him to intervene, the party filed a complaint-in-intervention
against all the parties in the case. Intervenor did not realize that the parties of the case were
settling. The parties did arrive at an amicable settlement. The parties sought for the dismissal of
the case, which was allowed. The intervenor objected to idea of having his petition dismissed. The
principal parties told the court that it is axiomatic in intervention that once the principal action has
been terminated, the subsidiary action is dismissed also.
SC Held that the intervention was already allowed. The principle that the contention of the parties
was applicable only in the instance the motion to intervene was not yet granted. In this case, the
court has already granted the motion to intervene. The interest of intervenor was not common with
the interest against the other parties, having filed a complaint-in-intervention against both parties.

Thus, the intervention should be allowed to stand, the standing of which, the intervention is
considered a separate case against the parties. Here, the intervention survived.
The MetroBank case involves a situation where in the intervention will survive the dismissal of the
main complaint. But, for the intervention to survive, the pleading to be filed must be a complaint-inintervention against both parties to the case. This will not be applicable if the intervention was in
the form of a complaint-in-intervention where the intervenor sides with the plaintiff or if the
intervention was via an answer in intervention.
Although the rule provides a time frame for an intervenor to be allowed to intervene, the SC has
allowed intervention to take place, even if there is already a pending appeal before the CA. The
Rule is very clear that intervention should be allowed before judgment is rendered by the trial court.
After judgment is rendered by the trial court, intervention should be no longer allowed. But, the SC
recognized the propriety of an intervention even if the case was already pending appeal in the CA
or the SC.
In the first instance where the court will allow an intervention, even on appeal, is when the
intervenor is an indispensible party. If an intervenor attempts to intervene if the case is already on
appeal, that will save the trial court, CA and SC from another procedural problem. We learned that
if the trial court renders a decision in a case where an indispensable party is not impleaded, that
decision will never be final and executory. So, if on appeal, if the indispensable party intervenes,
then he should be allowed to do so, because if he is allowed, that will cure all the procedural effects
that will be present in this particular case. That will solve the problem of whether or not there could
be a final determination of the case or whether or not the decision can be finally be executed under
the provisions of Rule 39.
Another situation that the SC allowed an intervention to happen even if the case is already is on
appeal is when the Republic of the Philippines intervenes in the case. If the Republic of the
Philippines, via the Solicitor General, intervenes in a case that is already on appeal, the SC said
that the intervention of the Solicitor General must be of national importance, since the Solicitor
General intervenes only when the case is of paramount interest to the Republic of the Philippines.

MODES OF DISCOVERY
The modes of appeal that we have in a civil procedure are also available in a criminal case.
The SC in the WEBB CASE came out with the principle that the Modes of Discovery available in
civil cases are also available in criminal cases. The only difference is that the use of the mode of
discovery should not violate or derogate the constitutional right of the accused.

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

interrogatories may not be compelled by the adverse party to give testimony in open court, or to
give a deposition pending appeal.
Admission last section of Rule 26
The same rule on Rule 25 Section 6 is practically the same for admissions. In fact, these provisions
of Sec. 5 Rule 26 and Sec. 6 Rule 25 pertain to competency of certain evidence. If an evidence is
relevant, the general rule is that the evidence should be admissible, unless it is not competent
under the provisions of our law or certain rules. In Sec. 5 Rule 26 and Sec. 6 Rule 25, certain
relevant evidence may be rendered INADMISSIBLE or INCOMPETENT for failure of the party to
follow the requirements given in these modes of discovery. Certain matters may not be proven by a
party unless that party complied with the requirements given under Sec. 5 Rule 26 or Sec. 6 Rule
25. So the sanction that the Rules imposes so the party will be compelled to avail of the modes of
discovery is that the evidence that the evidence sought to be presented by the proponent could
become inadmissible, the otherwise relevant evidence will become incompetent by reason of the
provisions of these Rules. That will compel the party to avail of the modes of discovery.
Rule 26 SEC. 5. Effect of failure to file and serve request for admission.Unless otherwise allowed
by the court for good cause shown and to prevent a failure of justice, a party who fails to file and
serve a request for admission on the adverse party of material and relevant facts at issue which
are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present
evidence on such facts.
Other than these, there is nothing in our Rules that requires a party to avail of the modes of
discovery. Availment of a mode of discovery, as a general rule, is purely voluntary on the part of an
interested party.
Another basic principle in discovery measures is that after an answer is filed by the defendant,
availment of the modes of discovery does not require permission of the court. The plaintiff or
defendant is given the prerogative to avail of the modes of discoveries like taking of depositions or
interrogatories to parties or admissions to parties. The other modes of discovery will ALWAYS
require leave of court. Thus production and inspection of documents or things in court will always
require leave of court, as does physical and mental examination of a person. But in the case of
depositions pending trial, interrogatories or admissions, we do not need leave of court so long as
the defendant has already filed an answer.

DEPOSITION BEFORE AN ACTION OR ON APPEAL.

Deposition before action called in the past as perpetration of testimonies. Strictly, it is not a mode
of discovery, as modes of discovery assumes that there is a pending case in court. A deposition
before action does not require an action to be pending, and is thus treated as an independent
action by itself. This is availed of by filing a Petition for Perpetration of Testimony, as there is no
action filed yet.
Since this is an independent proceeding, with what court should we file the petition?

Petition to Perpetuate Testimony RTC. If we follow BP 129, that petition would be cognizable
under the RTC since it is an independent action incapable of pecuniary estimation. Regardless of
the contemplated action to which we are going to file, a Petition to Perpetuate Testimony is always
cognizable by an RTC.
If there is already a complaint that is filed and an answer has been filed by the defendant, the court
will allow the use of the modes of discovery that will not require leave of court, such as the taking of
a deposition. The court has allowed the use of these modes of discovery as a fishing expedition.
Practically there is no limitation as to what matters can be inquired into insofar as availment of
discovery measures are concerned. It is not required that the matters sought be discovered are
relevant right away to the issues presented in the case.
When the law says that the statutes of discovery allow a fishing expedition, it does not mean to say
that the statutes of discovery are intended only to gather evidence on behalf of the interested party.
He may want to obtain information only for tactical advantage during the course of the case. He
does not have to present evidence in court information that is gathered by him via these modes of
discovery.
But, even if the party is allowed to gather information through the modes of discovery what the law
limits is the use of evidence gathered. So, if the plaintiff was able to gather information, let us say,
from a witness who, according to the pre-trial brief of the defendant, would be principal witness for
the defendant, it does not mean that the deposition given by such witness will readily be admissible
in court in view of the testimony of this defendants witness. The fact that a party has taken the
deposition of a potential witness does not mean to say that this potential witness will now be
excused from going to court to give his testimony. The giving of deposition is different from the
giving testimony in open court. A party may give his deposition, but it does not mean that he is
excused from testifying in court. In fact, the Rules require that if the party has already given his
deposition, he is still required to testify in court. His deposition will not take the place of his the
testimony in court. This is because the taking of his deposition is only a discovery measure. The
deponent does not appear before the trial court to testify. He gives his deposition not before a trial
judge, but before another person who is simply authorized to administer oaths.
For instance, if the case is pending here in Manila, and there is a potential witness whose
deposition is required by the plaintiff, and this witness is also a resident of Manila, can the plaintiff
require this potential witness to give his deposition?
Yes.
After the potential witness has given his deposition, and later on, this witness receives a subpoena
requiring him to give testimony in open court, can the potential witness file a motion to quash
subpoena as he had given a deposition of his testimony?
No, as the giving of a deposition cannot take the place of giving testimony in open court. The
deponent can always be compelled to give his testimony in open court. Though his testimony may
be a repetition of his deposition, it still does not matter. He still has to give his testimony in open
court.

If the witness has given testimony in open court, what is the use of the deposition he had
previously given?
Deposition previously given can be used to impeach the witness or corroborate the witness
statements in the testimony. This is the principle of evidence called Laying The Predicate.
Laying the Predicate: Refer to statements, oral or documentary, made by the witness sought to be
impeached on occasions other than the trial in which he is testifying
Q: What are the elements of laying the predicate?
A:
1. The alleged statements must be related to the witness including the circumstances of the times
and places and the persons present. If the statements are in writing they must be shown to him;
2. He must be asked whether he made such statements and also to explain them if he admits
making those statements (Riano, p. 327).
Q: When is the rule on laying the predicate inapplicable?
A: It is inapplicable if the prior inconsistent statement appears in a deposition of the adverse party,
and not a mere witness, that adverse party who testifies may be impeached without laying the
predicate as such prior statements are in the nature of admissions of said adverse party.
(Regalado, Vol. II, p. 852, 2008 ed.)
Q: What is the purpose of laying the predicate?
A: The purpose of which is to allow the witness to admit or deny the prior statement and afford him
an opportunity to explain the same. Non-compliance with the foundational elements for this mode
of impeachment will be a ground for an objection based on improper impeachment. Over a
timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation
is not admissible. (ibid)
Is it possible the deposition can be the testimony of the witness?
Yes, if the witness is more than 100 km from the court, and the witness invokes his viatory right,
the deposition is allowed to take the deposition and the court can consider the deposition the
testimony of the witness.
If a deposition has already been given, is it possible that his deposition will be treated as his
testimony in open court?
That is also possible. If the deponent, if called upon by the court to testify, will invoke his Viatory
Right.
Where the witness resides more than one hundred (100) kilometers from his residence to the place
where he is to testify by the ordinary course of travel, the witness may invoke that he be not
allowed to testify (Viatory Right). The witness can ask the court that he be excused from giving his
testimony in open court. Even if the court issues a subpoena, the witness may ignore such
subpoena. He cannot be cited in contempt for disobedience thereof. The remedy of the court is to
allow the taking of the deposition, and the court can then consider the deposition taken as his

testimony. In other words, the fact that a deposition has already been taken from a person does not
mean that the said person will be excused thereafter from going to court in order to be a witness.
That is possible only in exceptional cases mentioned in Rules, one of them being when the witness
invokes his Viatory right. Or even if there is no viatory right, if the witness/deponent is physically
incapable of going to court in order to testify, the court can consider the deposition previously given
as his testimony in court.
TRIAL
Can a trial court decide a case properly and validly if the court does not conduct a pre-trial or a trial
for that matter?
Yes. Although pre-trial is mandatory and though trial must be had due to triable issues, the court
can just skip these stages and render judgment. Ex. Judgment by default, judgment on the
pleadings.
Judgment by default it is a judgment on the merits, no trial and pre-trial is conducted. Under Rule
9, if the court declares defendant in default since he did not file an answer, one of the options is to
immediately render a judgment without requiring plaintiff to present his evidence ex parte.
Supposedly the defendant filed his answer, can we still do away with the trial?
Yes, we follow the special kinds of judgments whenever an answer is filed as found under the
rules.
Special judgments where an answer is filed by defendant
There can be a judgment on the pleadings if the answer does not raise any issue at all, or even
admits the allegations in the pleadings. There need to be no pre-trial and trial. The plaintiff can
move right away for a judgment on the pleadings.
Judgment based upon a compromise. Parties entered into a compromise agreement during pretrial, the court concurs the validity of the compromise agreement, the court will render a judgment
based upon compromise.
If you will notice that in the deliberation of the Rules on certain special kinds of judgments, like
judgment on the pleadings, demurrer to evidence or summary judgment, the core element of these
special kinds of judgments is that if there is a trial conducted by the court, it is not a full blown trial.
Summary Judgment not a full-blown trial
Demurrer to Evidence not a full-blown trial, only of the trial contemplated under Rule 30.
Defendant does not present evidence.
But in instances where there are genuine triable issues, and the parties cannot agreed to the facts
that should be given to the court so it can decide the case properly, the court will have to conduct a
trial. The parties are then given the opportunity to make use of evidentiary rules, which is not
required before trial. There is no offer of evidence during pre-trial. At most, if there is evidence

presented during pre-trial, it is only for marking them as exhibits. In a pre-trial brief, the parties just
identify the documental evidence, the real evidence and testimonial evidence in the form of
affidavits. What the parties doe in pre-trial is to mark these as exhibits.
The trial of the case shall govern the pre-trial order. Only the issues specified in the pre-trial order
will be the order of trial. But this Rule is not strict as the Rules allow amendment to conform to
evidence. If we follow strictly the Rules and we do not allow amendment to conform to evidence,
then the only issues specified in the pre-trial order will be tried.
If there are genuine triable issues, can the court do away with the trial?
Yes. The parties can help the court avoid a trial if the parties stipulates on facts that are in dispute.
If the parties submit to the court complete stipulation of facts, that the court need only review the
law applicable, then the court can render a decision on the case. The court need not conduct a
trial. Trial is only a trial of factual issues. It cannot be a trial of legal issues. This is because the
court is presumed to know the law applicable to a given state of facts. The trial contemplated under
Rule 30 is a trial of facts in dispute. But if the parties decide that these facts are no longer disputed,
and they manifested to the court that they agree fully to the existence of these facts, then the trial
may be avoided. The next stage will just be the rendition of judgment.
In civil procedure, although there is a section in Rule 30 on written stipulation on facts, the court
liberally allows verbal stipulations. Example, during the pre-trial conference, everything stipulated
upon may be done verbally.But since the pre-trial conference is part of the court proceedings,
everything is recorded by the court stenographer. The stenographer will transcribe the records and
what the court will readily decide that there has been a stipulation of facts between the parties.
The order of trial in Rule 30 is the general rule. The order of trial follows the sequence of
argumentation of pleadings. The affirmative side, the plaintiff, will first present his side, and then
the negative side, the defendant, will set forth his defenses. Once the defendant is done presenting
his evidence, then the court may allow parties to submit rebuttal evidence or even sur-rebuttal
evidence. But the court does not allow the presentation of rebuttal evidence or sur-rebuttal
evidence, the trial will end after the defendant has rest his case.
Can the court terminate the case after the defendant rests?
Rule 30 gives an option to the judge, to require the parties to submit their respective memoranda to
help the court in arriving at a decision.
Does failure to submit memoranda when required to do so result in dismissal of the case?
Yes, under Rule 17, for failure to obey lawful court orders.

The order of trial can be changed. If the court requires defendant to present evidence ahead, then
the reversal of the order is had. If the defendant had set up the affirmative defense of, for example
payment, then the order is reversed. Why is this only issue to be decided by the court? Should not
the court first decide on whether or not the loan has really been extended by the plaintiff to the

defendant? In our Rules, if the defendant sets up only an affirmative defense, that constitutes a
hypothetical admission to the allegations contained in the complaint. That is found in Rule 6. So if
the defendant hypothetically, for purposes of trial, that the defendant incurred a loan, then there
really is no need for the plaintiff to prove the existence of the loan. It is now the duty of the
defendant to show that the loan had been paid, so the order of trial is changed. Thus, the
defendant is allowed to present his evidence first. Thereafter, the plaintiff does not find it necessary
to file rebuttal evidence, the court will consider the case as submitted for decision.

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

What are the requisites for consolidation?

A:
1. Actions involving a common question of law or fact; and
2. There must be at least 2 actions pending before the same court (Sec.1, Rule 31).
Q: What are the ways of consolidating cases?
A:

Recasting the Cases

Consolidation Proper
Test-Case Method
Reshaping of the cases by amending the pleading, dismissing some cases and retaining only one
case. There must be joinder of causes of action and of parties.
It is a joint trial with joint decision, the cases retaining their original docket numbers.
By hearing only the principal case and suspending the hearing on the other cases until judgment
has been rendered in the principal case. The cases retain their original docket numbers (Riano,
Civil Procedure, p. 96, 2009 ed.).
Q: What is the rule on consolidation of cases?
A:
GR: Consolidation is discretionary upon the court to avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear congested dockets, and simplify the work of the trial
court and save unnecessary costs and expenses.
XPNs: Consolidation becomes a matter of duty when:
1. If two or more cases are pending before the same judge; or
2. If filed with the different branches of the same RTC and one of such cases has not been partially
tried. (Raymundo v. Felipe, G.R. No. L-30887, Dec. 24, 1971)
Q: When may civil actions be suspended?
A:
1. If willingness to discuss a possible compromise is expressed by one or both parties; or
2. If it appears that one of the parties, before the commencement of the action or proceeding,
offered to discuss a possible compromise but the other party refused the offer (Sec. 8, Rule 30; Art.
2030, NCC).
Let us say there are 3 cases involving different parties, but all involve a common question of fact or
law, pending in the same court, the court can issue an order of consolidation of the cases.
Consolidation of cases in different salas in a multi-sala court such as the Regional Trial Court of
Manila: The internal rules of RTCs will be followed. The judge in one branch cannot issue an order
directing the other judges to agree to the consolidation of cases, as there is a need to coordinate
with each branch first. One judge cannot simply issue an order to be obeyed by another judge of
the same level. The internal rules of the RTC, where there are cases to be consolidated but which
are assigned to different branches, is that if there is a consolidation consented by the judges, it will
be tried by the sala with the lowest docket number.
If one case is in Manila RTC, the other in Bulacan RTC, both cases being those that can be validly
consolidated, then the Supreme Court may order consolidation.
The opposite of consolidation is severance of several issues contained in one complaint. A trial
court is also given the authority to tell the parties that the trial to be conducted only for the purpose

for hearing either a 3rd party complaint, a counterclaim or a crossclaim, depending upon the
discretion of the court

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

Q: What is the statute of non-claims?

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

creditor will be allowed to set up the same as a counterclaim to the action filed by the estate
against him.
Note: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased
persons are concerned because if a creditor fails to file his claim within the time fixed by the court
in the notice, then the claim is barred forever. However, both statute of non-claims and statute of
limitations must concur in order for a creditor to collect.

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

Q: What are the requisites of a valid judgment?

A:
1. Authority of the court to hear and determine the case.
2. Jurisdiction over the parties and the subject matter
3. The parties must have been given an opportunity to adduce evidence.
4. The evidence must have been considered by the tribunal in deciding the case.
5. The judgment must be in writing, personally and directly prepared by the judge.
6. The judgment must state clearly the facts and the law on which it is based, signed by the judge
and filed with the clerk of court.
NOTE: Only for decisions and final orders on merits and does not apply to those resolved through
incidental matters.
Final order there should a adjudication upon the merits.
A case is pending in RTC Bulacan under Judge A. He presided during the presentation of evidence
by both parties. After presentation of evidence, Judge A retires. Who will decide the case?
The successor judge takes over and decides the case.
If the former judge makes the decision and turned it over to the clerk of court, who then
promulgates it and sends the said decision by mail, that judgment is void.
What if Judge A is transferred from RTC Bulacan to RTC Manila, can he pen the decision and send
it to his former sala?

Under the old judiciary act, that is a valid judgment. Under the old judiciary act, if the judge who
fully tried the case is subsequently transferred, he retains authority to try the case and render a
valid judgment thereon.
What if Judge A is promoted to become a justice of the CA, can he validly pen the judgment?
No. He can no longer decide the case. It is only when the trial judge who has heard the case is
given a new assignment to a coordinate court shall the Judiciary Act of 1948 will give him authority
to render a valid decision.
Entry of judgment takes place by operation of law. Rule 36.
This is a very important rule insofar as judgments are concerned. Now, we have a new concept of
entry of judgment. Under Rule 36, Entry of Judgment takes place by operation of law. Even if there
is no physical or actual entry of judgment, under Rule 36, the judgment is deemed entered upon
the expiration of the period to appeal if no appeal is perfected. Hence, if no appeal is perfected,
right after the expiration of the 15/30-day period, that judgment is AUTOMATICALLY entered, and
becomes final and executory. Even if the clerk of court enters that in the records a year later, it is
not the physical entry on the record by the clerk of court that will reckon the entry of judgment.
Why do we consider entry of judgment as a very important procedural principle?
The term entry of judgment is a role if we follow Rule 39, Execution of Judgments. In Rule 39, if a
judgment has become final and executory, then the court has the ministerial duty to grant a motion
for execution and to order execution of the judgment. In Rule 39 also, there is a period fixed for
that judgment to be executed. The first five years from entry is the period to execute the judgment
via a motion, and the second 5-year period is for the revival of the judgment. We are more
interested in the first 5-year period within which to execute the judgment through a motion.
If we reckon period under Rule 39, insofar as the first 5-year period is concerned, it is 5 years from
entry of judgment. This is why the principle of entry of judgment is very important in implementing
the succeeding procedural principles relating to execution of judgment, and also in determining if a
particular remedy has been availed of on time.
For instance, under Rule 38, Relief from Judgment. If you recall, relief of judgments has 2 periods
to be taken into account, 60 days from notice and 6 months from ENTRY of judgment. The period
speaks of availment of certain remedies they are all reckoned from entry of judgment.
So, do not forget that entry of judgment under our present rules takes place by operation of law,
upon the expiration of the period to appeal, if no appeal is perfected. The judgment is automatically
entered under the provisions of Rule 36.

Q: What are those which are not considered as decisions?

A:
1. Resolutions of Supreme Court denying the petitions to review decisions of Court of Appeals.

2. Minute Resolutions if issued by SC denying or dismissing a petition or a motion for

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

The other sections of Rule 36 give us the certain classifications of judgments; summary judgment
and several judgment.
Separate judgment(Sec. 5, Rule 36) It is one rendered disposing of a claim among several others
presented in a case, after a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of said claim.
Several judgment(Sec. 4, Rule 36) It is one rendered by a court against one or more defendants
and not against all of them, leaving the action to proceed against the others.
The need for this classification of judgment stems from the principle of civil actions that encourage
joinder of courses of action. If there are several causes of action embodied in a complaint, it is
proper for the court that after the trial of a particular cause of action, it should render a judgment for
that particular cause of action. If there is joinder of parties, the court has also the prerogative to
render a separate decision concerning a particular party if his claim has already been terminated
when the presentation of evidence on his claim is finished. And what the court does is only to wait
for the presentation of evidence concerning the claim of other parties, the court can also render a
decision separately.

These are decisions that are exceptional, in the sense that we expect a trial court to make only one
judgment in one particular case. It is unusual for the court to render several decisions involving one
particular case. That is why, even if Rule 36 authorizes the court to promulgate separate or several
decisions, if you will go to Rule 41, Appeal From The RTCs, in Section 2, it is mentioned that if the
court renders separate or several judgments, although we call these as judgments, they are not
appealable. The parties will have to wait until the principal action is finally resolved before they can
even think of appealing the case. So, although Rule 36 designates these as judgments, they are
not appealable. The court will have to render a principal decision later on, after everything is
concluded.
So, if that is a separate judgment involving once cause of action, the winning party or losing party
cannot appeal. These parties will have to wait until the court finally decides the case in its entirety,
unless the court allows an appeal if the party is entitled. Usually, the court does not allow it,
because that will lead to a situation where several appeals emanate from one case, which is also
frowned upon by the SC. There should only be one decision in a particular case, and there should
be one appeal if a party decides to appeal.
This is also the reason why the decisions that are classified in Rule 36, Separate Judgments and
Several Judgments, are sometimes referred to as interlocutory judgments, because they cannot be
appealed by express provision of Rule 41, although they can be rendered validly by the court.
Interlocutory Orders those that determine incidental matters that do not touch on the merits of the
case or put an end to the proceedings. E.g. Order denying a motion to dismiss, granting an
extension of time or authorizing an amendment.
So if you come across that term in your examinations, interlocutory judgments, and you find the
use of interlocutory and judgment to be in conflict with one another, you apply the following view:
Because a judgment cannot be interlocutory. A judgment by the very term should be a judgment of
the merits. But if you characterize a judgment as interlocutory, that is only to emphasize that the
judgment, although it resolves the merits of the case, cannot be appealed without the permission of
the trial judge.

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

There are judgments by virtue of jurisprudence: Judgment nunc pro tunc, provisional judgment,
etc.

Q: What are the kinds of judgment?

A:
1. Judgment upon compromise It is one conferred on the basis of a compromise agreement
entered into between the parties.
2. Judgment by confession It is one rendered by the court when a party expressly agrees to the
other partys claim or acknowledges the validity of the claim against him.
3. Judgment upon the merits It is one that is rendered after consideration of the evidence
submitted by the parties during the trial of the case.
4. Clarificatory judgment It is rendered to clarify an ambiguous judgment or one difficult to comply
with.
5. Judgment nunc pro tunc (Now for then) A judgment intended to enter into the record the acts
which had already been done, but which do not appear in the records. Its only function is to record
some act of the court which was done at a former time, but which was not then recorded, in order
to make the record speak the truth, without any changes in substance or any material respect.
6. Judgment sin perjuicio Judgment without a statement of the facts in support of its conclusion
to be later supplemented by the final judgment. This is not allowed.
7. Judgment by default (Sec. 3, Rule 9) Rendered by the court following a default order or after it
received, ex parte, plaintiffs evidence.
8. Judgment on the pleadings (Rule 34) Proper when an answer fails to tender an issue because
of a general or insufficient denial of the material allegations of the complaint or when the answer
admits the material allegations of the adverse party's pleading.
9. Summary judgment (Rule 35) One granted by the court for the prompt disposition of civil
actions wherein it clearly appears that there exists no genuine issue or controversy as to any
material fact.
10. Several judgment (Sec. 4, Rule 36) It is one rendered by a court against one or more
defendants and not against all of them, leaving the action to proceed against the others.
11. Separate judgment (Sec. 5, Rule 36) It is one rendered disposing of a claim among several
others presented in a case, after a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of said claim.

12. Special judgment (Sec. 11, Rule 39) One which can only be complied with by the judgment
obligor because of his personal qualifications or circumstances or one that requires the
performance of an act other than:
a. Payment of money; and
b. Sale of real and personal property.
13. Judgment for specific acts (Sec. 10, Rule 39) Applicable in cases of:
1. Conveyance, delivery of deeds, or other specific acts, vesting title;
2. Sale of real or personal property;
3. Delivery or restitution of real property;
4. Removal of improvements on property subject of execution; or
5. Delivery of personal property.
14. Judgment on demurrer to evidence (Rule 33) A judgment rendered by the court dismissing a
case upon motion of the defendant, made after plaintiff has rested his case, on the ground that
upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right
to relief.
15. Conditional judgment It is one the effectivity of which depends upon the occurrence or nonoccurrence of an event.
16. Final judgment One which disposes of the whole subject matter or terminates the particular
proceedings or action, leaving nothing to be done by the court but to enforce by execution what has
been determined.

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

DEMURRER TO EVIDENCE IN CIVIL CASES

Judgment on Demurrer to evidence only plaintiff presented evidence. (judgment of dismissal
based on insufficiency of evidence to support the claim)
If motion for demurrer to evidence is denied, defendant must present his evidence, judgment
thereon will be an ordinary judgment.
When the Plaintiff rests his case, the Defendant, instead of presenting his evidence, files a Motion
for Judgment on Demurrer to Evidence. The defendant asks the court for an order to dismiss the
case based only on the ground of failure of the plaintiff to show right of relief, that there is

insufficiency of the plaintiffs evidence. There is no preponderance of evidence to support the

plaintiffs claim.
The court will have to resolve the motion. The court will either grant or deny the motion. If the court
denies the motion, the court in effect tells the defendant that the plaintiffs evidence is adequate.
What the defendant has to do now is not to appeal, because the denial of a motion for judgment on
demurrer to evidence is interlocutory. No appeal is allowed.
Can the defendant resort to Rule 65 on the ground that the court has gravely abused its discretion
amounting to lack or excess of jurisdiction?
He can try.
Under the Rules, if the defendants motion for judgment on demurrer to evidence is denied, it is the
duty of the defendant to present now his own evidence. He cannot appeal it, he cannot even think
about appealing, he just have to present his own evidence.

Demurrer to Evidence (Rule 33)

When to file
After the plaintiff rests its case or after the completion of the presentation of evidence
Grounds
That upon the facts and the law, the plaintiff has shown no right to relief
If denied
The defendant may present his evidence.
If granted
The complaint may NOT be filed. The remedy of the plaintiff is to appeal from the dismissal.

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

In a civil case, if a defendant files a motion for the dismissal of the complaint based on insufficiency
of evidence, and that motion is denied, what the defendant will do is to go ahead with the trial and
present his evidence. And after the defendant has rested, the court will render the decision. The
decision, if the order for demurrer to evidence is denied, is just an ordinary judgment on the merits
of the case under Rule 36. It is no longer a special type of a judgment.
But if the trial court grants the motion, it means it will order the dismissal of the case. The dismissal
is a final order, in fact a judgment on the merits of the case. The winning party is the defendant.
The plaintiff can appeal the dismissal.

Usually, the if the trial court is the RTC, it will be brought to the CA. So, it is brought to the CA. The
CA will have to review the case based solely on the records transferred to it by the RTC. The
records will show that the defendant has not presented any evidence at all. Right away, the
defendant will be at a disadvantage when the case is reviewed by an appellate court. The court will
review only the evidence presented by the plaintiff. There is a great possibility that the CA will not
agree with the trial court, and will reverse the dismissal of the case.
If the CA reverses the order of dismissal by demurrer to evidence and the CA tells the parties that
the evidence submitted is adequate, CA simply render its own decision on the merits of the case,
relying solely on the evidence submitted by the plaintiff.
The defendant cannot ask the CA to present his evidence. It is not proper since the evidence
should have been presented in the trial court. The CA, as a reviewing court, will only rely on the
records transmitted to it by the RTC.
The defendant cannot argue that the CA is authorized to receive evidence under the provisions of
BP 129. Under BP 129, the CA is allowed to receive evidence if it acts in exercise of its original
jurisdiction, which is not the case in this instance as the CA is acting under is appellate jurisdiction.
Although B.P. 129 also confers authority on the CA to receive evidence even in appeal of cases
from the lower court, the conferment of authority while acting as an appellate court is only on one
instance, only on grant of motion for new trial based on NDE. It will not apply to demurrer to
evidence. The evidence the defendant will present is hardly NDE as the defendant had these
pieces of evidence during the trial in the RTC. This is why in demurrer to evidence in civil cases,
the defendant waives his right to present his evidence when the trial court grants his motion and
the case is dismissed but the dismissal is reversed on appeal.
Compare this to the demurrer to evidence present in a criminal case.

Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases.
A:
Civil Case
Criminal Case
Leave of court
Not required
With or Without
If granted
Judgment on the merits; The Plaintiff may appeal from the order of dismissal of the case
Judgment on the merits; The Plaintiff cannot make an appeal from the order of dismissal due to the
constitutional prohibition against double jeopardy
If denied
The Defendant may proceed to adduce his evidence
The Defendant may adduce his evidence only if the demurrer is filed with leave of court.

If there was no leave of court, accused can no longer present his evidence and submits the case
for decision based on the prosecutions evidence
If the plaintiff appeals from the order of dismissal
If the court finds plaintiffs evidence insufficient, it will grant the demurrer by dismissing the
complaint. The judgment of dismissal is appealable by the plaintiff. If plaintiff appeals and judgment
is reversed by the appellate court, it will decide the case on the basis of the plaintiffs evidence with
the consequence that the defendant already loses his right to present evidence. No res judicata in
dismissal due to demurrer
If the court finds the prosecutions evidence insufficient, it will grant the demurrer by rendering
judgment acquitting the accused. Judgment of acquittal is not appealable; double jeopardy sets in
How can demurrer be denied?
The plaintiff files a motion to deny motion to demurrer to evidence.
The court may motu propio deny the motion.

After the prosecution has rested, the accused can also file a motion for judgment on demurrer to
evidence. But there is one requirement in a criminal case not found in a civil case: the accused
should get leave of court if the accused wants to preserve his right to present evidence once the
motion is denied by the trial court. Failure to get leave of court before filing of the motion, and the
motion is subsequently denied, then the accused has waived his right to present his evidence in
the trial court. The trial court will not allow the accused to present his evidence, and the next phase
will be a judgment of conviction, meaning that the evidence presented by the prosecution is
adequate to convict the accused, that the evidence has met the quantum of evidence, which is
proof beyond reasonable doubt. No leave of court is required in demurrer to evidence in civil
cases.
In a criminal case, demurrer can be initiated either by the accused or the court itself motu propio.
The idea of demurrer to evidence can come from the court. So if the prosecution has rested, the
court can even tell the accused to file a motion for judgment on demurrer to evidence. If the idea
comes from the court, the accused should file because it is the court who already encourages you
to file the motion. That means to say, even to the court, the prosecutions evidence failed to meet
the quantum of evidence required to convict the accused. In a civil case, the court cannot initiate
the idea as to demurrer to evidence. It should come from the mind of the defendants counsel.
If in a criminal case, the demurrer to evidence is granted, the information will be dismissed, which
is tantamount to acquittal of the accused. The prosecution can no longer appeal, nor can Rule 65
be availing, both being due to prohibition against double jeopardy. Take note, there can be no
appeal as to the dismissal of the information, but there can be an appeal as to the civil aspect of
the case. In a civil case, if the court dismissed the civil action, the plaintiff may appeal the
dismissal.
If we allow the civil aspect of the criminal case already dismissed to be appealed, there is a chance
that the appellate court will find merit in the appeal of the private complainant, and therefore the
appellate court will allow damages to be awarded to the private complainant. The satisfaction of

these damages will be directed against the accused, who has been acquitted from the crime. In a
criminal case, an accused may be acquitted of the crime, but may be found civilly liable for any
injury resulting therefrom. This is because, the conviction of the accused requires a higher degree
of proof to be met (proof beyond reasonable doubt), whereas a lower degree of proof is required for
proving liability for civil damages (mere preponderance of evidence).

JUDGMENT ON THE PLEADINGS

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

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

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

SUMMARY JUDGMENTS
Q: What is a summary judgment?
A: A summary judgment or accelerated judgment is a procedural technique to promptly dispose of
cases where the facts appear undisputed and certain from the pleadings, depositions, admissions
and affidavits on record, of for weeding out sham claims or defenses at an early stage of the
litigation to avoid the expense and loss of time involved in a trial. Its object is to separate what is
formal or pretended denial or averment from what is genuine and substantial so that only the latter
may subject a party-in-interest to the burden of trial. Moreover, said summary judgment must be
premised on the absence of any other triable genuine issues of fact. Otherwise, the movants
cannot be allowed to obtain immediate relief. A genuine issue is such issue of fact which requires
presentation of evidence as distinguished from a sham, fictitious, contrived or false claim (Monterey
Foods Corp. vs. Eserjose, GR 153126, Sept. 11, 2003).
Q: What are the requisites of summary judgments?
A:
1. There must be no genuine issue as to any material fact, except for the amount of damages; and
2. The party presenting the motion for summary judgment must be entitled to a judgment as a
matter of law.
Q: When is a claimant allowed to file for summary judgment?
A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory
relief may, at any time after the pleading in answer thereto has been served, move with supporting

affidavits, depositions or admissions for a summary judgment in his favor upon all or any part
thereof (Sec. 1, Rule 35).
Q: When is a defendant allowed to file for summary judgment?
A: A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof (Sec. 2, Rule 35).
JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS
Judgment on the pleadings
Summary judgments
Movant
Plaintiff only
Either plaintiff or defendant
Answer
Answer does not tender an issue
There is an issue tendered in the answer, but it is not genuine or real issue as may be shown by
affidavits and depositions that there is no real issue and that the party is entitled to judgment as a
matter of right
Notice
Movants must give a 3-day notice of hearing
Opposing party is given 10 days notice
Termination
Entire case may be terminated
May only be partial
Who can file
Only the plaintiff or the defendants as far as the counterclaim, cross-claim or third-party complaint
is concerned can file the same
Either the plaintiff or the defendant may file it
Basis of the judgment
Based only on the pleadings alone, hence, only on the complaint and the answer
Based on the pleadings, supporting affidavits, depositions or admissions ( see Sec. 1, Rule 35).

If you compare the provisions of a judgment on the pleadings to that of a summary judgment, as
contained in Rule 34, we will immediately notice that there is a section which talks about a
Summary judgment by plaintiff and a Summary judgment by defendant. Unlike in judgment on the
pleadings, where we expect the movant to be a plaintiff, in a summary judgment, the law gives
either parties the option to file a motion for summary judgment. This motions are expressly
recognized in the rules.
Q: When is a claimant allowed to file for summary judgment?

A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory

relief may, at any time after the pleading in answer thereto has been served, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor upon all or any part
thereof (Sec. 1, Rule 35).
Q: When is a defendant allowed to file for summary judgment?
A: A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof (Sec. 2, Rule 35).
Another term for summary judgment under American Rules is an accelerated judgment. It seems to
be similar to that in acceleration clause.
Why will the court render a summary judgment?
The court will not conduct a full blown trial envisioned in Rule 30. In a summary judgment designed
not to conduct full-blown trial, according to jurisprudence, there is an issue in the answer submitted
by the defendant, but it turns out to be a sham issue. Therefore, there is no need for the court to
conduct a full-blown trial on a sham issue. Whether or not the issue is genuine will depend upon
the circumstances of the case.
An instant example of a summary judgment rendered by a court is that where the court found that
the issue is not really genuine although there is really an issue raised in the answer. A complaint
was filed by the plaintiff for an unpaid loan. The complaint carried with it an actionable document
attached to the complaint, a printed promissory note. The promissory note contained a blank as to
the date of the maturity of the loan, which was unfortunately not accomplished. So, the promissory
note is indeterminate as to the date of maturity. The defendant filed an answer and set up the
defense that the filing of the complaint was premature because the debt has not matured, and the
defendant pointed out that the blank wherein the date of maturity was supposed to be indicated has
no entry. The defendant interposed that the court should first fix the maturity date of the complaint
before the plaintiff can file a complaint for recovery of the loan. The plaintiff filed a motion for
summary judgment. And the court agreed with the plaintiff that the defense set up by the
defendant, that the maturity of the loan has not yet happened, is really a sham issue, as the issue
is in conflict with the provisions of substantive law. The SC said that if that is a promissory note
without a date fixed as to maturity, that is a note payable on demand, as provided in the NCC. If
there is already a demand made by the creditor, and the debtor failed to comply with that demand,
it means there is already a breach of the obligation by the debtor.
In as similar case where the plaintiff moved for summary judgment because the answer of the
defendant does not raise any issue, the court found merit in the motion. But when the court
prepared the order granting the motion for summary judgment, the court mentioned that the motion
is one that is asking for a judgment on the pleadings. The dispositive portion of the order called the
judgment as on for judgment on the pleadings in favor of the plaintiff, directing the defendant to
pay.

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

JUDGMENT BASED ON COMPROMISE

Aside from the special kinds of judgments provided for in the Rules, there is a special kind of
judgment provided for in the NCC. There are several provisions in the NCC which encourage the
parties to enter into an amicable settlement or compromise. The NCC considers a compromise as
a contract between the parties, and therefore, if the parties entered into a contract where they
signed a compromise agreement, they do not have to submit that agreement to a court for
approval. According the SC, if there is a compromise agreement signed by the parties, since that is
a contract, then that is the law binding between the parties. There is no need for court approval to
validate the compromise agreement. For purposes of validity, we follow the provisions of the NCC,
it will be treated just like any other contract. As long as the parties give their consent freely, their
consent is not vitiated, their signatures appear in the agreement, that will be the contract between
them, that will be the law between the parties.

Approval by the court is not necessary for the validity of the compromise agreement. Approval of
the court is necessary only for the execution of the compromise agreement.
For instance, there is a case for recovery of 2M loan filed by the creditor against the debtor. They
both agreed to settle their differences. They signed a compromise agreement to the effect that the
debtor fully recognizes his obligation to the creditor, but they convert the payment of the loan to that
of payment in installments every quarter, fixing the amount of installments. They do not submit the
compromise agreement for approval. The parties jointly moved for the dismissal of the case, which
the court complied. The debtor subsequently commits a breach in the payment of installments.
After the breach, can the creditor go back to the court and ask for revival of the case?
No.
Can the creditor file a new case for collection against the debtor for recovery of the installment or of
the whole account if in case there is an accelerator clause?
Yes. It is not barred, as the cause of action of the creditor is now different from the previous case
filed. His claim is now based on a compromise agreement, not a loan.
In order to enforce payment as provided in the written compromise agreement, the creditor has to
file a complaint against the defendant debtor. They will have to undergo the same process when
the first case was filed concerning the loan. But that is one case of a compromise agreement which
does not carry with it the approval of the court.
The opposite is when there is a compromise agreement signed by the parties, but this time, the
parties do not jointly move for the dismissal of the complaint, but instead they submit the
compromise agreement to the court for approval. The court renders a decision based on the
compromise agreement. If the debtor commits a breach in the payment as agreed upon, what the
creditor can do is to simply file a motion for execution in the court. The judgment based upon a
compromise is a judgment on the merits. And under the NCC, a judgment based upon a
compromise is immediately executory. There is no appeal. A judgment by the court based on a
compromise agreement cannot be appealed.
Does it mean to say that a party of a compromise agreement has no recourse at all to challenge
the validity of the judgment based upon a compromise agreement?
There is a remedy under Sec. 1 Rule 41. The defendant may file a motion to set aside the
compromise agreement based on the ground of vitiated consent. That is the remedy in order a
judgment based upon a compromise.
Supposing the court does not set aside the judgment notwithstanding the motion, can the
defendant appeal?
No. Under the Rules, a judgment based upon a compromise agreement is inappealable. Also, the
order denying the motion is in the nature of an interlocutory order which is inappealable.
Q: What is the remedy in cases where appeal is not allowed?
A:

GR: In those instances where the judgment or final order is not appealable, the aggrieved party
may file the appropriate special civil action under Rule 65 (Sec. 1 Rule 41).
There is a remedy given for such an order denying the motion to set aside the judgment under a
compromise. Among those orders not appealable found under Section 1 of Rule 41 is an Order
denying a motion to set aside a judgment by consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating consent, which can avail of the remedy
provided in this section. Thus, what Rule 41 says is that there must be a Motion to Set Aside the
Judgment of Compromise and there must be a denial of the motion before a Rule 65 petition can
be availed of. If the proponent immediately files a Rule 65 petition assailing the validity of the
judgment based on a compromise agreement as well as the compromise agreement itself, that
petition will be dismissed for noncompliance with the requirement under Rule 65. There is still a
plain, speedy and adequate remedy that can be had in the form of a Motion to Set Aside the
Judgment of Compromise and the Compromise Agreement founded on vitiated consent.

