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CIVIL PROCEDURE:

GENERAL PRINCIPLES
BERNABE vs. ALEJO
A VESTED RIGHT is defined as one which is absolute, complete and
unconditional, to the exercise of which no obstacle exists, and which is
immediate and perfect in itself and not dependent upon a contingency.
Respondent however contends that the filing of an action for
recognition is procedural in nature and that as a general rule, no
vested right may attach to [or] arise from procedural laws.
SUBSTANTIVE LAW creates SUBSTANTIVE RIGHTS and the two
terms in this respect may be said to be synonymous. SUBSTANTIVE
RIGHTS is a term which includes those rights which one enjoys under
the legal system prior to the disturbance of normal relations.
SUBSTANTIVE LAW is that part of the law which creates, defines and
regulates rights, or which regulates the rights and duties which give
rise to a cause of action; that part of the law which courts are
established to administer; as opposed to adjective or remedial law,
which prescribes the method of enforcing rights or obtains redress for
their invasion.
In determining whether a rule prescribed by the Supreme Court, for the
practice and procedure of the lower courts, abridges, enlarges, or
modifies any substantive right, the test is whether the rule really
regulates procedure, that is, the judicial process for enforcing rights
and duties recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them. If the rule
takes away a vested right, it is not procedural. If the rule creates a right
such as the right to appeal, it may be classified as a substantive
matter; but if it operates as a means of implementing an existing right
then the rule deals merely with procedure.

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infirmities take a backseat against substantive rights of litigants.


Corollarily, if the strict application of the rules would tend to frustrate
rather than promote justice, this Court is not without power to exercise
its judicial discretion in relaxing the rules of procedure.
JURISDICTION
MADRIAN vs. MADRIAN
5(b) of RA 8369 reveals that family courts are vested with original
exclusive jurisdiction in custody cases, not in habeas corpus cases.
Writs of habeas corpus which may be issued exclusively by family
courts under 5(b) of RA 8369 pertain to the ancillary remedy that may
be availed of in conjunction with a petition for custody of minors under
Rule 99 of the Rules of Court. The issuance of the writ is merely
ancillary to the custody case pending before the family court. The writ
must be issued by the same court to avoid splitting of jurisdiction,
conflicting decisions, interference by a co-equal court and judicial
instability.
When by law jurisdiction is conferred on a court or judicial officer, all
auxiliary writs, processes and other means necessary to carry it into
effect may be employed by such court or officer. Once a court acquires
jurisdiction over the subject matter of a case, it does so to the
exclusion of all other courts, including related incidents and ancillary
matters.
CALLEJA vs. PANDAY
The case clearly involves an intra-corporate dispute. The court should
have been aware that under R.A. No. 8799 the RTC-Br. 58 was never
designated as a Special Commercial Court. Hence, it was never
vested with jurisdiction over cases previously cognizable by the SEC.

BERGONIA and CASTILLO vs. COURT OF APPEALS


Procedural rules are tools designed to facilitate the adjudication of
cases. Courts and litigants alike are, thus, enjoined to abide strictly by
the rules. And while the Court, in some instances, allows a relaxation in
the application of the rules, this was never intended to forge a bastion
for erring litigants to violate the rules with impunity. The liberality in the
interpretation and application of the rules applies only in proper cases
and under justifiable causes and circumstances. While it is true that
litigation is not a game of technicalities, it is equally true that every
case must be prosecuted in accordance with the prescribed procedure
to insure an orderly and speedy administration of justice.
The right to appeal is a statutory right and the party who seeks to avail
of the same must comply with the requirements of the Rules. Failing to
do so, the right to appeal is lost.
BPI vs. COURT OF APPEALS
It is settled that liberal construction of the rules may be invoked in
situations where there may be some excusable formal deficiency or
error in a pleading, provided that the same does not subvert the
essence of the proceeding and connotes at least a reasonable
attempt at compliance with the rules. After all, rules of procedure
are not to be applied in a very rigid, technical sense; they are used
only to help secure substantial justice.
CMTC vs. BHAGIS INTERNATIONAL
Where strong considerations of substantive justice are manifest in the
petition, the strict application of the rules of procedure may be relaxed,
in the exercise of its equity jurisdiction. Thus, a rigid application of the
rules of procedure will not be entertained if it will obstruct rather than
serve the broader interests of justice in the light of the prevailing
circumstances in the case under consideration.
The rule, which states that the mistakes of counsel binds the client,
may not be strictly followed where observance of it would result in
outright deprivation of the clients liberty or property, or where the
interest of justice so requires. In rendering justice, procedural

Such being the case, RTC-Br. 58 did not have the requisite authority or
power to order the transfer of the case to another branch of the
Regional Trial Court. The only action that RTC-Br. 58 could take on the
matter was to dismiss the petition for lack of jurisdiction. The trial
court, having no jurisdiction over the subject matter of the complaint,
should dismiss the same so the issues therein could be expeditiously
heard and resolved by the tribunal which was clothed with jurisdiction.
REPUBLIC vs. BANTIGUE POINT
The lack of jurisdiction over the subject matter may be raised at any
stage of the proceedings. Jurisdiction over the subject matter is
conferred only by the Constitution or the law. It cannot be acquired
through a waiver or enlarged by the omission of the parties or
conferred by the acquiescence of the court. Consequently, questions of
jurisdiction may be cognizable even if raised for the first time on
appeal. An exception to this rule is based on the doctrine of estoppel
by laches, which provides that, a party may be estopped from raising
such jurisdictional question if he has actively taken part in the very
proceeding which he questions, belatedly objecting to the courts
jurisdiction in the event that the judgment or order subsequently
rendered is adverse to him.
DELA CRUZ vs. MOYA
One of the essential requisites of a valid court proceeding is that the
court hearing the case must have jurisdiction over the subject matter of
the case. If the court is acting without jurisdiction, then the entire
proceedings are null and void. Jurisdiction over the subject matter is
determined by the statute in force at the time of the commencement of
the action. And once jurisdiction is vested in the court, it is retained up
to the end of the litigation.
BOLEYLEY vs. VILLANUEVA
Jurisdiction of the court over the subject matter of the action is
determined by the allegations of the complaint, irrespective of whether
or not the plaintiff is entitled to recover upon all or some of the claims
asserted therein. The jurisdiction of the court cannot be made to

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depend upon the defenses set up in the answer or upon the motion to
dismiss, for otherwise, the question of jurisdiction would almost entirely
depend upon the defendant.

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may be made. Personal service of summons should and always be the


first option, and it is only when the said summons cannot be served
within a reasonable time can the process server resort to substituted
service.

MENDOZA vs. GERMINO


PLATINUM TOURS vs. PANLILIO
It is a basic rule that jurisdiction over the subject matter is determined
by the allegations in the complaint. It is determined exclusively by the
Constitution and the law. It cannot be conferred by the voluntary act or
agreement of the parties, or acquired through or waived, enlarged or
diminished by their act or omission, nor conferred by the acquiescence
of the court. It is neither for the court nor the parties to violate or
disregard the rule, this matter being legislative in character.
The allegations of tenancy as an affirmative and/or special defense in
the Answer, does not automatically divest the MTC of jurisdiction over
the complaint. It continued to have the authority to hear the case
precisely to determine whether it had jurisdiction to dispose of the
ejectment suit on its merits. After all, jurisdiction is not affected by the
pleas or the theories set up by the defendant in an answer or a motion
to dismiss. Otherwise, jurisdiction would become dependent almost
entirely upon the whims of the defendant.
SANTE and REYNALDO vs. HON. CLARAVALL
The complaint principally sought an award of moral and exemplary
damages, as well as attorneys fees and litigation expenses, for the
alleged shame and injury suffered by respondent. It is settled that
jurisdiction is conferred by law based on the facts alleged in the
complaint since the latter comprises a concise statement of the
ultimate facts constituting the plaintiffs causes of action. Based on the
allegations of the complaint, the main action is for damages. Hence,
the other forms of damages being claimed (exemplary damages,
attorneys fees and litigation expenses) are not merely incidental to or
consequences of the main action but constitute the primary relief
prayed for in the complaint.
In cases where the claim for damages is the main cause of action, or
one of the causes of action, the amount of such claim shall be
considered in determining the jurisdiction of the court.
BOSTON EQUITY vs. COURT OF APPEALS

Jurisdiction over the nature of the action and subject matter is


conferred by law. It is determined by the allegations of the complaint,
irrespective of whether or not the plaintiff is entitled to recover upon all
or some of the claims asserted therein. Jurisdiction over the person of
the plaintiff is acquired from the time he files his complaint; while
jurisdiction over the person of the defendant is acquired by his
voluntary appearance in court and his submission to its authority, or by
the coercive power of legal processes exerted over his person.
Since jurisdiction is the power to hear and determine a particular case,
it does not depend upon the regularity of the exercise by the court of
that power or on the correctness of its decisions.
JURISDICTION should be distinguished from the EXERCISE OF
JURISDICTION. Jurisdiction refers to the authority to decide a case,
not the orders or the decision rendered therein. Accordingly, where a
court has jurisdiction over the person and the subject matter, as in the
instant case, the decision on all questions arising from the case is but
an exercise of such jurisdiction. Any error that the court may commit in
the exercise of its jurisdiction is merely an error of judgment which
does not affect its authority to decide the case, much less divest the
court of the jurisdiction over the case.
DAVAO LIGHT vs. COURT OF APPEALS
Venue and jurisdiction are entirely distinct matters. JURISDICTION
may not be conferred by consent or waiver upon a court which
otherwise would have no jurisdiction over the subject-matter of an
action; but the VENUE of an action as fixed by statute may be changed
by the consent of the parties and an objection that the plaintiff brought
his suit in the wrong county may be waived by the failure of the
defendant to make a timely objection. In either case, the court may
render a valid judgment. Rules as to jurisdiction can never be left to the
consent or agreement of the parties, whether or not a prohibition exists
against their alteration.

The concept of jurisdiction has several aspects, namely: (1) jurisdiction


over the subject matter; (2) jurisdiction over the parties; (3) jurisdiction
over the issues of the case; and (4) in cases involving property,
jurisdiction over the res or the thing which is the subject of the
litigation.

Venue of personal actions against a corporation should be filed in the


place where its principal place of business is located, as per its articles
of incorporation and by-laws.

The aspect of jurisdiction which may be barred from being assailed as


a result of estoppel by laches is jurisdiction over the subject matter.

It is elementary that objections to venue in CIVIL ACTIONS arising


from libel may be waived since they do not involve a question of
jurisdiction. The laying of venue is procedural rather than substantive,
relating as it does to jurisdiction of the court over the person rather
than the subject matter. Venue relates to trial and not to jurisdiction. It
is a procedural, not a jurisdictional, matter. It relates to the place of trial
or geographical location in which an action or proceeding should be
brought and not to the jurisdiction of the court. It is meant to provide
convenience to the parties, rather than restrict their access to the
courts as it relates to the place of trial. In contrast, in criminal actions, it
is fundamental that venue is jurisdictional it being an essential element
of jurisdiction.