REMEDIES TO ASSAIL A JUDGMENT

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

If judgment has not been entered, the period to appeal has not yet expired (15-30 days)
Remedies available :
Rule 37:

~Motion for New Trial

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

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

RULE 37 NEW TRIAL OR RECONSIDERATION

In criminal procedure, nothing is mentioned about a pro-forma motion for new trial or
reconsideration.
Q: What is a pro- forma motion?
A: A pro- forma motion is one which does not satisfy the requirements of the rules and one which
will be treated as a motion intended to delay the proceedings (Marikina Development Corporation
v. Flojo, 251 SCRA 87).
In Rule 37, for civil cases, a motion for new trial or reconsideration must strictly comply with the
requirements of a motion so that such motion will not fall under the concept of a pro-forma motion.
Pro-forma motion for reconsideration in civil cases is almost always denied; it could result to an
instance where a losing party moving that all remedies available will be unavailable as sanction. A
pro-forma motion for reconsideration does not stop the running of the reglementary period to
appeal, and if the denial of such motion comes after the expiration of the period to file an appeal,
remember that entry of judgment takes place by operation of law under Rule 36. Upon entry of
judgment, movant/losing party loses the remedy of appeal and is left only with the after judgment
remedies of petition for relief from judgment, annulment from judgment or a petition under Rule 65
as remedies.
A motion for new trial or motion for reconsideration in civil cases is always initiated by the losing
party.
There is no pro forma motion for new trial or reconsideration in a criminal case. The court cannot
simply discard the motion for new trial or reconsideration for non-compliance, even if the motion
does not comply with the requirements of a motion. The motion for reconsideration or new trial will
always stop the running of the period to appeal. The idea for the accused to file motion for new trial
or reconsideration could come from the court. The court can even initiate a new trial or
reconsideration as long as the accused gives his consent.
(Rule 37)Grounds for motion for new trial is completely different from grounds for reconsideration.
This is the reason why these motions are distinct and different from one another.

New Trial
1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence
could not have guarded against and by reason of which the rights of the aggrieved party was
impaired; or
2. Newly discovered evidence, which could not with reasonable diligence, have been discovered
and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37).
Reconsideration
1. The damages awarded are excessive;
2. The evidence is insufficient to satisfy the decision or final order; or
3. The decision or final order is contrary to law (Sec. 1, Rule 37).

Let us say that a losing defendant/accused is advised by his counsel that they have 3 remedies
while the period of appeal was running, motion for reconsideration, motion for new trial and appeal.
The defendant/accused told the counsel to avail of all three. Thus, the counsel filed a motion for
new trial, a motion for reconsideration and lastly, an appeal. The trial court received all three. The
appeal was duly perfected. What remedy will the court entertain?
SC had held that if the aggrieved party files or perfects an appeal during the pendency of his
motions for new trial and reconsideration, the motions shall be deemed abandoned.
It is really inconsistent for an aggrieved party to file a motion for new trial or reconsideration, and
while waiting for the resolution of his motion he perfects an appeal. It will render the motions
academic. The court, upon perfection of the appeal and upon payment of the docket fee, will lose
jurisdiction over the case, and what will remain with the court is residual jurisdiction.
The winning party, after receiving a copy of the decision, moved for the execution pending appeal.
It is a matter of discretion to the court founded on special circumstances. The losing party filed a
motion for new trial while the former motion was pending. Can the court grant the motion for
execution pending appeal?
No. The trial court should resolve the motion for new trial first before the motion pending appeal is
resolved, even if the motion pending execution is for special reasons. Motion for reconsideration or
motion for new trial of the aggrieved party should be given preference over any other motion by the
prevailing party.
Motion for new trial on ground of FAMEN.
There must be an affidavit of merit. FAMEN must be the reason for which the motion for new trial is
bound. Affidavits should show FAMEN. The affidavit should be executed by persons with personal
knowledge surrounding the circumstances of FAMEN.
It is not correct to say that in a motion for new trial, we always need an affidavit of merit. We need
affidavit of merit only if the ground relied upon is FAMEN. Motion for new trial on ground of NDE will

not need Affidavit of Merit, merely the affidavit of the new witness will give testimony, or an
authentic copy of document or object evidence to be presented.
Extrinsic fraud vs. Intrinsic Fraud in Motion for New Trial
EXTRINSIC FRAUD
INTRINSIC FRAUD
Connotes any fraudulent scheme executed by the prevailing party outside trial against the losing
party who because of such fraud was prevented from presenting his side of the case
Refers to the acts of party during trial which does not affect the presentation of the case
The principle in new trial in the case of fraud, the fraud committed must always be EXTRINSIC
FRAUD. It cannot be intrinsic fraud. In Rule 37, there is a basis for the court to determine extrinsic
fraud from intrinsic fraud for the trial to be properly resolved. If the fraud alleged in the motion is
intrinsic, that motion will be denied. What should be proven should be an extrinsic fraud.
Rule 37 could give a good basis for making a distinction between the two frauds.. There are 2
clauses to justify extrinsic fraud as a ground for new trial compared to extrinsic fraud:
which ordinary prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights.
If we rely solely on Rule 37, in court cases, the court has allowed lawyers to cheat one another,
so long as cheating is limited only of intrinsic fraud, which could be prevented through the use of
ordinary diligence.
For instance, the court has ruled that if a party wins the case because his cause of action is
supported by a document which could serve as preponderant evidence which could show his title
to recover from the defendant. But later on, the aggrieved party is able to prove that the document
presented by the plaintiff, and which is the basis for the judgment in his favor, is a forged document.
Forging a document is a crime. But in a trial, the admission of a forged document will not be a
ground for a new trial, or even as NDE. This is because the presentation of a forged document by
the plaintiff could easily be avoided by the defendant through the exercise of ordinary diligence. If
confronted with such document, and the defendant is not sure as to its authenticity, the defendant
could have called upon witnesses, such as an expert witness, to prove that such document was
forged. His failure to do so is a waiver of this fact.
Another instance of cheating duly proven by the movant in a motion for new trial based on
extrinsic fraud which the SC did not consider as extrinsic is when the prevailing party presented
witnesses who had perjured. But if the aggrieved party relies solely on the allegation that all the
witnesses presented by the party all committed perjury, that is not a ground for new trial, that it is
only intrinsic fraud. What the SC is telling the defendant is that he should also have cheated, that
he should also have been dishonest. If the plaintiff presented 2 perjured witnesses, the defendant
should have called 5. So the message given with respect to extrinsic and intrinsic fraud is that
litigants, through their lawyers, can be dishonest during the course of a litigation. But they should
see to it that the ;cheating will not amount to extrinsic fraud, that which will not deprive the other
party of his day in court, that the other party will have the opportunity to present his side in court.

That is the life of a lawyer, he is encouraged to be dishonest, he should be deceptive in his

relationship with others lawyers. Anyway, lawyers will not go to heaven, that is a given fact. It is
found in the Bible. But that is only a part of a passage in the Bible. The additional passage is that
lawyers do not go to hell. But that does not make the life of a lawyer less worthwhile. If a lawyer
cannot go to heaven or to hell, where will the lawyer go after death? The implication is that a lawyer
does not have a soul.
That is how the SC looks at the situation. In fact the S in several cases said we should expect
dishonesty in the course of a litigation. We cannot avoid that. The SC said that if they allow every
act of dishonesty to be a ground for new trial, there will never be an end to a litigation, because a
lawyer will always be able to point out to the court certain acts of dishonesty or cheating in a
motion for new trial.
Mistake
The mistake of a lawyer is the mistake of the client. If the aggrieved party lost the case due to a
serious mistake of the lawyer, the said party fires his lawyer and gets a new one, the new lawyer
cannot capitalize on the mistake committed by the former lawyer. The is just applying the rule on
agency. The act of the agent is the act of the principal.
But, there is one situation where the SC relaxed the application of this principle. The SC said that
while it is true the mistake of the lawyer will always be considered the mistake of the client. But if
the mistake of the lawyer was tantamount to bad faith, there is an insinuation that the lawyer
deliberately caused the loss of the case of the client, then that is a ground for new trial. The clients
rights should be protected in this situation.
But the general rule is that the mistake of a lawyer is the mistake of the client, and it cannot be a
ground for new trial under FAMEN.
Newly Discovered Evidence
This is an adaptation of an American principle called the Berry Rule : Newly discovered evidence,
which he could not, with reasonable diligence, have discovered and produced at the trial, and
which if presented would probably alter the result.
Q: What are the requisites of newly discovered evidence as a ground for New Trial?
A:
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and produced at the trial with reasonable
diligence; and
3. Such evidence is material, not merely cumulative, corroborative or impeaching, and is of such
weight that if admitted would probably change the judgment (BERRY RULE) (CIR v. A. Soriano
Corporation, GR No. 113703 January 31, 1997).

Because of the requirement, that the result of the case would probably be altered, we cannot
consider cumulative, corroborative or impeaching evidence as NDE, as these cannot alter the
result of the case. The recantation of a witness is not NDE. In fact, the SC has been emphatic in its
ruling continuously that if a witness recants, the recantation should not even be given any attention
at all. Because if we give attention to the recantation of a witness, you can expect lawyers to
produce recantations by witnesses who already testified in court. So, the stand of the court is that
the testimony of a witness given in open court reflects the truth, not the recantation. The
recantation shall not be treated as NDE.
In a motion for reconsideration under Rule 37, there are 3 grounds:
damages awarded are excessive,
the evidence is insufficient to justify the decision or final order,
the decision or final order is contrary to law
There is also a rule under Rule 37 allowing only one motion for reconsideration by the same party,
either prevailing or aggrieved party. If that is denied, a second motion for reconsideration will not be
allowed, even if the second motion for reconsideration is founded on a different ground. The rule
against the filing of a second motion for reconsideration is almost absolute.
Unlike in a motion for new trial, Rule 37 allows a movant to file second motion for new trial if
founded on a ground different from the one used in the first motion for new trial.
But whether it is a motion for new trial or motion for reconsideration, there is another rule contained
in other provisions where the court will not allow an extension of time to file motion for new trial or
reconsideration (15-30 day period). The party must observe the 15/30-day period.
If motion for reconsideration is favorably acted upon, the court will simply render an amended
judgment. If the court feels that the judgment is contrary to law or the evidence does not fully
support the judgment, the motion for reconsideration should be granted to reduce the liability of the
aggrieved party, but the court will only amend the previous judgment in order to reduce the liability
of the party aggrieved.
If the motion for new trial in a civil case is granted, and such is not a partial motion for new trial, the
judgment will be vacated. But the evidence presented during the trial will not be disturbed. There is
no need for the witnesses who had testified in the trial to give their testimony again.
If the Motion for new trial granted was that in a criminal case, the judgment will also be vacated,
and all evidence taken during the trial need to be retaken and witnesses who testified will be
recalled. The grounds for new trial in a criminal case are serious irregularities or errors committed
by the trial court, not FAMEN. Even if the evidence taken in court will not be retaken, there will be a
recalling of the witnesses who had testified during the trial.
In Rule 37, it is clearly provided that if a motion for new trial or reconsideration is denied, the denial
cannot be appealed or be subject to Rule 65 as the order of denial is interlocutory. What is to be

appealed is the judgment rendered on the merits, not the order of denial. Note that Rule 65 is now
unavailing in the amended Rules in Rule 41. The only remedy is an appeal from the judgment on
the merits that is the subject of new trial or reconsideration. SC said that in appealing the judgment,
the aggrieved party can assign as an error the denial of the trial court of the motion for new trial or
motion for reconsideration. But, he is no longer allowed to file a petition under Rule 65 to challenge
the denial of the motion and appeal at the same time, which was allowed prior to the amendment of
Section1 of Rule 41.
MNT or MR in Criminal Cases
MNT or MR in Civil Cases
Either on motion of accused, or the court motu propio with consent of the accused
Must be upon motion of a party, cannot be motu propio
Grounds for MNT errors of law or irregularities committed during the trial, or newly discovered
evidence
Grounds for MNT FAME, or newly discovered evidence
Ground for MR error of law or fact
Grounds for MR Excessive damages, insufficient evidence, or decision is contrary to law
Filed any time before judgment of conviction becomes final
Filed within the period for taking an appeal. Should include all the grounds then available and those
not so included shall be deemed waived.
When granted, the original judgment is always set aside or vacated and a new judgment rendered.
There may be partial grant

RULE 38 RELIEF FROM JUDGMENT

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

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

issued. If there is no injunctive relief issued by the said court, its decision will be carried out until
fully satisfied. This is an exception to the principle in injunction where the injunctive relief should
come from a higher court. Here, the same court which decided the case shall be the one who will
issue an injunctive relief against its own officer from executing the writ of execution the court has
previously issued. That is allowed in Rule 38.
If the petition for relief is granted, can the prevailing party appeal the order?
No. The order granting relief is interlocutory, hence unappealable.
If a petition for relief is denied, the order denying petition for relief is a final order. Can it be
appealed? If not, what is the remedy?
No, it is a final order which is not appealable under Section 1 of Rule 41. The remedy of the
aggrieved party is to file a petition under Rule 65, a petition for certiorari or prohibition as the case
may be.

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

When we say that appeal is a matter of discretion wherein the appellate court will determine
whether it should be entertained or not. If that discretion is given to the appellate court, it simply
denies to the party the right to appeal to that court.

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

The procedure of appeal from the MTC to the RTC is given under Rule 40.
Rule 40 procedure of appeal from MTC to appellate court (RTC)
The party appealing in a civil case will need to file a Notice of Appeal and payment of appellate
court docket fee. Cases involving special proceedings and other cases of multiple or separate
appeals will also require submission of a Record on Appeal. Docket fee is a jurisdictional
requirement. Hence, if not paid on time, SC said the appellate court does not acquire jurisdiction
over the case.
Let us say a case for Unlawful Detainer was filed. A Motion to dismiss was filed by defendant on
the ground of lack of jurisdiction over the subject matter, which was granted. The order of
dismissal, without prejudice, is not appealable, as provided for under Rule 41. He cannot appeal,
but he can file petition under Rule 65. (Note that UD is a special proceeding covered by Rule 70,
although cognizable by the MTC)
So, should we follow Rule 41 in appeals from the MTC to the RTC?
No. Rule 40 does not follow Rule 41. In Section 3, Rule 40, when an MTC dismisses a case
cognizable by it for lack of jurisdiction over the subject matter, even if the dismissal is without
prejudice, the remedy of the plaintiff is to appeal, via an ordinary appeal, the order of dismissal
rendered by the MTC.
Why cannot we just follow Rule 41? It says that if a dismissal is without prejudice, the order is not
appealable, and the remedy is a petition under Rule 65.
Insofar as the MTC and the RTC are concerned, there is a good reason why Rule 40 says that the
remedy of the plaintiff is to appeal via ordinary appeal, that is to file a notice of appeal in the
appellate court and pay docket fees. This is because there is a provision under Rule 40 which says

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

Yes, we can go to the SC under Rule 45, always a matter of discretion in the civil case. The SC
enjoys the prerogative whether to entertain or not to entertain that appeal.

Final order vs. interlocutory order

Final Order an order that completely disposes a case or a particular matter therein. (Remedy is
an appeal.)
Interlocutory Orders those that determine incidental matters that do not touch on the merits of the
case or put an end to the proceedings. (Remedy is a petition for certiorari under Rule 65)
Question of fact vs. Question of law
There is a question of law when the doubt or difference arises as to what the law is on a certain set
of facts.
A question of fact on the other hand is when the doubt or difference arises as to the truth or
falsehood of the facts alleged.
Memorandum decision on appeal (Rule 51)
Memorandum decision is one in which the appellate court may adopt by reference, the findings of
facts and conclusions of law contained in the decision appealed from (Sec. 24, Interim Rules and
Guidelines)
Rule on harmless error (Rule 51)
SEC. 6. Harmless error.No error in either the admission or the exclusion of evidence and no error
or defect in any ruling or order or in anything done or omitted by the trial court or by any of the
parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such action appears to the court inconsistent with
substantial justice. The court at every stage of the proceeding must disregard any error or defect
which does not affect the substantial rights of the parties.
Harmful error that error or defect which affected the substantial rights of parties, being
inconsistent with substantial justice.
Material data rule an essential component for any mode of appeal whether an ordinary appeal,
petition for review or petition for review on certiorari ; it simply tells appellant that regardless of
mode of appeal chosen, he should see to it that he informs the court about the date he received
the decision, the date of filing motion, and the date of denial by the court of motion for
reconsideration/new trial, in order to help the court determine the timeliness of appeal, which is
determinant of the jurisdiction of the appellate court. If an appeal is not perfected on time, the
appellate court does not gain jurisdiction over the matter on appeal.
Erroneous appeal vs. improper appeal

Improper appeal the mode of appeal used is the correct mode, but the questions raised in the
appeal should not be raised in the appeal (question of fact vs. question of law). Leads to dismissal
of appeal.
Ex. An RTC rendered a decision. The decision was appealed in the CA. The mode of appeal is an
ordinary appeal via a notice of appeal. Eventually, the records are transmitted to the CA. Under the
new rules, when there is an appeal by ordinary appeal via notice of appeal, both questions of fact
and of law could be raised. But the rules said that if the only question raised is purely questions of
law, the CA has no jurisdiction. So the CA can dismiss the appeal when purely questions of law are
raised. This is the importance of knowing the term improper appeal.
Erroneous appeal this is a situation wherein the mode of appeal used is the wrong mode.
Ex. Under the rules, the correct mode is ordinary appeal, but the mode used was petition for
review.
Unlike in improper appeal, where it can lead to a dismissal of the appeal, there are certain cases
where the appeal is erroneous, it will not lead to dismissal of the appeal.
If the court of origin is an MTC, the mode of appeal is an ordinary appeal via a notice of appeal or a
record on appeal (in certain cases) in the RTC. From the RTC, as an appellate court, there could
be a second appeal in the CA, but this time, the mode of appeal is a petition for review.

From the MTC, supposing the mode of appeal used by the aggrieved party was a petition for
review, can the appeal be dismissed by the RTC on the ground that the appellant has chosen the
wrong mode of appeal?
SC held that if the appellate court is an RTC, and appellant has chosen the mode of petition for
review, RTC should disregard the error committed by the appellant. The SC reasoned that the
contents of a petition for review meets, and even exceeds, the requirements of a notice of appeal.
A petition for review is a very lengthy document, there is the application of the material data rule,
there are errors that are assigned and there are arguments embodied in the petition for review. In a
notice of appeal, it may compose of one paragraph where an appellant is simply telling the court he
is appealing the decision rendered on such date, alleging the payment of docket fees. If the
appellant wrongfully chooses a petition for review, the RTC should entertain the petition as the
essentials for a notice of appeal are already contained in the petition for review.
But if it is the other way around, where the RTC decides the case as an appellate court and an
appeal of its decision was made by the appellant, and filed in the CA a notice of appeal instead of a
petition for review, that appeal will be dismissed. The mode of appeal used is erroneous and will
not confer jurisdiction anymore upon the RTC. In other words, there are instances where the wrong
mode of appeal will lead to the dismissal of the appeal; and there are instances where the wrong
choice will be disregarded by the court.
Also under the Rules, the only mode of appeal allowed in civil cases to the SC is Rule 45 (appeal
by certiorari/petition for review on certiorari).From the decision of the RTC in its original jurisdiction,

there could be an appeal to the CA or SC. The appellant decides to go to the SC immediately. It
filed a notice of appeal. SC will dismiss the appeal since the choice of mode of appeal is erroneous
under the Rules. A notice of appeal will never satisfy the requirements of a petition for review on
certiorari or appeal by certiorari under Rule 45.
On the other hand, even if the Rules are very clear in saying that in civil cases, the mode of appeal
to the SC is only through Rule 45 using a petition for review on certiorari or sometimes called
appeal by certiorari, if the appellant inadvertently calls his petition simply a Petition for Certiorari
under Rule 65, the SC will liberally consider that as a Petition for Review under Rule 45. The
contents of Certiorari under Rule 45 and Rule 65 are essentially the same. But, the SC cautioned
parties, the erroneous appeal must be filed within the period of appeal (15 days). If you should
recall, the period for appeal by petition for certiorari provided under Rule 45 is 15 days, whereas
under Rule 65, the period for filing a petition under this Rule is 60 days.
In the CA, the decisions that could be appealed from the CA do not necessarily come from courts
of justice. It could be penned by quasi-judicial bodies. There is just a common mode of appeal
even for quasi-judicial (QJ) bodies, petition for review.
Appealed decision comes from RTC vs. from QJ body There is no difference with respect to the
content, but there is a great difference in the execution of the judgment appealed. If the decision
comes from a trial court in the exercise of its appellate jurisdiction, being appealed in the CA, the
decision of the trial court cannot be executed. There could be not execution. There could be an
execution, but it should be an execution pending appeal (filed in the CA). There could be an
execution on motion, supported by special reasons to convince the CA to order the execution of
judgment. Generally, when there is an appeal to the CA from a court of justice like an RTC, the
appealed decision cannot be the subject of execution.
In case of QJ body decision, the appeal will not stay the execution of the decision. The decision of
the QJ body will be enforced. There is only one way in which we can stop the execution of the
decision rendered by a QJ body during the pendency of the appeal, that is to ask the CA to issue a
writ of preliminary injunction.
Why is execution allowed in QJ bodies?
One reason given in the Rules is that quantum of evidence needed in QJ proceedings is only
substantial evidence, while in trial courts, the quantum of evidence is preponderance of evidence.
If we compare also the remedies available to the defeated party before the trial court and the
appellate courts (CA and SC), the remedies available to the defeated party are considerably
lessened as he goes higher in the hierarchy.

MTC Motion for reconsideration, Motion for new trial, appeal

RTC Motion for reconsideration, Motion for new trial, appeal

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

RULE 45 APPEAL BY CERTIORARI TO THE SC

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

Brief on appeal required only if the appeal is an ordinary appeal, the trial court is an RTC and the
appellate court is the CA.
If the trial court is an MTC, and there is an appeal to the RTC, and an appeal is made on the RTC
exercising its original jurisdiction, the mode of appeal is an ordinary appeal to the CA via a notice of
appeal.
During the pendency of that appeal, the CA will require parties to submit their briefs. The Rules
provide for the brief of the appellant and the appellee. Failure of the appellant to submit his brief on
time will be enough reason for the CA to dismiss the appeal. Even if he submits his brief on time,
the appeal will be dismissed if the essentials of the brief are not complied with.
SEC. 7. Appellants brief.It shall be the duty of the appellant to file with the court, within forty-five
(45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are
attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief,
with proof of service of two (2) copies thereof upon the appellee.
SEC. 8. Appellees briefWithin forty-five (45) days from receipt of the appellants brief, the
appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or
printed brief, with proof of service of two (2) copies thereof upon the appellant.
SEC. 13. Contents of appellants brief.The appellants brief shall contain, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief with a digest of the arguments and page references,
and a table of cases alphabetically arranged, textbooks and statutes cited with references to the
pages where they are cited;
(b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and
concisely stated without repetition and numbered consecutively;
(c) Under the heading Statement of the Case, a clear and concise statement of the nature of the
action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of
the judgment and any other matters necessary to an understanding of the nature of the
controversy, with page references to the record;
(d) Under the heading Statement of Facts, a clear and concise statement in a narrative form of
the facts admitted by both parties and of those in controversy, together with the substance of the
proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the
record;
(e) A clear and concise statement of the issues of fact or law to be submitted to the court for its
judgment;

(f) Under the heading Argument, the appellants arguments on each assignment of error with
page references to the record. The authorities relied upon shall be cited by the page of the report
at which the case begins and the page of the report on which the citation is found:
(g) Under the heading Relief, a specification of the order or judgment which the appellant seeks;
and
(h) In cases not brought up by record on appeal, the appellants brief shall contain, as an appendix,
a copy of the judgment or final order appealed from.
SEC. 14. Contents of appellees brief.The appellees brief shall contain, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief with a digest of the arguments and page references,
and a table of cases alphabetically arranged, textbooks and statutes cited with references to the
pages where they are cited;
(b) Under the heading Statement of Facts, the appellee shall state that he accepts the statement
of facts in the appellants brief, or under the heading Counter-Statement of Facts, he shall point
out such insufficiencies or inaccuracies as he believes exist in the appellants statement of facts
with references to the pages of the record in support thereof, but without repetition of matters in the
appellants statement of facts; and
(c) Under the heading Argument, the appellee shall set forth his arguments in the case on each
assignment of error with page references to the record. The authorities relied on shall be cited by
the page of the report at which the case begins and the page of the report on which the citation is
found.

Appellants brief contents divided into several chapters; lack of assignment of errors is fatal and
will result in dismissal of the appeal.
Why is the CA very much interested in the assignment of errors that must be contained in the brief,
without which the appeal will have to be dismissed?
The assignment of errors is essential in an ordinary appeal because insofar as the CA is
concerned, the decision of the trial court is a correct decision. Remember that in our Rules of
Evidence, there is a presumption that a decision of a trial court is correct; there is a presumption of
regularity in the performance of official duties. The CA will always apply that disputable
presumption whenever there is an appeal in the CA. That same attitude is also adopted by the SC.
Whenever an appeal under Rule 45 is raised to the SC, the SC adopts the disputable presumption
that the decision of the CA is correct. Since the CA adopts the presumption that the RTC decided
on the case correctly, the appellant must destroy or overwhelm that presumption by convincing the
CA that serious errors were committed by the RTC. The appellant cannot be allowed to present
evidence thereon, appellant will have to rely on the records submitted from the RTC. The only way

by which appellant can possibly convince that the RTC committed serious errors is through the
assignment of errors. If the appellant cannot make an assignment of errors in the brief, it means
the appellant finds nothing wrong with the decision of the RTC. Therefore, the disputable
presumption stays, and this will be used by the CA. That is why the assignment of errors is
essential to the brief of the appellant. Absence thereof is fatal to the appeal, and will cause the
appeals dismissal.
Distinguish a brief from a memorandum.
A:
Brief
Memorandum
Ordinary appeals
Certiorari, prohibition, mandamus, quo warranto and habeas corpus cases
Filed within 45 days
Filed within 30 days
Contents specified by rules
Shorter, briefer, only one issue involved No subject index or assignment of errors, just facts and
law applicable

Can the appellant assign as the only error in the brief that the RTC committed an error in deciding
the case against the appellant?
That is not an assignment of error that is expected by the CA. Assignment of errors should specify
particular acts done by the RTC which could have affected his substantial rights.
Harmless Errors in Appeal (Section 6, Rule 51)
The trial court must have committed errors in the proceedings; it is expressly provided in Rule 51
that only errors of the court in admission of evidence and issuance of orders that affects
substantially the rights of the appellant could be considered by the appellate court. Otherwise, the
court will disregard that error, even if made a part of the assignment of errors.
In civil cases brought on appeal, the appellate court will resolve only issues raised in the
assignment of errors. No other issue, generally, will be resolved by the court. The only exception is
if the issue not raised in the assignment is closely related to the issue raised in the assignment of
errors of the appellant. This rule applies to a civil case only.
In a criminal case, if there is an error committed by the trial court, whether mentioned or not in the
assignment of errors, the CA or SC can take cognizance of such errors in resolving the appeal.
The appellate courts are very flexible in a criminal case whose decision from the trial court was
brought before it on appeal.
GR: Only errors assigned in the brief may be considered on appeal
XPNs:
1. Grounds not assigned as errors but affecting the jurisdiction over the subject matter

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

(k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the
parties, which, if properly considered, could justify a different conclusion.
The following cases allow factual issues to be raised based on SC Circulars:
1. Kalikasan cases
2. Amparo
3. Habeas Data
Both factual and legal questions can be raised under Rule 45 in these three situations.
SATISFACTION OF JUDGMENT (RULE 39) SATISFACTION OF A FINAL AND EXECUTORY
JUDGMENT.
Rule 39 has been described in jurisprudence as the one that gives life to the law. It does so in the
sense that the winning party will be able to recover the award given in his favor through the use of
Rule 39. So if the civil case is the recovery of money, and the court awards 2M to the prevailing
party, the said party will not be satisfied until he sees the 2M given to him.
It is not correct to assume that in order to satisfy a judgment, we should always make use of Rule
39. Satisfaction of judgment as conceived in Rule 39 is a forcible satisfaction of judgment. So if the
award in favor the judgment creditor is for the payment of the judgment debtor of 2M, the judgment
creditor does not even have to think about Rule 39 if the judgment debtor immediately pays the
award of 2M. It is only in that situation where the judgment debtor refuses to pay that the only
remedy of the judgment creditor to enforce payment is to make use of Rule 39, to force the debtor
to pay by levying his properties and by selling his levied properties by public auction.
In the ordinary course of things, if there is an appeal from the decision rendered by the trial court,
and the case has reached the SC, even if the decision of the trial court has been affirmed, and the
said decision of the SC has been entered, it is not correct for the prevailing party to ask for
execution from the SC. The matter of execution is a duty of the court of origin, not the appellate
court. If the court of origin is the MTC, it is the duty of the MTC to enforce the satisfaction of the
judgment. So that, there is an indirect rule between the forcible execution of judgments by the MTC
even if the case has been decided by higher courts. This is because higher courts do not usually
issue an order for execution of judgment. What a lawyer for the judgment creditor should do is to
wait for the records to be returned from the SC or CA to the court of origin. It could take time for the
records to be returned to the court of origin. So, if a motion for execution was filed by the judgment
creditor in the court of origin before the records are returned, there is likelihood that the court of
origin will tell him they have not yet received the records so they cannot act on the motion until the
records reach the court of origin. Although, the issuance of an order granting the motion for
execution is a ministerial duty of the court. Rule 39 has provided for a remedy in this situation. The
appellate court will simply issue a certified true copy of the entry of judgment. That certified true
copy will be submitted to the court of origin in order to be a basis of the granting of the order of a
motion for execution. That is enough proof that there really is a final and executory decision.
Is there a need for the judgment creditor to file a motion for execution, or will the issuance of a writ
of execution come as a matter of course?

There is always a need to file a motion for execution. If the judgment creditor has not filed a motion
for execution, the court has no business to issue a writ of execution, because the court will not
know whether there was voluntary satisfaction of judgment.
Since the judgment has become final and executory and it has now become a ministerial duty of
the court of origin to issue a writ of execution, then the motion for execution will be heard ex parte,
without notice to the judgment debtor. This issue has been the subject of conflicting decisions by
the SC. The latest jurisprudence said that a motion for execution of a judgment that has become
final and executory can be heard ex parte by the trial court. But the other decisions are to the effect
that the judgment debtor should also be given a copy of the motion for execution, because the
judgment debtor will have grounds to oppose the issuance of the writ of for execution. In the old
doctrine, a copy of the motion for execution should be furnished upon the judgment debtor, but the
motion cannot be heard ex parte.

Within the Rules, there is a period fixed within which the court can grant a motion for execution as
a ministerial duty. It is 5 years from the entry of judgment. After the 5 years from entry, there can be
revival of judgment, no longer a motion, as this is an independent action to revive the judgment.
But, the independent action to revive judgment must be filed within the second 5-year period after
the entry of judgment.
The Rules assume that the prescription period for the execution of a judgment is the 10-year
period. Is this a correct assumption?
This is correct, as this is also provided under the NCC. A prescriptive period of a final and
executory judgment is really 1 years under the NCC.
But what Rule 39 has provided was to divide the 10 years into two parts : the first five years, and
the second five years. Meaning, the first five years, we can execute the judgment via a motion for
execution. After the lapse of the first five year period, the judgment creditor cannot file a motion for
execution. If he does so, the court will deny the motion as the court will no longer have the
authority to grant the motion of execution. The second 5-year period is designed to force the
judgment creditor to file a separate independent action to revive the judgment. So the motion for
execution should be filed within the first five years of the 10-year period.
Is the first 5-year period strictly implemented by the rules?
It is not. It can be extended according to the Rules. The SC has decided that if the institution of the
judgment within the first five years is delayed, and the delays are equitable or are attributable solely
to the conduct of the judgment debtor, then the 5-year period will be correspondingly be extended,
that is equal the delay caused by the conduct of the judgment debtor.
Lets say that the judgment creditor filed a motion for execution of the judgment on the 3rd year of
the first 5-year period. The court of origin is an RTC. The judgment debtor received a copy of the
motion. After receiving the copy of the motion, the judgment debtor files a petition for the
annulment of judgment before the CA under Rule 47 with prayer for a preliminary injunction. And

the CA grants the preliminary injunction. Because of the preliminary injunction issued by the CA,
we cannot expect the RTC to order the execution of the judgment. It took the CA 2 years to decide
upon the petition of the judgment debtor. At the end, the CA orders the dismissal of the petition for
annulment of judgment. There is a delay of 2 years. If the 5[-year period has already lapsed due to
the delay, another 2 years will be added, the 5-year period will be automatically extended up to 7
years within which the judgment can be executed through the filing of a motion for execution of
judgment. That is how the SC described how the first 5-year period and the second 5-year period
should be interpreted. It is not a fixed period, it could be extended due to circumstances that might
arise in the case there is a delay arising from the conduct of the judgment debtor.
It simply means that the judgment debtor can legally delay the execution of the final judgment. In
fact, he is even given 2 remedies under the Rules to prevent the execution of a final judgment. Rule
38 is one means of delaying the execution of judgment. In Rule 38, the court that decided the case
can issue an injunction against the enforcement of the judgment. Rule 47 is another remedy for the
judgment debtor, as long as in the petition for the annulment of judgment, there is a corresponding
preliminary injunction that is issued by the higher court. In annulment of judgment, the court that
will try the case will always be a higher court. Thus, if the higher court hearing the petition issues
an order to stop the execution of the judgment (preliminary injunction), there is no way for the court
of origin to disobey such order.
If the motion for execution is granted, which is expected, as the judgment has become final and
executory, can the judgment debtor file an appeal against the order granting the motion for
execution?
No. Under Section 1 Rule 41, an order granting motion for execution is not appealable. Also, the
order will be treated as a final order. The remedy is to file a petition under Rule 65, a petition for
prohibition.
Supposed the trial court denies a motion for execution of judgment that has already been entered,
is appeal the remedy of a judgment creditor?
No, it does not seem so, based also under Section 1 Rule 41. The creditor should also resort to
Rule 65. The petition that he should file is a petition for mandamus. Mandamus is proper as there
is a ministerial duty for the court to perform. Under Rule 39, as long as the judgment has been
entered, it has become a ministerial duty of the court to grant a motion for execution. That is an act
that can be compelled by a writ of mandamus.
Can the trial court promptly deny a motion for execution of a judgment that has been entered, or
can the trial court rightly quash the writ of execution it has issued because the judgment has
become final and executory?
The general rule is that the trial court cannot quash or rightly deny a motion for execution if the
judgment has already been entered. But, there are certain exceptions that the SC has recognized.
First is if the judgment sought to be enforced has already been novated.

The judgment has become dormant. This means that the execution of the final judgment cannot be
granted via a motion for execution. Judgment creditor must avail of the independent action of
revival of judgment to revive a dormant judgment.
The second is when the parties enter into a compromise agreement after the judgment has
become final and executory. If there is a compromise agreement signed by both parties whose
terms are not consistent with the award given, the effect being that the award will be novating the
judgment. The court will no longer grant a motion for execution of the judgment of the award that
has been given in the dispositive portion of the duly entered judgment. The agreement of the
parties can change the terms of the dispositive portion of the judgment. This is an application of
novation being a mode of extinguishment of an obligation under the NCC.
Q: Is a writ of execution subject to a motion to quash?
A: A writ of execution may be quashed on certain grounds:
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the parties making the execution inequitable
or unjust;
3. When execution is sought to be enforced against a property exempt from execution;
4. When it appears that the controversy has never been submitted to the judgment of the court;
5. When the terms of the judgment are not clear enough and there remains room for interpretation
thereof;
6. When it appears that the writ of execution has been improvidently issued;
7. When it appears that the writ of execution is defective in substance, or is issued against the
wrong party, or that the judgment debt has been paid or otherwise satisfied or the writ is issued
without authority (Reburiano v. CA, 301 SCRA 342).
Suppose within the first 5-year period, the court grants a motion for execution, and then issues a
writ of execution. The writ of execution is carried out by virtue of a levy on execution of the
properties of the judgment debtor. But the properties levied upon were not sold during the first 5year period. On the 6th year, can the properties levied upon be sold at public auction?
Yes. According to the SC, the 1st 5-year period does not require that the execution of the judgment,
the actual levy and the sale of the property on public auction must be done within the first 5 years.
What is important is that within the first 5 years, there must be an actual levy of the properties of
the judgment debtor, even if the auction sale was conducted in the 6th year. Levy is the actual act
of carrying out the judgment.
In another case, in year 7 of the 10-year period, the judgment creditor who neglected to file a
motion for execution filed a motion for execution in year 7. When the judgment creditor served a
copy of the motion to the judgment debtor, the judgment creditor convinced the judgment debtor
not to oppose the granting the motion. The judgment debtor, accommodating the judgment creditor,
even filed his position paper stating that he is not objecting to the granting of the motion of
execution. Due to such manifestation by the judgment debtor, although it was already year 7, the
court granted the motion for execution. The writ was issued, and the properties of the judgment
debtor were levied upon. It was at this point that the judgment debtor challenged the validity of the

levying of his properties by way of a motion for execution beyond the first 5-year period. The SC
sustained the stand of the judgment debtor. The SC said that after the first 5-year period, the court
loses jurisdiction to execute the judgment through a mere motion. The fact that the judgment debtor
did not oppose the said motion does not matter because the issue now is one of jurisdiction.
Jurisdiction will not be vested upon the court simply by inaction on the part of a party. Thus, the
proceedings taken by the court in granting the motion for execution beyond the first 5-year period
was held to be irregular, it will be void. The issuance of the writ of execution will also be void, and
therefore the writ can be quashed for lack of jurisdiction.
With respect to the revival mentioned in the Rules pertaining to the 2nd 5-year period, this is an
independent action. Since this is an independent action, if the original action was a real action, but
this is now simply a revival, can we still consider the revival action still as a real action?
The SC held yes. If the original action is a real action, the action to revive that judgment will also be
a real action. And therefore, the venue in Rule 4 will still be followed. In Rule 4, the venue will be
determined by the place where the property is located. Thus, the revival of action will be field in the
court having jurisdiction over the place where the property is situated. The case will be cognizable
by the RTC because it is incapable of pecuniary estimation.

REVIVAL OF JUDGMENT UNDER RULE 39

There is another revival of judgment, this time under Section 34 Rule 39.
SEC. 34. Recovery of price if sale not effective; revival of judgment.If the purchaser of real
property sold on execution, or his successor in interest, fails to recover the possession thereof, or
is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or
because the judgment has been reserved or set aside, or because the property sold was exempt
from execution, or because a third person has vindicated his claim, to the property, he may on
motion in the same action or in a separate action recover from the judgment obligee the price paid,
with interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on
motion, have the original judgment revived in his name for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor. The judgment so revived shall have the
same force and effect as an original judgment would have as of the date of the revival and no
more.
The revival of judgment in Section 34 Rule 39 is not the revival of a dormant judgment, but refers to
a judgment already executed.
The situation contemplated in Section 34 Rule 39 is that judgment is executed, properties are
levied upon, and these properties have been sold at public auction, but the highest bidder, or
anybody who thereafter acquire the property, is not able to get possession of the property because
of opposition or legal complications that are related to the execution of judgment. According to
Section 34, the revival of judgment could be had through a motion or through an independent
action. Thus, there is a difference between a revival of judgment under Section 34 Rule 39 where it
is a revival of a judgment already executed via a motion or via an independent action, and the

revival of a dormant judgment where there has been no execution within the first 5-year period
prescriptive period of a judgment under Section 6 Rule 39.
Take note of the differences between the two kinds of revival of judgments in Rule 39, under
Section 6 and Section 34.
The improvement given by Rule 39 under the 1997 Rules, insofar as the judgment creditor is
concerned, is that under the present Rules, the writ of execution issued by the court has a life of 5
years. So, the judgment creditor does not need to file one motion for execution after another, which
was the prior practice when the life of the writ of execution was 60 days. At any time during that 5year period, the sheriff could enforce the writ, he may make levy the properties of the judgment
debtor. The only limitation imposed by the Rules is that the sheriff must file periodic reports to the
court as to the progress of the process of execution.
How does the court enforce a duly entered judgment?
Through the granting of a motion for execution and through the issuance of a writ of execution. It all
depends on the tenor of the judgment. If the judgment awards money, there will be a levy of
properties. If the award involves delivery of properties or documents, there will be no levy on
execution of properties, the property to be delivered will just be seized from the judgment debtor,
and there is a delivery of possession to the judgment creditor.
If the judgment directs the judgment debtor to sign a deed of conveyance or a deed of sale in favor
of the judgment creditor, and the judgment debtor refuses, the court can appoint another person,
usually the clerk of court, to sign the document on behalf of the judgment debtor. That document
cannot be considered a spurious document, but one that is signed effectively by the judgment
debtor following a lawful order of the court.
If the judgment directs the judgment debtor to vacate a piece of land or building, the court, through
the sheriff, will forcibly oust him from the building. The court will throw out the things belonging to
the occupants.
In a writ of execution, the writ will be directed to the sheriff. But the writ will contain verbatim the
dispositive portion of the decision. The writ of execution directs the sheriff to carry out the duty of
executing the dispositive portion of the judgment of execution.
Can the court cite a judgment debtor for refusing to obey a lawful order of the court in compliance
with the judgment to be executed?
No. Citation for contempt is generally not a remedy in enforcing a judgment in Rule 39. This is
because Rule 39 contemplates enforcement of a judgment by the sheriff of the court making use of
the processes in Rule 39. So if the judgment debtor refuses to obey, a court cannot go to another
court to cite the judgment debtor in contempt. That is not contempt of court. This is because,
according to the SC, the writ is not addressed to the judgment debtor. The writ is addressed to the
sheriff of the court, and hence the sheriff has the duty to carry out the dispositive portion of the
judgment.