The defense of lack of jurisdiction over the person of a party to a case


is not one of those defenses which are not deemed waived under 1 of
Rule 9, such defense must be invoked when an Answer or a Motion to
Dismiss is filed in order to prevent a waiver of the defense. If the
objection is not raised either in a Motion to Dismiss or in the Answer,
the objection to the jurisdiction over the person of the plaintiff or the
defendant is deemed waived.
PLANTERS DEVELOPMENT vs. CHANDUMAL
Jurisdiction over a defendant in a civil case is acquired either through
service of summons or through voluntary appearance in court and
submission to its authority. If a defendant has not been properly
summoned, the court acquires no jurisdiction over its person, and a
judgment rendered against it is null and void.
Where the action is in personam and the defendant is in the
Philippines, service of summons may be made through personal
service, that is, summons shall be served by handing to the defendant
in person a copy thereof, or if he refuses to receive and sign for it, by
tendering it to him. If the defendant cannot be personally served with
summons within a reasonable time, it is then that substituted service

NOCUM vs. TAN

MANCHESTER DEVT vs. COURT OF APPEALS


All complaints, petitions, answers and other similar pleadings should
specify the amount of damages being prayed for not only in the body of
the pleading but also in the prayer, and said damages shall be
considered in the assessment of the filing fees in any case. Any
pleading that fails to comply with this requirement shall not be
accepted nor admitted, or shall otherwise be expunged from the
record.
The Court acquires jurisdiction over any case only upon the payment
of the prescribed docket fee. An amendment of the complaint or similar

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pleading will not thereby vest jurisdiction in the Court, much less the
payment of the docket fee based on the amounts sought in the
amended pleading.

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property, it should be filed in the proper court having jurisdiction over


the assessed value of the property subject thereof.
PROTON PILIPINAS vs. BANQUE NATIONALE

HOME GUARANTY vs. R-II BUILDERS INC.


Jurisdiction over any case is acquired only upon the payment of the
prescribed docket fee, the requirement being both mandatory and
jurisdictional. The principle in Manchester case and the Magaspi case
cited therein, provided that no liberal interpretation or relaxation of
rules will be allowed when there is intent to defraud the government
and that the court a quo did not acquire jurisdiction over the case and
that the amended complaint could not have been admitted inasmuch
as the original complaint was null and void.
SUN INSURANCE vs. ASUNCION
Plainly, while the payment of prescribed docket fee is a jurisdictional
requirement, even its non-payment at the time of filing does not
automatically cause the dismissal of the case, as long as the fee
is paid within the applicable prescriptive or reglementary period, more
so when the party involved demonstrates a willingness to abide by the
rules prescribing such payment. Thus, when insufficient filing fees
were initially paid by the plaintiffs & there was no intention to defraud
the government, the Manchester rule does not apply.
Thus, the Court rules as follows:
1. It is not simply the filing of the complaint or appropriate initiatory
pleading, but the payment of the prescribed docket fee that vests a trial
court with jurisdiction over the subject matter or nature of the action.
Where the filing of the initiatory pleading is not accompanied by
payment of the docket fee, the court may allow payment of the fee
within a reasonable time but in no case beyond the applicable
prescriptive or reglementary period.
2. The same rule applies to permissive counterclaims, third party
claims and similar pleadings, which shall not be considered filed until
and unless the filing fee prescribed therefor is paid. The court may also
allow payment of said fee within a reasonable time but also in no case
beyond its applicable prescriptive or reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of
the appropriate pleading and payment of the prescribed filing fee BUT,
subsequently, the judgment awards a claim not specified in the
pleading, or if specified the same has been left for determination by the
court, the additional filing fee therefor shall constitute a lien on the
judgment. It shall be the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and collect the
additional fee.
METROBANK vs. PEREZ
Although the payment of the proper docket fees is a jurisdictional
requirement, the trial court may allow the plaintiff in an action to pay
the same within a reasonable time before the expiration of the
applicable prescriptive or reglementary period. If the plaintiff fails to
comply with this requirement, the defendant should timely raise the
issue of jurisdiction or else he would be considered in estoppel. In the
latter case, the balance between the appropriate docket fees and the
amount actually paid by the plaintiff will be considered a lien on any
award he may obtain in his favor.
Metrobank raised the issue of jurisdiction only before the appellate
court after it and its co-petitioner participated in the proceedings before
the trial court. While lack of jurisdiction may be raised at any time, a
party may be held in estoppel if, as in the present case, it has actively
taken part in the proceedings being questioned.
BGY. PIAPI vs. TALIP
The nature of an action is not determined by what is stated in the
caption of the complaint but by the allegations of the complaint and the
reliefs prayed for. Where the ultimate objective is to obtain title to real

The amount of any claim for damages, arising on or before the filing of
the complaint or any pleading should be specified. While it is true that
the determination of certain damages as exemplary or corrective
damages is left to the sound discretion of the court, it is the duty of the
parties claiming such damages to specify the amount sought on the
basis of which the court may make a proper determination, and for the
proper assessment of the appropriate docket fees. The exception
contemplated as to claims not specified or to claims although specified
are left for determination of the court is limited only to any damages
that may arise after the filing of the complaint or similar pleading for
then it will not be possible for the claimant to specify nor speculate as
to the amount thereof.
SPS. DE LEON vs. COURT OF APPEALS
In determining whether an action is one the subject matter of which is
not capable of pecuniary estimation, the Court has adopted the
criterion of first ascertaining the nature of the principal action or
remedy sought. If it is primarily for the recovery of a sum of money, the
claim is considered capable of pecuniary estimation, and whether
jurisdiction is in the municipal courts or in the courts of first instance
would depend on the amount of the claim. However, where the basic
issue is something other than the right to recover a sum of money, or
where the money claim is purely incidental to, or a consequence of, the
principal relief sought, like in suits to have the defendant perform his
part of the contract (specific performance) and in actions for support, or
for annulment of a judgment or to foreclose a mortgage, the Court has
considered such actions as cases where the subject of the litigation
may not be estimated in terms of money, and are cognizable
exclusively by courts of first instance. The rationale of the rule is plainly
that the second class cases, besides the determination of damages,
demand an inquiry into other factors which the law has deemed to be
more within the competence of courts of first instance, which were the
lowest courts of record at the time that the first organic laws of the
Judiciary were enacted allocating jurisdiction
An action for rescission of contract is one which cannot be estimated.
Thus, although eventually the result may be the recovery of land, it is
the nature of the action as one for rescission of contract which is
controlling.
TOKIO MARINE vs. VALDEZ
The guidelines for determining whether a party qualifies as an indigent
litigant are provided for in 19, Rule 141, 5 of the Revised Rules of
Court.
To be entitled to the exemption herein provided, the litigant shall
execute an affidavit that he and his immediate family do not earn a
gross income abovementioned nor they own any real property with the
fair value aforementioned, supported by an affidavit of a disinterested
person attesting to the truth of the litigant's affidavit. The current tax
declaration, if any, shall be attached to the litigant's affidavit.
Any FALSITY in the affidavit of the litigant or disinterested person shall
be sufficient CAUSE TO DISMISS THE COMPLAINT or action or to
strike out the pleading of that party, without prejudice to whatever
criminal liability may have been incurred.
LU vs. LU
(Applied the Manchester Ruling)
It is clear that a notice of lis pendens is availed of mainly in real
actions. Hence, when David, et al., sought the annotation of notices of
lis pendens on the titles of LLDC, they acknowledged that the
complaint they had filed affected a title to or a right to possession of
real properties. At the very least, they must have been fully aware that
the docket fees would be based on the value of the realties involved.
Their silence or inaction to point this out to the Clerk of Court who

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computed their docket fees, therefore, becomes highly suspect, and


thus, sufficient for the Court to conclude that they have crossed
beyond the threshold of good faith and into the area of fraud. There
was an effort to defraud the government in avoiding to pay the correct
docket fees. Consequently, the trial court did not acquire jurisdiction
over the case.

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founded on the void judgment are themselves regarded as invalid. In


other words, a void judgment is regarded as a nullity, and the situation
is the same as it would be if there were no judgments. It, accordingly,
leaves the parties litigants in the same position they were in before the
trial.
PADRE vs. BADILLO

SPS. GO vs. TONG


(Applied Sun Insurance Ruling)
As a rule, docket fees should be paid upon the filing of the initiatory
pleadings. However, for cogent reasons to be determined by the trial
judge, staggered payment thereof within a reasonable period may be
allowed. Unless grave abuse of discretion is demonstrated, the
discretion of the trial judge in granting staggered payment shall not be
disturbed.
PACIFIC ACE vs. EIJI YANAGISAWA
In cases of concurrent jurisdiction, it is axiomatic that the court first
acquiring jurisdiction excludes the other courts.
When a court of competent jurisdiction acquires jurisdiction over the
subject matter of a case, its authority continues, subject only to the
appellate authority, until the matter is finally and completely disposed
of, and that no court of co-ordinate authority is at liberty to interfere
with its action. The principle is essential to the proper and orderly
administration of the laws; and while its observance might be required
on the grounds of judicial comity and courtesy, it does not rest upon
such considerations exclusively, but is enforced to prevent unseemly,
expensive, and dangerous conflicts of jurisdiction and of the process.
The commitment not to dispose of or encumber the property, is akin to
an injunction order against the disposition or encumbrance of the
property. Jurisprudence holds that all acts done in violation of a
standing injunction order are voidable as to the party enjoined and third
parties who are not in good faith.
An injunction or restraining order must be obeyed while it remains in
full force and effect until the injunction or restraining order has been set
aside, vacated, or modified by the court which granted it, or until the
order or decree awarding it has been reversed on appeal. The
injunction must be obeyed irrespective of the ultimate validity of the
order, and no matter how unreasonable and unjust the injunction may
be in its terms.
VDA. DE BALLESTEROS vs. RURAL BANK OF CANAMAN
The Court recognizes the doctrine on adherence of jurisdiction.
However, the rule on adherence of jurisdiction is not absolute and has
exceptions. One of the exceptions is that when the change in
jurisdiction is curative in character. 30 of R.A. 7653 is curative in
character when it declared that the liquidation court shall have
jurisdiction in the same proceedings to assist in the adjudication of the
disputed claims against the Bank.
UNION BANK vs. CONCEPCION
Once jurisdiction attaches, the court cannot be ousted from the case
by any subsequent events, such as a new legislation placing such
proceedings under the jurisdiction of another body. The only
recognized exceptions to the rule arise when the statute expressly so
provides or when the statute is clearly intended to apply to actions
pending before its enactment.
LAND BANK vs. SPOUSES ORILLA
A void judgment is not entitled to the respect accorded to a valid
judgment, but may be entirely disregarded or declared inoperative by
any tribunal in which effect is sought to be given to it. It is attended by
none of the consequences of a valid adjudication. It has no legal or
binding effect or efficacy for any purpose or at any place. It cannot
affect, impair or create rights. It is not entitled to enforcement and is,
ordinarily, no protection to those who seek to enforce. All proceedings