Can there be contempt in collection of money cases by way of exception?

Generally, no, but it can be had in support cases. Failure to give support can result with the
disobeying person being cited in contempt, as well as being subjected to a criminal case for failure
to give support.
Generally, a judgment debtor who refuses to obey the writ of execution cannot be cited in
contempt. There are other more effective remedies under Rule 39 in order to carry out the possible
satisfaction of the judgment. The more effective remedy under Rule 39 is to levy the properties of
the judgment debtor, seizure thereof and sell them at public auction.
Levy of properties under Rule 39 does not automatically mean that possession of the levied
properties will be in the hands of the sheriff or the court. If properties of the judgment debtor that
are levied upon are real properties, the judgment debtor will have continued possession thereof, he
will not be ousted. The court will simply submit a copy of the levy of execution to the RoD and ask
the RoD to annotate the fact that the real property is subject to a lien via a levy on execution. What
is important to know in the levy of real properties is that the judgment debtor will not be ousted from
his physical possession of the real property. He will continue to be in possession of the real
property although it is already subject of a levy.
But when the property levied upon is personal property, that is, where the physical possession of
the property will be turned over to the sheriff. In fact, the properties will literally be placed in
custodia legis.
What happens after the levy is implemented by the court?
Levy of properties under Rule 39 should always be followed by sale by public auction. We will not
have an execution if we stop at levying of properties. The levy must always be accompanied by a
sale by auction. If there is only a levy without a sale by auction, then that levy can be nullified by
the court. It is the duty of the court to see to it that an actual levy of properties should be followed
by a public auction sale.
Under Rule 39 and under certain special laws, there are certain properties of a judgment debtor
that is exempt from levy. If the property of the debtor that is exempt from execution is levied upon,
the levy is void, nor the sale of such levied items be valid. If the levy is void, the sale thereof is also
be void. The validity of an auction sale shall always stem from the validity of a prior levy. Even if
there is valid levy, but if there are requirements not complied with before, during or after auction
sale, the sale will be void, and the buyer will not acquire title to the property sold.

THIRD PARTY CLAIM ON PROPERTY LEVIED UPON FOR PURPOSE OF EXECUTION

The principles in Rule 39 and Rule 16 are practically identical.
Terceria is predicated on the premise that the property levied upon by the sheriff for the purpose of
executing of the duly entered judgment does not belong to the judgment debtor. (Terceria is a 3rd

party claim filed with the sheriff.) If the property levied upon belongs to another person, the levy is
not valid. The levy not being valid, the sale is not valid. Rule 39 expects that the property levied
upon by the sheriff belongs to a judgment debtor, because Rule 39 is for the satisfaction of a
judgment against a judgment debtor. If the sheriff makes a levy on properties which do not belong
to the judgment debtor, you can expect the true owner to complain. Such owner can file a
complaint for the recovery of the real property from the sheriff. The filing of such complaint of the
owner is just one of the several remedies which the owner can avail of. In Rule 39, the remedy
refers to the filing of a 3rd party claim (Terceria).
The other remedies which are expressly acknowledged in Section 16 Rule 39.
What are the remedies available to a third-party claimant in levy of real property?
A:
1. Summary hearing before the court which authorized the execution;
2. Terceria or third party claim filed with the sheriff;
3. Action for damages on the bond posted by judgment creditors; or
4. Independent reinvindicatory action. (Sec. 16, Rule 39)
The remedies are cumulative and may be resorted to by the third party claimant independently of
or separately from the others.
Note: The officer shall not be liable for damages for the taking or keeping of the property, to any
third-party claimant if there is a bond filed by the winning party. If there is no bond, the sale cannot
proceed. However, the judgment obligee can claim damages against a third-party claimant who
filed a frivolous or plainly spurious claim, and such judgment obligee can institute proceedings
therefor in the same or separate action (Sec. 16, Rule 39).
Replevin remedy of the true owner of the personal property if it was improperly levied and sold
If the property is a real property, the true owner/3rd party claimant can file an independent action to
prevent the sheriff from selling the property.
The 3rd party claimant, under Section 16 Rule 39, can make use of these remedies successively.
Thus, if he was unsuccessful in recovering the property under one remedy, he can make use of the
other remedies.
The easiest and most practical remedy available right away to the 3rd party claimant is a Third
Party Claim. It does not require the filing of a complaint, just the submission of an affidavit to the
sheriff and to the court, setting forth his ownership and entitlement to the possession, and that the
property should not be levied upon as this is not a property of the judgment debtor. Evidence
appurtenant thereto must be attached.
Can the court render a judgment that will tell the sheriff that the property is not the third party
claimants but that of the judgment debtor?

No. The third party claim is an incident to the execution process, the trial proceedings are over
insofar the court is concerned. The court has no power to resolve an issue of ownership involving
the property levied upon. It should be threshed out in a separate complaint. Regardless of a finding
by the execution court that the true owner is the judgment debtor, that will have no bearing on the
third party claimant. That order will not be entered, it will not be considered a judgment on the
merits and will not constitute res judicata insofar as a 3rd party claimant. If at all, the consequence
of the finding of the court is that the sheriff can go ahead with the sale of the property.
If the sheriff schedules the sale, can third party file an independent action to stop the sale of real
property?
Yes, he can file the complaint in another court, RTC, for injunction with claims for damages, if any.
If property levied upon is a personal property of a 3rd party claimant, can 3rd party file complaint
for replevin?
Yes. The claimant must implead the sheriff and the judgment creditor (prevailing party).
If the executing court is an RTC, and 3rd party claimant files a case for replevin, can he file it in the
MTC?
Yes, as replevin is cognizable by the MTC depending upon the value of the thing subject to the
auction sale.
Is this interference with the other court? Can the sheriff in the other court claim that the seizure is
interfering with the proceedings of the other court?
No. The sheriff of the MTC can seize the personal property from the sheriff of the other court.
Cannot the sheriff of the MTC capitalize on the provisions of Rule 60 on replevin that the writ of
replevin cannot be enforced when the property is subject to attachment?
If you go to Rule 60, it is really a requisite in the issuance of a writ of replevin. The issuing court
can issue a writ of replevin validly if the property to be seized is not under custodia legis, not under
a levy of execution or attachment. If the property is subject of a levy on execution, it is under
custodia legis.
But notwithstanding that provision in Rule 60, the SC said that a writ of replevin issued by the MTC
will prevail over the levy on execution writ by the sheriff, because the writ of execution by the sheriff
is void. What is required under Rule 60 to is that a property should be under custodia legis to
prevent enforcement of a writ of replevin, it assumes that there was a prior VALID LEVY ON
EXECUTION. For a property to be validly levied upon, the property must be owned by the
judgment debtor. Otherwise, the levy is void. Therefore, the property can be the subject of a
seizure by another sheriff in compliance with a writ of replevin issued by another court, even if it is
an MTC. It is proper for the MTC to issue a writ of preliminary mandatory injunction directed against
the sheriff to prevent the sheriff from going ahead with the sale.

In Rule 39, if the property of judgment debtor has been subjected to levy on execution, can it be
subjected to another levy on execution?
Yes. If there are several cases where the property is subject to levy, it is possible the same
property can be subject to levy on execution. The debtor remains to be the owner of the land, and
the levy creates a lien only over the property. The first levy annotated on the title of the property
shall be superior to the subsequent levies following the principle of seniority. The SC has held that
if the property is the subject of different levies, and the judgment debtor sells the property, the sale
is valid, as the judgment debtor is still the owner of the property at the time of the sale. But the
buyer must respect the annotations of levies in the title as to the liens imposed. So, if the property
is sold at public auction sale later on in execution of the first judgment, the person who bought it
from the judgment debtor stands to lose the property. Buyer is not considered a buyer in good faith
due to the said annotation of the levies in the title.
If the property was mortgaged to a bank that is still existing, can the sheriff subsequently levy the
property?
Yes, as the levy will not affect the ownership of the property by the judgment debtor. It only creates
a lien. He loses ownership if there was a public auction sale thereon. But ownership shall not
immediately be lost, so long as judgment debtor still has the right of redemption.
If in cases where there are two different levies over the same piece of land of the judgment debtor,
usually, the property will be sold as a result of the first levy of the property. If the property is later on
sold at public auction, and as the law gives to the judgment the right of redemption, this right of
redemption will also be enjoyed by the buyer. Rule 39 in defining the redemptioner names a
judgment debtor, his successors in interest or any creditor who holds another levy or lien
subsequent to that of the levying creditor who has caused the sale of the property.
The right of the first levy holder to redeem is distinct right from the 2nd levy holder to redeem the
property. If it is the 2nd holder who redeems the property, there could be another redemption by the
first judgment debtor. Under Rule 39, when it is the judgment debtor who redeems the property
from the highest bidder, other rights of redemption are cut off by virtue of the redemption by the
judgment debtor. So we can speak of successive redemptions only if the redemptioner is not the
judgment debtor himself. If the one who redeems the property is another lien holder, we can apply
the rule of successive redemption which says that another redemption can be had within 60 days
from the efficacy of the first redemption, even if the 1-year period for redemption has already
expired.
For example, there are 3 redemptioners, one being the judgment debtor. If the redemption is
carried out by the judgment debtor, the rights of redemption of the other 2 are cut off. Redemption
for all of them is 1 year from the registration of the sale in the certificate of title. So we have to
assume that a redemption made should be within 1 year of the registration of the certificate of sale
in the certificate of title. If the 2nd levy holder redeems the property, then the 3rd levy holder can
also further redeem the property within 60 days of the last redemption. But within the 1-year period,
the judgment debtor can redeem the property, who upon his exercise of his right of redemption, the
rights of the others to redeem will be cut off.

Will this not cause prejudice to the other levy holders if we cut off the right to redemption?
No, it will not. The levy holders will simply enforce their levy since the property in the hands of the
judgment debtor. They can have another public auction sale of that levied property.
In civil law, as well as in Rule 39, the SC has accepted the principle that whenever there is a doubt
in the interpretation of redemption rules and laws, the interpretation should always be in favor of the
redemptioner, the judgment debtor.
Rule 39 is also very clear in saying that right of redemption will exist only when the property sold at
public auction is a real property. When the property levied upon and sold at public auction is a
personal property, there is no right of redemption.
SC has come up with these principles that are applicable to redemption of real property and
principles applicable because there is no redemption allowed in personal property:
1.Personal property is sold in auction, and the price generated is inequitably low, the sale is void.
The highest bidder does not acquire ownership of the property. The court will issue an order
declaring the sale as ineffectual. Sheriff must schedule another auction sale until the price
generated is not inequitably low.
2.Real property is sold at public auction, it does not matter as to price even if inequitably low, the
sale will be valid. The low price will not render the sale void because of the existence of the right to
redeem by the judgment debtor. If the price is very low, that is advantageous to the judgment
debtor, because if he decides to redeem the property, he need only to match the auction sale price.
Due to the above principle, there could arise a situation where the levy and public auction sale of a
real property would result that the price generated will be insufficient to pay the lien of the judgment
creditor.
Let us say that the judgment creditor has a lien of 1M, and a piece of land owned by the judgment
debtor was sold at public auction, but generated only 500K. It is not enough to pay in full the award
given to the judgment creditor. The 500k will go to the judgment creditor, but there is still a residue
of 500k. When the judgment debtor redeems the property, should he deliver to the sheriff 500k or
1M?
The judgment debtor should deliver only 500k. He need not deliver 1M because the price paid by
the highest bidder was only 500k.
So, if the judgment debtor was able to redeem the property by producing 500k, but the judgment
creditor was not yet fully paid, the judgment creditor will be tempted to have another levy on the
property. The judgment creditor could really entertain that idea because he has not yet been fully
paid. In Rule 39, there must be full satisfaction of the award to put an end to the litigation. If the
judgment creditor decides to have another levy on the same property previously levied upon, but
the property had been redeemed by the judgment debtor, can the same levying creditor carry out
another levy on the same property?

SC held that in this situation, the same levying creditor cannot impose another levy on the same
property. If the levying creditor wants to have full satisfaction of his lien, he should make another
lien on another property owned by the judgment debtor. Or, he could avail of the other remedies
provided for in Rule 39 if he cannot get full satisfaction of the judgment.
3. If there is still a residue on the lien of the judgment creditor, he can levy other properties owned
by the judgment debtor, but the judgment creditor cannot levy the same property that the judgment
debtor has redeemed. This principle does not prevent other creditors from levying the property that
was already redeemed.

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

In the auction sale, anybody can bid, even the judgment creditor. It is usually the judgment creditor
who will be offering the highest bid because the judgment creditor can give an amount equivalent
to the award given by the court. If the award given by the court is 1M, then the judgment creditor
can give an amount as high as 1M. He need not turn over any cash to the sheriff, because he will
just tell the sheriff that he will consider the 1M lien as fulfillment of his claim. Whereas if a stranger
is the highest bidder, this stranger is expected to give the 1M to the sheriff.
Can the judgment creditor be forced to shell out the equivalent of the highest bid even if the highest
bid is exactly equivalent to the amount of his claim?
Generally, no. But if there is a 3rd party claim, a terceria, and the highest bid was that of the
judgment creditor, the judgment creditor must still shell out cash in order to be treated by the sheriff
and the court as the highest bidder.
If the judgment creditor is not fully paid, there are other options given in the rules in order to fully
satisfy the claim:
1. File a motion in the court for an examination of the judgment debtor.

2. File a motion in the executing court for the examination of a debtor of the judgment debtor.
3. File a motion for the appointment of a receiver for the remaining properties of the judgment
debtor.
A receiver is one of the provisional remedies in the RoC. Receivership is allowed by the court,
although the case has already been terminated, being already in the execution stage of the
judgment. This is one instance where a provisional remedy can be used even after a case has
been decided by the court. The usual concept of a provisional remedy is that they are availed of
during the pendency of the case, before entry of judgment. But in the case of receivership, this
remedy can be availed of under Rule 39 even if the case has already been decided, the judgment
has been entered and is now subject to execution.

THE PRINCIPLE OF RES JUDICATA

Res judicata under Section 39 consists of 2 sections, Sections 47 and 48.
Section 47 is concerned with the effect of local judgment after it is entered, and Section 48 is the
effect of a foreign judgments.
In our study of res judicata, there are 3 essential elements:
1. identity of parties
2. identity of causes of action
3. identity of subject matter
The effect of res judicata under section 47 depends upon the nature of the action:
Judgment in rem (letter a of Section 47)
Judgment in personam (letter b Section 47)
Conclusiveness of judgment (letter c Section 47)
Rule 39SEC. 47. Effect of judgments or final orders .The effect of a judgment or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order,
may be as follows:
(a)
In case of a judgment or final order against a specific thing, or in respect to the probate
of a will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death of the testator or intestate;
(b)
In other cases, the judgment or final order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive between the
parties and their successors in interest by title subsequent to the commencement of the action or
special proceeding, litigating for the same thing and under the same title and in the same capacity;
and

(c)
In any other litigation between the same parties of their successors in interest, that only
is deemed to have been adjudged in a former judgment or final order which appears upon its face
to have been so adjudged, or which was actually and necessarily included therein or necessary
thereto. (49a)

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

If a person has been issued a decree of adoption of a child named Juan dela Cruz, the decree is
conclusive upon the personal status of that adoptee. Therefore, anyone who meets the adoptee
and transacts with him shall be bound by the issued decree of adoption.
In letter b, when the law says that judgment is conclusive upon the parties and their successors in
interest as to matters directly adjudged or as to matters that could have been adjudged, that phrase
litigating for the same thing and under the same title and in the same capacity will refer, for
instance, to a compulsory counterclaim or a cross-claim. This is because we learned that a
compulsory counterclaim or a cross-claim that is not raised in the same action shall be barred. The

reason they will be barred is because they are matters that could have been raised in relation to the
principal action. So, in a judgment in personam, the judgment is conclusive only on the matter
directly adjudged.
An example of an action in personam could be an action involving reconveyance of property. If the
action is only an action for reconveyance or an accion reinvindicatoria, it is an action in personam.
Although real property is involved, still it is an action in personam.
Plaintiff won the case with attachment of property. Judgment is entered. The plaintiff is now the
owner of the property insofar as the judgment is concerned. However, X, the true owner of the
property, filed a case for recovery of the property. Is there res judicata?
No. There is no identity of parties between the first and second case. There also there may be no
identity in cause of action, although there is identity in the subject matter to recover.
If there is identity in the subject matter, does it not follow that there will be identity in the causes of
action?
No. That would not be the correct assumption. There could be identity as to the subject matter, but
the causes of action could still be different.
For instance, in accion reinvindicatoria, the subject matter involves a piece of land. The case
involves title to a piece of land. If there was another complaint filed involving the same piece of
land, the cause of action could be different, although they are referring to the same land. For
instance, there could be a case for unlawful detainer filed involving the same property. Again,
though involving the same subject matter, the causes of action for accion reinvindicatoria and
unlawful detainer are different. Accion reinvindicatoria involves recovery of title to the property,
while unlawful detainer involves recovery of physical possession of the property. In this case, the
second case cannot be dismissed by reason of res judicata as there is no identity of causes of
action.
General Rule on Res Judicata under Section 47 Rule 39
When the judgment is entered as contemplated in Section 47, Rule 39, then the effect of the
judgment is similar to a judgment in rem or judgment in personam. The collateral principle that we
adopt from this rule on res judicata is that the judgment that has been entered shall become
immutable, it cannot be changed or modified, even by the SC itself. Everybody will have to respect
res judicata applicable to this judgment.
Exception:
1. Propriety of petition to annul judgment (it is an attempt to change or modify a judgment, one
ground being lack of jurisdiction of the court over the subject matter or over the person of the party)
2. Relief from judgment on ground of FAMEN under Rule 38
FGU Insurance Case and a 2007 case
In that case, the SC gave 5 instances where a final judgment can be modified or set aside.
1. Clerical errors;
2. Judgment nunc pro tunc;
3. The judgment is void; and

4. When supervening circumstances intervene after finality of judgment to render execution of

judgment unjust and inequitable.
5. SC held that it has the inherent power to change and modify final and executory judgments if
substantial justice so require. (2007 case)
Judgment nunc pro tunc (Now for then) A judgment intended to enter into the record the acts
which had already been done, but which do not appear in the records. Its only function is to record
some act of the court which was done at a former time, but which was not then recorded, in order
to make the record speak the truth, without any changes in substance or any material respect.

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

Sec. 48 Rule 39Foreign judgments in rem and in personam

Judgment in rem conclusive upon the title of the thing;
Judgment in personam there is only the presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title.
There is a foreign judgment rendered by the Japanese Court. The relief which the creditor stated in
the Japanese court is the fulfillment of an unpaid loan of 100k. The Japanese court decides the
case in favor of the debtor. The debtor is required to pay the 100k in the Japanese court. The
Japanese court had not executed the judgment. But somehow, the debtor and creditor were now
living in the Philippines. The judgment debtor has accumulated certain propertied in the
Philippines. Can the judgment creditor in that Japan case file a motion for execution in the
Philippine courts?
No. The Philippine court cannot entertain the motion as it knows nothing about the claim of the
judgment creditor against the judgment debtor in the Japan case.

Is there a remedy available to the judgment creditor to enforce the judgment of the Japan court in
the Philippines?
Yes, the remedy is found in Section 48 (b) Rule 39. The judgment from the Japanese court is a
presumptive evidence of the judgment creditors right against the judgment debtor.
How does the judgment creditor make use of that rule that the decision of the Japan court is
presumptive evidence of his right against the judgment debtor?
The creditor should file an independent complaint for the enforcement of the decision of the Japan
court. And the only evidence that he needs to convince the court as to the preponderance of
evidence needed to prove his right is to present to the Philippine court a certified true copy of the
decision rendered by the Japan court. If he is able to present a certified true copy of the decision to
the Philippine court, the court will then apply the presumption given under Section 48(b) Rule 39,
that the decision of the Japan court is presumptive evidence of the rights between the parties.

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

When can a collateral attack be had against a judgment?

When the judgment is patently void on its face, it is vulnerable to collateral attacks.
Ex. The judgment contains only the dispositive portion. This kind of judgment is void on its face.
(Shimizu vs. Magsalin)

PETITION TO REVIVE JUDGMENT

- It is an independent action available to a judgment creditor who has not executed the case via a
motion in the first 5 years from entry of judgment; Within the 2nd 5-year period from entry of
judgment, the judgment debtor cannot oppose an action to revive judgment by setting up the
defense that the judgment is void due to lack of jurisdiction over the person of the defendant, as
this is a collateral attack on the judgment rendered.
If the ground that the judgment is void is used as a defense other than an independent complaint
for annulment of judgment, that is a collateral attack on the judgment.
PROVISIONAL REMEDIES
- Also called as Interim relief and provisional order
Q: What are the Provisional Remedies under the Rules of Court?
A:
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
Q: What are the Other Provisional Remedies available?
A:
1. Temporary custody over a minor
2. Deposit in Actions for Annulment of Sale (Reyes v. Lim)
3. Restraining order against the accused in cases of violence among immediate family members
living in the same domicile and household
4. Hold departure orders issued by Regional Trial Courts in criminal cases
5. Interim reliefs under Writ of Amparo:
a. Temporary Protection Order
b. Witness Protection Order
c. Inspection Order
d. Production Order
(Riano, Civil Procedure: A Restatement for the Bar, p. 534-536, 2009 ed.)
Rule 57 to Rule 61 as well as Separate circulars of the SC on WHD and WA.
Writ of Habeas Data under certain circumstances, it functions as a provisional remedy
Writ of Amparo under certain circumstances, it functions as a provisional remedy

Amparo Provisional Remedies

Protection order
Production Order
Witness Protection Order
Inspection Order

Provisional Remedies in Marriage-Related Cases:

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

Common element: There is a pending principal action, except when the provisional remedy by itself
is or can be treated as a principal action, such as Replevin, Writ of Amparo and Writ of Habeas
Data.
We cannot file an independent action solely for the purpose of obtaining as a principal relief any of
these provisional remedies.
Example, a creditor cannot file a case solely for the purpose of obtaining a preliminary attachment.
Preliminary attachment should be a relief prayed for in an independent case.
Note:
Rule 57 Preliminary Attachment is a provisional remedy because of the word preliminary.
Final attachment is not a provisional remedy. It is now part of the execution process under Rule 39.

Note:
Levy on execution refers to levy on final attachment. But we use the term levy on execution to
differentiate it on levy on attachment.
Levy on attachment is a provisional remedy.
The enumeration of provisional remedies in the rules is no longer exclusive.
The new rules/circulars issued by the SC used the following terms:
1. Provisional Order related to marriage-related cases
2. Interim Relief Amparo
3. Provisional Order or Provisional Remedy - Kalikasan
Provisional remedies cannot be the principal action itself, subject to the exception of Replevin.
Provisional remedy of a writ of replevin is an application for recovery of personal property in the
main case.
Support pendente lite cannot be a principal action, as the principal action should be a complaint for
support, with application of the provisional remedy of support pendente lite.
Writ of Amparo and Writ of Habeas Data are actions in themselves, but are treated as provisional
remedies. If there is a criminal case already filed involving the disappearance of a person, that
criminal action being the principal case, there can be an application for a writ of Amparo or a writ of
Habeas Data as a provisional remedy.

In the circular of Kalikasan, Production and inspection orders, formerly modes of discovery, were
elevated as provisional remedies in Amparo and Kalikasan writs. Also included were TEPO,
preliminary attachment, ocular inspection order, cease and desist order (Sec. 15a) and production
and inspection order.
In these new circulars, the SC has elevated several Modes of Discovery as provisional remedies
like production of documents and inspection of things, they are now treated as provisional
remedies. The Kalikasan court can issue a production and inspection order or an ocular inspection
order.
The same is true with the Amparo circular. There is a production order and inspection order,
although they are substantially of the same nature of the production and inspection in the Modes of
Discovery.
Although we have several provisional reliefs, interim reliefs or provisional orders, it is incorrect to
assume that there are commonalities. These different circulars have not adopted the provisions in
the Rules (Rules 57 up to 61).

If you will notice under Rules 57 to 61, one of the common requirements is the posting of bond by
the applicant (except support pendente lite). We have an attachment bond, receivers bond,
production bond, and the like.
But in the circular on marriage-related cases, the family court can grant these provisional orders
with or without bond at the discretion of the family court. Also, in the same circular, the family court
can grant these provisional orders with or without a hearing, which is similar to some provision in
the Rules that some remedies can be granted ex parte, or some provisional remedies require a
summary hearing before issuance.

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

governed by a different set of rules, depending upon the circular of the SC applicable to each one
of them.
With respect to the authority of the MTC being able to grant interim relief, it has been settled under
BP 129. Under Sec. 33 of BP 129, it is clearly provided therein that MTCs have authority to grant
provisional remedies so long as it has jurisdiction over the principal case. In case of support
pendente lite, there could be instances where MTC can grant for support pendente lite, but we
must keep in mind that so long as that principal case is cognizable by the MTC, support as a
provisional remedy can be had.

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

You will notice in Section 1 that there are 6 instances where one can file for the relief of preliminary
attachment. In the first five, there is a common denominator, intent to defraud the applicant.
The last is closely related to Rule 14 (Summons), in gaining jurisdiction over the person of the
party. The applicant is moving for an interim relief in order to enable him to secure for himself a
judgment in court by attachment of the properties of the party who could not be served with
summons in any manner, including by publication. When the property of the absent party is

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

In preliminary attachment, there are 2 rules that are applicable to preliminary attachment as well as
other provisional remedies in the Rules when they are granted ex parte:
1. Prior and/or contemporaneous service of summons
2. Principle under Section 20 Rule 57
Prior and/or contemporaneous service of summons there is an application filed after the
commencement of the action, and even before the court acquires jurisdiction over the person of the
defendant via summons, the court may already have approved the application for attachment.
For a court to act validly, the court must acquire jurisdiction over the cause of action, the person of
the plaintiff and the person of the defendant. This remedy is available even before jurisdiction over
the defendant can be had via a verified application for preliminary attachment filed by the plaintiff.
But, issuance of preliminary attachment at pre-stage proceeding requires a hearing and the court
will require the posting of an attachment bond before the writ is issued; as long as all the conditions
have been met, there is only the carrying out the writ. The sheriff must first serve the summons and

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

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

Principle under Section 20 Rule 57

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

Note: Any award of damages for the wrongful issuance of a provisional remedy should be
recovered in the same case. The recovery of damages cannot be had in a separate action.
The first principle under Section 20 Rule 57 is that the recovery of damages should be had in the
same case, not in an independent action. Adverse party must already submit an application for
damages for improper issuance of writ of preliminary attachment. The most practical way of
informing the court right away is to set up in his answer a compulsory counterclaim for recovery of
damages. If the defendant did set up a counterclaim for recovery of damages, and then the
defendant eventually wins, he will just file an application through a motion to conduct a hearing on
the extent of liability to which the defendant is entitled to recover.
What Rule 57 tells us is that it is not possible for the defendant who has won the case to file a
separate complaint for recovery of damages arising out of a wrongful attachment. If he did so, that
independent case will be dismissed, even motu propio by the court, due to res judicata.
In Section 20, Rule 57, it is very clear that the extent of damages to be recovered need not be
equivalent to the attachment bond filed in court. Sec. 20 Rule 57 provides that if the attachment
bond is insufficient, there could be an availment of a levy of execution under Rule 39 by the
defendant. (This section is similar to other provisional remedies in the Rules) Nothing herein
contained shall prevent the party against whom the attachment was issued from recovering in the
same action the damages awarded to him from any property of the attaching party not exempt from
execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the
award. Thus, the defendant can ask for a writ of execution against the applicant under Rule 39.
There can now be a levy on execution against the applicant.
Remember that Rule 20 is a provision that is followed by other provisional remedies where there is
a bond required (preliminary injunction, receivership and replevin) before the court will issue the
preliminary relief prayed for.

RULE 58 PRELIMINARY INJUNCTION (PI)

The principal action could be any action coupled with an application for a TRO or a writ of
Preliminary Injunction. A special action for certiorari under Rule 65 is usually accompanied by a
verified application for TRO and writ for PI. The relief usually asked for in Rule 65 is for a writ to
prevent or prohibit the respondent court from going ahead with the case pending before the court,
or in case of a certiorari, to set aside the decision or interlocutory order of the respondent court.
Preliminary injunction and TRO can be availed of in any civil proceeding where the principal relief
sought by the applicant or petitioner is to prevent an act or compel performance of an act. PI can
also be had in criminal cases or special proceedings, as long the principal relief is to compel or to
prevent the performance of an act.
In PI, there are 2 provisional remedies contemplated:
1. TRO

2. Writ of Preliminary Injunction

Both require an injunction bond. TRO, in exceptional cases, can be granted ex parte. A bond must
be paid. Generally, a court cannot grant TRO without a hearing. When there is grave and
irreparable injury,
The general rule is that a court cannot grant a TRO or a writ of PI without a hearing, unlike
preliminary attachment. Always expect a summary hearing, with notice to both parties, to be
conducted.
TRO can be granted ex parte, by way of exception, in instances when there is grave and
irreparable injury that will be caused to the applicant, and in no way shall the total period of the
TRO be longer than 20 days. The court will still fix a TRO bond. During the 20-day period, the court
will then conduct a hearing to determine whether or not a writ of PI will be needed.
(if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable
injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may
issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance
but he shall immediately comply with the provisions of the next preceding section as to service of
summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two
(72) hours, the judge before whom the case is pending shall conduct a summary hearing to
determine whether the temporary restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary
restraining order exceed twenty (20) days, including the original seventy-two hours provided
herein. 2nd Par. Sec. 5 Rule 58),
PI ABSOLUTELY requires a summary hearing. A court cannot grant a PI without a hearing. There
is no exception. It is only in the issuance of a TRO where there is an exception to the general rule
where it can be issued ex parte. In multi-sala courts, the executive judge can issue a TRO ex parte,
but it shall be good only for 72 hours. And then, in a multi-sala court, what the petitioner files with
the court is motion for a special raffle. If granted, there will be such special raffle in the meantime
that the executive judge has issued the ex parte TRO. After the raffle is completed, the judge sala
in which the action has been assigned has the duty to conduct a hearing to determine whether or
not it will have to issue a writ of PI.
Do not forget the modifications of the 2007 circular to Rule 58. The modification is that if a court
has issued a writ of PI which has no term (not lifted until finally decided or until ordered), the court
that issued such writ of PI must decide the principal action within a period of 6 months. This is the
modification in the 2007 circular. If the court does not place a limit of 6 months to decide the
principal action, the writ will be effectively be a perpetual injunction, because it is effective until the
case has finally been decided. If the court grants the PI today, it has only 6 months within which to
decide the case. In deciding the principal case, the court could rule in favor of the plaintiff or
defendant. If ruled in favor of the defendant, the PI is automatically lifted, meaning the plaintiff has
no right at all to ask for the writ of PI.

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

summary procedure is in effect while the case is in the MTC, whereas on appeal in the RTC, the
regular procedure applies, and challenge under Rule 65 is allowed.

RULE 59 RECEIVERSHIP
It has a feature not present in other provisional remedies. Provisional remedies are contemplated to
be used during the pendency of the case. In receivership, the court can appoint a receiver during
pendency of a case. Under the Rules, the court can also appoint a receiver after the judgment or in
the process of execution of said judgment. This feature makes this remedy unique. There is no
fixed time in which a court can appoint a receiver.
Relate this to the remedies of a judgment creditor in Rule 39 when he is unable to recover full
satisfaction of his account. Under Rule 39, the judgment creditor can ask for examination of the
judgment debtor for any properties. If there are properties present, judgment creditor can apply that
such properties be placed in receivership.
There has to be a summary hearing, no ex parte appointment of a receiver is allowed.
The grounds for appointment of receiver are quite broad. Whenever the court feels there is a need
for the appointment of a receiver to preserve the property in litigation, it shall do so. The Rules
also provide in foreclosure of a mortgage, the mortgagee can move for the court to have the
mortgaged property placed under receivership, even if there is no proof that the collateral will be
lost or deteriorate. This can be done whenever the deed of mortgage contains a stipulation
authorizing the mortgagee to move for the appointment of a receiver. But generally, the purpose of
receivership is to preserve the property under litigation from loss or deterioration.
SC held that the receiver is not a representative of either party. It classified the receiver as a
representative and an officer of the court. Thus, the receiver cannot file a case as a receiver
without the consent of the court. If a receiver needs to file a case to recover certain properties
under receivership, he needs permission from the court to do so. On the other hand, if a 3rd
person has a grievance against the receiver in his capacity as a receiver, the 3rd person cannot
simply file a case against such receiver as the 3rd person must seek permission of the court first.
We find here a situation that the filing of a case will need permission of the court. If not granted,
that action will fail.
Practically every issue is left to the court. The court determines how much compensation to give to
the receiver, the qualifications of a receiver, how many receivers may be needed. The court can
appoint a receiver, it can also fire said receiver and appoint a new one, whenever there is a need to
preserve the property. The competence in the determination of such matters is in the receivership
court.
There is another feature in receivership that is not found in the other provisional remedies. In
receivership, there are two bonds :
1. Bond of the applicant

2. Bond of the receiver

The applicant should manifest that he is able to post bond. Once the court appoints the receiver,
the receiver shall also post a bond. The receivers bond is designed to protect the parties to the
litigation from any abuse or mischief by the receiver in the performance of his duty.

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

Problems in the service of the writ of replevin.:

1. Jurisdiction is either RTC or MTC depending on the value of the property alleged in the
complaint. As long as the court has jurisdiction over the complaint based on the alleged value of
the personal property, the court can issue the provisional remedy of a writ of replevin.
Note: Value of the property = jurisdictional

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

RULE 61 SUPPORT PENDENTE LITE

This is found under the Rules and also mentioned in the SC Circular on Provisional Remedies in
Marriage-Related Cases. In fact, the circular of the court is more expansive. This is because, it
does not only mention support pendente lite, it classifies it into spousal support and child support,
and are treated differently.

In the circular Family Court, which has jurisdiction over a complaint for support, can grant both
spousal support and child support even without hearing and without requiring the filing of a bond.
This is also provided in the Rules on Support pendente lite. We follow that provision provided for in
the circular. A Family Court can grant spousal and child support even without filing of a bond and
without need for a hearing.
This is different in trial in courts that are not functioning as family court. This is because in the
Rules of Court, it is not proper for an ordinary court to grant an application of support pendente lite
without conducting a hearing. In the Rules, in Provisional Remedies, support pendente lite can only
be allowed only after a hearing is heard, and the applicant and respondent are given the chance to
explain. The reason why this is required in the Rules is that a court cannot conceivably issue an
order granting support pendente lite unless the court is able to determine first that the petitioner
needs support, and even if the petitioner does need support, to determine that the respondent is
capable of grant such support. This is because if the court simply grants an application for support
pendente lite without examining the financial ability of the respondent, that provisional remedy will
be useless. If the respondent cannot comply, as he had no means to give support, he could be
jailed. This is one action where the court can imprison a respondent who does not comply with its
order to give support, although the respondent really may not have the ability to really do so.
Remedies in case of violation against giving of support under substantive law: (Dean Jara: This
probably violates the equal protection clause as they are relatively unfavorable to us men.)
1. Imprisonment for commission of a crime
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against violator under Rule 39
In the Rules of Court on Support Pendente Lite, you will notice that the principle in Section 20 Rule
57 is not followed at all. A remedy to recover damages in wrongful issuance of provisional
remedies should be in the same case. There must be no separate action to recover damages. But
if you read the provisions for Support Pendente Lite, it is expressly provided that there could be an
independent action for recovery of money given as support in compliance with an order of the
court. There is no need for respondent to file a claim for damages in the same action.

If you are asked why a Family Court can order spousal support without a hearing, just state that
there is no need for a Family Court to determine the needs of the spouse or of the minor children,
there is no need for the court to determine the financial ability of the defendant. This is because in
family-related cases, there is a need for an inventory of properties submitted to the Family Court by
the petitioner. Based on the inventory, the court can conclude how much the spouse is entitled and
how much the minors are entitled to support.
Also, with respect to the Provisional Orders granted by a Family Court in marriage-related cases,
although the provisional orders are called by some other name, these partake in the nature of an
injunction.

TPO in a marriage-related case is actually a prohibitory injunction and a mandatory injunction at

the same time. This is because in the protection order, the Family Court prohibits respondent from
certain acts,, which is a prohibitory injunction. Also, the Family Court can tell the respondent not to
enter the former conjugal dwelling and to remove his personal properties from the house. Thus, it
partakes of a mandatory injunction.

RECEIVERSHIP IN MARRIAGE-RELATED CASES

We also have receivership in marriage-related cases where the court may appoint an administrator
of the properties. He is effectively a receiver of properties owned in common.
With respect to interim reliefs in Amparo, there is nothing mentioned in the circular about filing of a
bond.
With respect to Kalikasan circular, the applicant is not required to post a bond. It is the adverse
party who will have to post a bond in order to lift or dissolve the writ of Kalikasan as security to
protect the interest of the applicant.
Read the Circulars on the Writs.
Center your attention on the procedures required in civil and criminal cases given in the Writs:
Kalikasan cases
- Commenced in RTC, MTC, CA, SC
- Continuing mandamus is only cognizable only in SC and CA
- Party complaining/answering must have attached documentary and/or object evidence available
- If the defendant does not file an answer, there is no need for a motion do declare defendant in
default, it being a prohibited pleading.
- If the defendant does not answer, it is the duty of the court to declare the defendant in default, no
motion need be had, and the plaintiffs evidence can be received ex parte.
- Compromise of the civil action is encouraged. The judgment is not called a judgment based upon
a compromise but is called a Consent Decree.
- Rules on Evidence are not necessarily followed. Quantum of evidence in civil cases is mere
preponderance of evidence. However, there are several instances in Kalikasan cases that mere
substantial evidence is enough, which is also now followed in Amparo cases. In Amparo cases,
only substantial evidence is required, which is the same quantum of evidence in quasi-judicial
proceedings. In Amparo cases, the rule on quantum of evidence is exclusively determined by the
SC. If substantial evidence is required in Amparo cases, then that is the quantum required. An
administrative body cannot change the quantum of evidence required.

Special Civil Actions

1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies (Rule 63)

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

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

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

2. Ejectment suits
3. Contempt
Q: What is an interpleader?
A: It is a special civil action filed by a person against whom two conflicting claims are made upon
the same subject matter and over which he claims no interest, to compel the claimants to
interplead and to litigate their conflicting claims among themselves. (Sec. 1, Rule 62).
Q: What are the requisites in order that the remedy of interpleader may be availed of?
A:
1. Plaintiff claims no interest in the subject matter or his claim is not disputed
2. Two or more claimants asserting conflicting claims
3. The subject matter must be one and the same
4. Person in possession or obliged files a complaint.
5. The parties to be interpleaded must make effective claims.
6. Payment of docket and other lawful fees.
Note: Upon filing of complaint, the court shall issue an order requiring conflicting claimants to
interplead. (Sec. 2, Rule 62)
Rule 63 Enumerates 4 special civil actions
~Declaratory Relief
and other similar remedies:
~Reformation of instrument
~Quieting of title
~Consolidation of title
Although in the same Rule, they are governed by different procedures.

DECLARATORY RELIEF RULE 63

The obvious nature of declaratory relief, which makes it a special civil action, is that the petition
must be filed before a breach or violation of a right. (If we would follow ordinary rules of procedure,
the complaint would have been dismissed outright because of lack of a cause of action.) There is
no allegation that there is a right violated by another. If there is such an allegation, then the action
ceases to be a special civil action for declaratory relief, it becomes an ordinary action.
Declarative relief is a preventive mechanism to prevent parties from getting involved in an ordinary
civil case. In Declarative relief , the petitioner does not allege he has a right, or if he has, it has not
been violated, and therefore, there is really no cause of action. The petitioner seeks from the court
a determination of what his rights are. Petitioner is not absolutely certain if he has rights under a
certain instrument, so he asks the court to declare what his rights are. The actual remedy is that
the court declares what his rights are.