A decision of the court without jurisdiction is null and void. Hence, it


could never logically become final and executory. Such a judgment
may be attacked directly or collaterally.
TIJAM vs. SIBONGHANOY
A party cannot invoke the jurisdiction of a court to sure affirmative relief
against his opponent and, after obtaining or failing to obtain such relief,
repudiate or question that same jurisdiction; such practice cannot be
tolerated for reasons of public policy.
The doctrine of laches or of "stale demands" is based upon grounds of
public policy which requires, for the peace of society, the
discouragement of stale claims and, unlike the statute of limitations, is
not a mere question of time but is principally a question of the inequity
or unfairness of permitting a right or claim to be enforced or asserted.
PAL vs. KURANGKING
The reason for suspending actions for claims against the corporation
should not be difficult to discover. It is not really to enable the
management committee or the rehabilitation receiver to substitute the
defendant in any pending action against it before any court, tribunal,
board or body. Obviously, the real justification is to enable the
management committee or rehabilitation receiver to effectively
exercise its/his powers free from any judicial or extra-judicial
interference that might unduly hinder or prevent the rescue of the
debtor company. To allow such other action to continue would only add
to the burden of the management committee or rehabilitation receiver,
whose time, effort and resources would be wasted in defending claims
against the corporation instead of being directed toward its
restructuring and rehabilitation.
MENDOZA vs. VILLAS
The concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and also serves as a general
determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against
first level (inferior) courts should be filed with the RTC, and those
against the latter, with the CA. A direct invocation of the SCs original
jurisdiction to issue these writs should be allowed only when there are
special and important reasons therefor, clearly and specifically set out
in the petition. This is an established policy. It is a policy necessary to
prevent inordinate demands upon the Courts time and attention which
are better devoted to those matters within its exclusive jurisdiction, and
to prevent further over-crowding of the Courts docket.
Under the principle of the hierarchy of courts, decisions, final orders or
resolutions of an MTC should be appealed to the RTC exercising
territorial jurisdiction over the former. On the other hand, RTC
judgments, final orders or resolutions are appealable to the CA through
either of the following: an ordinary appeal if the case was originally
decided by the RTC; or a petition for review under Rule 42, if the case
was decided under the RTC's appellate jurisdiction.
Nonetheless, a direct recourse to this Court can be taken for a review
of the decisions, final orders or resolutions of the RTC, but only on
questions of law (Rule 45).
REPUBLIC vs. CAGUIOA

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The principle of hierarchy of courts does indeed require that recourses


should be made to the lower courts before they are made to the higher
courts. However, the principle is not an absolute rule and admits of
exceptions under well-defined circumstances. In several cases, the
Court have allowed direct invocation of the Courts original jurisdiction
to issue writs of certiorari on the ground of special and important
reasons clearly stated in the petition; when dictated by public welfare
and the advancement of public policy; when demanded by the broader
interest of justice; when the challenged orders were patent nullities; or
when analogous exceptional and compelling circumstances called for
and justified our immediate and direct handling of the case.
RULE 1: GENERAL PROVISIONS
REDEA vs. COURT OF APPEALS
The Court has often stressed that rules of procedure are merely tools
designed to facilitate the attainment of justice. Thus, if the application
of the Rules would tend to frustrate rather than promote justice, it is
always within the Courts power to suspend the rules or except a
particular case from its operation.
The Rules itself expressly states in 2 of Rule 1 that the rules shall be
liberally construed in order to promote their object and to assist the
parties in obtaining just, speedy and inexpensive determination of
every action and proceeding. Therefore, Courts not only have the
power but the duty to construe and apply technical rules liberally in
favor of substantive law and substantial justice. Furthermore, the Court
has the power not only to liberally construe the rules, but also to
suspend them, in favor of substantive law or substantial rights.
However, it is equally settled that the Courts power to liberally
construe and even to suspend the rules, presupposes the existence of
substantial rights in favor of which, the strict application of technical
rules must concede.
Admittedly, this Court has relaxed the rule on the binding effect of
counsels negligence and allowed a litigant another chance to present
his case (1) where the reckless or gross negligence of counsel
deprives the client of due process of law; (2) when application of the
rule will result in outright deprivation of the clients liberty or property;
or (3) where the interests of justice so require. None of these
exceptions obtains here.

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The fact the insolvent bank is forbidden to do business, that its assets
are turn over to the Superintendent of Banks, as a receiver, for
conversation into cash, and that its liquidation is undertaken with
judicial intervention means that, as far as lawful and practicable, all
claims against the insolvent bank and that the liquidation court should
be filed in the liquidation proceeding.
Suits brought against a bank after the issuance of a notice that the
finance commissioner has taken possession of the bank should be
dismissed or are barred for want of jurisdiction.
MUOZ vs. ATTY. YABUT
(head spinner case!!!)
The rule is that: (1) a judgment in rem is binding upon the whole world,
such as a judgment in a land registration case or probate of a will; and
(2) a judgment in personam is binding upon the parties and their
successors-in-interest but not upon strangers. A judgment directing a
party to deliver possession of a property to another is in personam; it is
binding only against the parties and their successors-in-interest by title
subsequent to the commencement of the action. An action for
declaration of nullity of title and recovery of ownership of real property,
or re-conveyance, is a real action but it is an action in personam, for it
binds a particular individual only although it concerns the right to a
tangible thing. Any judgment therein is binding only upon the parties
properly impleaded.
A suit for injunction partakes of an action in personam. The aim and
object of an action determine its character. Whether a proceeding is in
rem, or in personam, or quasi in rem for that matter, is determined by
its nature and purpose, and by these only. A proceeding in personam is
a proceeding to enforce personal rights and obligations brought
against the person and is based on the jurisdiction of the person,
although it may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose of it in
accordance with the mandate of the court. The purpose of a
proceeding in personam is to impose, through the judgment of a
court, some responsibility or liability directly upon the person of the
defendant. Of this character are suits to compel a defendant to
specifically perform some act or actions to fasten a pecuniary liability
on him.