If the remedy is the declaration of the rights of the petitioner, then a prayer for damages in
declaratory relief negates the nature of such special civil action. Damages connote the fact that a
breach or violation of a right has occurred.
There is an enumeration under Rule 63 (Section 1) as to the instruments which could be subjects
of a petition for declaratory relief; deed, will, contract or other written instrument, whose rights are
affected by a statute, executive order or regulation, ordinance, or any other governmental
regulation.
With respect to statute or ordinance, the same principle applies, we cannot apply for a petition for
declaratory relief if there is already a violation. If there is a violation already, the petition will not be
proper. Declaratory relief must be had before such ordinance or statute has become effective. This
is one of the reasons of the 30 day period (date of effectivity; after publication) before a law that
has been enacted by Congress has effect. The said time before such statute or ordinance takes
effect is the time for it to be subject to petition for declaratory relief, determining whether that
statute or ordinance is constitutional or unconstitutional.
You will meet decisions of the SC concerning declaratory relief to the effect that you cannot file a
motion for execution in order to carry out the declaratory judgment (the judgment in a case for
declaratory relief), in order to differentiate it from what the court usually renders after a judgment
has been entered in order to clarify the judgment. The latter is what we a clarificatory judgment. In
a clarificatory judgment, that is where a judgment that has become final and executory but has
certain ambiguities with that judgment. The remedy of the interested party is to file a motion for the
rendition of a clarificatory judgment. This clarificatory judgment is different from a declaratory
judgment. In declaratory judgment the court will only tell the petitioner what his rights and duties
are under a certain will or contract. But in the case of a statute or ordinance, the court will tell the
petitioner whether or not the statute or ordinance is unconstitutional or not. So after the court has
done its duty, there is no more need for the prevailing party to return to the court in order to move
for the execution. We do not apply Rule 39 to a petition for declaratory relief.
So, that is the nature of a declaratory relief that makes it a special civil action. There is really no
cause of action as contemplated in ordinary civil actions where there is a right violated by the
defendant.
Distinguish declaratory judgment from ordinary judgment.
A:
DECLARATORY JUDGMENT
ORDINARY JUDGMENT
Declaratory judgment stands by itself and no executory process follows
Ordinary judgment involves executor or coercive relief
Intended to determine any question of construction or validity prior to breach or violation
Intended to remedy or compensate injuries already suffered
What are the requisites of an action for declaratory relief?

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

Note: Discretion to refuse does not extend to actions for reformation of an instrument quiet title or
remove clouds or to consolidated ownership in a pacto de retro sale. (Regalado, Remedial Law
Compendium, Vol. I, p. 769, 2005 ed.)
Q: Can the court exercise discretion in application for declaratory relief?
A:
1. In declaratory relief, the court is given the discretion to act or not to act on the petition. It may
therefore choose not to construe the instrument sought to be construed or could refrain from
declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare
rights or construe an instrument is actually the functional equivalent of the dismissal of the petition.
2. On the other hand, the court does not have the discretion to refuse to act with respect to actions
described as similar remedies. Thus, in an action for reformation of an instrument, to quiet or to
consolidate ownership, the court cannot refuse to render a judgment (Sec. 5, Rule 63).
Q: Is a third-party complaint proper in an action for declaratory relief?
A: No. Because in a third-party complaint, such person seeks to obtain contribution, indemnity,
subrogation or other reliefs and a declaratory relief is confined merely to the interpretation of the
terms of a contract. (Commission of Customs v. Cloribel, G.R. No. 21036, June 30, 1977).
Q: What are the instances wherein a declaratory relief is unavailable?
A:
1. To obtain judicial declaration of citizenship;
2. To establish illegitimate filiation and determine hereditary rights;
3. The subject of the action is a court decision;
4. Actions to resolve political questions;
5. Those determinative of the issues rather than a construction of definite status, rights and
relations;
6. Terms of assailed ordinances are not ambiguous or of doubtful meaning;
7. In a petition to seek relief from a moot and academic question;
8. Where the contract or statute on which action is based has been breached;
9. When the petition is based on the happening of a contingent event;
10. When the petitioner is not the real party in interest; and
11. Where the administrative remedies have not yet been exhausted.
What is the competent court in a petition for declaratory relief?
Petition for declaratory relief is an action incapable of pecuniary estimation; hence RTC is the
proper venue. However, as to who is the competent court in other similar remedies, take into
account the provisions under BP 129:
~Reformation of instrument is cognizable solely by RTC as it is incapable of pecuniary estimation.
~Quieting of Title is not necessarily under the RTC. Actions involving title to property will depend
on the value of the property. Under BP 129, actions involving title to or possession of the property
may be cognizable by an RTC or MTC depending upon the assessed value of the property
involved.

~Consolidation of title involves real property, hence, assessed value must be alleged to vest
jurisdiction.

Q: What is an action for quieting title to real property?

A: This action is brought to remove a cloud on title to real property or any interest therein. The
action contemplates a situation where the instrument or a record is apparently valid or effective but
is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said
title to real property. This action is then brought to remove a cloud on title to real property or any
interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast
upon title to real property or any interest therein (Art. 476, Civil Code).
Q: Is it required that the plaintiff be in the possession of the property before an action is brought?
A: The plaintiff need not be in possession of the real property before he may bring the action as
long as he can show that he has a legal or an equitable title to the property which is the subject
matter of the action (Art. 477, Civil Code).
Why do we need to file a special civil action for consolidation of title?
In execution of judgment under Rule 39, if a real property is sold at public auction by virtue of a
levy on execution, the highest bidder will not automatically get a title in his own name, merely a
certificate of sale from the sheriff, which bidder must register such encumbrance in the RoD for
annotation to the title of the property. He must wait one year. If there is no redemption after one
year from registration in the RoD, the sheriff will issue a final deed of sale to the highest bidder and
the highest bidder will have the final deed of sale recorded in the RoD. The RoD will determine
whether the 1-year period has been met, and if there is no redemption, the highest bidder will
naturally be interested in securing the title to the property in his name. The old title (still in the name
of the judgment debtor) will be cancelled, and a new title will be issued in the name of the highest
bidder. The highest bidder does not have to file an action for consolidation of title. The highest
bidder will only secure from the sheriff the final deed of sale. The RoD will simply cancel the old
title and issue a new title in the name of the highest bidder. So, in Rule 39, there is no such thing
as consolidation of title as a special civil action.
This is also the procedure that is followed when a mortgage is foreclosed. Once the mortgage is
foreclosed, the property is sold under auction to the highest bidder. The sheriff will issue a
certificate of sale to be registered in the RoD, and then wait for the 1-year redemption period to
expire. If there is no redemption, the sheriff will again issue a final deed of sale. And on the basis of
that final deed of sale, the RoD will cancel the title of the judgment mortgagor and issue a new title
in the name of the highest bidder.
So you will notice that under Rule 39 and even in the Mortgage Law, in order to consolidate title,
we do not require a special civil action to consolidate title to be filed in court. The only public officer
who is going to deal with the interested party is the RoD, who has the ministerial duty to issue a
title if the papers are in order, in this case a final deed of sale.

Why do we require an action to consolidate under Article 1607 of the NCC?

NCC Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of
the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the
Registry of Property without a judicial order, after the vendor has been duly heard.
NCC Art. 1616. The vendor cannot avail himself of the right of repurchase without returning to the
vendee the price of the sale, and in addition:
(1) The expenses of the contract, and any other legitimate payments made by reason of the sale;
(2) The necessary and useful expenses made on the thing sold.
This is to obtain an order from the court for the RoD to consolidate the title of a property subject to
sale with right to redeem, although the factual antecedents are the same. In the NCC Art. 1607, if
there is a right to redemption, it is called conventional redemption, not a legal redemption as that in
Rule 39 and in foreclosure of mortgage. It is that classification of redemption to conventional that
makes the difference.
A conventional redemption has also a period for 1 year. When the 1-year period expires, the buyer
of the property cannot deal directly with the RoD. The reason why there is a need to go to court in
conventional redemption is that there is a provision in the NCC requiring it. It is explicitly stated in
the NCC that sale with the right to redeem is not a sale but an equitable mortgage. So, insofar as
the courts are concerned, if the contract entered by the parties is a sale with right to redeem by
way of conventional redemption, the NCC assumes (a disputable presumption) that the real
agreement between the parties is not really a sale but an equitable mortgage. Insofar as the NCC
is concerned, the seller is not a genuine seller, only a mortgagor, and the buyer is the mortgagee of
the property, notwithstanding the clear tone of the deed of sale with right of redemption. Even the
RoD will have to observe the disputable presumption given by the NCC that the deed of sale with
right of redemption is one of an equitable mortgage. So if we go to the RoD for consolidation of
title, the RoD will simply tell the buyer of the property that the contract is one of equitable
mortgage, not of sale, so there is a need to get a decision from the court declaring that contract is
really a genuine contract of sale with right of redemption. That is the only purpose of this special
civil action of consolidating of title under Art. 1607 NCC, to give to the buyer in sale with right of
redemption a chance to present evidence to defeat that disputable presumption contained in the
NCC. If he is able to convince the court that the sale is a genuine sale, the court will issue an order
directing the RoD to cancel the title of the seller and issue a new title in the name of the buyer.
But if the petitioner/buyer fails to defeat the disputable presumption that the contract is one of
equitable mortgage, he can still obtain a title, but he must file another special civil action. This time,
the buyer must file an action for judicial foreclosure of mortgage. Even if he is not able to obtain a
decision under Rule 63 in order to consolidate title under Article 1607 NCC, that is not the end
insofar as the buyer is concerned since he is an equitable mortgagee, so he still has the right to
foreclose the property. The only means where he can foreclose the property is by availing of
another special civil action, which is called foreclosure of real estate mortgage under Rule 68. But
the procedure for judicial foreclosure of mortgage is quite lengthy, requiring 3 final orders of the
foreclosure court, a sale via public auction for the property, and even if we assume that the

mortgagee will become the highest bidder, he will get the title in his own name only after the
confirmation by the foreclosure court of the sale in his favor is duly entered. As we will see later,
judicial foreclosure of mortgage, as a complement to a special civil action for consolidation of title,
is a 3-stage special civil action. Meaning to say, that the foreclosure court is expected to make
three decisions/orders before the mortgagee can obtain a title in his name.

Q: What is the purpose of an action brought to consolidate ownership?

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

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

to amend his complaint, as he will now allege that he has a right and that right has been violated.
The declaratory relief will cease to be a special civil action. An ordinary civil action takes its place,
which is not possible in the actions covered by other similar remedies. The court does not enjoy
discretion to outrightly dismiss a petition for consolidation of title, reformation of instrument or
quieting of title.

It is settled when a person doubts his citizenship, he cannot file a petition for declaratory relief. He
can decide for himself right away. He needs not go to court. He can register as a voter, which then
shall be tantamount to his recognition as a Filipino. Or, he may opt to go through naturalization. If
he files a petition for declaratory relief as to his citizenship, the court will dismiss outrightly the
petition. This is because declaratory relief is interested only in declaration of rights and duties
under a deed, will, contract or any other instrument. There is no deed, contract or other instrument
which will be involved in determining whether a person is a Filipino or not. If he is not a Filipino
citizen, then he may need to go through naturalization or administrative way of acquiring
citizenship, not through a petition for declaratory relief to be filed before the RTC.
RULE 64 VS. 65 AND SPECIAL CIVIL ACTIONS IN WRIT OF KALIKASAN
Rule 64 is always related to Rule 65. Although Rule 64 is a mode of review, and the period to file
for Rule 64 is different from that in Rule 65, Rule 64 itself provides that in availing of the mode of
review provided in Rule 64, the petitioner should adopt the pleading in Rule 65, a special civil
action for certiorari, prohibition and mandamus. We have a review process from the COMELEC
and COA, it is not strictly a special civil action that will be filed, it is still a mode of review, but using
the pleadings outlined in Rule 65.
Rule 64 speaks of a mode of appeal from a judgment or final order of COMELEC and CoA.
Although a mode of review, Rule 64 provides that petitioner should adopt the pleading in Rule 65.
Rule 65 is about a special civil action for certiorari, prohibition and mandamus.
Q: What is the mode of review for judgments and final orders of the COMELEC and COA?
A: The petition may be brought by the aggrieved party to the Supreme Court on Certiorari under
Rule 65, except otherwise provided.
Note: Rule 65 applies to the mode of review under Rule 64.Said mode of review is based on Article
IX-A of the 1987 Constitution providing that the proper mode of review is certiorari under Rule 65 to
be filed before the Supreme Court. Under R.A. 7902 the Court of Appeals has jurisdiction over all
adjudications of the Civil Service Commission.
Note: The order to comment under Sec. 6, Rule 64 in case the Supreme Court finds the petition
sufficient in form and substance is equivalent to summons in ordinary civil action.
Q: What is the period for filing certiorari as referred to in Rule 64?

A: The petition for certiorari referred to in Rule 64 shall be filed within 30 days from notice of the
judgment, final order or resolution of the COMELEC and the COA sought to be reviewed (Sec. 3,
Rule 64).
Note: While Rule 64 makes reference to the certiorari under Rule 65, the period for the filing of the
petition for certiorari assailing the judgment of the COMELEC and COA is shorter than that
provided under Rule 65
Petitioner should not move for an extension for a petition under Rule 65. It is inextensible.
Cite some distinctions between certiorari in Rule 45, 64 and 65.
Rule 45 is appeal by certiorari
Rule 64 is appeal to SC with reference to Rule 65 pertaining to final orders, resolutions or
decisions rendered by CoA or COMELEC acting as quasi-judicial bodies.
Rule 65 is a special civil action of certiorari, prohibition and mandamus.
Rule 65 competent court is RTC, CA or SC
Under COMELEC CODE, COMELEC has certiorari jurisdiction under Rule 65.
Sandiganbayan has certiorari jurisdiction under Rule 65.
Q: Distinguish Rule 64 from Rule 65.
A:
Rule 64
Rule 65
Directed only to the judgments, final orders or resolutions of the COMELEC and COA;
Directed to any tribunal, board or officers exercising judicial or quasi-judicial functions;
Must be filed within 30 days from notice of judgment or resolution
Must be filed within 60 days from notice of judgment or resolution
If MR is denied, the aggrieved party may file the petition within the remaining period, but which
shall not be less than 5 days.
If MR is denied, the aggrieved party will have another 60 days within which to file the petition
counted from the notice of denial.
Distinguish certiorari under Rule 65 and certiorari under Rule 45.
A:
Rule 65
Rule 45
Findings of fact of Court of Appeals are not conclusive or binding upon SC
GR: Findings of fact of CA are conclusive
Involves question of jurisdiction
Involves question of law
Mode of appeal
Mode of review

Directed against an interlocutory order of a court or where there is no appeal or any other plain,
speedy or adequate remedy
Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA,
RTC or other courts
Filed not later than 60 days from notice of judgment, order or resolution appealed from
Filed within 15 days from notice of judgment, final order or resolution appealed from
Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the
challenged proceeding
Stays the judgment or order appealed from
The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be
public respondents who are impleaded in the action
The appellant and the appellee are the original parties to the action, and the lower court or quasijudicial agency is not impleaded
Motion for reconsideration or for new trial is required.
If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner
(A.M. No. 02-03-SC)
Motion for reconsideration is not required
Court exercises original jurisdiction
The court is in the exercise of its appellate jurisdiction and power of review.
Filed with the RTC, CA, Sandiganbayan or COMELEC
Filed with the SC
Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or
successive. The antithetic character of appeal and certiorari has been generally recognized and
observed save only on those rare instances when appeal is satisfactorily shown to be an
inadequate remedy. Thus, a petitioner must show valid reasons why the issues raised in his
petition for certiorari could not have been raised on appeal (Banco Filipino Savings and Mortgage
Bank vs. CA, 334 SCRA 305).
Certiorari as a Mode of Appeal (Rule 45)
Certiorari as a Special Civil Action (Rule 65)
Called petition for review on certiorari, is a mode of appeal, which is but a continuation of the
appellate process over the original case;
A special civil action that is an original action and not a mode of appeal, and not a part of the
appellate process but an independent action.
Seeks to review final judgments or final orders;
May be directed against an interlocutory order of the court or where not appeal or plain or speedy
remedy available in the ordinary course of law

DISTINCTIONS BETWEEN CERTIORARI UNDER RULES 45, 64, AND 65

Rule 65
Certiorari, Prohibition and Mandamus
Rule 64 for COMELEC and COA
Review of judgment, final orders or resolutions of other tribunals, persons and officer (Rule 45)

Special civil action for certiorari, prohibition and mandamus;

A special civil action that is an original action and not a mode of appeal, and not a part of the
appellate process but an independent action.
Appeal to the SC using Rule 65 from the COMELEC En Banc
Petition for Review or Appeal by Certiorari;
Called petition for review on certiorari, is a mode of appeal, which is but a continuation of the
appellate process over the original case;
May be directed against an interlocutory order of the court or where not appeal or plain or speedy
remedy available in the ordinary course of law
Directed only to the judgments, final orders or resolutions of the COMELEC and COA;
Rules of the COMELEC states that only decisions of the En Banc shall be appealable in the SC)
and CoA acting as quasi-judicial bodies (final orders or judgments
Review of judgment, final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other
courts
Under BP 129: RTC, CA or SC has concurrent and original jurisdiction;
under special laws: COMELEC and Sandiganbayan has special certiorari jurisdiction
SC
CA, SC
BP 129: Original and Concurrent Jurisdiction (RTC, CA and SC)
Appellate
Appellate
The petitioner has a choice to file in the RTC, and if an adverse decision is given, he can elevate it
to the CA, and then the SC. If directly filed in the SC, SC has the discretion whether to outrightly
dismiss the petition or remand it to the CA because of insufficiency in form and/or substance in
accordance with the principle of hierarchy of courts.
Failure of petitioner to comply with the formal requirements under Sec. 5 Rule 64 will cause the
petition to be dismissed.
SC may deny the decision motu propio on the ground that the appeal is without merit, or is
prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require
consideration.
Raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasijudicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction;
Petition is based on questions of law
Petition is based on questions of law
Filed not later than 60 days from notice of judgment, order or resolution appealed from
Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed
Filed within 15 days from notice of judgment, final order or resolution appealed from
Extension no longer allowed; (Motion for extension of period to file is not allowed)

No extension of period mentioned in Rule 64

Extension of 30 days may be granted for justifiable reasons
Motion for reconsideration or for new trial is required.
If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner
(Fresh Period Rule/Neypes Doctrine) (A.M. No. 02-03-SC)
The filing of Motion for reconsideration or for new trial, if allowed under the procedural rules of the
Commission, shall interrupt period fixed
Motion for reconsideration is not required
Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the
challenged proceeding
Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just
Stays the judgment or order appealed from
The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be
public respondents who are impleaded in the action
The COMELEC and COA shall be public respondents who are impleaded in the action
The appellant and the appellee are the original parties to the action, and the lower court or quasijudicial agency is not impleaded
Court exercises original jurisdiction
The court is in the exercise of its appellate jurisdiction and power of review
The court is in the exercise of its appellate jurisdiction and power of review
SC, CA and RTC have original jurisdiction over petitions under Rule 65. Thus, there is concurrence
of jurisdiction among these three courts. Theoretically, petitioner has a choice as to where to file.
The law does not compel him to file a petition first in the RTC, then the CA, and finally in the SC.
There is no such provision in BP 129 and the Constitution.
However, SC had sought to prevent being swamped by petitions under Rule 65. To remedy the
abuse by petitioners, SC devised the principle of hierarchy of courts under Section 4 of Rule 65.
This will limit the choice that theoretically a petitioner has. Effectively, petitioners are prohibited
from going directly to the SC under Rule 65. Petitioner must file first in the RTC or in the CA. If a
petition was filed directly in SC, it will outrightly dismiss a petition if such petition is insufficient in
form or substance. Even if the petition is well-crafted, a single omission, such as the PTR number,
shall dismiss it for being insufficient in form.
Q: What are the grounds for the outright dismissal of the petition?
A: (Sec. 6, Rule 64)
1. Petition is not sufficient in form and substance (Sec. 5, Rule 64)
2. Petition was filed for purpose of delay
3. Issue is unsubstantial
Q: What are the grounds for the filing of a petition for certiorari?
A: That a tribunal, board or officer exercising judicial or quasi-judicial functions acted:

1. Without or in excess of jurisdiction

2. In grave abuse of discretion amounting to lack or excess of jurisdiction
Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto and a sworn certification of non-forum shopping. (Sec. 1, Rule 65).
Q: When is certiorari under Rule 65 unavailable?
A:
1. Summary procedure
2. Writ of Amparo
3. Writ of Habeas Data
4. Small claims cases (Riano, Civil Procedure: A Restatement for the Bar, p. 629, 2009 ed.)
Q: When is prohibition issued?
A:
GR: Prohibition does not ordinarily lie to restrain an act which is already fait accompli.
XPN: It will lie to prevent the creation of a new province by those in the corridors of power who
could avoid judicial intervention and review by merely speedily and stealthily completing the
commission of such illegality. (Tan v. COMELEC, G.R. No. 73155, July 11, 1986)
Note: Prohibition and not mandamus, is the remedy where a motion to dismiss is wrongfully denied
(Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30, 1949)
Is it fatal for a petitioner to file a petition for certiorari, although the true remedy is a petition for
prohibition?
For instance, where a motion to dismiss is filed by the defendant on the ground of absence of
jurisdiction over the subject matter of the case. Said motion was denied. The defendant could
appeal to the higher court via a petition under Rule 65.
We do not follow Rule 16 which tells the defendant that when his motion to dismiss is denied, he
has to file an answer within the remaining period. The SC has recognized the propriety of filing a
petition for certiorari, prohibition or mandamus if a motion to dismiss founded on lack of jurisdiction
over the subject matter has been denied.
The petitioner files a petition for certiorari in the CA or SC. The true remedy, according to the SC, is
a petition for prohibition, not a certiorari. From the facts stated above, a prohibition is the correct
remedy. As the petitioner/defendant had filed a petition for certiorari, can CA/SC outrightly deny the
petition because it is the wrong remedy? SC said no. The petition for certiorari should instead be
treated as a petition for prohibition. So it seems under this attitude of liberal interpretation of
statutes, it is not fatal for a petitioner to choose the remedy provided under Rule 65.

Remember that certiorari is different from prohibition and mandamus, although they are all
contained in one Rule. The SC will simply treat the petition for certiorari as a petition for prohibition.
If you will analyze the requisites of a petition for certiorari and prohibition, they are practically the
same. There is not much difference between the concept given in Section 1 Rule 65 (Certiorari)
and Section 2 Rule 65 (Prohibition). The only differences is that in certiorari, the petitioner asks
that the judgment or interlocutory order be annulled or set aside; in prohibition, the petitioner simply
asks the prohibition court to prevent the respondent court from going ahead with the proceedings,
and in prohibiting the respondent court, the prohibition court will be effectively telling the
respondent court that the denial, the interlocutory order or the judgment rendered therein should be
set aside and annulled because it is a wrong final order or wrong interlocutory order.

CERTIORARI
PROHIBITION
MANDAMUS
That the petition is directed against a tribunal, board or officer exercising judicial or quasi-judicial
functions;
The petition is directed against a tribunal, corporation, board or person exercising judicial, quasijudicial, or ministerial functions;
The plaintiff has a clear legal right to the act demanded;
The tribunal, board or officer has acted without, or in excess of jurisdiction or with abuse of
discretion amounting to lack or excess or jurisdiction
The tribunal, corporation, board or person must have acted without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack of jurisdiction;
It must be the duty of the defendant to perform the act, which is ministerial and not discretionary,
because the same is mandated by law;
There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.
There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.
The defendant unlawfully neglects the performance of the duty enjoined by law;
Accompanied by a certified true copy of the judgment or order subject of the petition, copies of all
pleadings and documents relevant and pertinent thereto, and sworn certification of non-forum
shopping under Rule 46.
Accompanied by a certified true copy of the judgment or order subject of the petition, copies of all
pleadings and documents relevant and pertinent thereto, and sworn certification of non-forum
shopping under Rule 46.
There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.
Prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether
exercising judicial, quasi-judicial or ministerial functions, to desist from further proceedings when
said proceedings are without or in excess of its jurisdiction, or with abuse of its discretion, there
being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law
(Sec. 2, Rule 65).
Mandamus is an extraordinary writ commanding a tribunal, corporation, board or person, to do an
act required to be done:

(a) When he unlawfully neglects the performance of an act which the law specifically enjoins as a
duty, and there is no other plain, speedy and adequate remedy in the ordinary course of law; or
(b) When one unlawfully excludes another from the use and enjoyment of a right or office to which
the other is entitled (Sec. 3, Rule 65).
Main action for injunction seeks to enjoin the defendant from the commission or continuance of a
specific act, or to compel a particular act in violation of the rights of the applicant. Preliminary
injunction is a provisional remedy to preserve the status quo and prevent future wrongs in order to
preserve and protect certain interests or rights during the pendency of an action.
Special civil action
Special civil action
Ordinary civil action
To prevent an encroachment, excess, usurpation or assumption of jurisdiction;
To compel the performance of a ministerial and legal duty;
For the defendant either to refrain from an act or to perform not necessarily a legal and ministerial
duty;
May be directed against entities exercising judicial or quasi-judicial, or ministerial functions
May be directed against judicial and non-judicial entities
Directed against a party
Extends to discretionary functions
Extends only to ministerial functions
Does not necessarily extend to ministerial, discretionary or legal functions;
Always the main action
Always the main action
May be the main action or just a provisional remedy
May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial
Court which has jurisdiction over the territorial area where respondent resides.
May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial
Court which has jurisdiction over the territorial area where respondent resides.
May be brought in the Regional Trial Court which has jurisdiction over the territorial area where
respondent resides.
But in our example, when a motion to dismiss founded on lack of jurisdiction is denied, it is also
correct for the petitioner to make use right away of Rule 65. If he immediately files a petition for
certiorari either in the CA or SC, that petition for certiorari will not be denied because it is not
compliant with the requirements of Sections 1 and 2 Rule 65, that there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law. This phrase serves as an
essential requisite before we can properly file a petition under Rule 65. In fact, it is this phrase
which is the source of the principle that we learned that in Rule 65, a motion for reconsideration is
a MUST. This is not expressly mentioned in Rule 65. Motion for reconsideration is not even
mentioned in Rule 65. A motion for reconsideration is always a plain, speedy and adequate remedy
in the ordinary course of law.

Note: General Rule: Motion for reconsideration is a condition precedent in the filing of a petition for
certiorari under Rule 65. Motion for reconsideration is a plain and speedy remedy available prior to
petition under Rule 65.
In Rule 65, if we examine the caption of a petition under Rule 65, we will discover that there are at
least 2 respondents, one is the private respondent, the other is the public respondent. The public
respondent is the agency, court or officer/person who exercises judicial or quasi-judicial functions
(in case of prohibition, public respondent is the agency, court or officer/person who exercises
judicial , quasi-judicial or ministerial functions). In other words, we always involve a public officer or
agency or court on or officer/person who exercises judicial , quasi-judicial or ministerial functions
under Rule 65. We cannot get a petition for certiorari under Rule 65 with only the private
respondent. We must implead the public respondent.
Although the rules describe the public respondent as a nominal party, it is in fact an indispensible
party under Rule 65, because it is the final order or judgment that it had issued that is being
assailed or challenged. The reason why Rule 65 calls the public respondent only as a nominal
party is because in Rule 65 itself, it is provided that the public respondent is not authorized to enter
his appearance and to defend himself before the certiorari court. The fate of the public respondent
lies in the hands of the private respondent. It is the private respondent who will argue before the
higher court and explain the correctness of the interlocutory order or judgment that is being
assailed under Rule 65. It is only in rare instances where the higher court will allow the public
respondent to argue on his own behalf or submit his own papers in the certiorari court. He should
always rely on the papers and pleadings that are submitted by the private respondent.
Because of the inherent nature of the petition under Rule 65, that there is always a public
respondent, the petition under Rule 65 does not have to comply with that condition precedent of
prior barangay conciliation. This is one of the exceptions given in the LGC, where the action
involves a government officer or employee in the performance of his duty.
And the grounds of course are very strictly interpreted. In Rule 65 Sections 1 and 2, the ground is
that the public respondent has acted without jurisdiction, in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction.
The definition of Grave abuse of discretion amounting to lack or excess of jurisdiction is a very
simple definition given by the SC, when the public respondent acts whimsically, despotic and/or
arbitrarily. The SC did not elaborate on whimsical, despotic or arbitrary, so it would have to be
resolved on a case-to-case basis.
For instance, a case is pending in the RTC for the collection of an indebtedness. The plaintiff
applies for the issuance of a writ of preliminary attachment. The court grants and issues the writ.
Does the RTC act arbitrarily, acting gravely in abuse of its discretion if it grants and issues the writ
of preliminary attachment?
Yes, if that complaint does not fall any one of the cases mentioned in Rule 57:

(a) In an action for the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to his
own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for
a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring
the obligation upon which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication.
No, if the case does not fall under the above-mentioned cases under Rule 57 Section 1. Thus, the
court would have acted in grave abuse of its discretion amounting to lack or excess of jurisdiction.
Hence, in the issuance of provisionary remedies or orders, it could happen that a court will gravely
abuse its discretion amounting to lack or excess of jurisdiction, a very despotic and arbitrary act of
a court.
For instance, the defendant files an answer containing a negative defense properly crafted. Then
the court grants a summary judgment or rendered a judgment on the pleadings. That is an arbitrary
act of the court. But if the decision rendered is a summary judgment or judgment on the pleadings,
Rule 65 may not be a correct remedy. This is because under our Rules, because from a judgment,
the remedy is to appeal from the judgment. Whenever there is an appeal available, you better
forget Rule 65, because it is available only when there is no appeal or other plain, speedy and
adequate remedy available in the ordinary course of law. This is the rule that we must always
follow. Although, there are rare instances that the SC allowed a petition for Rule 65 although
appeal is still available. If you will remember, there are certain exceptions to the general rule that a
motion for reconsideration is a must before making use of Rule 65. There are also rare instances
where the court allowed a petition under Rule 65 even if appeal was still available, the reason
being that in certain instances, appeal is not a plain, speedy and adequate remedy available in the
ordinary course of law.
Q: Is it an absolute rule that before recourse to certiorari is taken a motion for reconsideration must
be filed?
A:
GR: Petition for certiorari will not be entertained unless the public respondent has been given first
the opportunity through a motion for reconsideration to correct the error being imputed to him.

XPNs: A prior motion for reconsideration is not necessary to entertain a petition for certiorari
where:
1. Order is a patent nullity, as where the court a quo has no jurisdiction;
2. Questions raised in the certiorari proceedings have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the lower
court;
3. Urgent necessity for the resolution of the question, and any further delay would prejudice the
interests of the Government or of the petitioner, or the subject matter of the action is perishable;
4. Under the circumstances, a motion for reconsideration would be useless;
5. Petitioner was deprived of due process and there is extreme urgency for relief;
6. In a criminal case, relief from an order of arrest is urgent and the granting of such relief by the
trial court is improbable;
7. Proceedings in the lower court are a nullity for lack of due process;
8. Proceedings were ex parte or in which the petitioner had no opportunity to object; and
9. Issue raised is one purely of law or where public interest is involved.

Can a petition under Rule 65 that is filed to challenge an interlocutory order or judgment be enough
to suspend all proceedings in the lower court and await the decision of the certiorari court on the
petition for certiorari?
If the litigant is aggrieved by an order or judgment that is inappealable, it is not allowed under Rule
65 for the trial court to suspend proceedings in the case pending before it. Proceedings will only be
suspended if the higher court issues TRO or writ of PI. Thus, it is practical to ask along with the
petition for an issuance of TRO or writ of PI.
Take note of the modifications in Rule 65 concerning the abuse of parties and lawyers in using
petition for certiorari, prohibition or mandamus. It is under the principle of res ipsa loquitur. In the
past, lawyers usually file such petitions whenever motions are denied, citing abuse of discretion
whereas under Rule 65, the required ground is GRAVE ABUSE of discretion. In order to prevent
this practice, SC incorporated in Rule 65 the application of the civil law principle of res ipsa loquitur.
If a lawyer and his client will go up to CA or SC under Rule 65, and the court resolves that the
petition was manifestly without merit or for purposes of delay, the lawyer and client will be held in
contempt of court for filing such manifestly unmeritorious petition or to pay a solidary debtor treble
costs, and there may be administrative sanctions against the lawyer.
If the writ of mandamus is issued as requested, there is propriety of awarding damages in favor of
the petitioner, so it is automatically awarded under Section 3 of Rule 65.In petitions for certiorari,
petitioner may include petition for award of damages. If proven, SC may award such damages.
SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the

proper court, alleging the facts with certainty and praying that judgment be rendered commanding
the respondent, immediately or at some other time to be specified by the court, to do the act
required to be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as provided in the third
paragraph of section 3, Rule 46.
Rule 65 does not specifically provide for award of damages under Sections 1 and 2 (Certiorari and
Prohibition respectively). But the SC resolved that in proper instances, if there is a prayer for
damages incorporated in a petition for certiorari or prohibition, there is nothing wrong if the court
grants the writ of certiorari or mandamus and award damages in favor of the petitioner, although
none is provided for it in Sections 1 and 2.The justification given by the SC is that in a petition for
certiorari or prohibition, there is always that prayer for any additional relief which the court will
deem just and equitable. SC said that is enough justification for the award of damages, so long as
the petitioner is able to present proof of damages.
Why do we consider Rule 65 as a special civil action?
1. Procedurally, the court can dismiss the petition for insufficiency in form and substance, which
has a very broad in interpretation. So even if the SC has jurisdiction, it can outrightly dismiss the
petition.
2.If the court did not dismiss the petition outrightly, the court may not issue summons. It may
instead issue an order to comment. Once a comment is submitted, the court acquires jurisdiction
over that party. (Similarly, no summons is issued in cases of interpleader and declaratory relief and
other similar remedies.)
3. Since the court does not issue summons, issuing instead a plain order to comment within a fixed
period, if no comment is submitted, the court cannot declare respondent in default.
4. Under Rule 65, the court will not conduct a pre-trial or a trial. The issue is a very limited issue. It
is not only a mere question of law raised in Rule 65. That question of law is one of law that it is
limited to the issue of jurisdiction (without or in excess with grave abuse of discretion). There could
be several questions of law that could be raised. But, that question of law may not involve
jurisdiction at all. But in Rule 65, the issue is one of law and it is limited to the issue of jurisdiction,
whether or not the respondent committed grave abuse of discretion amounting to lack or excess of
jurisdiction.
Also , the submission of the petition or Order to comment requires parties to submit the pleadings
already submitted in the lower courts. So, the court will just analyze the documents presented
before it via the documents attached to the petition or the comment, and thus there is no need for a
trial.
What is the remedy of the aggrieved party in a petition for certiorari?

The remedy is appeal, either by petition for review or petition on certiorari (Rule 45).

TABLE OF COMPARISON FOR THE WRITS OF HABEAS CORPUS, AMPARO, HABEAS DATA
AND KALIKASAN
HABEAS CORPUS
AMPARO
HABEAS DATA
KALIKASAN
Literal interpretation
You have the body

To protect
You have the data
It is a Filipino word which means nature in English
Governing Rule
Rule 102
A.M. No. 07-9-12-SC
A.M. No. 08-1-16-SC
A.M. No. 09-6-8-SC
Description
Writ directed to the person detaining another, commanding him to produce the body of the prisoner
at a designated time and place, with the day and cause of his capture and detention, to do, submit
to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.
Remedy available to any person whose right to life, liberty, and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee, or of a private
individual or entity.
Remedy available to any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or of a private individual
or entity engaged in the gathering, collecting, or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party.
Special remedy available
to a natural or juridical person, entity authorized by law, peoples organization, non-governmental
organization, or any public interest group accredited by or registered with any government agency,
on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or employee, or private
individual or entity, involving environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces.
Coverage
Involves the right to liberty of and rightful custody by the aggrieved party.
Involves the right to life, liberty, and security of the aggrieved party and covers extralegal killings
and enforced disappearances.
Involves the right to privacy in life, liberty, and security of the aggrieved party and covers extralegal
killings and enforced disappearances.
Constitutional right to a balanced and healthful ecology.
Rights violated
There is an actual violation of the aggrieved partys right.
There is an actual or threatened violation of the aggrieved partys right.
There is an actual or threatened violation of the aggrieved partys right.
There is an actual or threatened violation of ones right to a healthful and balanced ecology
involving environmental damage.
Where to file
RTC or any judge thereof, CA or any member thereof in instances authorized by law; or SC or any
member thereof.
RTC of the place where the threat, act or omission was committed or any of its elements occurred;
SB or any justice thereof; CA or any justice thereof; SC or any justice thereof.

RTC where the petitioner or respondent resides, or that which has jurisdiction over the place where
the data or information is gathered, collected or stored, at the option of the petitioner; or with SC,
CA or SB when the action concerns public data files or government offices.
In SC or any stations of the CA.
Who may file a petition
1. Party for whose relief it is intended; or
2. Any person on his behalf
In the following order:
1. Any member of the immediate family
2. Any ascendant, descendant, or collateral relative of the aggrieved party within the 4th civil
degree of consanguinity or affinity
3. Any concerned citizen, organization, association or institution
In the following order:
1. Any aggrieved party;
2. However, in cases of extralegal killings and enforced disappearances:
a. Any member of the immediate family
b. Any ascendant, descendant, or collateral relative of the aggrieved party within the 4th civil
degree of consanguinity or affinity
A natural or juridical person, entity authorized by law, peoples organization, non-governmental
organization, or any public interest
group accredited by or registered with any government agency.
Respondent
May or may not be an officer.
Public official or employee or a private individual or entity.
Public official or employee or a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home and correspondence of the
aggrieved party.
Public official or employee, private individual or entity.
HABEAS CORPUS
AMPARO
HABEAS DATA
KALIKASAN
Enforceability of the writ
If granted by SC or CA: enforceable anywhere In the Philippines;
If granted by RTC: enforceable only within the judicial district
Enforceable anywhere in the Philippines regardless of who issued the same
Enforceable anywhere in the Philippines
Docket fees
Payment is required
Note: Rule on indigent petitioner applies.

Petitioner is exempted from payment

Payment is required.
Note: Rule on indigent petitioner applies.
Petitioner is exempted from payment
Service of writ
Served upon the person to whom it is directed, and if not found or has not the prisoner in his
custody, to the other person having or exercising such custody
Served upon the respondent personally; or substituted service
Served upon the respondent personally; or substituted service
Served upon the respondent personally; or substituted service.
Person who makes the return
Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found
Respondent
Respondent
Respondent
When to file a return
On the day specified in the writ
Within 5 working days after service of the writ, the respondent shall file a verified written return
together with supporting affidavits.
The respondent shall file a verified written return together with supporting affidavits within 5 working
days from service of the writ, which period may be reasonably extended by the Court for justifiable
reasons.
Within non- extendible period of 10 days after the service of writ.
Return
If granted by the SC or CA: returnable before the court or any member or before RTC or any judge
thereof;
If granted by RTC: returnable before such court
If issued by RTC: returnable before such court;
If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the
place where the threat, act or omission was committed or any of its elements occurred;
If issued by SC or any of its justices: returnable before such court, or before SB,
CA, or to any RTC of the place where the threat, act or omission was committed or any of its
elements occurred
If issued by RTC: returnable before such court;
If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the
place where the petitioner or respondent resides or that which has jurisdiction over the place where
the data or information is gathered, collected or stored;
If issued by SC or any of its
justices: returnable before such court, or before SB, CA, or to any RTC of the place where the
petitioner or respondent resides or that which has jurisdiction over the place where the data or
information is gathered, collected or stored
If issued by SC, returnable before such court or CA.
General denial

Not prohibited.
Not allowed.
Not allowed.
Not allowed.
HABEAS CORPUS
AMPARO
HABEAS DATA
KALIKASAN
Liability of the person to whom the writ is directed if he refuses to make a return
Forfeit to the aggrieved party the sum of P1000, and may also be punished for contempt.
Imprisonment or fine for committing contempt.
Imprisonment or fine for committing contempt.
Indirect contempt.
Hearing
Date and time of hearing is specified in the writ.
Summary hearing shall be conducted not later than 7 days from the date of issuance of the writ.
Summary hearing shall be conducted not later than 10 working days from the date of issuance of
the writ.
The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall
be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data.
Period of appeal
Within 48 hours from notice of the judgment or final order appealed from.
5 working days from the date of notice of the adverse judgment.
5 working days from the date of notice of the judgment or final order.
Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for
reconsideration.
Prohibited pleadings
None
1. Motion to dismiss;
2. Motion for extension of time to file opposition, affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross - claim;
6. Third - party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against any interlocutory order.
1. Motion to dismiss;
2. Motion for extension of time to file return;
3. Motion for postponement;
4. Motion for a bill of particulars;

5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare respondent in default.