The relief afforded by Rule 38 will not be granted to a party who seeks
to be relieved from the effects of the judgment when the loss of the
remedy of law was due to his own negligence, or a mistaken mode of
procedure for that matter; otherwise, the petition for relief will be
tantamount to reviving the right of appeal which has already been lost,
either because of inexcusable negligence or due to a mistake of
procedure by counsel. The Rules allow a petition for relief only when
there is no other available remedy, and not when litigants lose a
remedy by negligence.

An action in personam is said to be one which has for its object a


judgment against the person, as distinguished from a judgment against
the propriety to determine its state. It has been held that an action in
personam is a proceeding to enforce personal rights or obligations;
such action is brought against the person. As far as suits for injunctive
relief are concerned, it is well-settled that it is an injunctive act in
personam. Furthermore, proceedings to enforce personal rights and
obligations and in which personal judgments are rendered adjusting
the rights and obligations between the affected parties is in personam.
Actions for recovery of real property are in personam.

VDA. DE VICTORIA vs. COURT OF APPEALS

GO vs. UCPB

It has been said that litigation is not a game of technicalities, that every
case must be prosecuted in accordance with the prescribed procedure
so that issues may be properly presented and justly resolved, but this
does not mean that procedural rules may altogether be disregarded.
Rules of procedure must be faithfully followed except only when, for
persuasive reasons, they may be relaxed to relieve a litigant of an
injustice commensurate with his failure to comply with the prescribed
procedure. Concomitant to a liberal application of the rules of
procedure should be an effort on the part of the party invoking liberality
to adequately explain his failure to abide by the rules.

The action for cancellation of real estate mortgage filed by petitioner


was primarily an action to compel the bank to return to him the
properties which the bank had already initiated foreclosure
proceedings. The cancellation of the real estate mortgage is a real
action, considering that a real estate mortgage is a real right and a real
property by itself. An action for cancellation of real estate mortgage is
necessarily an action affecting the title to the property. Therefore,
it is a real action which should be commenced and tried in the place
where the subject property lies.
RULE 2: CAUSE OF ACTION

HERNANDEZ vs. RURAL BANK OF LUCENA


CHINA BANK vs. COURT OF APPEALS
The action is primarily to compel the mortgagee to accept payment of
the mortgage debt and to release the mortgage. Hence, the venue of
plaintiffs' personal action is the place where the defendant or any of the
defendants resides or may be found, or where the plaintiff or any of the
plaintiffs resides, at the election of the plaintiff

A cause of action has three ELEMENTS: (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) an act or omission on the

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part of such defendant violative of the right of the plaintiff or


constituting a breach of the obligation of the defendant to the plaintiff.

amount of the demand is P20,000 or less may be the subject of a


separate complaint filed with a MTC.

It is only when the last element occurs that a cause of action arises.
Accordingly, a cause of action on a written contract accrues only when
an actual breach or violation thereof occurs.

Where two or more plaintiffs having separate causes of action against


a defendant join in a single complaint, the TOTALITY RULE is
applicable, as well as to cases where a plaintiff has separate causes of
action against two or more defendants joined in a single complaint.
However, the causes of action in favor of the two or more plaintiffs or
against the two or more defendants should arise out of the same
transaction or series of transactions and there should be a common
question of law or fact, as provided in 6 of Rule 3 [Compliance with
Rules of Joinder].

BPI vs. COSCOLLUELA


A party may not institute more than one suit for a single cause of action
and, if two or more suits are instituted on the basis of the same cause
of action, the filing of one on a judgment upon the merits in any one is
available as ground for the dismissal of the other or others. A party will
not be permitted to split up a single cause of action and make it a basis
for several suits. A party seeking to enforce a claim must present to
the court by the pleadings or proofs or both, all the grounds upon
which he expects a judgment in his favor. The whole cause must be
determined in one action.
The question must often be determined, not by the general rules but by
reference to the facts and circumstances of the particular case. Where
deeds arising out of contract are distinct and separate, they give rise to
separate cause of action for which separate action may be maintained;
but it is also true that the same contract may give rise to different
causes of action either by reason of successive breaches or by reason
of different stipulations or provisions of the contract.
Where there are entirely distinct and separate contracts, they give rise
to separate causes of action for which separate actions may be
instituted and presented. When money is payable by installments, a
distinct cause of action assails upon the following due by each
installment and they may be recovered in successive action. On the
other hand, where several claims payable at different times arise out of
the same transactions, separate actions may be brought as each
liability accounts. But where no action is brought until more than one is
due, all that are due must be included in one action; and that if an
action is brought to recover upon one or more that are due but not
upon all that are due, a recovery in such action will be a bar to a
several or other actions brought to recover one or more claims of the
other claims that were due at the time the first action was brought.
AGUSTIN vs. BACALAN
The court has no jurisdiction to hear and determine a set-off or
counterclaim in excess of its jurisdiction. A counterclaim beyond the
court's jurisdiction may only be pleaded by way of defense, the
purpose of which, however, is only to defeat or weaken plaintiff's claim,
not to obtain affirmative relief.
The amount of judgment obtained by the defendant-appellee on appeal
cannot exceed the jurisdiction of the court in which the action began.
Since the trial court did not acquire jurisdiction over the defendant's
counterclaim in excess of the jurisdictional amount, the appellate court,
likewise, acquired no jurisdiction over the same by its decisions or
otherwise. Appellate jurisdiction being not only a continuation of the
exercise of the same judicial power which has been executed in the
court of original jurisdiction, also presupposes that the original and
appellate courts are capable of participating in the exercise of the
same judicial power.
When court transcends the limits prescribed for it by law and assumes
to act where it has no jurisdiction, its adjudications will be utterly void
and of no effect either as an estoppel or otherwise.
FLORES vs. MALLARE-PHILLIPS
In cases where a plaintiff sues a defendant on two or more separate
causes of action, the amount of the demand shall be the totality of the
claims in all the causes of action irrespective of whether the causes of
action arose out of the same or different transactions. If the total
demand exceeds P20,000, then the RTC has jurisdiction. If the causes
of action are separate and independent, their joinder in one complaint
is permissive and not mandatory, and any cause of action where the