SPECIAL CIVIL ACTIONS IN THE KALIKASAN CIRCULAR

The Writ of Kalikasan is a mini RoC for environmental cases. By itself, the circular appears to
contain all rules pertaining to civil cases arising out of Kalikasan laws as well as criminal
procedures.
2 special civil actions:
~Writ of Kalikasan
~Petition for Continuing Mandamus
Why does the Kalikasan circular consider a petition for a writ of kalikasan and continuing
mandamus as a special civil action?
It is because of the fact that although these are governed by ordinary rules of procedure, there are
instances where there is a special procedure which has to be followed in hearing said special
proceeding.
A Petition of a Writ of Kalikasan as a special civil action is entirely different from ordinary civil
cases. The sheer number of parties, as well as the magnitude of the prejudice that could be
suffered by the petitioners (the threat to their life, liberty and property),is such that they are the
inhabitants of at least 2 or more provinces or cities. If we talk about numbers, the actual number of
inhabitants in a typical province could number in the hundreds of thousands. This is a perfect
example of a class suit. They stand to be prejudiced in their right to their life, liberty and property by
a violation or a threat to violate environmental laws by a natural person or juridical entity. Even if
there is just a petitioner, a juridical entity, an NGO or an accredited public interest group, they can

file a petition on behalf of two or more provinces or cities. The parties are so numerous that it will
be impractical for all of them to be brought before the court.
To make matters simple procedurally, take note that the procedures in Habeas Corpus and Amparo
as special proceedings are practically the same procedures followed in Kalikasan cases.
Upon the filing of the petition, and the court analyzes the petition, and the court is convinced of the
need for the writ to be issued, the writ will be immediately issued without need of hearing the side
of the respondents. The writ can be issued right away by the court as long as the allegations in the
petition are complete, that petition is meritorious by itself. The court may issue also an order
requiring respondents to file a VERIFIED RETURN (not an answer). In writ of HC and Amparo,
return is also required to be filed by respondents. The Return must contain the respondents
explanation as to his side. The writ is a special civil action in this contest because the writ is issued
right away, even before the respondent is given the chance to give his side, even before the
respondent can file his return.
The Kalikasan circular has lots of sections as to the use of discovery measures. But, they are
treated not as discovery measures, but as provisional orders in the Kalikasan circular.
After the issuance of the writ of Kalikasan, even without hearing the respondent, the Kalikasan
court can issue a provisional remedy called cease and desist order, which is similar to a TRO in
civil cases. But, it does not have an expiration date, unlike a TRO in ordinary procedure, the
duration depends upon the discretion of the Kalikasan court.
Also, there are only 2 courts that can take cognizance of a petition for a writ of Kalikasan, the SC
and the CA.
Since there is no answer that is required to be filed by the respondent, failure by the respondent to
file a verified return does not result in default. In ordinary civil actions involving environmental laws,
we follow a different procedure.
If the defendant in an ordinary civil procedure does not file an answer, the defendant will be
declared in default even if there is no motion initiated by a plaintiff. That is in an ordinary civil action
involving environmental laws which is not a special civil action of Kalikasan filed only in the CA or
SC. So if the respondents do not submit a verified return, the court will go ahead with analyzing the
merit of the petition for a writ of Kalikasan.
A decision of the Kalikasan court in a special civil action of Kalikasan is immediately executory,
although there could be an appeal. If the Circular says that the decision is immediately executory, it
does not mean that appeal is no longer available. A decision could be executed as a matter of right
even if the aggrieved party still has the right to appeal. This is an example of a judgment that is
immediately executory, but the aggrieved party enjoys the right of appeal.

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

Writ of Continuing Mandamus in Kalikasan Cases

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

MMDA vs. Concerned Citizens Writ of Kalikasan and Continuing Mandamus petition to clean
Manila Bay 2011

MMDA and various agencies were ordered by SC to clean Manila Bay until it is returned to its
pristine condition. (Without Continuing Mandamus, MMDA will not be compelled to execute the
judgment.)
MMDA v. Concerned Residents of Manila Bay
The Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of a ministerial duty. A ministerial duty
is one that requires neither the exercise of official discretion nor judgment. It connotes an act in
which nothing is left to the discretion of the person executing it. It is a simple, definite duty arising
under conditions admitted or proved to exist and imposed by law.Mandamus is available to
compel action, when refused, on matters involving discretion, but not to direct the exercise of
judgment or discretion one way or the other.
***
Respondents, on the other hand, counter that the statutory command is clear and that petitioners
duty to comply with and act according to the clear mandate of the law does not require the exercise
of discretion. According to respondents, petitioners, the MMDA in particular, are without discretion,
for example, to choose which bodies of water they are to clean up, or which discharge or spill they
are to contain. By the same token, respondents maintain that petitioners are bereft of discretion on
whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the
MMDAs ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners obligation to perform their duties as defined by law, on
one hand, and how they are to carry out such duties, on the other, are two different concepts. While
the implementation of the MMDAs mandated tasks may entail a decision-making process, the
enforcement of the law or the very act of doing what the law exacts to be done is ministerial in
nature and may be compelled by mandamus. We said so in Social Justice Society v. Atienza in
which the Court directed the City of Manila to enforce, as a matter of ministerial duty, its Ordinance
No. 8027 directing the three big local oil players to cease and desist from operating their business
in the so-called Pandacan Terminals within six months from the effectivity of the ordinance. But
to illustrate with respect to the instant case, the MMDAs duty to put up an adequate and
appropriate sanitary landfill and solid waste and liquid disposal as well as other alternative garbage
disposal systems is ministerial, its duty being a statutory imposition. The MMDAs duty in this
regard is spelled out in Sec. 3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section
defines and delineates the scope of the MMDAs waste disposal services to include:
Solid waste disposal and management which include formulation and implementation of policies,
standards, programs and projects for proper and sanitary waste disposal. It shall likewise include
the establishment and operation of sanitary land fill and related facilities and the implementation of
other alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.)

The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act
(RA 9003) which prescribes the minimum criteria for the establishment of sanitary landfills and
Sec. 42 which provides the minimum operating requirements that each site operator shall maintain
in the operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,
enjoining the MMDA and local government units, among others, after the effectivity of the law on
February 15, 2001, from using and operating open dumps for solid waste and disallowing, five
years after such effectivity, the use of controlled dumps.
The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a
proper waste disposal system cannot be characterized as discretionary, for, as earlier stated,
discretion presupposes the power or right given by law to public functionaries to act officially
according to their judgment or conscience. A discretionary duty is one that allows a person to
exercise judgment and choose to perform or not to perform. Any suggestion that the MMDA has
the option whether or not to perform its solid waste disposal-related duties ought to be dismissed
for want of legal basis.
A perusal of other petitioners respective charters or like enabling statutes and pertinent
laws would yield this conclusion: these government agencies are enjoined, as a matter of statutory
obligation, to perform certain functions relating directly or indirectly to the cleanup, rehabilitation,
protection, and preservation of the Manila Bay. They are precluded from choosing not to perform
these duties. ****
****
All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and
complete as to what are the obligations and mandate of each agency/petitioner under the law. We
need not belabor the issue that their tasks include the cleanup of the Manila Bay.

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

****
Respondents are correct. For one thing, said Sec. 17 does not in any way state that the
government agencies concerned ought to confine themselves to the containment, removal, and
cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17 requires
them to act even in the absence of a specific pollution incident, as long as water quality has
deteriorated to a degree where its state will adversely affect its best usage. This section, to stress,
commands concerned government agencies, when appropriate, to take such measures as may
be necessary to meet the prescribed water quality standards. In fine, the underlying duty to
upgrade the quality of water is not conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly
applicable to a specific situation in which the pollution is caused by polluters who fail to clean up
the mess they left behind. In such instance, the concerned government agencies shall undertake
the cleanup work for the polluters account.**** As earlier discussed, the complementary Sec. 17 of
the Environment Code comes into play and the specific duties of the agencies to clean up come in

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

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

How do we execute that judgment in the Kalikasan court?

Theoretically, SC said that the execution of the judgment requires a periodic report from the
agencies concerned on the extent of progress the government agencies concerned had achieved
until the objective of the writ has been achieved. If the SC is understaffed to monitor the progress, it
can appoint commissioners in charge of accepting periodic reports and in submitting the progress

reports to the SC in order to satisfy this judgment requirement. Thus, dormancy and prescription of
judgment under Rule 39 and NCC shall not apply in Writ of Kalikasan.

A continuing mandamus is another special civil action, but this time it is cognizable by the RTC, CA
and the SC. Just like in Rule 65 or the Writ of Kalikasan as a special civil action, the respondent is
required to file a verified return, and if no return is filed by respondent, court continues with the
process of analyzing the merit of the petition for continuing mandamus.
A provisional remedy that could be issued by the court handling the petition for continuing
mandamus is the issuance of a Temporary Environmental Protection Order (TEPO) or a cease and
desist order, just like in the writ of Kalikasan. There could also be an award of damages.
You will also notice that unlike in Kalikasan, there is no provision concerning appeals in continuing
mandamus.. In the writ of Kalikasan as a special civil action, appeal under Rule 45 is a remedy,
raising only questions of law and questions of fact. . It would seem that the appeals provided in
ordinary civil procedure will govern. If the trial court is the RTC, the appeal could be by notice of
appeal provided in the Rules, or it could be an appeal directed to the SC. In ordinary civil cases, we
allow an appeal from the RTC to the SC under Rule 45, but the appeal should only contain
questions of law.

What is the precautionary principle in Kalikasan Cases?

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

What is Strategic Lawsuit Against Public Performance (SLAPP) ?

It could be in the form of a civil or criminal action. Plaintiffs intent from SLAPP is to discourage
enforcement officers from enforcing or attempting to enforce environmental laws. This is filed
usually against DENR or MMDA by a private individual.
Strategic lawsuit against public participation (SLAPP)refers to an action whether civil, criminal or
administrative, brought against any person, institution or any government agency or local
government unit or its officials and employees, with the intent to harass, vex, exert undue pressure
or stifle any legal recourse that such person, institution or government agency has taken or may
take in the enforcement of environmental laws, protection of the environment or assertion of
environmental rights.
In such case, the government officer can file a motion to dismiss such case. The public
officer/defendant/accused need only to present substantial evidence (the same standard in
administrative cases) to prove that the case filed was a SLAPP. The plaintiff must present
preponderance of evidence/proof beyond reasonable doubt to sustain his challenge.

In criminal procedure in SLAPP, there is a substantial change in the manner by which a criminal
case is governed when compared to a criminal action which follows criminal procedure.
In ordinary criminal procedure, if the court grants bail, one of the conditions in the bail is that if the
accused does not appear in court for trial, then the court is authorized to conduct a trial in absentia.
But in criminal procedure, if the accused is granted bail, and then during the arraignment he does
not appear, the criminal court will be forced to suspend proceedings until the accused is rearrested.
What the court will do is to postpone the arraignment, issue another arrest warrant and probably
order the cancellation of the bail bond. But, the arraignment will not be pushed through. If there is
no arraignment, there can be no trial in the ordinary criminal case. There must be an arraignment
first before the court can conduct a trial in absentia.
This is not followed in the Kalikasan criminal cases. In the Kalikasan criminal cases, the crimes are
usually bailable. If the accused is granted bail, the condition of the bail bond will contain similar
provisions to that found in bail under ordinary criminal proceedings. There is modification in
arraignment. If accused does not appear in the scheduled arraignment, the court is authorized
enter a plea of not guilty, so that if there is a plea of not guilty, the arraignment is completed, a trial
can then be scheduled. If the accused still failed to appear on trial, there can be a trial in absentia.
There is no more need for the accused to be present personally during the arraignment in the
Kalikasan criminal cases. If he does not appear, then it is the court who will enter a plea of not
guilty for him so the court can continue with the trial in absentia of the accused.
Other Terms(Rules of Procedure on Environmental Cases):
By-product or derivatives means any part taken or substance extracted from wildlife, in raw or in
processed form including stuffed animals and herbarium specimens.
Consent decree refers to a judicially-approved settlement between concerned parties based on
public interest and public policy to protect and preserve the environment.
Mineral refers to all naturally occurring inorganic substance in solid, gas, liquid, or any intermediate
state excluding energy materials such as coal, petroleum, natural gas, radioactive materials and
geothermal energy.
Wildlife means wild forms and varieties of flora and fauna, in all developmental stages including
those which are in captivity or are being bred or propagated.
Some Important provisions (Rules of Procedure on Environmental Cases):
Rule 2 SEC. 13. Service of summons, orders and other court processes.The summons, orders
and other court processes may be served by the sheriff, his deputy or other proper court officer or

for justifiable reasons, by the counsel or representative of the plaintiff or any suitable person
authorized or deputized by the court issuing the summons.
Any private person who is authorized or deputized by the court to serve summons, orders and
other court processes shall for that purpose be considered an officer of the court.
The summons shall be served on the defendant, together with a copy of an order informing all
parties that they have fifteen (15) days from the filing of an answer, within which to avail of
interrogatories to parties under Rule 25 of the Rules of Court and request for admission by adverse
party under Rule 26, or at their discretion, make use of depositions under Rule 23 or other
measures under Rules 27 and 28.
Should personal and substituted service fail, summons by publication shall be allowed. In the case
of juridical entities, summons by publication shall be done by indicating the names of the officers or
their duly authorized representatives.

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

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

Rule 4 SEC. 2. Affidavits in lieu of direct examination.In lieu of direct examination, affidavits
marked during the pre-trial shall be presented as direct examination of affiants subject to crossexamination by the adverse party.

Rule 4 SEC. 3. One-day examination of witness rule.The court shall strictly adhere to the rule
that a witness has to be fully examined in one (1) day, subject to the courts discretion of extending
the examination for justifiable reason. After the presentation of the last witness, only oral offer of
evidence shall be allowed, and the opposing party shall immediately interpose his objections. The
judge shall forthwith rule on the offer of evidence in open court.

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

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

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

Rule 7 SEC. 6. How the writ is served.The writ shall be served upon the respondent by a court
officer or any person deputized by the court, who shall retain a copy on which to make a return of
service.
In case the writ cannot be served personally, the rule on substituted service shall apply.

Rule 7 SEC. 7. Penalty for refusing to issue or serve the writ.A clerk of court who unduly delays
or refuses to issue the writ after its allowance or a court officer or deputized person who unduly
delays or refuses to serve the same shall be punished by the court for contempt without prejudice
to other civil, criminal or administrative actions.

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

Rule 20 PRECAUTIONARY PRINCIPLE

SECTION 1. Applicability.When there is a lack of full scientific certainty in establishing a causal
link between human activity and environmental effect, the court shall apply the precautionary
principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit
of the doubt.
SEC. 2. Standards for application.In applying the precautionary principle, the following factors,
among others, may be considered:
(1) threats to human life or health;
(2) inequity to present or future generations; or
(3) prejudice to the environment without legal consideration of the environmental rights of those
affected.

RULE 66 QUO WARRANTO

~One of the cases under the concurrent original jurisdiction of the SC, CA and RTC under BP 129
and also the COMELEC under the Omnibus Election Code. MTC has limited quo warranto
jurisdiction as to proceedings at the barangay level.
Q: What is quo warranto?
A: A proceeding or writ issued by the court to determine the right to use an office, position or
franchise and to oust the person holding or exercising such office, position or franchise if his right is
unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of
position, office or franchise.
Note: It is commenced by a verified petition brought in the name of the Republic of the Philippines
or in the name of the person claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another. (Sec. 1)
Q: What are the classifications of quo warranto proceedings?
A:
1. Mandatory brought by the Solicitor General or Public prosecutor when:
a. directed by the President;
b. upon complaint or when he has reason to believe that the cases for quo warranto can be
established by proof (Sec. 2)
c. at the request and upon the relation if another person (ex relatione), but leave of court must first
be obtained. (Sec. 3)
2. Discretionary brought by the Solicitor General or a public prosecutor at the request and upon
the relation of another person, provided there must be:

a. leave of court
b. at the request and upon the relation of another person
c. indemnity bond (Sec. 3)
Who commences the action?
A:
1. The solicitor general or public prosecutor, when directed by the President of the Philippines, or
when upon complaint or otherwise he has good reason to believe that any case specified in the
proceeding section can be established by proof. (mandatory quo warranto)
2. The Solicitor General or a public prosecutor may, with the permission of court, bring an action at
the request and upon the relation of another person. (discretionary quo warranto)
3. A person claiming to be entitled to a public office or position or unlawfully held or exercised by
another may also bring action, in his own name. (Relator)
Q: Against whom a quo warranto may be filed?
A: The action must be filed against:
1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or
franchise;
2. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for
the forfeiture of his office; and
3. An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act (Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations now fall under the jurisdiction of the RTC (Sec.
5.2, Securities Regulations Code).

Usually, the petitioner has the right of choice. But under Rule 65, although nothing is mentioned in
Rule 66 about hierarchy of courts in quo warranto proceedings, we follow hierarchy of courts. As
much as possible, we do not file a petition for quo warranto in the SC. It should be filed in the RTC
which has territorial jurisdiction over the case where the public office in question is placed.
If we compare quo warranto to mandamus, if you go back to Rule 65 Section 3, the second part of
that section has a phrase or clause which seems to overlap with the concept of quo warranto. Quo
warranto refers to the usurpation, holding an office without title. In mandamus, the second part of
the section on mandamus speaks about a respondent who unlawfully excludes another from the
use or enjoyment of a right or office to which he is entitled. So there seems to be an overlap
between the second part of mandamus and quo warranto.
Rule 65 SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the

proper court, alleging the facts with certainty and praying that judgment be rendered commanding
the respondent, immediately or at some other time to be specified by the court, to do the act
required to be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as provided in the third
paragraph of section 3, Rule 46.
Because of this seemingly overlap between mandamus and quo warranto, the SC has also
resolved that there is nothing wrong when a petitioner files a petition for mandamus or in the
alternative a petition for quo warranto. The petitioner is not very certain whether the right
proceeding is mandamus or quo warranto, because these actions would involve really the intrusion
or usurpation of a public office or title.
But there is a great difference procedurally between mandamus and quo warranto although these
petitions could be used alternatively. This is because in a quo warranto proceeding, the petitioner
could be the Solicitor General, although he is not interested in the public office in question. Upon
the instruction of the President, the SolGen is authorized to file a petition for quo warranto. Or, if the
instructions does not come from the President, the request comes from a relator. A relator is a term
associated with quo warranto, he is the petitioner, a person who believes he is entitled to the public
office held by another, and he is asking the SolGen to file a petition for quo warranto on his behalf.
The SolGen, upon the request of a relator, shall commence a petition for quo warranto. But the
person interested in the office could himself file a petition for quo warranto. That is what usually
happens. The person who alleges he is entitled to a position can file a petition for quo warranto in a
competent court.
Quo warranto is a special civil action because of numerous changes in the procedure which modify
the rules we apply to ordinary civil actions.
Procedural changes:
1. Rule on venue
Usually in ordinary civil cases, in the absence of an express agreement, venue is governed by Rule
4. We do not follow this in quo warranto. It is specifically provided that for quo warranto, the venue
is where the officer sought to be ejected is residing. We do not take into account the residence of
the petitioner.
Q: A group of businessmen formed an association in Cebu City calling itself Cars Co. to
distribute/sell cars in said city. It did not incorporate itself under the law nor did it have any
government permit or license to conduct its business as such. The Solicitor General filed before the
RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of
Cars Co. The latter filed a motion to dismiss the petition on the ground of improper venue claiming
that its main office and operations are in Cebu City and not in Manila. Is the contention of Cars Co.
correct? Why?

A: No. As expressly provided in the Rules, when the Solicitor General commences the action for
quo warranto, it may be brought in a Regional Trial Court in the City of Manila, as in the case, in
the CA or in the SC (Sec. 7, Rule 66). (2001 Bar Question)
2. Period for submission of pleadings
In ordinary civil actions, the period to file pleadings is fixed in the Rules, and the court has
discretion to grant extension thereof. But if we read Rule 66, the quo warranto court can reduce the
period at its discretion. The quo warranto court can issue a summons instructing the recipient
thereof to file a responsive pleading with 5 days. That discretion of a quo warranto court is not
enjoyed by other courts under ordinary civil procedure, as courts under ordinary procedure can
grant extensions only.
3. The most significant change in quo warranto is that we do not apply the rule against splitting a
cause of action. It is expressly allowed in quo warranto under Sections 9, 10 and 11 of Rule 66.
SEC. 9. Judgment where usurpation found.When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment
shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the
petitioner or relator, as the case may be, recover his costs. Such further judgment may be
rendered determining the respective rights in and to the public office, position or franchise of all the
parties to the action as justice requires.
SEC. 10. Rights of persons adjudged entitled to public office; delivery of books and papers;
damages.If judgment be rendered in favor of the person averred in the complaint to be entitled to
the public office he may, after taking the oath of office and executing any official bond required by
law, take upon himself the execution of the office, and may immediately thereafter demand of the
respondent all the books and papers in the respondents custody or control appertaining to the
office to which the judgment relates. If the respondent refuses or neglects to deliver any book or
paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful
order of the court. The person adjudged entitled to the office may also bring action against the
respondent to recover the damages sustained by such person by reason of the usurpation.
SEC. 11. Limitations.Nothing contained in this Rule shall be construed to authorize an action
against a public officer or employee for his ouster from office unless the same be commenced
within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or
position, arose; nor to authorize an action for damages in accordance with the provisions of the
next preceding section unless the same be commenced within one (1) year after the entry of the
judgment establishing the petitioners right to the office in question.

You will note that in these 3 sections, there is a rule derived from these sections, which says that if
the quo warranto court decides in favor of the petitioner, the quo warranto court will oust the
respondent and direct that the office and the records of that office be turned over to the prevailing
party. In the succeeding sections, it is also provided that the prevailing party has a right, within 1

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

Distinguish mandamus from quo warranto.

A:
Mandamus
Quo Warranto
Available when one is unlawfully excluded from the use or enjoyment of an office against a person
who is responsible for excluding the petitioner
Available against the holder of an office, who is the person claiming the office as against petitioner,
not necessarily the one who excludes the petitioner
No splitting of a cause of action.
Recovery of damages is allowed within 1 year from the entry of judgment of the petition for quo
warranto
Distinguish quo warranto in elective office from an appointive office.
A:
Elective Office
Appointive Office
Issue: eligibility of the respondent
Issue: validity of the appointment
Occupant declared ineligible/disloyal will be unseated but petitioner will not be declared the rightful
occupant of the office.
Court will oust the person illegally appointed and will order the seating of the person who was
legally appointed and entitled to the office.

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

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

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

In case of reversion, when will the owner recover the expropriated property?
After a judgment in favor of owner has become final and executory. If there is an appeal,
possession is not returned, except when execution pending appeal is granted. Otherwise, a writ of
possession shall be issued upon finality.
Suppose there is a lien over the property? What if there were informal settlers in the property?
They will all be driven out as a result of the writ of possession issued even before the expropriation
court has determined whether or not the state has a right to expropriate.

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

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

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

What are the two (2) stages in expropriation proceedings?

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

POSSESSORS WITH JUST TITLE

SC also ruled that if the Republic has a Torrens title over certain properties, but the said properties
were in the possession of private individuals claiming possession under a just title, the Republic
cannot simply cause their ejection, but Republic can simply file an expropriation proceeding against
them. There is nothing wrong if the Republic will file a complaint for expropriation to oust the
possessors from the property, although these properties are already in the title of the government.
DEFAULT
Supposing the defendant does not answer within the period of default, the court, upon motion of
the plaintiff, may declare the defendant in default. But in the default order issued in expropriation
proceedings, the defendant is in default only during the first stage of the proceedings, and is lifted
automatically in the 2nd stage. The defendant, if declared in default, will not be able to participate

during the first stage of the proceedings where the right of the plaintiff to expropriate will be
determined by the court. The first stage ends, if favorable to plaintiff, with the court issuing an order
for condemnation or order of expropriation. Once that order is entered, or even if there is an appeal
from that order, the expropriation court will now go to the second stage, the fixing of just
compensation. During the 2nd stage, the defendant is allowed again to participate in the
proceedings the fixing of just compensation. Unlike in ordinary civil actions, if the defendant is in
default, the defendant will not be able to participate during the entire proceedings, unless the order
of default is lifted or the order of default is set aside.
SECOND STAGE
The fixing of just compensation is not solely the discretion of the court. Court MUST appoint
commissioners to determine such compensation. If the court has not followed this procedure, there
is ground to question the decision of just compensation by said court. Commissioners must be
appointed in order to help the court in fixing the just compensation to be paid. This is another
deviation from ordinary procedures. Note in ordinary procedure, trial by commissioners is
discretionary; unlike in expropriation, the appointment of commissioners in the second stage is
mandatory. The judgment rendered by the expropriation court will be void if the court does not
follow the mandatory requirement of appointing of commissioners.
Q: May the court dispense with the assistance of commissioners in the determination of just
compensation in expropriation proceedings?
A: No. The appointment of commissioners in expropriation proceedings is indispensable. In such
cases, trial with the aid of commissioners is a substantial right that may not be done away with
capriciously or for no reason at all (MERALCO v. Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be filed within 10 days from service of the order
and shall be resolved within 30 days after all the commissioners received the copies of the
objections (Sec. 5)
Q: What is just compensation?
A: Just compensation is equivalent to the fair market value of the property at the time of its taking
or filing of complaint whichever comes first. It is the fair and full equivalent for the loss sustained by
the defendant.
Q: What is the formula for the determination of just compensation?
JC = FMV + CD CB
If CB is more than CD then,
JC = FMV
Where:
JC Just compensation
FMV Fair market value
CD Consequential damages
CB Consequential benefits

Note: Sentimental value is not computed.

Q: What is the reckoning point for determining just compensation?

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

Based on past jurisprudence, if the state has expropriated a piece of land and had paid just
compensation based on the courts decisions, but the state did not push through with the project
alleged in the complaint, there is nothing we can do about it on ground of res judicata. The case
can no longer be reopened. But that was old jurisprudence. Recently, the decision on Mactan-Cebu
International Airport cases, the last of which was decided in 2010, the SC held that in the case of
the public purpose of the expropriation being unfulfilled, the former owners can rightfully file a
complaint in the RTC for the reversion of the property and reconveyance of the property
expropriated, the amount of payment of which shall be based on the just compensation paid at the
time of expropriation (the purpose being to return to the government the amount of just
compensation paid to them).
In another case, there was a land owner who donated a tract of land to the government. The
government introduced improvements with tolerance of the owner, and the value of the property
increased. The donor, seeing that the improvements increase the value of his property, changed
his mind and sought to recover the donated property by filing a case for unlawful detainer against
the government.SC held that unlawful detainer is not the remedy. There was a de facto
expropriation that happened when the government took over the property. What the owner can do
is to file an ordinary action for the recovery of just compensation.
In other words, if we follow the reasoning of the SC, expropriation could be de jure expropriation, it
could also be de facto expropriation. If the government actually occupies a piece of land and
introduces improvements therein, with the tolerance of the owner of the property, that is effectively

an expropriation of the property. And the only remedy of the land owner is to file an ordinary case
for the recovery of just compensation. There will still be a need to fix the amount of just
compensation.
We follow the same procedure if the subject of expropriation is personal property. But there are
laws fixing the amount to be deposited if the government wants to take possession of the personal
property right away.
APPEAL
Supposed defendant appealed the first final order, may the court proceed with the 2nd stage?
Yes. An appeal from the first final order will not prevent the court from proceeding to the 2nd stage
to fix the amount of just compensation.
If the defendant during appeal asks the court to withdraw the deposit made, will that mean he is
withdrawing his appeal or shall the appeal continue?
The appeal shall continue. SC held that defendant is allowed to withdraw the money since
technically it is his as it is intended to pay partly his just compensation, this will not mean that the
appeal is being withdrawn.
Thus, immediately, you can see why expropriation is a special civil action. It consists of 2 stages.
And for each stage, there is a final order of judgment. Thus, for each final order of judgment, an
appeal can be had, meaning there can be 2 appeals in an expropriation case. Thus, it is possible
that there can be multiplicity of appeals in expropriation cases, which is not allowed in ordinary civil
actions.
Because of the possibility of multiple of appeals in expropriation proceedings, the requirements of
appeal are changed. In ordinary civil proceedings, the period to appeal is 15 days, and what needs
to be filed is just a notice to appeal. In expropriation proceedings, since there could be multiple
appeals, the period to appeal is extended to 30 days, and together with notice of appeal, appellant
is also required to file a record on appeal. Failure to file record to appeal means the appeal is not
perfected.

Q: City of Iloilo (petitioner) represented by Mayor Treas filed a complaint for eminent domain
against Javellana seeking to expropriate two parcels of land. Mayor Treas filed a motion for
issuance of writ of possession alleging that it had deposited 10% of the amount of compensation of
which the court issued. A writ of possession was subsequently issued, and petitioner was able to
take physical possession of the properties. After which, the expropriation proceedings remained
dormant. 16 years later, Javellana filed an ex parte motion/manifestation, where he alleged that
when he sought to withdraw the money, he discovered that no deposit was made. Thus, Javellana
filed a complaint for recovery of possession, fixing and recovery of rental and damages. The City of
Iloilo argues that Javellana could no longer bring an action for recovery since the subject property
was already taken for public use. The trial court in its orders and amended orders maintained that

the assailed orders issued by it were interlocutory in character and as such are always subject to
modification and revision by the court anytime. Is the order of expropriation final?
A: Expropriation proceedings have two stages. The first phase ends with an order of dismissal, or a
determination that the property is to be acquired for a public purpose. The second phase consists
of the determination of just compensation. Both orders, being final, are appealable.
An order of condemnation or dismissal is final, resolving the question of whether or not the plaintiff
has properly and legally exercised its power of eminent domain. Once the first order becomes final
and no appeal thereto is taken, the authority to expropriate and its public use can no longer be
questioned. Thus, it has become final, and the petitioners right to expropriate the property for a
public use is no longer subject to review. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
May Congress enact a law providing that a 5,000 square meter lot, a part of the UST compound in
Sampaloc, Manila, be expropriated for the construction of a park in honor of former City Mayor
Arsenio Lacson? As compensation to UST, the City of Manila shall deliver its 5-hectare lot in Sta.
Rosa, Laguna originally intended as a residential subdivision for the Manila City Hall employees.
Explain.
A: Yes, Congress may enact a law to expropriate property but it cannot limit just compensation.
The determination of just compensation is a judicial function and Congress may not supplant or
prevent the exercise of judicial discretion to determine just compensation. Under Sec. 5, Rule 67 of
the Rules of Court, the ascertainment of just compensation requires the evaluation of 3
commissioners. (2006 Bar Question)

RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE

Another multi-stage special civil action it has 3 stages
Q: What is foreclosure of Real Estate Mortgage (REM)?
A: It is the remedy used for the satisfaction of any monetary obligation, which a person owes to
another, by proceeding against the property used to secure said obligation.
Note: It is commenced by a complaint setting forth the date and due execution of the mortgage; the
names and residences of the mortgagor and the mortgagee; a description of the mortgaged
property; date of the note or other documentary evidence of the obligation secured by the
mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons
having or claiming an interest in the property subordinate in right to that of the holder of the
mortgage (Sec. 1).
JUDICIAL VS.EXTRA-JUDICIAL FORECLOSURE
Judicial Foreclosure
Extra-judicial Foreclosure
Governed by Rule 68
Governed by Act 3135

There is only an equity of redemption except when the mortgagee is a bank

Right of redemption exists
Requires court intervention
No court intervention necessary
Mortgagee need not be given a special power of attorney.
Mortgagee is given a special power of attorney in the mortgage contract to foreclose the
mortgaged property in case of default
Note: A mortgagee may bring a personal action for the amount due, instead of a foreclosure suit, in
which case, he will be deemed to have waived his right to proceed against the property in a
foreclosure proceeding. (Movido v. RFC, G.R. No. L-11990, May 29, 1959)
Judicial foreclosure of real estate mortgage. Rule 68 deals only with real estate mortgage. Here,
the court is involved.
Note: There is no judicial foreclosure of a chattel mortgage.
Extra-judicial foreclosure of real mortgage is governed by special law, the Real Estate Mortgage
Law. We deal only with the notary public or the court sheriff. There is a circular issued by the SC
concerning extra-judicial real estate mortgage, so we follow that SC circular when it comes to
extra-judicial foreclosure. In the circulars, the mortgagee will not need to file a complaint, but
instead will be dealing with notary public or sheriff. There will also be public auction, period of
redemption, and consolidation of title by RoD. The only time when the purchaser in this foreclosure
needs to go to court is when the purchaser needs to recover possession of the property. He will
have to go to court in order to petition for the issuance of a writ of possession.
In extra-judicial foreclosure of mortgage, the period of redemption is similar to Rule 39, 1 year from
registration of the certificate of sale. This period of redemption is one of the distinctions of judicial
under Rule 68 and extra-judicial foreclosure of mortgage.
Redemption in judicial foreclosure is called equity of redemption. It is redemption just the same.
Period of redemption is between 90 to 120 days from entry of judgment. Such short period is
actually misleading, as it can be without a definite end. The counting must be commenced from
ENTRY of judgment or final order. There are 3 judgments or final orders to be rendered in judicial
foreclosure. For each stage, there could be an appeal in each final order. The counting starts upon
entry of all three judgments or final orders. Thus, if one or two judgments were appealed in the CA
up to the SC, then such period is extended until the finality of the said judgments, which could take
many years. If an appeal is perfected on time, there can be no entry of judgment. This is the
reason why mortgagees are discouraged from engaging in judicial foreclosures.
Q: Distinguish equity of redemption from right of redemption.
A:
Equity of Redemption
Right of Redemption

Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property
by paying the debt within 90-120 days after the entry of judgment or even after the foreclosure sale
but prior to confirmation
Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said
debtor or any person having a lien on the property subsequent to the mortgage or deed of trust
under which the property is sold to redeem the property within 1 year from the registration of the
Sheriffs certificate of foreclosure sale
Governed by Rule 68
Governed by Secs. 29-31, Rule 39
Note: There is no right of redemption in judicial foreclosure sale after the confirmation of sale
except those granted by banks or banking institutions in favor of non-judicial persons as provided
by the General Banking Act (Government Insurance System v. CFI of Iloilo, G.R. No. 45322, July 5,
1989).
In extra-judicial foreclosure, the mortgagor has the right to redeem the property within one year
from the registration of the deed of sale. However, Sec. 47 of the General Banking Act provides
that in case of extra-judicial foreclosure, juridical persons shall have the right to redeem the
property until, but not after, the registration of the certificate of foreclosure sale which in no case
shall be more than 3 months after foreclosure, whichever is earlier.
The pendency of the action stops the running of the right of redemption. Said right continues after
perfection of an appeal until the decision of the appeal. (Consolidated Bank and Trust Corp. v. IAC,
G.R. No. 73341, Aug. 21, 1987)

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

Rule 68 already tells who should be the plaintiff as well as who to implead defendant. The
defendants should be the debtor and the mortgagor. The debtor is different from mortgagor. And
debtor must also implead as co-defendants persons who might have interests or liens subsequent
to the mortgagee. By implication, the owner of a piece of land can validly mortgage his land more
than once. He can mortgage the land to A, then to B, and then C.

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

STAGES OF JUDICIAL FORECLOSURE

FIRST STAGE

In the first stage, the court determines the liability of the debtor, and the court will order the debtor
to pay his indebtedness within a 90- to 120-day period from entry of judgment. The mortgagor is
not the one ordered to pay the secured indebtedness, it is the debtor who must pay.
But inn our given facts, we do not expect the debtor to pay, because the property anyway does not
belong to him. He will leave the problem to the mortgagor. If there is no payment, and the judgment
is not appealed, it will be entered. The entry will not cut off the equity of redemption. The equity of
redemption shall exist until after the entry of the 2nd judgment.
If the debt is paid, the proceedings become academic. There is no more reason for the mortgagee
continue his complaint if the debt is paid. It is the obligation of the mortgagee to cancel the
mortgage if the obligation is finally settled. But if the obligation is not paid, the proceedings will go
to the 2nd stage.
SECOND STAGE
The foreclosure court orders the sale of the mortgaged property at public auction. The court will
issue an order directing the sheriff to sell the property in a public auction under Rule 39, as well as
in the Mortgage Law.
If the property is sold to the highest bidder, do we now cut off the equity of redemption?
We do not cut off as of yet the equity of redemption even when the property has been sold at public
auction. What the court will do next after the public auction is conducted is to resolve the motion for
the confirmation of the validity of the auction sale. This is the second final order of confirmation. It
is appealable. When an appeal is seasonably filed, the final order of confirmation is not entered,
the equity of redemption will still continue to run. It will not be interrupted until the 2nd judgment is
entered. If 2nd final order is entered, that will not mark the end of the proceedings. That will only
mark the beginning of the 3rd stage.
THIRD STAGE
Deficiency Judgment
If the proceeds of the auction sale are not enough to pay off the indebtedness, the court will be
determining if there is any deficiency and issue another final order authorizing the recovery of the
deficiency.
The recovery of the deficiency will be governed by Rule 39, because the property/collateral has
already been sold at public auction. We are going to apply, for purposes of recovery of deficiency,
execution of judgment. The recovery of deficiency is the third final order. If there is no satisfaction
of the deficiency through voluntary payment, the foreclosing mortgagee will have to avail of Rule
39. He can move for the issuance of a writ of execution.
But in that 3rd stage, do not forget that the only one who is liable now is the debtor. The mortgagor
will not be liable for any deficiency, because the mortgagor is not the debtor. The mortgagor is
liable only to the extent of the value of his collateral. He cannot be held personally liable for the

value of the deficiency, unless he makes himself solidarily liable together with the debtor. So in the
recovery of deficiency, only the principal debtor is held liable, but not the mortgagor of the property.
Since we are going to apply Rule 39, there will be a levy on execution of properties of the debtor. If
these are sold at public auction, there will be another round of legal redemption, 1 year from
registration of the certificate of sale in the RoD, but not because of the foreclosure, but because of
the issuance of the foreclosure court of a writ of execution.
Q: What is deficiency judgment?
A: It is the judgment rendered by the court holding the defendant liable for any unpaid balance due
to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt.
Q: What are the instances when the court cannot render deficiency judgment?
A: where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for
foreclosure and during the pendency of the proceedings was outside the Philippines, then it is not
procedurally feasible. It is by nature in personam and jurisdiction over the person is mandatory.
In one case decided by the SC, the debtor secured his indebtedness with a real estate mortgage to
his own property. The lender/mortgagee obligated the debtor to issue post-dated checks for the
payment of the obligation. The mortgagees filed criminal cases since the checks he got from the
mortgagor were dishonored upon presentation. During the pendency of the criminal cases, since
the principal obligation remained unpaid, the mortgagee availed of the special civil action for
judicial foreclosure of mortgage of the mortgagors property. The mortgagor, previously summoned
in the criminal cases, sought for the dismissal of the foreclosure case, claiming that the civil aspect
of BP 22 should not be separated from the criminal aspect as it is automatically carried with the
criminal case, and that mortgagee has split his causes of action in filing the special civil action for
judicial foreclosure. Is the mortgagor correct?
In an earlier case, the SC upheld the mortgagor. The special civil action for judicial foreclosure was
dismissed. There was really splitting of causes of action. The criminal cases stemmed from the
issuance of the debtor of the checks, which were dishonored. In a mortgage relationship, there are
effectively 2 contracts entered into between the mortgagor and mortgagee. The principal contract,
usually a loan, and an accessory contract of mortgage. If the mortgagee files a separate complaint
for the recovery of the loan without foreclosing the mortgage, he can do so. The filing of a separate
complaint for the purpose of recovering the loan will be considered as a waiver of the collateral
arrangement. The mortgagee, if he does this, is deemed to have abandoned the mortgage. He is
deemed to have converted his secured loan to an unsecured loan. The ordinary civil action of the
loan will bar a second complaint for the judicial foreclosure of mortgage.
In a 2011 decision, involving the same set of facts, the SC changed its course. SC held that the
existence of a criminal case for violation of BP 22 is not a ground to conclude that the mortgagee
has abandoned his mortgage lien. Notwithstanding the criminal case for violation of BP 22 pending
before the MTC, the mortgagee can still institute a judicial foreclosure of the mortgage.

Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled land of her friend
Gretchen who, however, did not assume personal liability for the loan. Arlene defaulted and GAP
filed an action for judicial foreclosure of the real estate mortgage impleading Arlene and Gretchen
as defendants. The court rendered judgment directing Arlene to pay the outstanding account of
P1.5 million (principal plus interest) to GAP. No appeal was taken by Arlene. Arlene failed to pay
the judgment debt within the period specified in the decision. At the foreclosure sale, the land was
sold to GAP for P1.2 million. The sale was confirmed by the court, and the confirmation of the sale
was registered with the Registry of Deeds on January 5, 2002.
On January 10, 2003, GAP filed an ex-parte motion with the court for the issuance of a writ of
possession to oust Gretchen from the land. It also filed a deficiency claim for P800,000 against
Arlene and Gretchen. The deficiency claim was opposed by Arlene and Gretchen.
1. Resolve the motion for the issuance of a writ of possession.
2. Resolve the deficiency claim of the bank.
A:
1. In judicial foreclosure by banks such as GAP, the mortgagor or debtor whose real property has
been sold on foreclosure has the right to redeem the property within 1 year after the sale (or
registration of the sale). However, under Sec. 47 of the General Banking Law of 2000, the
purchaser at the auction sale has the right to obtain a writ of possession after the finality of the
order confirming sale. The motion for writ of possession, however, cannot be filed ex parte. There
must be a notice of hearing.
2. The deficiency claim of the bank may be enforced against the mortgage debtor Arlene, but it
cannot be enforced against Gretchen, the owner of the mortgaged property, who did not assume
personal liability of the loan. (2003 Bar Question)

INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT

Q: What are the instances when the courts cannot render deficiency judgment?
A: When the:
1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and is not found in the Philippines, unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with the probate court under Sec. 7, Rule 86;
and
4. Mortgagee is a third person but not solidarily liable with the debtor.