In cases of permissive joinder of parties, whether as plaintiffs or as


defendants, under 6 of Rule 3, the total of all the claims shall now
furnish the jurisdictional test. Needless to state also, if instead of
joining or being joined in one complaint separate actions are filed by or
against the parties, the amount demanded in each complaint shall
furnish the jurisdictional test.
PANTRANCO vs. BUNCAN
Permissive joinder of parties requires that: (a) the right to relief arises
out of the same transaction or series of transactions; (b) there is a
question of law or fact common to all the plaintiffs or defendants; and
(c) such joinder is not otherwise proscribed by the provisions of the
Rules on jurisdiction and venue.
In the case, there is a single transaction common to all. There is also
a common question of fact, that is, whether petitioners are negligent.
There being a single transaction common to both respondents,
consequently, they have the same cause of action against petitioners.
To determine identity of cause of action, it must be ascertained
whether the same evidence which is necessary to sustain the second
cause of action would have been sufficient to authorize a recovery in
the first.
SPS. DECENA vs. PIQUERO
A cause of action is an act or omission of one party in violation of the
legal right of the other which causes the latter injury. A cause of action
should not be confused with the remedies or reliefs prayed for. A
cause of action is to be found in the facts alleged in the complaint
and not in the prayer for relief. It is the substance and not the form
that is controlling. A party may have two or more causes of action
against another party.
A joinder of causes of action is the uniting of two or more demands
or right of action in a complaint. The question of the joinder of causes
of action involves in particular cases a preliminary inquiry as to
whether two or more causes of action are alleged. In declaring
whether more than one cause of action is alleged, the main thrust is
whether more than one primary right or subject of controversy is
present. Other tests are whether recovery on one ground would bar
recovery on the other, whether the same evidence would support the
other different counts and whether separate actions could be
maintained for separate relief; or whether more than one distinct
primary right or subject of controversy is alleged for enforcement or
adjudication.
A cause of action may be single although the plaintiff seeks a variety of
remedies. The mere fact that the plaintiff prays for multiple reliefs does
not indicate that he has stated more than one cause of action. The
prayer may be an aid in interpreting the petition and in determining
whether or not more than one cause of action is pleaded. If the
allegations of the complaint show one primary right and one wrong,
only one cause of action is alleged even though other matters are
incidentally involved, and although different acts, methods, elements of
injury, items of claims or theories of recovery are set forth. Where two

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or more primary rights and wrongs appear, there is a joinder of causes


of action.

to avoid a multiplicity of suits; and 4) to discourage litigation and keep it


within certain bounds, pursuant to sound public policy.

UNIWIDE HOLDINGS vs. CRUZ

Interest within the meaning of the Rules means material interest or an


interest in issue to be affected by the decree or judgment of the case,
as distinguished from mere curiosity about the question involved. One
having no material interest to protect cannot invoke the jurisdiction of
the court as the plaintiff in an action. When the plaintiff is not the real
party in interest, the case is dismissible on the ground of lack of cause
of action.

Exclusive venue stipulation embodied in a contract restricts or confines


parties thereto when the suit relates to breach of said contract. But
where the exclusivity clause does not make it necessarily
encompassing, such that even those not related to the enforcement of
the contract should be subject to the exclusive venue, the stipulation
designating exclusive venues should be strictly confined to the specific
undertaking or agreement. Otherwise, the basic principles of freedom
to contract might work to the great disadvantage of a weak party-suitor
who ought to be allowed free access to courts of justice.
Restrictive stipulations are in derogation of the general policy of
making it more convenient for the parties to institute actions arising
from or in relation to their agreements. Thus, the restriction should be
strictly construed as relating solely to the agreement for which the
exclusive venue stipulation is embodied. Expanding the scope of such
limitation on a contracting party will create unwarranted restrictions
which the parties might find unintended or worse, arbitrary and
oppressive.
RULE 3: PARTIES TO CIVIL ACTIONS
IRON and STEEL vs. COURT OF APPEALS
When the statutory term of a non-incorporated agency expires, the
powers, duties and functions as well as the assets and liabilities of that
agency revert back to, and are re-assumed by, the Republic of the
Philippines, in the absence of special provisions of law specifying
some other disposition thereof such as, e.g., devolution or
transmission of such powers, duties, functions, etc. to some other
identified successor agency or instrumentality of the Republic of the
Philippines. When the expiring agency is an incorporated one, the
consequences of such expiry must be looked for, in the first instance,
in the charter of that agency and, by way of supplementation, in the
provisions of the Corporation Code.
RALLA vs. RALLA
The real party-in-interest is the party who stands to be benefited or
injured by the judgment or the party entitled to the avails of the suit.
"Interest" within the meaning of the rule means material interest, an
interest in issue and to be affected by the decree, as distinguished
from mere interest in the question involved, or a mere incidental
interest. As a general rule, one having no right or interest to protect
cannot invoke the jurisdiction of the court as a party-plaintiff in an
action.
As a validly disinherited heir and not claiming to be a creditor of his
deceased father, Pedro Ralla had no legal personality to question the
deed of sale between Rosendo Ralla and his son Pablo. Pedro Ralla
was a stranger to the transaction as he did not stand to benefit from its
annulment.
TAMPINGCO vs. IAC
A donation, as a mode of acquiring ownership, results in an effective
transfer of title over the property from the donor to the donee and once
a donation is accepted, the donee becomes the absolute owner of the
property donated.
OCO vs. LIMBARING
2 of Rule 3 has two requirements: 1) to institute an action, the
plaintiff must be the real party in interest; and 2) the action must be
prosecuted in the name of the real party in interest. The purposes of
this provision are 1) to prevent the prosecution of actions by persons
without any right, title or interest in the case; 2) to require that the
actual party entitled to legal relief be the one to prosecute the action; 3)