If the mortgagee holds a chattel mortgage, he will have to foreclose it under the provisions of the
Chattel Mortgage Law via an extra-judicial foreclosure of chattel mortgage. The problem of the
mortgagee in a chattel mortgage is similar to that of a mortgagee in a real estate mortgage. In
mortgage arrangements, the collateral is usually left to the possession of the mortgagor. In real

estate mortgage, mortgagor continues to be in possession of the real property. In a chattel

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

PARTITION
It is a special civil action which could involve both personal and real properties unlike judicial
foreclosure.
A complaint for partition is predicated on the theory that plaintiff and defendant are co-owners of
the properties subject of litigation. The basis of a complaint of partition is that the plaintiff is
allegedly a co-owner of the property together with other co-owners who are impleaded as
defendants. What is essential in the complaint is that ALL co-owners of the plaintiff must be
impleaded in the case as defendants.
Q: What is partition?
A: It is a process of dividing and assigning property owned in common among the various coowners thereof in proportion to their respective interests in said property. It presupposes the
existence of a co-ownership over a property between two or more persons. The rule allowing
partition originates from a well-known principle embodied in the Civil Code, that no co-owner shall
be obliged to remain the co-ownership. Because of this rule, he may demand at any time the
partition of the property owned in common (Art. 494).
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: What are the requisites of a valid partition?
A:
1. Right to compel the partition;
2. Complaint must state the nature and extent of plaintiff's title and a description of the real estate
of which partition is demanded; and
3. All other persons interested in the property must be joined as defendants (Sec. 1, Rule 69)
Who may file and who should be made defendants?
A: The action shall be brought by the person who has a right to compel the partition of real estate
(Sec. 1, Rule 69) or of an estate composed of personal property, or both real and personal property

(Sec. 13, Rule 69). The plaintiff is a person who is supposed to be a co-owner of the property or
estate sought to be partitioned. The defendants are all the co-owners.
SC said that all co-owners are indispensable parties. Even if one is left out, the judgment of
partition will never become final and executory. So, all of the co-owners MUST be impleaded.
Q: What is the effect of non-inclusion of a co-owner in an action for partition?
A:
1. Before judgment not a ground for a motion to dismiss. The remedy is to file a motion to include
the party.
2. After judgment makes the judgment therein void because co-owners are indispensable parties.
Note: Creditors or assignees of co-owners may intervene and object to a partition affected without
their concurrence. But they cannot impugn a partition already executed unless there has been
fraud or in case it was made notwithstanding a formal opposition presented to prevent it. (Sec. 12,
Rule 69)
Can co-owners agree among themselves to partition without going to court?
Yes. If they were able to agree among themselves, then they do not need to go to court anymore.
The only time they go to court is the time when they cannot agree in the partition. But even if they
cannot agree at the start, and therefor there is now a complaint for partition now filed in court,
during the pendency of the case, they can file agree voluntarily on how to partition that property.
And if they want, they can submit the agreement of partition to the court. If the court approves the
agreement of partition, that will be a decision on the merits by the court. It is a partition in the form
of a compromise agreement duly approved by the court. So even during the pendency of the case,
there nothing to prevent the plaintiff and the defendants from entering voluntarily into a voluntary
partition. They may not allow the court to decide how the property will be divided.
But if the parties insist in partition to be done by the court, it will involve a 2-stage proceeding.
Partition is a two-stage proceeding.
First proceeding the court will issue an order for partition,
Second proceeding the court may appoint commissioners to determine how the property will be
divided among the co-owners.
There could be a third stage if there is no agreement on the system of accounting for the
properties; the court will order the co-owner who has been managing the property to submit his
accounting to the court for its approval, but he furnishes a copy to show how he has spent the
income and how he has kept the income as a fund for the preservation of the property.

What are the two aspects of partition proceedings?

A:

1. Existence of co-ownership; and

2. Accounting or how to actually partition the property.
Note: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner and
there is co-ownership and that partition is not legally proscribed, the court will issue an order of
partition. It directs the parties to partition the property by proper instruments of conveyance, if they
agree among themselves.
If they do agree, the court shall then confirm the partition so agreed and such is to be recorded in
the registry of deeds of the place in which the property is situated (Sec 2, Rule 69). There always
exists the possibility that the parties are unable to agree on the partition. Thus, the next stage is the
appointment of commissioners.
What are the stages in an action for partition which could be the subject of appeal?
A:
1. Order determining the propriety of the partition
2. Judgment as to the fruits and income of the property
3. Judgment of partition (Riano, Civil Procedure: A Restatement for the Bar, p. 596, 2009 ed.)
ORDER OF PARTITION AND PARTITION BY AGREEMENT
Q: What is an order of partition?
A: The order of partition is one that directs the parties or co-owners to partition the property
Q: When does the court issue the order of partition?
A: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the
property, that there is indeed a co-ownership among the parties, and that a partition is not legally
proscribed thus may be allowed. If the court so finds that the facts are such that a partition would
be in order, and that the plaintiff has a right to demand partition, the court will issue an order of
partition.
Note: The court shall order the partition of the property among all the parties in interest, if after trial
it finds that the plaintiff has the right to partition (Sec. 2, Rule 69). It was held that this order of
partition including an order directing an accounting is final and not interlocutory and hence,
appealable; thus, revoking previous contrary rulings on the matter. A final order decreeing partition
and accounting may be appealed by any party aggrieved thereby.
When is partition by agreement proper?
A: The parties may make the partition among themselves by proper instruments of conveyance, if
they agree among themselves. If they do agree, the court shall then confirm the partition so agreed
upon by all of the parties, and such partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in which the property is situated (Sec.
2, Rule 69).cc

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

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

NCC Articles related to partition among heirs

Art. 238. Upon the death of the person who has set up the family home, the same shall continue,
unless he desired otherwise in his will. The heirs cannot ask for its partition during the first ten
years following the death of the person constituting the same, unless the court finds powerful
reasons therefor.
Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand
at any time the partition of the thing owned in common, insofar as his share is concerned.

Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long
as he expressly or impliedly recognizes the co-ownership.

SECTION 6. - Partition and Distribution of the Estate

SUBSECTION 1. - Partition
Art. 1078. Where there are two or more heirs, the whole estate of the decedent is, before its
partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n)
Art. 1081. A person may, by an act inter vivos or mortis causa, entrust the mere power to make the
partition after his death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be observed even should there be among
the co-heirs a minor or a person subject to guardianship; but the mandatory, in such case, shall
make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the
legatees or devisees.
Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or
devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a
compromise, or any other transaction.
Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should
have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty
years as provided in article 494. This power of the testator to prohibit division applies to the
legitime.
Even though forbidden by the testator, the co-ownership terminates when any of the causes for
which partnership is dissolved takes place, or when the court finds for compelling reasons that
division should be ordered, upon petition of one of the co-heirs.
Art. 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a
partition until the condition has been fulfilled; but the other co-heirs may demand it by giving
sufficient security for the rights which the former may have in case the condition should be

complied with, and until it is known that the condition has not been fulfilled or can never be
complied with, the partition shall be understood to be provisional.
FC Art. 159. The family home shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary,
and the heirs cannot partition the same unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the property or constituted the family home.

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

Unlawful Detainer and Forcible Entry (Rule 70)

Read NCC articles on lease (especially those relevant to UD)

LEASE
Art. 1669. If the lease was made for a determinate time, it ceases upon the day fixed, without the
need of a demand.
Art. 1670. If at the end of the contract the lessee should continue enjoying the thing leased for
fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party
has previously been given, it is understood that there is an implied new lease, not for the period of
the original contract, but for the time established in Articles 1682 and 1687. The other terms of the
original contract shall be revived.
Art. 1671. If the lessee continues enjoying the thing after the expiration of the contract, over the
lessor's objection, the former shall be subject to the responsibilities of a possessor in bad faith.
Art. 1672. In case of an implied new lease, the obligations contracted by a third person for the
security of the principal contract shall cease with respect to the new lease.
Art. 1673. The lessor may judicially eject the lessee for any of the following causes:
(1) When the period agreed upon, or that which is fixed for the duration of leases under Articles
1682 and 1687, has expired;
(2) Lack of payment of the price stipulated;
(3) Violation of any of the conditions agreed upon in the contract;
(4) When the lessee devotes the thing leased to any use or service not stipulated which causes the
deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards
the use thereof.

The ejectment of tenants of agricultural lands is governed by special laws.

Art. 1674. In ejectment cases where an appeal is taken the remedy granted in Article 539, second
paragraph, shall also apply, if the higher court is satisfied that the lessee's appeal is frivolous or
dilatory, or that the lessor's appeal is prima facie meritorious. The period of ten days referred to in
said article shall be counted from the time the appeal is perfected.
Art. 1675. Except in cases stated in Article 1673, the lessee shall have a right to make use of the
periods established in Articles 1682 and 1687.

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

Rule 70 FORCIBLE ENTRY (FE) AND UNLAWFUL DETAINER (UD)

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

Q: What are the requisites of a valid forcible entry?

A:
1. A person is deprived of possession of any land or building by force, intimidation, threat, strategy,
or stealth; and
2. Action is brought within 1 year from the unlawful deprivation. (Sec. 1)
Q: What are the questions to be resolved in an action for forcible entry?
A:
1. Who has actual possession over the real property;
2. Was the possessor ousted therefrom within one year from the filing of the complaint by force,
intimidation, strategy, threat or stealth; and
3. Does the plaintiff ask for the restoration of his possession (Dizon v. Concina, G.R. No. 23756,
Dec. 27, 1969)
Q: What is unlawful detainer?
A: It is unlawful detention by a person who has acquired possession rightfully, but who detains the
property after the right to keep possession has ended.
Note: It is commenced by a verified complaint. (Sec. 1)
Q: What are the requisites of a valid unlawful detainer?
A:
1. Possession of any land or building is unlawfully withheld from a lessor, vendor, vendee, or other
person after the expiration or termination of the right to hold possession by virtue of any contract
express or implied;
2. Action is brought within 1 year after such unlawful deprivation or withholding of possession; and
3. Demand to pay or comply with the conditions of the lease and to vacate is made upon the
lessee. (Sec. 1)
Q: Is formal contract a prerequisite in unlawful detainer?
A: The existence of a formal contract is not necessary in unlawful detainer. Even if there is no
formal contract between the parties, there can still be an unlawful detainer because implied
contracts are covered by ejectment proceedings. Possession by tolerance creates an implied
promise to vacate the premises upon the demand of the owner (Peran v. CFI of Sorsogon, G.R.
No. 57259, Oct. 13, 1983).
Q: Does the amount of rents and damages prayed for in an action for forcible entry and unlawful
detainer affect the jurisdiction of the courts?
A: No. The amount of rents and damages claimed does not affect jurisdiction of the MTCs because
the same are only incidental or accessory to the main action (Lao SengHian v. Lopez, G.R. No. L1950, May 16, 1949).
Note: If only rents or damages are claimed in an ordinary action, the action is personal and the
amount claimed determines whether it falls within the jurisdiction of the RTC or the MTC.

Q: Distinguish forcible entry from unlawful detainer.

A:
Forcible Entry (Detentacion)
Unlawful Detainer (Desahucio)
Possession of the land by the defendant is unlawful from the beginning as he acquires possession
by force, intimidation, strategy, threat
or stealth.
Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the
possession of the property under his contract with the plaintiff.
No previous demand for the defendant to vacate the premises is necessary.
Demand is jurisdictional if the ground is non-payment of rentals or failure to comply with the lease
contract.
The plaintiff must prove that he was in prior physical possession of the premises until he was
deprived thereof by the defendant.
The plaintiff need not have been in prior physical possession.
The 1 year period is generally counted from the date of actual entry on the land.
Period is counted from the date of last demand or last letter of demand.

DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA

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

Usually in UD, the contract involved is a contract of lease. There is a land lord-tenant relationship,
the tenant does not pay rental, there is a written demand to vacate and to pay back rentals, and if
tenant fails to pay, then there could be a complaint for UD.
But, these remedies appear to have been modified by the decisions of the SC. For instance, in a
past case, about 30 years ago, there was a case involving a contract of lease on a commercial

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

Supposing the land lord of a contract without that stipulation physically enters the property, ejects
the tenant, throws out the things of the tenant and starts to occupy the property. The land lord is
now in possession of the property. Can the tenant file a case against the land lord for forcible
entry?
Yes. When the land lord forces his way into the rented property (subject to a contract of lease
without the resolutory condition), and the land lord acquired the property through force,
intimidation, strategy or stealth, that is forcible entry.
Is there anything improper if the tenant files a case for unlawful detainer or forcible entry against
the owner of the property?
There is nothing wrong from the legal point of view, because what is involved in unlawful detainer
or forcible entry is not ownership, it is physical possession of the property. So the defendant in a
case for FE or UD may be the owner of the property when he is in unlawful possession of his own
property, depending upon the circumstances of the case.

What makes FA and UD special as a special civil action?

FE and UD are governed by summary procedures. But that fact alone is not the most significant
reason why FE and UD are characterized as special civil actions. It is due to the provision of
immediate enforcement of a decision in favor of the plaintiff under Sec. 19 Rule 70 that makes FE
and UD a special civil action. The decision is immediately executory, although it is appealable. But
even if appealed, the decision is immediately executory. The appeal shall not stop the court in
performing in its ministerial duty to execute the decision in a case of FE or UD. The execution of
the decision here is a matter of right on the part of the plaintiff, and not a matter of discretion of the
court.
Why the radical change from the procedural rules that we had in ordinary civil actions?
This is because of the provision found in Section 4 Rule 39. Under Rule 39, the general principle is
that we cannot execute as a matter of right a judgment that has not been entered. Generally, what
can be executed as a matter of right is a judgment duly entered.
There is an exception to this general rule in Section 4 Rule 39, rendering the judgment as
executory as a matter of right, although appealable. The first sentence in Section 4 states:
Judgments in actions for injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. There are very few judgments that are executory as a matter
of right, and the phrase and such other judgments as are now or may hereafter be declared to be
immediately executory includes FE and UD.
SEC. 4. Judgments not stayed by appeal.Judgments in actions for injunction, receivership,
accounting and support, and such other judgments as are now or may hereafter be declared to be
immediately executory, shall be enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the
appellate court in its discretion may make an order suspending, modifying, restoring or granting the
injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or otherwise as may be considered
proper for the security or protection of the rights of the adverse party.
The fact is that a decision in favor of the plaintiff is immediately executory as a matter of right,
although the aggrieved defendant could immediately appeal the said decision, is there no
contradiction in terms? Why?
There is no contradiction. This is because the Rules do not say that simply because the defendant
has appealed from the judgment, the MTC cannot go on with execution of its judgment. Thus,
although appealable, the decision is immediately executed.

If defendant does not want to be evicted right away on appeal, Rule 70 requires the defendant can
file supersideas bond duly approved by the MTC [current rentals earned, referring to the preceding
month, according to the contract of lease or the terms of the decision, plus cost of suit] to the
cashier of the RTC. While the case is on appeal, defendant should keep on depositing said bond
(monthly basis if rent is paid monthly according to the contract of lease). Failure to do so, he will be
evicted, but the appeal continues.

How is the execution of judgment stayed?

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

The RTC is the appellate court in FE and UD cases. If the RTC decides against appellant/tenant
and the tenant appealed in the CA, what can be done to prevent eviction on appeal to the CA under
Rule 65?
The filing of a supersideas bond cannot be applicable this time. This process will apply if the
decision appealed upon is a decision of the MTC. If the RTC decides in favor of the land lord, the
judgment will still be executed as a matter of right, and eviction can be had. The only way to
prevent the immediate eviction of the defendant tenant on appeal to the CA is to apply for a TRO or
writ of preliminary injunction in the CA against the eviction of the tenant, subject to filing of a bond if
required by the CA.

There are mechanisms resorted to by a tenant in order to delay an action to recover possession of
property
What can the tenant file to protect his right to possess?
~In case of UD, the tenant can file a case for reconveyance or reversion of tenanted property in the
RTC
~He can also file a case for Quieting of Title in the RTC
~Complaint for Recovery of Possession in the RTC
The tenant filed a case for reconveyance of the property subject to the lease in the RTC. During the
pendency of the case, the land lord filed a case for FE or UD to recover of possession of the
property subject to the lease. The tenant asked the RTC to issue a writ of injunction or TRO against
the MTC, in order to prevent it from trying the case for FE or UD. Is this allowed?
No. This is a settled issue. The tenant shall not be allowed to cause the injunction of the case in
the MTC. Although these 2 cases filed in different courts involve the same property, they do not
involve the same issue. FE and UD involve the issue of physical possession of the property. In
reconveyance or quieting of title, the issue is also possession, but it is what is called in the NCC as
a real right of possession, not mere physical possession of the property. The SC had made it very
clear that we can have a case for FE or UD filed by the land lord against the tenant pending in the
MTC, and at the same time, a case for reconveyance to reacquire the same property subject to the
lease pending before the RTC. SC held that there is no litis pendencia here. Also, RTC cannot
enjoin MTC from trying the complaint for FE or UD, as MTC has exclusive jurisdiction over cases of
FE or UD.
Can the court grant injunction while the case is pending?
A: The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to
prevent the defendant from committing further acts of dispossession against the plaintiff. A
possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5)
days from the filing of the complaint, present a motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty (30) days from the filing thereof (Sec.
15, Rule 70).
Note: Prior demand to vacate and to pay is jurisdictional in unlawful detainer, but not in all cases.
If the tenant had failed to pay rents for 3 months, and the land lord immediately filed a case for UD
without a prior demand to vacate and to pay, the MTC does not acquire jurisdiction over the case. A
demand to vacate and to pay is jurisdictional in FE or UD. But not in all cases.
IMPLIED NEW LEASE
In the NCC there are provisions governing the relationship of land lord and tenant once the lease
has expired. If the tenant had remained in unlawful possession by tenant was retained after 15
days from the end of the lease, there is an implied new lease, but such implied new lease will be

on a month-to-month, day-to-day or quarterly basis, depending on the previous contract of lease as

to period of payment.
Art. 1670. If at the end of the contract the lessee should continue enjoying the thing leased for
fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party
has previously been given, it is understood that there is an implied new lease, not for the period of
the original contract, but for the time established in Articles 1682 and 1687. The other terms of the
original contract shall be revived.
At the end of the lease contract until the 15th day, the tenant is deemed to be in unlawful
possession of the leased property. There is no need for the land lord to send a demand to vacate
to make the tenant an unlawful possessor, as he became so from the operation of the NCC. Within
the 15-day period, the land lord can properly file a case for unlawful detainer against the tenant by
virtue of the termination of the lease. The NCC itself calls the tenant as an unlawful possessor if he
does not surrender the property after the lease has already terminated. The NCC has a caveat. If
the tenant, after the termination of the lease, remains in possession of the property for the next 30
days from the termination of the lease, and there is no action filed by the land lord in court, the
unlawful possession by the tenant will be reconverted to a lawful possession because of the
implied new lease. The implied new lease is not for the same period stipulated in the old contract of
lease. It will be on a month-to-month, day-to-day or quarterly basis, depending on the previous
contract of lease as to period of payment
Propriety of the awarding of damages in FE and UD.
There is a conflict in jurisprudence as to extent of damages that could be awarded. The Section 1
of Rule 70 authorizes awarding of damages, but it does not place a limit on the kind of damages to
be awarded. In Sec. 17, there is a clear statement as to award of damages being a reasonable
amount as compensation for the use of the property if no amount is stipulated in the lease contract.
SECTION 1. Who may institute proceedings, and when.Subject to the provisions of the next
succeeding section, a person deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom
the possession of any land or building is unlawfully withheld after the expiration or termination of
the right to hold possession, by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or other person may at any time
within one (1) year after such unlawful deprivation or withholding of possession, bring an action in
the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving
of possession, or any person or persons claiming under them, for the restitution of such
possession, together with damages and costs.
SEC. 17. Judgment.If after trial the court finds that the allegations of the complaint are true, it
shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due
as arrears of rent or as reasonable compensation for the use and occupation of the premises,
attorneys fees and costs. If it finds that said allegations are not true, it shall render judgment for

the defendant to recover his costs. If a counterclaim is established, the court shall render judgment
for the sum found in arrears from either party and award costs as justice requires.
There is a decision by the SC which held that Section 1 should be implemented if fully proven in
court. Moral damages, temperate damages, as well as other forms of damages may be awarded
beside interest and the actual rent.
The greater number of SC decisions adhere to Section 17 Rule 70. There is a limit as to the award
of damages that could be had in MTC, and the MTC had always followed strictly the provisions of
Section 17. The award of damages is based on the amount stated in the contract as rentals or if
none, a reasonable amount for the use of the property during the tenantship.
In what instances may the court resolve issue of ownership?
A: When the defendant raises the issue of ownership, the court may resolve the issue of ownership
only under the following conditions:
(a) When the issue of possession cannot be resolved without resolving the issue of ownership; and
(b) The issue of ownership shall be resolved only to determine the issue of possession (Sec. 16).
Note: The assertion by the defendant of ownership over the disputed property does not serve to
divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by
merely claiming ownership of the property involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401
SCRA 742; Perez vs. Cruz, 404 SCRA 487).If the defendant raises the question of ownership and
the issue of possession cannot be resolved without deciding the question of ownership, the issue
of ownership shall be resolved only to determine the issue of possession (Sec. 3, RA 7691).

Rule 71 CONTEMPT
What is contempt?
A: It is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the
authority and administration of the law into disrespect or to interfere with, or prejudice litigant or
their witnesses during litigation (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985)
Note: It is commenced by a verified petition with supporting particulars and certified true copies of
documents or papers involved therein (Sec. 4).
Q: What are the kinds of contempt?
A:
1. Direct or indirect, according to the manner of commission.
2. Civil or Criminal, depending on the nature and effect of the contemptuous act.
Q: Distinguish direct from indirect contempt?
A:
Direct Contempt

Indirect Contempt
Committed in the presence of or so near a court.
Not committed in the presence of the court.
Summary in nature
Punished after being charged and heard
If committed against:
1. RTC fine not exceeding P2,000 or imprisonment not exceeding 10 days or both.
2. MTC fine not exceeding P200 or imprisonment not exceeding 1 day, or both.
IF COMMITTED AGAINST:
1. RTC FINE NOT EXCEEDING P30,000 OR IMPRISONMENT NOT EXCEEDING 6 MONTHS
OR BOTH
2. MTC fine not exceeding P5,000 or imprisonment not exceeding 1 month or both.
Remedy: Certiorari or prohibition (or you could follow the old jurisprudence, file a petition for
habeas corpus on the ground that the confinement is illegal. Dean Jara)
Remedy: Appeal (by notice of appeal)
AKA Contempt in facie curiae (in front of the judge)
AKA Constructive contempt

Distinguish criminal contempt from civil contempt.

A:
Criminal Contempt
Civil Contempt
Punitive in nature
Remedial in nature
Purpose is to preserve the courts authority and to punish disobedience of its orders
Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order for the
preservation of the rights of private persons
Intent is necessary
Intent is not necessary
State is the real prosecutor
Instituted by the aggrieved party or his successor or someone who has pecuniary interest in the
right to be protected
Proof required is proof beyond reasonable doubt.
Proof required is more than mere preponderance of evidence
If accused is acquitted, there can be no appeal.
If judgment is for respondent, there can be an appeal

Q: What is the purpose of the power to contempt?

A: The reason for the power to punish for contempt is that respect of the courts guarantees the
stability of their institution. Without such guarantee, said institution would be resting on shaky
foundation (Cornejovs.Tan, 85 Phil. 772).

Q: What is the nature of contempt power?

A: The power to punish for contempt is inherent in all courts; its existence is essential to the
preservation of order in judicial proceedings and to the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the due administration of justice.
Q: What are the dual aspects on the power to punish contempt?
A:
1. Primarily, the proper punishment of the guilty party for his disrespect to the courts; and
2. Secondarily, his compulsory performance of some act or duty required of him by the court and
which he refuses to perform.

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

5. Assuming to be an attorney or an officer of a court, and acting as such without authority;

6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of
an order or process of a court held by him (Sec. 3).
Note: Failure by counsel to inform the court of the death of his client constitutes indirect contempt
within the purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede
the administration of justice.

Q: How may an action for indirect contempt be commenced?

A:
1. By order or other formal charge by the court requiring the respondent to show cause why he
should not be punished for contempt (motu propio); or (Show cause order)
2. By a verified petition with supporting particulars and certified true copies of the necessary
documents and papers (independent action) (Sec. 4). (Separate petition)
Note: The first procedure applies only when the indirect contempt is committed against a court or
judge possessed and clothed with contempt powers.
The second mode applies if the contemptuous act was committed not against a court or a judicial
officer with authority to punish contemptuous acts. (Nazareno v. Barnes, G.R. No. L-59072, Apr. 25,
1984)
The court does not declare the respondent in default since the proceeding partakes the nature of a
criminal prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct. 28, 1982).
Indirect contempt is initiated through:
1. show cause order
2. independent action, which the court may consolidate with the main case
If there is a separate petition for indirect contempt filed, although it arises out of a pending case or
is related to a pending case, the petition is still an independent case, and what the court usually
does is to consolidate the pending case with the petition to cite respondent in contempt of court.
Penalty in Contempt Cases
The penalty may be payment of fine or imprisonment.
Q: What are the procedural requisites before the accused may be punished for indirect contempt?
A:
1. A charge in writing to be filed;

2. An opportunity for the person charged to appear and explain his conduct; and
3. To be heard by himself or counsel. (Regalado v. Go, G.R. No. 167988, Feb. 6, 2007)
NOTE: The rules on contempt under Rule 71 apply to contempt committed against persons or
entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such
bodies or entities pursuant to law, Rule 71 shall apply suppletorily (Sec 12, Rule 71)

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

What is the remedy against direct contempt and its penalty?

A:
1. The penalty for direct contempt depends upon the court which the act was committed;
a. If the act constituting direct contempt was committed against an RTC or a court of equivalent or
higher rank, the penalty is a fine not exceeding 2,000 pesos or imprisonment not exceeding 10
days, or both;

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

What is the remedy against indirect contempt and its penalty?

A:
1. The punishment for indirect contempt depends upon the level of the court against which the act
was committed;
(a) Where the act was committed against an RTC or a court of equivalent or higher rank, he may
be punished by a fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months, or
both;
(b) Where the act was committed against a lower court, he may be punished by a fine not
exceeding 5,000 pesos or imprisonment not exceeding one month, or both. Aside from the
applicable penalties, if the contempt consists in the violation of a writ of injunction, TRO or status
quo order, he may also be ordered to make complete restitution to the party injured by such
violation of the property involved or such amount as may be alleged and proved(Sec. 7);
(c) Where the act was committed against a person or entity exercising quasi-judicial functions, the
penalty imposed shall depend upon the provisions of the law which authorizes a penalty for
contempt against such persons or entities.
(2) The person adjudged in indirect contempt may appeal from the judgment or final order of the
court in the same manner as in criminal cases. The appeal will not however have the effect of
suspending the judgment if the person adjudged in contempt does not file a bond in an amount
fixed by the court from which the appeal is taken. This bond is conditioned upon his performance of
the judgment or final order if the appeal is decided against (Sec. 11).
Quasi-judicial bodies that have the power to cite persons for indirect contempt pursuant to Rule 71
of the Rules of Court can only do so by initiating them in the proper RTC. It is not within their
jurisdiction and competence to decide the indirect contempt cases.

Q: May a non-party be held for contempt?

A: No, unless he is guilty of conspiracy with any one of the parties in violating the courts
orders(DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30, 1982).
Q: Ray, through Atty. Velasco, filed a complaint for quieting of title against Chiz. Chiz, however,
interposed the defense that the documents relied upon by Ray and Atty. Velasco were forged and
falsified. Finding that the said documents were indeed forged and falsified, Judge Victoria cited Ray
and Atty. Velasco for direct contempt and ordered them to serve 10 days of detention at the
Municipal Jail. Ray and Atty. Velasco filed a motion for bail and a motion to lift the order of arrest.
But they were denied outright by Judge Victoria. Is Judge Victoria correct?
A: No. Direct contempt is a contumacious act done facie curiae and may be punished summarily
without hearing. Indirect or constructive contempt, in turn, is one perpetrated outside of the sitting
of the court.
Here the use of falsified and forged documents is a contumacious act. However, it constitutes
indirect contempt not direct contempt. The imputed use of a falsified document, more so where the
falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as
such is subject to such defenses as the accused may raise in the proper proceedings. Thus,
following Sec. 3, Rule 71, a contender may be punished only after a charge in writing has been
filed, and an opportunity has been given to the accused to be heard by himself and counsel.
Moreover, settled is the rule that a contempt proceeding is not a civil action, but a separate
proceeding of a criminal nature in which the court exercises limited jurisdiction. Thus, the modes of
procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable
to those adapted to criminal prosecutions. Thus, the judge erred in declaring summarily that Ray
and Atty. Velasco are guilty of direct contempt and ordering their incarceration. He should have
conducted a hearing with notice to Ray and Atty. Velasco (Judge Espanol v. Formoso, G.R. No.
150949, June 21, 2007).

CONTEMPT AGAINST QUASI-JUDICIAL BODIES

Q: What is the rule on contempt against quasi-judicial bodies?
A: The rules on contempt apply to contempt committed against persons or entities exercising
quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily. Quasi-judicial bodies that have the power to cite
persons for indirect contempt can only do so by initiating them in the proper RTC. It is not within
their jurisdiction and competence to decide the indirect contempt cases. The RTC of the place
where contempt has been committed shall have jurisdiction over the charges for indirect contempt
that may be filed(Sec. 12).

If one was found guilty of contempt, it is possible other laws or Rules may be applicable. For
example, a lawyer may be sanctioned under the Code of Professional Ethics. Other laws may also
apply in certain instances although contender was not found guilty of contempt.
Relate this to the modification under Rule 65. A lawyer may be cited for indirect contempt, even if
there is no show-cause order, at the discretion of the court. In Rule 65, under the principle of res
ipsa loquitur, the lawyer who files a patently unmeritorious pleading under Rule 65 can be cited in
indirect contempt, even without a show cause order.

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

Ordinary Action
Special Proceeding
Special Civil Action
To protect or enforce a right or prevent or redress a wrong
Involves the establishment of a right, status, or fact
Civil Action subject to specific rules.
Involve 2 or more parties plaintiff and defendant
May involve only one party only petitioner
Involves two or more parties
Governed by ordinary rules, supplemented by special rules
Governed by special rules, supplemented by ordinary rules

Ordinary rules apply primarily but subject to specific rules

Initiated by a complaint, and parties respond through an answer
Initiated by a petition and parties respond through an opposition
Some are initiated by complaint, while some are initiated by petition
Heard by courts of general jurisdiction
Heard by courts of limited jurisdiction
Issues or disputes are stated in the pleadings of the parties
Issues are determined by law
Adversarial
Not adversarial
Based on a cause of action
Not based on a cause of action (except habeas Corpus)
Some special civil action have no cause of action

SPECIAL PROCEEDINGS
Do not rely so much in the enumeration of the special proceedings in our RoC as some of them are
no longer applicable. Like constitution of a family home, there is no such proceeding now, a family
home is constituted now under the NCC by operation of law. There is no more need for a judicial
declaration to consider a home as a family home. There is also no more judicial recognition of
illegitimate children. This concept has been changed also by the FC, where recognition takes place
by operation of law.
Under the present set up, the rules on adoption incorporates two other special proceedings. Thus
presently, we can file a petition for adoption, plus a petition for change of name, plus a petition for
correction of entry. But the rule is that if there is a petition for adoption which encompasses tw0
other proceedings, that petition should also comply with jurisdictional requirements on change of
name and correction of entries of the records of the local civil registrar.
The 3 most important special proceedings which are often the source of bar questions, which are
asked usually, would be settlement of estates of deceased persons, habeas corpus (inclusive of
Amparo and Habeas Data) and the adoption.
What makes a proceeding a special proceeding or a special action that is entertained by the court?
The definition given in the rules is a very clear and simple definition. A special proceeding is one
that is commenced for the purpose of establishing a right, status or a particular fact. Intrinsic in this
definition of special proceedings therefore is the conclusion that special proceedings generally are
not designed to be adversarial. There is no contest between 2 contending parties. All you have to
do is to look for the particular fact or status or right which the petitioner seeks to establish and to be
declared by the court.

SETTLEMENT OF ESTATES OF DECEASED PERSONS

With respect to settlement of estates in the concept of special proceedings, we have to go back to
Rule 1 to appreciate the meaning of a special proceeding.
At the end, the conclusion that we derive from this special proceeding is that there is a person who
is dead. The principal fact that is sought to be established in settlement of estates first is that a
person is dead. We cannot settle the estate of a person who is still alive. But because settlement of
estate usually carries with it the concept of probate of a will, there is some complication because
under the NCC, under substantive law, a will can be submitted for probate during the lifetime of the
testator. So, it is not correct to assume, that when there is a petition for a probate of a will, the
testator is already dead.
Under substantive law, the testator himself, during his lifetime, can file a petition in the RTC for the
probate of the will. The complication arises because when it is the testator who files a petition for
the probate of his own will during his lifetime, and that will is admitted to probate, it is allowed by
the RTC, that will be the end of the probate proceedings. There will be no settlement of estates that
will follow. That is the only fact that needs to be established in a probate of a will while the testator
is still alive. What he seeks from the court is a mere declaration that the will has been executed in
accordance with the formalities of the NCC. When the will is admitted to probate, where the
petitioner is the testator himself, the admission to probate will mark the end of the special
proceedings. No settlement of estate will follow.
Q: What is probate?
A: Probate is the act of proving before a competent court the due execution of a will by a person
possessed of testamentary capacity, as well as the approval thereof by said court, (also known as
Allowance of Will).
Q: Why is probate necessary?
A: To settle all questions concerning the capacity of the testator and the proper execution of his
will, irrespective of whether its provisions are valid and enforceable. (Fernandez v. Dimagiba, G.R.
No. L-23638, Oct. 12, 1967)

Q: What is the nature of a probate proceeding?

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

Note: However, a will may be sustained on the basis of Article 1080 of the NCC which states that,
if the testator should make a partition of his property by an act inter vivos or by will, such partition
shall stand in so far as it does not prejudice the legitime of the forced heir. (Mang- Oy v. CA, L27421, 1986)
3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory. The
presentation and probate of the will is required by public policy. It involves public interest.
(Fernandez v. Dimagiba, L- 23638, 1967)
Q: Does the probate court look into the intrinsic validity of the will?
A:
GR: The jurisdiction of probate court is limited to the examination and resolution of the extrinsic
validity of a will.
XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of
the will:
1. If the case where to be remanded for probate of the will, it will result to waste of time, effort,
expense, plus added
anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966).
2. Where the entire or all testamentary dispositions are void and where the defect is apparent on its
face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985).
Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the
will.
NOTE: The decree of probate is conclusive with respect to the due execution of the will and it
cannot be impugned on any of the grounds authorized by law, except by fraud, in any separate or
independent action or proceeding.
WHO MAY PETITION FOR PROBATE
Q: Who may file petition for allowance of will?
A:
1. Executor (Sec. 1, Rule 76);
2. Devisee or legatee named in the will (Sec. 1, Rule 76);
3. Person interested in the estate; e.g. heirs
Note: An interested party is one who would be benefited by the estate, such as an heir, or one who
has a claim against the estate such as a creditor. (Sumilang v. Ramagosa, G.R. No. L-23135, Dec.
26, 1967)
4. Testator himself during his lifetime (Sec. 1, Rule 76); or
5. Any creditor as preparatory step for filing of his claim therein.

Q: Who are the people entitled to notice in a probate hearing?

A:
1. Designated or known heirs, legatees and devisees of the testator resident in the Philippines at
their places of residence, at least 20 days before the hearing, if such places of residence be
known.
2. Person named executor, if he not the petitioner.
3. To any person named as co-executor not petitioning, if their places of residence be known.
4. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory
heirs. (Sec. 4, Rule 76)

We compare that to a probate of a will where the testator is already dead. Since the testator is
already dead, the petitioner could be somebody else interested in his estate, like an heir, devisee,
legatee or creditor of the decedent. In this second kind of probate of a will where the testator has
died, when the will is admitted to probate, that will not be the end of the proceedings. In fact, that
will mark the beginning of the settlement of estate of the deceased person. That is the time when
we apply the rules in special proceedings in settlement of estate of deceased person.
You should be wary about the differences between probate of a will when the testator is still alive,
and the probate of a will when the testator has already died. When the testator has already died,
the admission to probate of that will not be the proceedings, it will be the start the settlement of
estate.
We should also relate settlement of estate of decease persons to Rule 107, the Rule on
Absentees. When the law speaks about settlement of estates of deceased persons, the inference
that we derive is that the fact that is sought to be established is that a person is dead. That is not
necessarily true insofar as probate of will or intestacy is concerned. We have to relate it to the
provisions of the NCC and FC on absentees, and also the provisions of special proceedings on
absentees in Rule 10.
Even if the testator is not in fact dead, even if the problem is that the heirs, legatees, devisees and
creditors are not certain whether or not the testator is dead, therefore, the court cannot simply
issue an order declaring he is dead. Under our present rules, if there are antecedent facts that are
proven by clear and convincing evidence, we can apply the presumption of death under the NCC,
then we can commence a special proceeding for the settlement of his estate. If we go through the
provisions of Rule 107 on absentees, the first essential is that a person has left properties without
somebody in charge or without an administrator, and that his whereabouts are unknown. And then,
he has disappeared for at least 2 years. On the second year of his absence, there could be a
petition for the declaration of his absence. In other words, being absent is a status under our
procedural laws.
This person who has been declared an absentee cannot be an absentee forever. So there must
come a time when the said status as an absentee could be utilized in order to settle his estate, and
this is the situation contemplated in Rule 107. If there is enough proof of facts that will allow the

court to conclude that the absentee is already dead, although he is not actually dead, we can
commence proceedings. But the court will not issue an order declaring the absentee as
presumptively dead. A court does not have any authority at all to issue an order declaring a person
dead by presumption. We just capitalize on the presumption given in the NCC, that under
circumstances, a person is presumably dead. Using that presumption, the remedy of the spouse,
heirs, or any interested person is to file a petition for the settlement of the estate.
So, there could be a petition for the settlement of estates of a person who is certainly dead. The
court will declare that this person is actually dead, and this can be easily proven by submission of a
certificate of death. But if a certificate of death cannot be issued or the civil registrar is unwilling to
issue a certificate of death because there is no certainty of the persons death, but the antecedent
facts proven before the courts show that we can now make a disputable presumption that the
person is dead, the remedy is to file a petition for the settlement of his estate.
So it is not always correct to say that in settlement of estates of deceased persons, that person
must be proven to have really died. That is not what the law requires. What the law requires is
simply the demonstration or proof of certain facts upon which this disputable presumption of death
will be used in order to settle his estate.
Supposing there are certain facts which will lead to the conclusion that this person is presumably
dead. There are proceedings initiated for the settlement of his estate. While the proceedings are
going on, or even after the closure of the settlement proceedings, the person suddenly reappears.
Will the settlement of his estate be negated?
Not so. He can recover what is left of his properties. Because in settlement proceedings, we
always involve the payment of his indebtedness to his creditors. If the debts has already been paid,
this person is not allowed to file for the recovery of the money or other properties that may have
been delivered to the creditors or to the heirs of his estate.
But the procedure that is outlined in our Rules is about settlement of estate of deceased persons.
So that is the first particular fact that will be established in settlement of estate of deceased
persons. The court will issue an order, let us say, in admitting the will to probate, the court will
make a finding that the testator is already dead. Then, there will also be a finding as to the formal
validity of the will.
With respect to the jurisdiction, the RoC is not expected to give us the standard in determining the
jurisdiction of courts in settlement proceedings. The courts will rely on what BP 129 provides. In BP
129, there are 2 courts which are given authority to take cognizance of estate proceedings, the
MTC and the RTC, depending upon the gross value of the estate, the same amount used as a
standard in ascertaining the jurisdiction of MTC or RTC in money claims. But it is the gross value of
the estate that will be the principal factor. Unlike in action reinvindicatoria, the assessed value of
the property will be the standard that will be determining the jurisdiction of court.
Which court has jurisdiction over the estate of the deceased?
A:

Regional Trial Court

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

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

Q: May probate courts determine issues of ownership in a proceeding for the settlement of estate
of decedent? Explain.
A:
GR: No, because probate courts are courts of limited jurisdiction.
XPNS:

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

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

It is not also correct to assume that when a person dies, his estate can be settled only through this
special proceeding of settlement of estate. It is very clear from the Rules that if a person dies, the
heirs can agree among themselves to settle his estate without going to court through the scheme
of extra-judicial partition. They can agree to divide among themselves what has been left by the
decedent. They can do so voluntarily. But there are certain essentials like there must be no will that
has been left by the decedent, that there are no creditors, and that all heirs are of age, or if some
are minors or incapacitated, they are properly represented properly by a guardian.
If a person dies, he has left sizable properties, and the spouse and the children are in good terms,
there is no will, and there are no creditors, then the surviving spouse and the children can simply
execute what is called a deed of extra-judicial partition. If there is one heir, then he will just institute
a document called an affidavit of self-adjudication. The deed of extra-judicial partition or affidavit of
self-adjudication will have to be registered with the Office of the Registry of Property, especially
when there are properties involved, in order to enable the parties or the only heir to get a title in
their or his own name. By virtue of the presentation of the deed of extra-judicial partition or affidavit
of self-adjudication, if there are titled properties that have been left, the title of the deceased will be
cancelled, and a new one will be issued in the name of his heirs or only case, as the case may be.
What protection do we give to the creditors, if there are any, or even to the Republic of the
Philippines?
Insofar as the Republic of the Philippines, the interest of the state will be in recovering taxes arising
from the death of the person if he left sizable properties. Insofar as creditors are concerned, they

are interested in getting full payment of their respective claims. The protection given by our Rules is
that when it comes to taxes due, the RoD will not accept for registration an deed of extra-judicial
partition or affidavit of self-adjudication unless the interested parties present to the civil registrar a
certification from the BIR that taxes have been paid. So that solves the problem of the state. It may
always be able to recover the taxes due, because if the BIR does not issue this certification, the
civil registrar also will not accept for registration the deed of extra-judicial partition or affidavit of
self-adjudication.
The situation of the creditors, if there are any, entails a bigger problem, because the RoD has the
ministerial duty to accept a deed of extra-judicial partition or affidavit of self-adjudication for
registration. The RoD simply cannot compel the parties to that deed of extra-judicial partition or
affidavit of self-adjudication to present proof that there are really no creditors of the estate. The
RoD will have to rely on the say so of the parties who have signed the deed of extra-judicial
partition or affidavit of self-adjudication. And in that deed or affidavit, the parties are required to
state that there is no will, and that there are no debts. So if these parties are telling a lie, they know
that there are creditors but they state otherwise, then the creditors will be at the losing end. They
need protection for their claims.
What the law provides is that if the estate settled consists of both personal and real properties,
before the RoD will accept these documents for registration, the interested parties must file a bond
equivalent to the value of the personal properties. Again, the parties can easily avoid this
requirement by simply stating in the deed that there are no personal properties involved, so they
need not pay the bond. If there are no personal properties of the estate, then there is no
requirement for the interested parties to submit a bond to the RoD.
So if the estate consists purely of real titled properties, the RoD will admit the documents for the
registration, he will cancel the title of the decedent and issue new ones in the name of the
interested parties. But at the back of the title of the new owners, there is annotated a lien, that the
property is subject to the claims of any creditors within a period of 2 years. The 2-year period,
according to jurisprudence, is really extended by another 2 years. The SC ruled that if there is a
title carrying this annotation, a person interested in the property, like an heir who has been
deprived of his share, or even a creditor, can file an ordinary civil action for the annulment of the
writ of extra-judicial partition within 4 years from the discovery of fraud. So that 2-year period, if we
apply that decision of the court, will be extended to another 4 years, and the 4-year period shall be
counted from the discovery of fraud. It is fraudulent for the heirs or interested parties to extrajudicially partition the estate of a deceased person without including all the heirs. So an heir so
excluded can always contend that there was fraud in the execution of that document, and he has a
period of 4 year within which to file an ordinary action for the setting aside or annulment of the
deed of extra-judicial partition.

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

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

TWO-YEAR PRESCRIPTIVE PERIOD

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

The deed of extra-judicial partition or affidavit of self-adjudication should also be published, once a
week for three consecutive weeks, before the RoD will admit it for purposes of registration.
When is extra judicial settlement by agreement between the heirs allowed? (Substantial
Requisites)
A:
When the decedent:
1. Left no will and no debts; and the heirs are all of age; and
2. Of the minors are represented by their judicial or legal representatives duly authorized for the
purpose.
Q: What are the requisites before an extra-judicial settlement of estate could be resorted to as
evidence of its validity? (Procedural Requisites)
A:

1. Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir;
Note: In case of disagreement of heirs, they may state their oppositions in an ordinary action of
partition.
2. Filed with the Register of Deeds;
3. Fact of settlement must be published in a newspaper of general circulation once a week for 3
consecutive weeks; and
4. Bond filed equivalent to the value of personal property. (Sec. 1, Rule 74)
Note: While the Rules of Court provide that the decedent must not have left any debts, it is
sufficient if any debts he may have left have been paid at the time the extra-judicial settlement is
entered into (Guico v. Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a disputable presumption
that the decedent left no debts if no creditor files a petition for letters of administration within two
years after the death of the decedent.
Q: What is a bond?
A: It is the value of the personal property certified by the parties under oath and conditioned upon
payment of just claims under Section 4, Rule 74.
Note: The amount of bond required under Section 2 is determined by the COURT whereas in
Section 1 the amount is EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as established
by adjudication.
Q: When is a bond required to be filed in extra-judicial settlement of estate?
A: When personal property is involved, a bond is required. On the other hand, if it is a real property,
it is subject to a lien in favor of a creditor for 2 years from distribution and such lien cannot be
substituted by a bond. (Sec. 1, Rule 74)
Note: The same provision on the bond and lien also applies in summary settlement of estate. (Sec.
2, Rule 74)
Q: Is a public instrument necessary for the validity of the extra-judicial settlement?
A: No, the requirement of public instrument is not constitutive of the validity but is merely
evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947). Even a private
instrument, oral agreement of partition or compromise agreement entered into without previous
authority from the court is valid. However, reformation of the instrument may be compelled.
Note: Public instrument is required in transfer and registration of title to the heirs.
Q: Why is publication of the extra-judicial settlement necessary?
A: To notify and bind the whole world of the extra-judicial settlement and give the concerned parties
a chance to come forward and challenge the same (Sec. 1, Rule 74).
Note: Publication alone does not suffice to bind the excluded heirs to the extra-judicial settlement
unless he did not participate in the proceedings.

Q: What is the effect if the provisions on notice or participation requirement under Sec. 1, Rule 74
have been strictly complied with?
A: It bars distributees or heirs from objecting to an extra-judicial partition after the two-year
prescriptive period to question such partition. (Sec. 4, Rule 74)

But if the parties cannot settle extrajudicially, then the only recourse will be to go to court, so that
the court will decide the manner by which the properties of the estate should be divided among the
heirs. In this situation, the parties are not required file a case for settlement of the estate. There is
still another option given in these special civil actions. The special civil action of Partition under
Rule 69 is also available as a remedy in order to divide the estate of the decedent.
If you go back to partition, partition as a special civil action is predicated on the theory that there
are several co-owners of the same property, and one of the co-owners decide to leave the coownership. This is related to settlement of estates because under substantive law, when a person
dies, the heirs automatically become co-owners of the estate of the decedent. So if there is a coownership created by operation of law, any one of the co-owners can decide to leave the coownership by simply availing of the special civil action for partition.
But a special civil action of partition as given in Rule 69 is not in rem. It cannot prejudice persons
who have not participated in these proceedings. So if there is an heir or creditors who has not been
impleaded in this special civil action for partition, that deed of partition duly approved by the court
will not have the effect of a judgment in rem. That is always the advantage of a settlement
proceeding as a special proceeding, the judgment and final orders of the court in a settlement
proceeding are in rem. They will be enforceable against any person who might have an interest in
the properties of the estate. That is the only advantage of settling the estate of a deceased person
through a petition for probate of a will, or if there is no will, through a petition for the issuance of
letters of administration.
In settlement proceedings, we have to determine whether there is a will or none. Under substantive
law, whose provisions are practically reproduced in the RoC, before the will would be a basis for
the division or giving of the properties of the estate to the heirs, devisees or legatees, the will must
be admitted to probate. If not admitted to probate, it could not be the proper basis for the division,
even if the parties will state in their agreement that they have divided the estate in accordance with
the provisions of the last will and testament.
The SC has repeatedly held that if there is a will, that will must be submitted to the court for
probate, so that it can be a source of a right given to an heir, a devisee or legatee. Without an order
from the court allowing or admitting the will for probate, a person who benefited from the provisions
of that will cannot enforce his right. There must always be first an order coming from the court
admitting the will or allowing the probate of the will.

In order to appreciate the scope of an order of a court admitting a will to probate, read Rule 39, that
is the effect of a judgment in rem in Section 47(a).
SEC. 47. Effect of judgments or final orders .The effect of a judgment or final order rendered by
a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as
follows:
(a)
In case of a judgment or final order against a specific thing, or in respect to the probate
of a will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death of the testator or intestate;
(b)
In other cases, the judgment or final order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive between the
parties and their successors in interest by title subsequent to the commencement of the action or
special proceeding, litigating for the same thing and under the same title and in the same capacity;
and
(c)
In any other litigation between the same parties of their successors in interest, that only
is deemed to have been adjudged in a former judgment or final order which appears upon its face
to have been so adjudged, or which was actually and necessarily included therein or necessary
thereto.
Rule 39 gives us the effect of a judgment in rem. A judgment admitting a will to probate is a
judgment in rem. It is binding upon anybody who might have interest in the estate. In fact, the NCC
says that an order of a court admitting the will to probate is conclusive insofar as the formal
requirements of a will are concerned.
Supposing that a will is admitted to probate, can the oppositors appeal from that order?
Yes.
If there is an appeal from an order of the court allowing a will, we cannot apply the statement in
Rule 39 that probate of a will is conclusive insofar as the formal elements are concerned because
that order, if there is an appeal going on, will not be entered. That provision in Rule 39 presupposes
that an order admitting the will has been entered. It has become final and executory.
But before it is entered, do we have the presumption that the formal requisites of the will have been
satisfied?
Yes. But the presumption is not a conclusive presumption, merely disputable. Under our Rules on
Evidence, there is a disputable presumption that the final order or judgment of a court is presumed
to be correct, that is if it has not yet been entered. Once entered, the period to appeal having
expired without an appeal being perfected, then the disputable presumption to a conclusive
presumption. So once the order admitting the will to probate is entered, then we are going to apply

the provisions of Rule 39 Section 47. The formal requisites of the will are conclusive upon anybody
who might have an interest in the estate.

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

This is the letter issued by the court where there is a will submitted to probate, but where the
executor nominated in the will has refused to accept the trust or he is not qualified to accept the
trust. So if there is no executor willing to accept the trust, the court will have to appoint another
administrator. To distinguish an administrator who is usually appointed where there is no will that is
submitted for probate, we call these letters as letters of administration with a will annexed.
Letters of administration with a will annexed assume that there is a will submitted to the court for
probate, and that the court has admitted or allowed the will, but the executor nominated in the will
has refused to accept the position.

In a will, aside from the disposition of the properties, the decedent usually nominates a person who
will act as executor of the will. This is the reason why in RoC, there is an order of preference in
appointing an administrator. But there is no order of preference insofar as the appointment of an
administrator in letters of administration with a will annexed. This is because the court will appoint
an administrator despite the fact that an executor is nominated by the testator in the will.
You should also note that when a testator names the person as executor of the estate, that is only
a nomination. It is the court that will appoint him as executor. The proof that he is now an executor
is called letters testamentary; the proof of the authority of an administrator is called letters of
administration.
We also have the concept of letters of ancillary administration. In ancillary administration, the
antecedent fact is that a will has been admitted to probate in a foreign country. The testator must
have been a resident of that foreign country. But the testator also left properties in RP. So, there is
a principal testate proceedings going on in a foreign country where an executor may have been
appointed in that foreign country. But the authority of the appointed executor from a foreign court
cannot extend to properties within Philippine territory. The remedy of that executor from a foreign
country is to initiate a proceeding called ancillary administration proceedings, which be called a
reprobate of the same will of the same will that has been admitted to probate in a foreign court.
That petition for ancillary administration, if a will has been already admitted to probate in a foreign
country, the same will be submitted to a local court for another proceeding. The local court will
simply rely on the decision of the foreign court in admitting the will for probate. If there was no will
left by this foreigner, then the ancillary proceedings will also be an intestate proceeding. It will still
be the local court that will issue letters of ancillary administration to the administrator appointed by
the local court to take care and to manage the properties left within RP territory.
There is also another concept called letters of special administration or a special administrator.
These letters are issued by the court when there is a delay in the appointment of an administrator
or an executor of the estate. If a court issues letters of administration, and therefore appoints letters
of administration of an intestate estate, or issues letters testamentary, to the person who will
manage the estate, this is always a final order. The appointment of a regular administrator is
always a final order, never interlocutory. Since it is a final order, it is appealable. In order to

appreciate in settlement proceedings the difference between a final order and an interlocutory
order in settlement proceedings, read Rule 109, Section 2.
SEC. 2. Advance distribution in special proceedings.Notwithstanding a pending controversy or
appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon
such terms as it may deem proper and just, permit that such part of the estate as may not be
affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance
with the conditions set forth in Rule 90 of these rules.

FINAL ORDERS
If you go through the provisions of Rule 109, Appeals in Special Proceedings, right away you will
notice that if special proceedings were governed by the rules of ordinary civil actions, some of the
final orders in special proceedings may be interlocutory in ordinary civil actions. For instance,
appointing an administrator or executor, if we use the rules in ordinary civil actions, this
appointment will be interlocutory, because it does not put an end to the case, unlike final order in
ordinary civil actions which put an end to the case. But in settlement proceedings, what was
interlocutory under ordinary civil proceedings will be a final order in special proceedings, of which
the appointment of an administrator/executor is a good example. The appointment of an
administrator/executor will not put an end to the proceedings. In fact, an appointment of an
administrator/executor will mark other proceedings to be taken by the court in settling the estate.
But since special proceedings are governed by their own rules, and it says that the appointment of
an administrator/executor or admitting of a will to probate are all final orders and hence appealable.
In fact if we go through the whole process of settlement proceeding, although it is the policy of the
RoC to terminate proceedings speedily, with as much as practicable a period of 2 years from
institution of the settlement proceedings, Rule 109 negates this state policy because of the Rule in
109 that all final orders are appealable. In the course of reading special proceedings, there are
several final orders that can be issued by the settlement court, and all these final orders can be
appealable. The settlement proceedings will not be terminated until all these issues brought on
appeal had been resolved by the appellate court and the records returned to the settlement court.
If the settlement court appoints Juan dela Cruz today as administrator of the estate, an heir who
dislikes him can appeal from that order. And while that appeal is going on, Juan dela Cruz cannot
assume the position as administrator of the estate until the higher court has ruled on the
qualifications or the validity of the order appointing him as administrator. In the meantime, nobody
will be taking care of the estate. The remedy of Juan dela Cruz is to ask the court to appoint him as
a special administrator. So if his appointment as administrator is challenged by another heir, he
cannot assume the office as a REGULAR administrator, but the settlement court can appoint him
as SPECIAL administrator. A settlement court has the authority to appoint a special administrator if
there is a delay in the appointment of a regular administrator. This is necessary because the estate
has to be managed while the appeal is ongoing.
Will it cause any prejudice to the heirs or creditors if Juan dela Cruz is appointed as special
administrator?

There will be no prejudice to anybody. This is because as special administrator, Juan dela Cruz is
not given all the powers of a regular administrator. All that he can do is to manage the properties of
the estate, to preserve the estate. He will not be able to entertain claims of creditors. That is the
sole prerogative of a regular administrator/executor of an estate.
Can an oppositor also appeal from the order of the court appointing Juan dela Cruz as special
administrator?
We cannot. Under Rule 109, the appointment of a special administrator is interlocutory, it is not
appealable. The remedy will be Rule 65, to challenge the appointment as special administrator. But
it will not give the oppositors any undue advantage, since we have learned under Rule 65, the
assumption of Juan dela Cruz as special administrator will not be prevented, unless the higher
court issues a writ of preliminary injunction or TRO. Without these injunctive writs, Juan dela Cruz
can start with the performance of the office of a special administrator.
The great difference between a special administrator and a regular administrator of an estate is
that a regular administrator is empowered to entertain claims of creditors to be filed against the
estate, while a special administrator cannot. In fact, the statute of non-claims given in Rule 86 will
only come to life after the appointment of a regular administrator/executor. We cannot talk about
statute of non-claims if the court has only appointed a special administrator.
Let us assume that there is already a regular administrator/executor appointed by the settlement
court. Whether there is an executor or administrator, their duties are the same. Both should submit
to the court within a period of 3 months a complete inventory of the properties of the estate that
have come to their possession or to their knowledge, and then they will have to do an accounting
within a period of 1 year. They have to preserve and manage the estate, and they will have to
comply with the orders of the settlement court.
The duties of administrator/executor outlined in the Rules are practically the duties of any fiduciary
given in the RoC, similar any person who occupies a fiduciary position under the Rules like a
trustee of an express trust, the guardian of an incompetent of a minor. They have all these common
duties like to preserve the estate, to submit an inventory, to submit an accounting, and to obey the
orders issued by the court.

STATUTE OF NON-CLAIMS
Rule 86 SEC. 5. Claims which must be filed under the notice. If not filed, barred; exceptions.All
claims for money against the decedent, arising from contract, express or implied, whether the same
be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness
of the decedent, and judgment for money against the decedent, must be filed within the time limited
in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims
in any action that the executor or administrator may bring against the claimants. Where an executor
or administrator commences an action, or prosecutes an action already commenced by the
deceased in his lifetime, the debtor may set forth by answer the claims he has against the
decedent, instead of presenting them independently to the court as herein provided, and mutual

claims may be set off against each other in such action; and if final judgment is rendered in favor of
the defendant, the amount so determined shall be considered the true balance against the estate,
as though the claim had been presented directly before the court in the administration proceedings.
Claims not yet due, or contingent, may be approved at their present value.
Once the administrator/executor has assumed office, the first thing that he should do under Rule 86
is to ask the court to issue a Notice to Creditors. This will be published. This is a notice to all the
creditors of an estate to submit their claims within a period of not less than 6 months nor more than
12 months from the first publication of the Notice to Creditors. This period of not less than 6 months
nor more than 12 months within which creditors should file their claims is called the Statute of NonClaims. Rule 86 spells out the concept and the consequences of the Statute of Non-Claims. It is a
very short prescriptive period.
The publication of the Notice to Creditors is jurisdictional insofar as creditors are concerned,
because this notice serves as a prescriptive period.
So if there is a creditor of the estate, like PNB, from whom the decedent borrowed 2M in a clean
loan (unsecured) during his life time. Can PNB file an ordinary action for the recovery of
indebtedness against the estate of the estate on the theory that under the law, when a natural
person dies, the law creates an artificial person, called the estate of the deceased, to take the
place of his person?
Although it is true that when a natural person dies, under the NCC creates another person to take
his place, an artificial person called estate of the deceased. But the law does not allow the artificial
person to be a defendant in a suit for recovery of money. What the law requires is for PNB to file a
claim within a period of not less than six months to 12 months from the first publication of the
Notice to Creditors.
So you will not find any ordinary civil action commenced by a creditor against the estate of a
deceased creditor. That simply is not allowed by the Rules. But you can find a complaint, ordinary
civil action, where the action is Creditor vs. Estate of Deceased Debtor, but the circumstances are
different from one another. When you meet a case captioned thusly, the debtor must have died
after the institution of that action. If the debtor is already dead, the creditor will not be allowed an
ordinary civil action for the recovery of the indebtedness. The only recourse of the creditor after the
death of the debtor is to file a claim in the settlement court within the period so provided by law.
Why do we make a distinction as to whether the debtor is dead before the commencement of the
action or during the pendency of an ordinary civil action for the collection of money?
The answer is found in Rule 3 Section 16 and Section 20.
SEC. 16. Death of party; duty of counsel.Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty
(30) days after such death of the fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply with this duty shall be a ground for
disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party or if the one so named
shall fail to appear within the specified period, the court may order the opposing party, within a
specified time, to procure the appointment of an executor or administrator for the estate of the
deceased and the latter shall immediately appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by the opposing party, may be recovered as
costs.

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

There is really a conflict in the RoC and NCC in this instance. What the SC said is that the
provisions of Rule 86 will prevail over the NCC. We reduce the prescriptive period contained in the
NCC which is 4 years, 6 years or 10 years are shortened to 6 months to 12 months from first
printing of the Notice to Creditors. The justification given by the SC is that the statute of non-claims
as contained in the Rule 86 is not a product of the SC. It is just a copy of the old civil procedure. At
that time, the old code of civil procedure was also a substantive law insofar as prescription was
concerned. SC went further by saying, even under the NCC on the chapter of prescription, it is
provided that the NCC provisions will be without prejudice to periods of prescription that are found
in special or other laws. In other words, the period of prescription given in the NCC is the general
law on prescription. If there are other laws on prescription which contravene the NCC, then the
NCC will have to give way over the provisions of the other laws. Rule 86 is just an exact copy of the
period of prescription that was contained in the old code of civil procedure, which has not been
repealed by the provisions of the NCC. We still maintain this statute of non-claims as a prescriptive
period, not less than six months nor more than 12 months from the date of first publication of the
Notice to Creditors.
If you read Rule 86 on the statute of non-claims, the consequence is that the claim will be barred
forever if it is not submitted within this period to the settlement court.
But the RoC do not require all creditors to submit their claims within this statute of non-claims. You
have also to take into account the provisions of Rule 87. If there are creditors but their claims are
not for money, and instead involve recovery of real or personal property, they are not covered by
the statute of non-claims. Or if these creditors claim, although for money, stem out of a tort
committed by decedent during this lifetime, they are not governed by the statute of non-claims.
So we have to limit the concept of these claims to the provisions of Rule 86. What are these money
claims? All claims for money against the decedent, arising from contract, express or implied,
whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for
the last sickness of the decedent, and judgment for money against the decedent, as provided for
in Section 5 of Rule 86. So that excludes claims arising from a crime or delict or tort. These claims
must be claimed within the period of non-claims. Otherwise, they are barred forever.
In our example, where the debtor dies during the pendency of an action for the recovery of the
loan, the administrator/executor has taken his place as a substitute defendant. If the
administrator/executor subsequently loses the case, the creditor will have an award in his favor for
payment of 2M. Even if that award is supported by a final and executory judgment, the creditor
should still file a claim against the estate within 6 months and 12 months, in the period for statute of
non-claims. Otherwise, the claim will be barred.
If you read Rule 86 on the statute of non-claims, claims for money supported by a final judgment
should still be submitted as a claim before the settlement court. In short, the judgment creditor
cannot make use of Rule 39. He cannot move for the issuance of a writ of execution. If a trial court
issues a writ of execution, that writ is void. We cannot issue a writ of execution against an estate
that is being settled in a settlement court. It is the settlement court that has the authority to

determine who the creditors are and what claims will be approved and paid in the settlement
proceeding. And that cannot be interfered with by any other court.
If you will notice, in the Rule on settlement of estates, there is no instance by which a writ of
execution can be enforced against the estate of the deceased person. That is prohibited under our
system. Except the instance that is contemplated in Rule 39, when there is already a writ of
execution issued against a defendant who is still alive, and there is a levy on execution on the
properties of this defendant, and thereafter, the defendant died. The levy on execution can
continue and the properties can be sold at public auction. This is the only known instance where
there could be a writ of execution and a levy on execution against the estate of the recently
deceased judgment debtor/defendant in Rule 39. The general rule is we cannot enforce a judgment
against a deceased judgment debtor by using a writ of execution and levy on the properties of his
estate under Rule 39.
Although Rule 86 operate as a period of restriction, Rule 86 recognizes that certain creditors do not
have to submit their claims against the estate. And even if they do not submit their claims, their
claims will not be barred, they can still enforce their claims. This involves creditors who hold a
security, a mortgage, a pledge or any other security arrangement, contractual in character, that has
been entered into during the life the deceased debtor. So, a mortgagee, a pledgee or any other
creditor who holds a security is not required to submit a claim against the estate. He does not
participate in the settlement proceeding, but he can still enforce his claim. In fact, under Rule 86,
the secured creditors are given 3 options. The first is that they just abandon their security. So if the
creditor is a mortgagee at the same time, and he uses the first option, he will convert himself from
a secured creditor to an unsecured creditor. He gives up the mortgage, so he will be able to
participate in the proceedings. This does not seem to be very practical. Why should a secured
creditor convert himself into an unsecured creditor when there is no certainty that he is going to be
paid? But that is the first option given to secured creditors.
The second option relies on the collateral. Foreclose the mortgage. And if there is any deficiency,
with respect to the deficiency, submit a contingent claim within the statute of non-claims. So in this
second option, the mortgage is not abandoned, but foreclosed instead, and the creditor is required
to file a contingent claim for any deficiency.
In the third option, the secured creditor will rely entirely on his security. He can foreclose the
mortgage. But if there is a deficiency, he can no longer recover the deficiency against the estate.
He will have to be satisfied with what he received in the foreclosure of the mortgaged property.
There could be some questions pertaining to this rule on secured creditors in Rule 86. Remember
that the mortgagor/pledger is already dead. And if in the mortgage, the mortgagee is given a
special power of attorney to extra-judicially foreclose the mortgage, the administrator/executor or
any one of the heirs can bring out this issue, if the mortgagor is already dead, does it not follow that
the SPA given to the mortgagee to foreclose extra-judicially will be extinguished. Because what the
mortgagor gives to the mortgagee is a SPA to extra-judicially foreclose a mortgage, a contract

within a contract. In essence, a contract of agency is created, authorizing the mortgagee to extrajudicially foreclose the security.
Supposing the administrator challenges the authority of the mortgagee to extra-judicially foreclose
the mortgage, on the ground that under the NCC the death of the principal extinguishes the
agency. Is the administrator correct?
No. The SC said we do not apply that principle in agency through a case of secured credit and
security consists of a mortgage, pledge or any other form of contractual security arrangement. And
the SC said that the death of the mortgagor will not extinguish the agency, since the agency falls in
the concept in the civil code called an agency coupled with an interest. So if the mortgagor dies,
the mortgagee still retain the right to extra-judicially foreclose the security. So, we do not take away
the right of the mortgagee to extra-judicially foreclose the security even if the mortgagor is already
dead. That is the reason why in Rule 86, the mortgagee is given the 3 options: to abandon the
mortgage, foreclose the security and recover the deficiency by filing a contingency claim within the
statute on non-claims or rely solely on the foreclosure of the security and forget about the
deficiency.

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

Under the Rules also, if there are 10 claimants for money, and they all have submitted their claims
in the form of an affidavit, the Rules expect the administrator/executor to respond to the claims, so
he can contest or accept the genuineness or validity of the claims.
If the administrator/executor does not respond at all, can the court declare the
administrator/executor in default?
No. Because, the claim is not in the form of a complaint, only in the form of an affidavit. So there is
no default if the administrator/executor does not respond to the claim.
If the administrator/executor contests the claim, he is expected to reduce his contest formally in
writing, stating the defenses that the administrator/executor wishes to set up when that particular
claim is filed. If the administrator/executor admits the claim, he will simply state that he is not
contesting the claim. So it is very likely that the administrator/executor will collude or conspire with
a creditor who has filed a claim by simply telling the court that he is admitting the genuineness of a
particular claim. There is mechanism given in the Rules for this situation. If the
administrator/executor admits a claim for money, the heirs can submit their opposition to the
admission of the claim, in which case, the claim will become a contested claim.
If there are contest given by the administrator/executor to the 10 claims submitted by the creditors,
then the court will have to try these 10 claims, as if there is a full blown trial, to be taken up in the
settlement court. The court can easily avoid conducting a hearing in cases of contested claims by
using another provision in the Rule 86, that is to appoint commissioners in order to hear the claims
of the creditors.
In Rule 109, the order for each and every claim is considered as a final order. So if the court
eventually denies all the 10 claims, and the creditors feel aggrieved, expect the creditors to appeal
to the CA or SC as the case may be. There will be 10 appeals emanating from the same
proceedings. While these appeals are going on, the settlement court will have to wait until they are
finally adjudicated. So that is why although the policy of the state is to speedily dispose of
settlement proceedings, by providing in the Rules a clear period within which a settlement
proceedings should be terminated and closed, it is Rule 109 that will necessarily cause a delay in
the closure of settlement proceedings, because of the number of appeals that can be taken in each
and every final order that can be granted by the settlement court. Under the Rules, the resolution of
each money claim is a final order.
Let us assume that all claims had been resolved and granted by the court, and the
administrator/executor does not appeal. The final order became final and executory, it will now be
entered. Can the creditors, whose claims have been approved, file in the settlement court a motion
for execution under Rule 39?
No. The settlement court is not bound to issue or to order an execution of its own final order, even if
the final order is favorable to a creditor with a claim for money.
Does the judgment creditor have any other recourse?
None. He cannot make use of Rule 39.

The only recourse, if we can call it a recourse, available to a judgment creditor who has filed a
claim for money is to wait for the court to issue another order directing the administrator/executor to
pay all these claims. Until that order is issued, the administrator/executor has no authority to
voluntarily pay off the claims of the judgment creditors, although they have already been approved.
Insofar as creditors of an estate subject of settlement are concerned, even if they have won their
respective claims, there is guarantee that they are going to be paid. It is also possible that they will
not be paid at all if the estate is insolvent. There are more liabilities than assets, then the
settlement court will be forced to make use of the provisions in the NCC on preference and
concurrence of credits.
A creditor cannot tell himself that since his claims had been approved by the court, all that he
needs to do is to wait for the full payment. There is no assurance that a creditor in a settlement
proceeding could even be paid. If he is going to be paid, there is no assurance that he will get the
full amount of his claim, it could only be a part. This is when the court will start to use the NCC
provisions on preference and concurrence of credits.
In preference and concurrence of credits, there are credits that are more preferred than other
credits. There is need to pay these preferred creditors before the rest of the creditors can be paid.
And the Rules are very clear in saying that when there are more assets that liabilities in the estate,
the estate being insolvent, the settlement court is duty-bound to observe the preference and
concurrence of credits.
So, always have in mind that judgment creditor in a settlement proceeding cannot make use of
Rule 39. No writ of execution, no levy on execution. And, we cannot say with certainty that a duly
approved claim of a creditor will lead to payment in full. There could be full payment, partial
payment or no payment at all, depending on the financial condition of the estate that is being
settled.
How about the heirs? Can these heirs enter into possession of some of the properties under
liquidation?
They may not. The purpose of a settlement proceeding is primarily to protect the state and most of
the creditors of the deceased. Until the creditors of the decedent are fully satisfied, the heirs cannot
take over possession and control any of any properties of the estate. The entity that has full control
of the estate of a deceased person is the settlement court, probate court or intestate court as the
case may be.
So how will the surviving spouse and minor children survive?
There are some provisions in the Rules and the NCC that during the pendency of the settlement
proceedings, the surviving spouse and the children will be entitled to allowances determine by the
court. And it is the duty of the administrator to comply with the order of the court directing him to
give allowances to the surviving spouse and minor children.

What the settlement court is prohibited from doing is to allow the surviving spouse and the heirs to
take over possession and control over properties of the estate before the creditors are fully paid or
the estate has been exhausted for the payment of these creditors.
Supposing that the statute of non-claims has already expired, and the court has already resolved
the validity of these claims, but the administrator/executor reports to the court that there are not
much liquid assets of the estate. Can the court authorize the administrator/executor to pay creditors
whose claims had been approved through the mechanism known as accion en pago (pay using
properties belonging to the estate)?
Generally, dacion en pago is not allowed in settlement cases. A court will not allow or authorize an
administrator/executor to settle a monetary obligation with properties of the estate. The procedure
outlined in the Rules where assets are enough to pay, but the assets are not in cash is for the
administrator/executor to ask the convert for authority to convert the hard assets (properties) into
liquid assets (cash) by selling the properties of the estate.
The order of preference is to sell personal properties first. Generally, this is the rule followed by the
settlement courts. If we are going to sell properties in order to generate cash to pay off creditors,
we sell first personal properties. And then, if the proceeds are not enough still, the court can
authorize the sale, mortgage or encumbrance of real properties. So, the Rules seem to allow only
a sale of personal property, but not mortgage or encumbrance of personal properties of the estate.
But the Rules are very clear that in the case of real property, there could be a sale, mortgage or
encumbrance, if so directed by the court.
The authority of the administrator/executor to sell properties, whether real or personal, does not
stem from his authority as an administrator/executor. He should get a special order from the
settlement court authorizing him to sell particular pieces of properties. And it is the court that will
determine under what conditions under which the contract of sale should be had, and if signed by
the administrator/executor.
Can the administrator/executor, after he has obtained an authority to sell properties of the estate,
sell these properties in a private sale or public auction sale?
Yes to either, as long as the court authorizes the sale in either a private or public sale of these
properties. The settlement court has almost complete discretion in determining the cognizance for
the disposition of the properties of the estate for the purpose of generating money with which the
administrator/executor can pay the claims of creditors.
If the administrator/executor has already amassed enough cash in order to pay off the creditors,
can the administrator/executor start paying or liquidating in full the approved claims against the
estate?
He cannot still. He needs another order from the court, directing him, the administrator/executor, to
pay creditors whose claims had already been approved. So, the administrator/executor should
always be relying upon the directive that will be issued from the settlement court.

If the administrator is directed to pay off already his creditors because there are already enough
funds, and the creditor neglects to pay the creditors, can the creditors this time make use of Rule
39, to file a motion for execution?
They still cannot. We do not use Rule 39 in settlement proceedings. If the administrator/executor
disregards the order of the court directing him to pay his creditors, the creditors can move to cite
him in contempt of court, or the court can even remove him as an administrator/executor and
appoint another.
If all the creditors have been paid, and there are enough assets left for distribution to the surviving
heirs, legatees or devisees, if there is a will, the next problem to be resolved by the court is
determining who the heirs are. We have learned that a settlement court is a court of very limited
jurisdiction. Does it possess authority to determine who the heirs are?
Yes, that is part of the limited jurisdiction of a settlement court.
So if the settlement court can determine who the heirs are, the court is likewise authorized to
determine the distributive share of each of these heirs.
What the settlement court cannot do is to resolve contentious issues concerning title to or
possession of real property. In a dispute between the estate and a 3rd person concerning the
property, the settlement court has no authority to resolve that issue. It has to be resolved in an
ordinary civil action. The only recognized exception that is recognized by the SC, although not
contained in the Rules, is that if all the parties agree to submit this matter/dispute concerning title
or possession of property to the settlement court for resolution. If there is such an agreement, that
will place these parties in estoppel from challenging later on the resolution of the court.
The declaration by the settlement court as to who the hers are is another final order that can be
appealed to a higher court. It is not an interlocutory order.
Even if the heirs have already been determined by the court, the other problem now is how to
divide the estate and distribute the estate among the heirs. If they cannot agree on the manner of
division, can they file a special civil action for partition?
They cannot if there is a pending settlement proceeding in court. The partition of the estate, how
they will divide the property, is within the authority of the settlement court to determine. So if they
want the settlement court to have the ultimate responsibility to divide the property, they can submit
that issue to the settlement court.
If they do not want the settlement court to settle that issue, the compulsory heirs, the devisees and
legatees can agree on what is usually called in settlement proceedings as a project of partition. A
project of partition is usually agreed upon voluntarily among the heirs. They sign it and then submit
it to the court for approval. Once approved by the court, the court will issue another order directed
to the administrator called an order of distribution.

If the administrator/executor neglects to distribute, again the remedy is not Rule 39, it is simply to
cite the administrator/executor in contempt or the court will ask him to resign or be removed by the
court from that office.
If all the creditors had been paid, and the heirs have received their distributive shares according to
the project of partition, will the proceedings now be terminated?
Before termination, there is a final stage before the court will issue an order of closure, the order
which will terminate the proceeding. It is essential that the court should conduct a hearing and
approve the final accounting of the administrator/executor. Under the Rules, an
administrator/executor is required to submit an accounting once a year. If all these submissions
have been approved in the past, then there is no more need to repeat them during final accounting.
If you also again read Rule 109, each and every approval by the settlement court of an accounting
is a final order. If there is a final accounting submitted and that is approved by the court, it is a final
order. If that is appealed, the settlement court in the meantime will not issue an order of closure.
When there is already an order of closure, the period to appeal therefrom has expired, then the
order of closure will be entered. That will mark the end of the proceedings.
Supposing that after the order of closure has been entered and the proceedings have been
terminated, here comes an heir who claims that he has been deprived of his distributive share in
the estate, and here comes a creditor who claims he is a creditor for money but he was unaware
that there was a settlement proceeding.
Can the heir file his own petition for the settlement of estate for the same decedent? Can the
creditor also commence his own petition for the settlement of the estate?
No to both remedies. There should be only one settlement court allowed, and it has already
terminated the proceedings.
If there is only one settlement court allowed, but the settlement proceedings have already been
closed, what remedy do the heir and creditor have, if there is any remedy at all, that is if we want to
life to the principle that there should be only one settlement court?
The remedy of the heir is to look for reopening of the case. A proceeding that has already been
closed can be reopened by the same settlement court. This is insofar as the heir is concerned, if
he can show that he has been unjustly deprived of his estate.
But insofar as the creditor for money is concerned, he does not have this privileged for asking for
reopening, because his claim for money must have been filed during the running of the statute of
claims. If he has failed to do so, following the provisions of Rule 86, the creditors claim shall be
barred forever.
So, the person who can ask for reopening will be an heir, not a creditor of the estate.
Remember that a final order in settlement proceedings is considered a judgment in rem. It binds
anybody who might have an interest upon the estate. That is the rule we are applying insofar as the

creditor is concerned. The order of closure will be binding upon the creditor, because the
prescriptive period given in the Rules has already lapsed. His claim is barred forever.
But insofar as the heir is concerned, he can capitalize on a provision in the Rules which says that
aside from publication of the notice of hearing of the probate of a will, or for the filing of letters of
administration, it also jurisdictional for that settlement court to give personal notice to the heirs,
legatees or devisees mentioned in the will.
The notice, which is also jurisdictional together with the publication, refers to a notice by registered
mail that must be strictly adhered to by the settlement court. Otherwise, if not strictly adhered to
insofar as the heir is concerned, he can always contend that the court has not acquired jurisdiction
over his person. That could be used by this heir deprived of his share in order to challenge the
nature of the order of closure as a judgment in rem.
The SC has not fixed any period at all within which a motion or petition for the reopening should be
filed. It seems that it is not possible to fix a period within which a period for reopening could be
filed, because if we place a period of prescription, the only remedy that will be left to the heir will be
to file his own petition for the settlement of the estate, which is not allowed under these Rules. So,
as of now, there is really no fixed period within which a petition for the reopening of the settlement
proceedings could be filed.

Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the
estate?
COMPEL THE SETTLEMENT OF ESTATE IN COURTS
Should be brought within 2 years after settlement and distribution of the estate
GROUNDS: (Section 4, Rule 74)
a. If there is undue deprivation of lawful participation in the estate;
b. Existence of debts against the estate.
ACTION FOR RESCISSION
It must be availed of within 5 years from the time the right of action accrues. (Art. 1149, NCC)
Also applicable in judicial proceedings
ACTION FOR RECONVEYANCE OF REAL PROPERTY
GR: It is based on an implied or constructive trust which prescribes in 10 years from the date of
registration or date of issuance of certificate of title or from actual discovery of fraud if the
registration was made in bad faith.
XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for
value and good faith, action is imprescriptible. (Marquez v. CA, G.R. No. 125715, Dec. 29, 1998)
Also applicable in judicial proceedings.
REOPENING BY INTERVENTION IN SUMMARY SETTLEMENT
Upon motion of a person who either:

a. Has a legal interest in the matter in litigation;

b. Has such legal interest in the success of either of the parties, or an interest against both; or
c. Is so situated as to be adversely affected by the distribution of property in the custody of the
court or of an officer.
Note: May be availed of after judgment but before its finality or appeal by the aggrieved party.
PETITION FOR RELIEF (SUMMARY SETTLEMENT)
On grounds of fraud, accident, mistake, and excusable negligence within 60 days after petitioner
learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months
after such judgment or final order was entered. (Rule 38.) Also applicable in judicial proceedings.
ACTION TO ANNUL A DEED OF EXTRA-JUDICIAL SETTLEMENT OR JUDGMENT IN
SUMMARY SETTLEMENT
On the ground of fraud which should be filed within 4 years from the discovery of fraud.
ORDINARY ACTION BUT NOT AGAINST THE BOND
If the order of closure has already become final and executory, the heir must file an independent
civil action of accion reinvindicatoria to recover his deprived share.
Note: It must be brought within 10 years from the time the right of action accrues. [Art. 1144(c)]
Also applicable in judicial proceedings.
After the lapse of two years an ordinary action may be instituted against the distributees within the
statute of limitations but not against the bond.

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

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

compensation to the owners. If it were expropriation or eminent domain, the Republic of the
Philippines will be forced to pay just compensation for these dormant deposits.

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

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

If you are asked whether a writ of habeas corpus issued by a court will release a detainee from
detention, that is if upon issuance of the writ, will that result to the release of the detainee from
detention?
No. A writ of habeas corpus, even if issued by the court, does not mean the detainee will be
released from detention. What the writ of habeas corpus provides is that the respondent will be
required to present to the court the detainee on a particular day and period before the court. And
after the detainee had been presented on that particular day and period, the respondent would
have complied with the writ of habeas corpus. So a petition for habeas corpus, once granted, does
not mean that the detainee will be released from detention.
What will release the detainee from detention?
Under Section15, Rule 102, if the writ is issued with a complimentary order after hearing that will
lead to the release of the detainee from detention. The order in Section 15 is called an order of
discharge or an order of release. So, it is not the writ of habeas corpus itself that will lead to the
release of the detainee.
Rule 102 SEC. 15. When prisoner discharged if no appeal.When the court or judge has
examined into the cause of caption and restraint of the prisoner, and is satisfied that he is
unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but
such discharge shall not be effective until a copy of the order has been served on the officer or
person detaining the prisoner. If the officer or person detaining the prisoner does not desire to
appeal, the prisoner shall be forthwith released.

It is the order of discharge or release that will be issued by the court after conducting a hearing,
which could be a summary hearing, after a return was submitted by the respondent to the court. So
that is a complementary order issued by the habeas corpus court that will now authorize the
detainer to release the detainee.
With respect to jurisdiction, the provisions of the law creating the Family Court, the Constitution as
well as BP 129 have long been the subject of discussions, because under the law creating a Family
Court, the court has exclusive original jurisdiction over petitions for custody of children and habeas
corpus in relation to custody of children. The intention of the law is quite clear by merely reading
the substantive law creating the Family Court. The family court has exclusive original jurisdiction
over petitions for habeas corpus in relation to custody of a minor. And of course, in the Constitution,
the SC has also original jurisdiction over petitions for habeas corpus, together with certiorari,
prohibition, mandamus, etc. And then, under BP 129, the CA is likewise vested with original
jurisdiction over the same petitions. That includes habeas corpus. The RTC likewise has original
jurisdiction over petitions for habeas corpus.
So, there seems to be an inconsistency or conflict between the Constitution, BP 129 and the law
creating a Family Court which assigned to a family court exclusive original jurisdiction over petitions
for habeas corpus in relation to custody of a minor.
The SC has already settled this issue. The SC has already ruled that notwithstanding the
provisions of the Family Court Law assigning exclusive original jurisdiction to a family court over
petitions for habeas corpus in relation to custody of a minor, the SC, CA and the RTC still exercise
jurisdiction over petitions for habeas corpus.
From a procedural point of view, habeas corpus is limited to only two instances. The first is when
there is unlawful detention, which deprives a person of his liberty. And the second situation is when
the lawful custody of the person is withheld.
If there is a detainee who complains that his detention is unlawful, he will file a petition for habeas
corpus. Rule 102 provides that the petition can be filed by a person on behalf of the detainee. Our
problem in habeas corpus is that jurisprudence is to the effect that when there is another person
who files a petition for habeas corpus on behalf of the detained person, this has been construed
very restrictively by the SC. The SC has ruled several times in the past that a stranger who files a
petition for habeas corpus on behalf of a detainee should show or demonstrate his personality or
his standing as to why he is interested in the release of the detainee. So there must be a
relationship between the petitioner and the detainee, if the petition is not filed by the detainee
himself.
If the petition is sufficient in form and in substance, the habeas corpus court can right away issue
the writ of habeas corpus. There is no need for the court to hear the side of the respondent. So if
we stop at these principles of habeas corpus, it would seem that habeas corpus is a prerogative

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

Q: When is habeas corpus not applicable?

A:
1. When detained under a lawful cause.
2. In case of invasion or rebellion or when public safety requires it, under Art. III, Sec. 15, 1987
Constitution.
3. When in case of invasion or rebellion or when public safety requires it, for a period not exceeding
60 days, under Art. 7, Sec. 18, 1987 Constitution.
4. If the jurisdiction of the court to try the person detained appears after the writ is allowed. (Sec. 4,
Rule 102).
5. If the person is in custody of an officer under process issued by a court or by virtue of a
judgment or order of a court of record which has jurisdiction to issue the process, render the
judgment, or make the order. (Sec. 4, Rule 102).
6. If the person is charged or convicted of an offense in the Philippines. (Sec. 4, Rule 102).
7. If the person is suffering imprisonment under lawful judgment. (Sec. 4, Rule 102).
8. In case of three-day retention of a suspect for three days without charge, pursuant to Sec. 18 of
the Human Security Act.
9. When person is serving final sentence imposed by court.
10. For asserting or vindicating a denial of right to bail.
11. For correcting errors in appreciation of facts or of law.
Note: Issuance of a writ of habeas corpus may not lie in order to revive a settled issue of the
validity of the writ of preliminary injunction issued in an agrarian case allegedly on the ground of
the existence of a tenancy relationship between the parties arising from their arrest for having
assaulted persons in authority. (Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996).
Loss of the records of the case after petitioner, by his own admission, was already convicted by the
trial court of the offense charged will bar the issuance of a writ of habeas corpus. The loss must
have occurred prior to the filing of the information against him. (Feria v. CA, G.R. No. 122954, Feb.
15, 2000).
It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in
the Criminal Case. That is error. If the Accused was illegally detained because he was arrested
without a preliminary examination, what should have been done was to set aside the warrant of
arrest and order the discharge of the Accused, but without enjoining the Municipal Judge from
conducting a preliminary examination and afterwards properly issuing a warrant of arrest. Habeas
Corpus proceedings are not meant to determine criminal responsibility. (Alimpoos v. CA, G.R. No.
L-27331, July 30, 1981).
In case of an illegal arrest, the petition for a writ of habeas corpus will still not prosper if the
detention has become legal by virtue of the filing before the trial court of the complaint against him
and by the issuance of an order denying bail. (Velasco v. CA, G.R. No. 118644, July 7, 1995).

Habeas Corpus may be had to give retroactive effect to a previous ruling of the Supreme Court
favorable to the accused when the accused has already served the full term for a crime which the
Court has declared non-existent. (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026,
Jan. 30, 1971). However, it will not lie if the penalty of imprisonment imposed by the court is longer
than that allowed by law. Such error of judgment may be corrected by appeal or by the President.
(Pomeroy v. Director of Prisons, G.R. No. L-14284, Feb. 24, 1960).
The writ of habeas corpus cannot be issued in cases in which the Bureau of Immigration has duly
ordered the deportation of undocumented aliens, specifically those found guilty of illegally entering
the Philippines with the use of tampered and previously cancelled passports. (Tung Chin Hui v.
Rodriguez, G.R. No. 141938, April 2, 2001).
Q: May a wife secure a writ of habeas corpus to compel her husband to live with her in the conjugal
home?
A: No. Marital rights including coverture and living in conjugal dwelling may not be enforced by the
extra-ordinary writ of habeas corpus. In case the husband refuses to see his wife for private
reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right.
That is a matter beyond judicial authority and is best left to the man and womans free choice.
(Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000).

But if we reach the last sentence of Section 4, then the problems will now come out. Because in
the last sentence of Section 4, it is provided that if a person has been convicted or charged of a
crime, he is under detention by a lawful process issued by a court, there is no way that he can be
released from detention through a petition for habeas corpus.
Rule 102 SEC. 4. When writ not allowed or discharge authorized.If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process issued by a court
or judge or by virtue of a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by
reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule
be held to authorize the discharge of a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment.
And then, if we relate Section 4 to Section 13 of Rule 102, we will meet very strict procedural
requirements which the
Rule require the petitioner to comply with so that the court will be convinced in order to issue a writ
of habeas corpus or an order of discharge. Section 13 apples when a return is already submitted
by the respondent.
Rule 102 SEC. 13. When the return evidence, and when only a plea. If it appears that the
prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be

considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any
alleged private authority, the return shall be considered only as a plea of the facts therein set forth,
and the party claiming the custody must prove such facts.
You will notice that in Rule 102 although the court can issue the writ can be issued without hearing
the other side as long as the petition is sufficient in form and substance, there is nothing in Rule
102 which fixes a date when a return should be filed in the habeas corpus. So, we rely on the
discretion of the court as to when a return should be filed by the respondent. So the court can
require the respondent to file the return after 15 days, 20 days or 30 days as the case may be.
If the respondent indeed files a return, Section 13 provides that if the respondent is a public officer,
and he admits that he is detaining the petitioner, the detainee, but under some process issued by
the court, that return is prima facie presumed to be correct. That means the detention is correct, if
that is the tenor of the return submitted by the respondent. But if the detainer is not a public officer,
a private individual, when the return says that the detention by the respondent private individual is
lawful, it is not considered as presumably correct. It will only be considered as a plea.
Why is this Rule very prejudicial to the detainee? Let us say the respondent is the chief of the PNP,
he is required to file a return. He submits a verified return saying that they are detaining petitioner
based on court processes authorizing detention by the PNP. Insofar as the habeas corpus court is
concerned, the detention is presumably lawful. So it is up to the petitioner to contravene this
disputable presumption of regularity in the performance of service by the PNP. From a purely
evidentiary angle, that will make it hard for the petitioner to disprove the disputable presumption
created in Section 13, that the detention is prima facie presumed to be an orderly and lawful
detention.
Why do we say this? Because if the respondent has in his favor that the detention is prima facie
proper, then, he does not have to present any evidence at all about the lawfulness of the detention.
He enjoys a presumption created by law. It is the burden of the petitioner to disprove that
presumption, to present the quantum of evidence necessary to dispute the presumption of
regularity given in the Rules and by substantive law.
If the respondent enjoys this disputable presumption that the detention is lawful, the quantum of
evidence required in the RoC to defeat a disputable presumption is of a much higher level, that is
the level of clear and convincing evidence. But remember that habeas corpus is not a criminal
case. It is a special civil action akin to an ordinary civil action or even a special civil action, and the
quantum of evidence in ordinary or special civil actions is just preponderance of evidence. But in
habeas corpus, because the respondent enjoys a disputable presumption, that the detention is
lawful and proper, it will create a very big burden on the part of the petitioner to present evidence
that will reach the level of clear and convincing evidence to disprove that disputable presumption.
That has always been the rule that was followed in habeas corpus cases.
But if the one detaining is not a public officer, a private individual, then we dont apply this
disputable presumption of regularity. For instance, if a woman gives birth to an infant in a clinic,

and when she wants to leave the clinic, the clinic tells the woman that she is allowed to leave, but
the infant must be left behind and will stay there until the woman has fully paid the medical bills.
That could be the subject of habeas corpus, because the lawful custody of the mother is being
unlawfully withheld from her, as means of leverage against the woman to enforce payment of
hospital bills. And if there is a return submitted by the owner of the clinic, it is up to him to prove
that the detention is lawful. The quantum will only be preponderant evidence, which is the same
quantum the petitioner will also be required to submit to court.
In Section 4 also, if you notice, if there is already a conviction by the court, and the convict is now
in jail, a petition for habeas corpus will not be proper in order to obtain his release. But, there are
several exceptions to this rule. Even if a person is already convicted of an offense, and the
conviction has become final and executory, and he is now serving sentence, he can still obtain his
release through a petition for habeas corpus if the situation is covered by the Rule on DNA
evidence (A.M. No. 06-11-5-SC). There is a section on the circular on DNA evidence entitled postconviction DNA testing.
(A.M. No. 06-11-5-SC)SEC. 10. Post-conviction DNA Testing. Remedy if the Results Are Favorable
to
the Convict.The convict or the prosecution may file a petition for a writ of habeas
corpus in the court of origin if the results of the post-conviction DNA testing are
favorable to the convict. In case the court, after due hearing, finds the petition to be
meritorious, it shall reverse or modify the judgment of conviction and order the release
of the convict, unless continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals or the Supreme
Court, or with any member of said courts, which may conduct a hearing thereon or
remand the petition to the court of origin and issue the appropriate orders.
If a person is convicted of a crime, he is now in jail because the judgment has become final and
executory. While in jail, he can move for DNA examination. If the DNA examination results are
favorable to him, in the sense that the findings create a doubt as to whether or not he is the one
who committed the crime, he can obtain his release through a petition for habeas corpus. In other
words, the judgment of conviction that has become final and executory can be overturned by a
petition of habeas corpus. Remember that the judgment is now final and executory, and if we use
civil law, there is now res judicata. But DNA Circular says that in a post-conviction DNA testing
authorized by the court, if the finding creates a doubt as to whether the detainees stay in jail is still
proper, an RTC can entertain a petition of habeas corpus and overturn a judgment of conviction
that has become final and executory.
There are other instances where a judgment of conviction although final and executory can be
defeated by a petition for habeas corpus. In one case, there was a judgment of conviction, serving
his sentence. While the convict was serving sentence, the Congress enacted a law which reduced
the penalty for the crime committed by the convict. Since the convict has served the sentence as
imposed by the new law, he filed a petition for habeas corpus, saying that he has already served

the sentence, and therefore his stay in jail constitutes deprivation of his liberty, a case of unlawful
detention. And the court issued the writ of habeas corpus and ordered the release of the convict.
(Robin Padilla case)
So simply because there is a final judgment of conviction, it does not mean to say that petition for
habeas corpus is no longer available as what Section 4 intends to say as a message. There are
several instances still where a final judgment of conviction can be overturned, and the convict will
be released from custody.
In habeas corpus also, when it comes to a return filed by a respondent public officer, if the
respondent tells in the return that he has custody of the detainee a few months ago, but the
detainee has already been released by said officer, with documentation showing that the detainee
has already been release, what is the effect of this return upon the petition of habeas corpus?
The SC said that if the detainee has already been released, and proven by preponderance of
evidence, then the petition for habeas corpus has become moot and academic and the petition for
habeas corpus is going to be dismissed.
Or, in other instances when a public officer submits a return consisting of one sentence, stating that
he does not have the petitioner in his custody, that is a sufficient return according to the SC.
In other words, when it comes to habeas corpus, if you look at it solely from a procedural point of
view, the aces are in the hand of the respondent public officer. He can file a very simple return that
is effectively a general denial, if we are going to apply the rules for ordinary civil actions. The
statement of denial of custody is a general denial as it does not give the circumstances upon which
he relies upon to support that denial. That is allowed in habeas corpus. This because, habeas
corpus is not a civil action, and therefore, the rules of ordinary civil procedure cannot be applied to
a petition for habeas corpus.
There are several procedural defects that a petition of habeas corpus will have to waive if we rely
solely on Rule 102. These defects were pointed out a while ago. A general denial is allowed. We
cannot compel a respondent to give particulars in support of that denial.
Another procedural defect is that a person, not a detainee, who files a petition must show to the
court why he is interested in the release of the detainee. If he cannot show any interest in the
freedom of the detainee, he will be considered as not having the standing to file the petition for
habeas corpus.
And then, when it comes to evidentiary rules, Section 13 will always support the stand of the
respondent public officer who is detaining person. Every time that he asserts that the detention was
because of some process issued by a court, his stand will be presumed, although disputable, to be
correct. Therefore, if the stand of the public respondent is the correct stand, the habeas corpus
court will consider the detention of the detainee as one that is lawful and proper.

When it comes to appeal, we have a special rule when it comes to habeas corpus. In spite of the
different decisions of the SC in the past as to the period of appeal in habeas corpus cases, the SC
finally resolved that the period to appeal in habeas corpus cases is the one found in BP 129. The
period of appeal is 48 hours, not 15 days, not 30 days. And the SC relied solely on provisions of BP
129. If you read the last chapter on general provision of BP 129, there really is a 48 hour period in
which to perfect an appeal in habeas corpus cases.
Since there is a respondent in habeas corpus cases, do we consider that as one in personam or is
it one in rem?
This another settled matter. SC held that it is a proceeding in rem, although there is a particular
respondent impleaded in the action.
If we analyze the effect of authorizing a petition for habeas corpus in order to obtain the release of
a person in jail or already serving a sentence by virtue of a judgment of conviction rendered by a
competent court, like the rule on post-conviction DNA testing, we will immediately appreciate that
habeas corpus is a means by which we can attack collaterally a final and executory judgment. That
is why, when we are talking about Rule 47, annulment of judgments in civil cases, we said that
while annulment of judgment in Rule 47 is not applicable to a criminal case, the remedy available in
a criminal case is more convenient, because the remedy available in a criminal case to defeat a
final and executory judgment is simply a petition for habeas corpus.
Why is habeas corpus a collateral attack on a judgment?
Because the relief which the petitioner in habeas corpus seeks is for the court to issue an order
saying that the detention is unlawful and there is deprivation of liberty. The habeas corpus court will
not determine directly whether or not the conviction is proper or should be set aside, and that is
why it is always a collateral attack from a judgment.
If you compare habeas corpus to annulment of judgment, we will readily conclude that annulment
of judgment is really a direct attack against the final and executory judgment because the relief
which the petitioner in Rule 47 seeks is to declare the judgment null and void, it should be set aside
because of lack of jurisdiction over the subject matter or the person, or based on extrinsic fraud.
That is not what habeas corpus does.
When the habeas corpus court releases a person on a finding that his confinement or detention is
unlawful. But in declaring that his confinement is unlawful, the court will effectively say that there
really is something wrong with the judgment that has been rendered by the court. But the habeas
corpus court does not say that the court did not have jurisdiction over the subject matter or the
person, or that there was fraud committed during the pendency of the case.
A habeas corpus court, since it is trying a special proceeding, will also be acting with a very limited
jurisdiction. So if there is a petition for habeas corpus, and there is an allegation that the petitioner
or detainee is being unlawfully detained, and that he is being deprived of his liberty, the
detainee/petitioner cannot apply for the issuance of preliminary mandatory injunction in order to
compel the immediate release of the detainee. This is because the court will be acting in a limited

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

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

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

the aggrieved party suspends the right of all others, observing the order established herein. (Sec.
2).

With respect to the return in amparo, if we compare it to habeas corpus, there is a very big
improvement. In amparo and even in habeas data, there is a very clear statement that a general
denial is not allowed. So if the respondent submits a return containing a general denial, that will be
disregarded by the court and then the court may cite the respondent in contempt of court; unlike in
habeas corpus wherein a general denial is allowed.
With respect to the evidentiary rules, what is the quantum of evidence required in amparo?
You are familiar with the circular which says that although amparo is being heard by a court, not by
a quasi-judicial body, the evidence required on both parties is merely substantial evidence. And the
respondent cannot capitalize on a disputable presumption of regularity in the performance of
official duty.
So if the respondent is a public officer, which is an essential element in a petition for amparo, even
if the respondent will say that he has in his custody or is detaining the petitioner, and he submits
documents showing that the detention is supported by orders of another court or another body, he
cannot enjoy the presumption of regularity in the performance of official duty. So, the amparo court
will not look at the detention as a proper and regular detention. It will still look at the detention as
more likely to be an unlawful detention of the petitioner. And the petitioner in amparo cases will only
be required to reach the quantum of evidence called substantial evidence, the quantum of
evidence applied only in quasi-judicial bodies. In court proceedings, the usual quantum of evidence
is usually proof beyond reasonable doubt, preponderance of evidence or clear and convincing
evidence, which should normally be applied to a proceeding for amparo. But the SC has lowered
the quantum in amparo, although the court is not a quasi-judicial body. The respondent cannot set
up the defense the theory should be presumed to be proper and regular due to the disputable
presumption of regularity in the performance of official duty.
Last year, the court decided the case entitled Bambico vs. Nieva (June 2012). The SC clearly
spelled out the principle that in a petition for amparo, there should be an allegation essential to the
succession for the prosecution of the petition that the respondents or the defendants are agents of
the state; or even if the respondents are only private citizens, there should be an allegation that
these respondents have been instructed or they have been used by government agents in causing
the enforced disappearance or violation of the constitutional right of the petitioner. SC said if there
is no such allegation as to the participation of government agents, the petition for amparo will fail. It
will simply be a criminal act that has been committed by private individuals. That is not a part of the
circular, that when the SC was given a chance to explain the concept of amparo in relation to
conventions entered into among several states of which the Philippines is a member, the SC
emphasized this essential allegation: that there should be a participation by the state or by agents
of the state in causing the enforced disappearance of the petitioner.

Also from another procedural angle, in habeas corpus, a habeas corpus court has the final say in
fixing the submission of a return. In amparo, there is a 72 hour period fixed in the circular. And
then, if you will notice in the circular on amparo, there is a long deliberation of prohibited pleadings
and motions, similar to that in summary procedure, small claims procedure, and even in habeas
date. Whereas there are no prohibited pleadings and motions in Rule 102 with respect to a petition
for habeas corpus.
Another important difference between habeas corpus and amparo is the express acknowledgment
by the court now of the existence of provisional remedies. In habeas corpus, we cannot apply for a
provisional remedy. But in the circular for amparo, there are 4 interim reliefs. They are effectively
provisional remedies that could accompany petition for a writ of amparo. They are Protection Order,
Inspection Order (IO), Production Order and Witness Protection Order (WPO).
The IO and Production Order as interim reliefs in amparo are available to both petitioner and
respondent. But the Protection Order and WPO` are both available only to the petitioner. And in
these Production Order and IO in amparo, the amparo court should conduct a hearing before
issuing these orders. The amparo court cannot simply grant a motion ex-parte for the issuance of
these interim reliefs.
You will also notice a big difference in amparo and habeas corpus. The appeal in amparo cases is
always to the SC under Rule 45. And the issues that could be raised, even if it is the SC that will be
hearing it, could be both issues of fact and issues of law, although the mode of appeal is under
Rule 45. This is a departure from the usual principle that we apply when we appeal under Rule 45.
The general rule that we apply in an appeal under Rule 45 to the SC is that we can only raise
questions of law. But when it comes to amparo cases that are appealed to the SC under Rule 45,
the appellant can raise both questions of fact and questions of law.
You will also notice that in the circular on amparo, there is a provision which says it can co-exist
with other criminal, civil or administrative proceedings that are filed with the competent court or
body. So there is nothing wrong if a petition for a writ of amparo involving enforced disappearance
or extralegal killing filed in an amparo court, and there is a criminal case is filed before an RTC
concerning the enforced disappearance. The two can stand together, but with several
qualifications.

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

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

PETITION FOR ADOPTION

Q: What is adoption?

A: It is a juridical act, a proceeding in rem, which creates between two persons a relationship
similar to that which results from legitimate paternity and filiation.
Q: What is the State policy on adoption?
A: It is the policy of the State to ensure that every child remains under the care of his or her
parent/s and be provided with love, care, understanding and security towards the full and
harmonious development of his personality.
Q: What is a Child Legally Available for Adoption?
A: A Child Legally Available for Adoption refers to a child in whose favor a certification was issued
by the DSWD that he/she is legally available for adoption after the fact of abandonment or neglect
has been proven through the submission of pertinent documents, or one who was voluntarily
committed by his/her parent(s) or legal guardian. (Sec. 2(5), R.A. 9523).
Q: What is the requirement in order that the child may be declared legally available for adoption?
A: There must be a certification which shall be issued by the DSWD in lieu of a judicial order, thus
making the entire process administrative in nature. The certification, shall be, for all intents and
purposes, the primary evidence that the child is legally available in a domestic adoption and in an
inter-country adoption proceeding (Sec. 8, Ibid.).
Q: Can minor children be legally adopted without the written consent of a natural parent on the
ground that the latter has abandoned them?
A: No. Adoption cannot be had without the written consent of a natural parent who has allegedly
abandoned them. Abandonment cannot be merely presumed, it must be duly proven. Moreover,
there should be proof of emotional abandonment. (Cang v. CA, GR No. 105308, Sept. 25, 1998).
Q: Is publication of the hearing for adoption necessary for the adoption to be valid?
A: Indeed, publication of the scheduled hearing for the petition for adoption is necessary for the
validity of a decree of adoption but not for the purpose merely of taking a deposition. In taking a
deposition, no substantial rights are affected since depositions may or may not be presented or
may even be objected to when formally offered as evidence at the trial of the main case later on.
the philosophy behind adoption statutes is to promote the welfare of the child and every reasonable
intendment should be sustained to promote that objective. (Republic v. Elepano, G.R. No. 92542,
Oct. 15, 1991).
Note: The necessary consequence of the failure to implead the civil registrar as an indispensable
party and to give notice by publication of the petition for correction of entry was to render the
proceeding of the trial court, so far as the correction of entry was concerned, null and void for lack
of jurisdiction both as to party and as to the subject matter. (Republic v. CA, G.R. No. 103695, Mar.
15, 1996).
Q: What is the effect of adoption created under the law of a foreign country?

A: It is entitled to registration in the corresponding civil register of the Philippines. It is to be

understood, however, that the effects of such adoption shall be governed by laws of the Philippines.
(Marcaida v. Aglubat, G.R. No. L-24006, Nov. 25, 1967)

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

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

Insofar as domestic adoption is concerned, there is also a separate special proceeding, although
related to adoption, it is always separate from a petition of adoption itself, it is rescission or
revocation of adoption, also governed by the Domestic Adoption Act. In this separate special
proceeding for revocation of adoption, or rescission of adoption, the petitioner is the adoptee, and
the relief he seeks for the family court is for the family court to he seeks for the family court is for
the family court to revoke or rescind the decree of adoption. If you will notice in the Domestic
Adoption Act, this remedy is exclusively available to the adoptee only. If the adoptee and adopter
cannot live together peacefully, the adoptee is given this remedy to file an independent special for
the revocation or rescission of the adoption.
The venue is where the adoptee resides. But when it comes to adoption, the venue is the place of
residence of the adopter. It is only the adoptee who can avail of the special proceeding for the
revocation or rescission of the adoption. The adopter cannot avail of this remedy. So if it is the
adopter who is the victim of abusive conduct by the adoptee, the adopter cannot go to court for the
rescission or revocation of the decree of adoption. But if it is the adoptee who is the victim of
abusive conduct by the adopter, he can avail of this remedy.
Is it unfair to the adopter who could a victim of abusive conduct by the adoptee?
It is not, according the Domestic Adoption Law as the law gives to the adopter a remedy. The
remedy given is for the adopter to disinherit the adoptee. That is the only recourse given to the
adopter given under the law if he is a victim of abusive conduct from the adoptee.
Why the different treatment when it comes to the availability of remedies by the adopter and the
adoptee?
The reason is because these adoption laws are construed to be in favor of the adoptee, of the
minor.
If the adoptee is given this recourse while the adopter is given remedy to disinherit adoptee, is it
not easier for the adopter to avail of the remedy because what the law tells us is that what an
adopter must do is very simple if will just disinherit the adoptee?
If you will look at the provisions of the NCC concerning disinheritance, you will notice that
disinheritance must be contained in a last will and testament. And if that must be contained in a
last will and testament, if the adopter dies, that will must be submitted for probate, it must be
accepted/allowed by the court in a probate proceeding. There must be proof that the will has
complied with the formalities contained in the NCC. If by chance the will of the adopter is not
admitted to probate, then that remedy of disinheriting becomes ineffective, because if the will is not
admitted to probate, there will be no disinheritance, and the adoptee will continue to be an heir of
the adopter. Unlike a revocation or rescission of a decree of adoption, in which the decree of
adoption will be set aside altogether, there will be no more relationship between the adopter and
adoptee.

RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

Q: What is the nature of proceedings in Rule 108?

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

The last special proceeding which can be attached to a petition for adoption is that in Rule 108,
correction of entries in the records of the local civil registrar. For purposes of the Bar, we should be
concerned principally with what entries in the records of the local civil registrar could be changed
administratively or under Rule 108.
Can there be a change of citizenship?
In the records of civil registry in the certificate, can there be a change of filiation from legitimate to
illegitimate?
Can there be a change of sex or gender?
Can there be a change of name?
In the case of citizenship in the records in the local civil registry, as entered in the birth certificate of
a person, do not forget the case of Republic vs. Valencia. That is the leading case where the SC
said that the entry in the citizenship from Chinese to Filipino can be allowed. Although, it is
substantial, that is not a mere clerical error. It is not simply innocuous, we are changing the
citizenship from Chinese to a Filipino. SC said that it can be done under Rule 108 as long as the

court will conduct a full-blown hearing, different than the hearing contemplated in Rule 108, which
is a summary hearing.
When it comes to change or correction of entry involving a substantial change, it can be done, so
long as a full-blown hearing is done under Rule 108. There is a need for respondents the chance to
present its own evidence, to cross-examine the witnesses of the petitioner and they are notified of
everything the court will do in the petition under Rule 108 with respect to citizenship.
With respect to filiation, in the certificate of birth, there is an item for filiation, whether legitimate or
illegitimate. There was a petition for the correction of filiation of the children born to a particular
woman where the petitioner filed his petition to correct the entry in that certificate of birth from
legitimate to illegitimate. The petitioner said that she is the lawful spouse of the person mentioned
as the father of the children, but the children are not hers, but the children of the mistress of her
spouse. They cannot be considered as legitimate children. They should be considered as
illegitimate children. So the issue to be resolved was that could it be done under Rule 108 as the
change that was going to be involved was substantial. Changing filiation of the children from
legitimate to illegitimate will mean that the hereditary rights of these children will be significantly
reduced. As legitimate children, they are entitled to so much of the estate, whereas as illegitimate
children, each will get of what a legitimate child would get. SC, applying the principle in Republic
vs. Valencia, also said that it could be done as long as the hearing conducted is not a summary
hearing. It is a full-blown hearing where we notify the Solicitor-General or his representative, we
comply with all the requirements given in Rule 108 concerning publication, where the petition will
be filed, to implead the local civil registrar as a respondent in that petition. The bottom line is it can
be done as long as the hearing conducted is a full-blown hearing. The process is adversarial,
according to SC.
With respect to gender, we have now a new law authorizing an administrative change of gender
from male to female or vice versa, enacted last year.
It gives to the local civil registrar the authority to change the gender of a person. But, the limitation
in that law authorizing the local civil registrar the authority to change the gender of a person is by
reason only of a clerical error or innocuous error.
Before this new law was enacted last year, the SC had already established certain rules concerning
sex change. The general rule, according to SC is that we do not allow under Rule 108 a change of
sex if the sex change by reason of human intervention. For instance, if a man decides to become a
female via a medical procedure, and after such operation, he applies for change of entry of gender
from male to female (Republic vs. Silverio). SC held that is not allowed. If there is human
intervention, that will not be allowed under Rule 108.
That was the general rule until the SC was confronted by the case of Cagandahan (a
hermaphrodite). In the case of Cagandahan, the SC allowed the change from male to female
because the SC cannot do anything about the problem really. Even the doctor of the infant could
not determine the gender of the infant. SC called it intersexuality. If the person is intersexual, and

on the birth certificate the infant is made to appear as female, but as years go by, upon reaching
the teenage years, the features suddenly changes from female to male, there could be sex change,
SC said, because of the reason of absence of human intervention, by reason of the constitution
form birth of the child. So, we have no sex change under Rule 108 based on the requirements
given by the SC in the Cagandahan case.
Now, here comes a new law, which authorizes a local civil registrar, to allow administratively a
correction of entry from male to female, if the entry is proven really to be clerical or innocuous as
the case may be. Under that law, the local civil registrar or the consul to a foreign country could
also use this prerogative, provided that they are presented with records from the birth of this
individual, which will convince him that the entry made in the certificate of birth is wrong. In other
words, if the school records or baptismal records of the child invariably indicates that the child is
really a female, but then the record shows that he is male, and then there is the certification by a
government doctor that there was no human intervention that was made. According to this new law,
the local civil registrar has the authority to administratively change the entry concerning the gender
of a person.
This new law also enlarges the authority of a local civil registrar to change entries. Under the old
law, the local civil registrar was authorized to only change administratively the first name and the
nickname. Now it includes therein the gender, if it is purely clerical or innocuous error, date of birth,
month of birth, but not the year of birth.
Following the procedure in challenging this exercise of the local civil registrar of his authority under
the old law; and in the new law, which is amendatory in character, it is also the one followed in the
old law. There could be an appeal to the superior, the Civil Registrar General, there could be an
appeal to the Office of the President, and from there, there could be a petition for review that could
be filed in the CA under the provisions of Rule 43. Under Rule 43, in the enumeration of quasijudicial bodies whose decisions may be brought to CA by way of petition for review, the
enumeration includes the Office of the President.
So, from the local civil registrar, we can go up to the Civil Registrar General, then appeal to the
Office of the President following the political law principle of exhaustion of administrative remedies.
So form the Office of the President, we have nowhere else to go, so the only recourse now is to
make use of Rule 43, file a petition for review in the CA.

ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION

TO RA 9048
Q: What are the entries subject to cancellation or correction under Rule 108?
A:
1. Births;
2. Marriages;
3. Deaths;
4. Legal separations;

5. Judgments of annulments of marriage;

6. Judgments declaring marriages void from the beginning;
7. Legitimations;
8. Adoptions;
9. Acknowledgments of natural children;
10. Naturalization;
11. Election, loss or recovery of citizenship;
12. Civil interdiction;
13. Judicial determination of filiation; and
14. Change of name. (Sec. 2)
15.Gender (in the case of an intersexual or clearly clerical or innocuous error in the entry).

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

Q: Within what period may a petition for correction or cancellation of entries be filed?
A: The law did not fix a period within which the petition for correction under Rule 108 in relation to
Art. 412 of Civil Code may be filed. Accordingly, such petition may be filed within 5 years from time
the petitioner discovered the error or mistake in the civil registry, and not from the date the birth
certificate was registered in the civil registry. (Lee v. CA, supra.)
Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the
ground of falsified material entries therein made by Celines husband as the informant. The RTC
sets the case for hearing and directs the publication of the order once a week for 3 consecutive
weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there
was no appearance during the hearing. The RTC granted the petition. Jeanie filed a petition for
annulment of judgment before the CA, saying that she was not notified of the petition and hence,
the decision was issued in violation of due process. Celine opposed saying that the publication of
the court order was sufficient compliance with due process. Rule.
A: The petition for annulment of judgment before the CA should be granted. Jurisdiction of the
court over a petition for cancellation of a birth certificate requires reasonable notice to all interested
parties and also publication of the order once a week for 3 consecutive weeks in a newspaper of
general circulation. In this case, publication of the order is insufficient because Jeanie, a directly
concerned party, was not given reasonable notice, hence, denied due process. The lower court,
therefore, did not acquire jurisdiction. (Ceruila v. Delantar, G.R. No. 140305, Dec. 9, 2005).
Alternative Answer:
It should not be granted. The publication of an order of hearing under Section 4 of Rule 108 cured
the failure to implead an indispensable party. A petition for correction is an action in rem, an action
against a thing and not against a person. The decision on the petition binds not only the parties

thereto but the whole world. An in rem proceeding is validated essentially through publication.
Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any sort against the right sought to be established. It
is the publication of such notice that brings in the whole as a party in the case and vests the court
with jurisdiction to hear and decide it (Republic v. Kho, G.R. No. 170340, June 29, 2007; Alba v.
CA, G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No. 120587, Jan. 20, 2004). (2007 Bar
Question)
Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another
woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and
Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by changing her
filiation from "legitimate" to "illegitimate" and her citizenship from Chinese" to "Filipino" because
her parents were not married. What petition should Helen file and what procedural requirements
must be observed? Explain.
A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. A petition to
change the record of birth by changing the filiation from legitimate to illegitimate and
petitioners citizenship from Chinese to Filipino does not involve a simple summary correction
which could otherwise be done under the authority of R.A. 9048. Procedural requirements include:
(a) filing a verified petition; (b) naming as parties all persons who have or claim any interest which
would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving
reasonable notice to the parties named in the petition; and (e) publication of the order once a week
for 3 consecutive weeks in a newspaper of general circulation. (2005 Bar Question)

GUARDIANSHIP
Q: What is guardianship?
A: It is a trust relation in which one person acts for another whom the law regards as incapable of
managing his own affairs.
Note: Guardianship of minors is now governed by the Rule on Guardianship of Minors (AM No. 0302-05-SC) which took effect on May 1, 2003. While guardianship of incompetents who are not
minors is still governed by the provisions of the Rules of Court on Guardianship. (Rule 92- 97)
Q: What is ancillary guardianship?
A: It refers to the guardianship in a state other than that in which guardianship is originally granted.

Q: To what extent does guardianship extend?

A: Conflicts regarding ownership or title to the property in the hands of the guardian in his capacity
as such should be litigated in a separate proceeding, the court in guardianship proceeding is
concerned solely with the wards care and custody and proper administration of his properties
(Villoria v. Administrator of Veteran Affairs, L-9620, June 1957)

Q: What are the general powers and duties of guardians?

A:
1. To have the care and custody of the person of the ward, and/or the management of his estate;
2. Pay the debts of the ward;
3. To settle accounts, collect debts, and appear in actions for the ward;
4. Manage the estate of the ward frugally, and apply the proceeds to the maintenance of the ward;
5. Render verified inventory within 3 months after his appointment and annually thereafter, and
upon application of interested persons;
6. Render to court for its approval an accounting of the property for 1 year from his appointment
and as often thereafter as may be required, and upon application of interested persons
7. Consent to a partition of real or personal property owned by ward jointly or in common with
others. (Secs. 1-8, Rule 96; Sec. 17, A.M. No. 03-02-05-SC)
Q: What is the order of liability of the wards property?
A:
1. Personal estate and income of real estate
2. Real estate
Q: What are the requisites to authorize the guardian to join in the partition proceedings after
hearing?
A:
1. Hearing
2. Notice to relatives of the ward; and
3. Careful investigation as to the necessity and propriety of the proposed action (Section 5)
CONDITIONS OF THE BOND OF THE GUARDIAN
Q: What are the conditions of the bond of the guardian?
A:
1. To make and return to the court, within 3 months, a true and complete inventory of all the estate
of his ward which shall come to his possession or knowledge or to the possession or knowledge of
any other person for him;
2. To faithfully execute the duties of his trust, manage and dispose of the estate according to the
rules for the best interests of the ward, and to provide for the proper care, custody, and education
of the ward;
3. To render a true and just account of all the estate of the ward in his hands, and of all proceeds or
interest derived there from, and of the management and disposition of the same, at the time
designated by the rules and such other times as the court directs; and at the expiration of his trust,
settle his accounts with the court and deliver and pay over all the estate, effects, and moneys
remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto;
and
4. To perform all orders required by the court (Sec. 1, Rule 94; Sec.14, A.M. No. 03-02-05-SC).
Q: What is the purpose of the bond?

A: It is for the protection of the property of the minor or incompetent to the end that he may be
assured of an honest administration of his funds (Herrera, Vol. III-A, p. 282, 2005 ed.)
Note: The bond of the guardian is a continuing one against the obligors and their estates until all of
its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve
her or her bondsmen from liability during the time she was duly acting as such guardian. (Guerrero
v. Teran, G.R. No. L-4898, Mar. 19, 1909)
Q: Does the requirement of posting a bond extend to parents who are the legal guardians of their
minor children? Explain.
A:
GR: No, if the market value or annual income of the child is P 50,000 or below.
XPN: If the market value of the property or the annual income of the child exceeds P50,000, the
parent concerned shall furnish a bond in such amount as the court may determine, but in no case
less than 10% of the value of such property or annual income, to guarantee the performance of the
obligations prescribed for general guardians (Sec. 16, A.M. No. 03-02-05-SC).
Q: Who may petition for appointment of guardian for resident?
A:
1. Any relative;
2. Other person on behalf of the minor;
3. Minor himself is 14 years of age; or
4. Secretary of Social Welfare and Development AND by the Secretary of Health in case of insane
minor who needs to be hospitalized. (Section 2, AM-03-02-05-SC)
Q: Is court appointment necessary to enable the father and the mother to exercise joint legal
guardianship over the person and property of minor?
A: No. The father and the mother shall jointly exercise legal guardianship over the person and
property of their minor without the necessity of a court appointment. In such case, this Rule shall
be suppletory to the provisions of the Family Code on Guardianship (Section 1, AM -03-02-05-SC)
Q: What would the court do if an issue arises as to who has the better right or title to the properties
conveyed in the guardianship proceeding?
A:
GR: The issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction
of the guardianship court.
XPN: When the wards right or title to the property is clear and undisputable, the guardianship
court may issue an order directing its delivery or return.
Q: What are the grounds for the appointment of a guardian over the person or property, or both, of
a minor?
A:
1. Death, continued absence, or incapacity of his parents;
2. Suspension, deprivation or termination of parental authority;

3. Remarriage of surviving parent, if the latter is found unsuitable to exercise parental authority; or
4. When the best interests of the minor so require (Sec. 4, A.M. No. 03-02-05-SC).
Q: What are the factors to be considered for the appointment of guardian of minors?
A:
1. Moral character;
2. Physical, mental, and psychological condition;
3. Financial status;
4. Relationship of trust with the minor;
5. Availability to exercise the powers and duties of a guardian for the full period of the guardianship;
6. Lack of conflict of interest with the minor; and
7. Ability to manage the property of the minor (Sec. 5, A.M. No. 03-02-05-SC).
Note: The court shall order a social worker to conduct a case study of the minor and all the
prospective guardians and submit his report and recommendation to the court for its guidance
before the scheduled hearing. (Sec.9, A.M. No. 03-02-05-SC).

Q: Who may be appointed as guardian of a minor?

A: In default of parents or a court-appointed guardian, the court may appoint a guardian of the
person or property, or both, of a minor, observing, as far as practicable, the following order of
preference:
1. Surviving grandparent and, in case several grandparents survive, the court shall select any of
them taking into account all relevant considerations;
2. Oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified;
3. Actual custodian of the minor over 21 years of age, unless unfit or disqualified;
4. Any other person, who in the sound discretion of the court would serve the best interests of the
minor (Sec. 6, A.M. No. 03-02-05-SC).
Q: What are the grounds for opposition to petition of guardianship of minors?
A:
1. Majority of the alleged minor; or
2. Unsuitability of the person for whom letters are prayed for (Sec. 10, A.M. No. 03-02-05-SC).
Q: How may a petition for guardianship of minors or incompetents be opposed?
A: Any interested person may contest the petition by filing a written opposition and pray that the
petition be denied, or that letters of guardianship issue to himself, or to any suitable person named
in the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec. 4, Rule 9).
The rest of the special proceedings like guardianship for instance, the guardian has the same
duties as that of an administrator/executor because both are fiduciaries. The main difference
between a guardian and administrator/executor is that a guardian has the authority by himself
alone to pay the indebtedness of his ward. The administrator/executor does not have that authority.

In settlement proceedings, we speak about statute of non-claims. There is no statute of non-claims

in guardianship.
The substantive law gives to the guardian the authority whether or not the claim against the ward is
valid and therefore should be paid by him. He does not need express authority from the court to be
able to pay a valid indebtedness incurred by the ward.
For purposes of jurisdiction in guardianship proceedings, do not be of the impression that
guardianship proceedings are always cognizable by the family court. If there is a guardianship
proceeding involving a minor, that is exclusively cognizable by a Family Court. But when the
guardianship is over an incompetent who is not a minor, the competent court is an RTC. The
competent court is either a family court or an RTC, depending on who the ward is. If the ward is a
minor, we go to a family court. If the ward is an incompetent of major age, then we go to the RTC.
If you are asked to explain that this is the rule we follow, why not just give everything to the family
court? After all, that is the expertise of the family court, a guardianship action. Why do we leave to
an RTC the guardianship of an incompetent who is a minor?
That fault is traceable to the Congress in enacting the law creating the Family Court. In that law, the
family court was given exclusive original jurisdiction over petitions for guardianship involving a
minor. The Congress failed to notice that there could also be guardianship involving a non-minor,
that is if the ward is an incompetent. So, the SC applied literally this rule of exclusive original
jurisdiction given to a Family Court. It has authority only when the guardianship involves a minor.
But when the guardianship is over an incompetent who is not a minor, it still an RTC that has
jurisdiction under the provisions of BP 129.
When it comes to termination of guardianship. When the guardianship is via the family court by
reason of minority, and the minor reaches the age of majority, there is no need for the family court
to issue an order directing that the guardianship has ended. The guardianship automatically ends if
the minor reaches the age of majority. By operation of law, he is no longer a minor.
But when the guardianship is by reason of incompetency, there is a need for RTC to issue an order
saying that the incompetency has ended, and there must be a hearing conducted by the court.
There must be a finding by the court that the incompetent person is now competent and therefore,
the guardianship should be terminated.