PASCUAL vs. PASCUAL


Where the parties are not actual residents in the same city or
municipality or adjoining barangays, there is no requirement for them
to submit their dispute to the lupon as provided for in 6 vis--vis 2
and 3 of P.D. 1508.
To construe the express statutory requirement of actual residency as
applicable to the attorney-in-fact of the party-plaintiff would abrogate
the meaning of a real party in interest.
GOLANGCO vs. FUNG
The People of the Philippines were indispensable parties in all criminal
proceedings. The omission was fatal and enough cause for the
summary rejection of the petition for certiorari.
Consent of the OSG to the petition for certiorari is needed prior to the
filing thereof. The Administrative Code of 1987 mandates the OSG to
represent the Government in the SC and the CA in all criminal
proceedings; represent the Government and its officers in the SC, the
CA, and all other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in his
official capacity is a party.
Although the petition for certiorari bore the conformity of the public
prosecutor, that conformity alone did not suffice. The authority of the
City Prosecutor or his assistant to appear for and represent the People
of the Philippines was confined only to the proceedings in the trial
court.
EQUITABLE vs. HEIRS OF TUI
Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the
BENEFICIARY shall be INCLUDED IN THE TITLE OF THE CASE and
shall be deemed to be the real party in interest. A representative
may be a trustee of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these Rules. An agent
acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except when the
contract involves things belonging to the principal.
DEPT OF HEALTH vs. PHIL PHARMA
The state may not be sued without its consent. Likewise, public
officials may not be sued for acts done in the performance of their
official functions or within the scope of their authority.
An unincorporated government agency without any separate
juridical personality of its own enjoys immunity from suit because it is
invested with an inherent power of sovereignty. Accordingly, a claim for
damages against the agency cannot prosper; otherwise, the doctrine of
sovereign immunity is violated. However, the need to distinguish
between an unincorporated government agency performing
governmental function and one performing proprietary functions
has arisen. The immunity has been upheld in favor of the former
because its function is governmental or incidental to such function; it
has not been upheld in favor of the latter whose function was not in
pursuit of a necessary function of government but was essentially a
business.

CIVIL PROCEDURE:

The doctrine of state immunity extends its protective mantle also to


complaints filed against state officials for acts done in the discharge
and performance of their duties. "The suability of a government official
depends on whether the official concerned was acting within his official
or jurisdictional capacity, and whether the acts done in the
performance of official functions will result in a charge or financial
liability against the government." Otherwise stated, "public officials can
be held personally accountable for acts claimed to have been
performed in connection with official duties where they have acted ultra
vires or where there is showing of bad faith."

CASE

D OC T R I N E S |8

An indispensable party is a party in interest without whom no final


determination can be had of an action, and who shall be joined either
as plaintiffs or defendants. The joinder of indispensable parties is
mandatory. The presence of indispensable parties is necessary to vest
the court with jurisdiction, which is "the authority to hear and determine
a cause, the right to act in a case". Thus, without the presence of
indispensable parties to a suit or proceeding, judgment of a court
cannot attain real finality. 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.

AIR TRANSPORTATION vs. SPS. RAMOS


DAEL vs. TEVES
Not all government entities, whether corporate or non-corporate, are
immune from suits. Immunity from suits is determined by the character
of the objects for which the entity was organized. Suits against State
agencies with relation to matters in which they have assumed to act in
private or non-governmental capacity, and various suits against certain
corporations created by the state for public purposes, but to engage in
matters partaking more of the nature of ordinary business rather than
functions of a governmental or political character, are not regarded as
suits against the state.
ATO, as an agency of the Government not performing a purely
governmental or sovereign function, but was instead involved in the
management and maintenance of the Loakan Airport, an activity that
was not the exclusive prerogative of the State in its sovereign capacity.
Hence, the ATO had no claim to the State's immunity from suit.
AMERICAN EXPRESS vs. SANTIAGO

Whenever a party to a pending case dies, becomes incapacitated, or


incompetent, it shall be the duty of his attorney to inform the court
promptly of such death, incapacity or incompetency and to give the
name and residence of his executor, administrator, guardian or other
legal representative.
Rule 3, 16 of the Rules applies to a situation where a party (whether
plaintiff or defendant) dies after the filing of the complaint and during
the pendency of the case. In the case at bar, since the two
defendants, whose heirs are to be impleaded died even before the
filing of the complaint.
Where the Court orders the plaintiff to amend its complaint within a
certain period of time in order to implead as party defendants one who
is not a party to the case but who is an indispensable party, plaintiff's
refusal to comply with such order is a ground for the dismissal of the
complaint.
SENO vs. MANGUBAT

ARON vs. REALON


Every action must be prosecuted or defended in the name of the real
party-in-interest. Where the action is allowed to be prosecuted or
defended by a representative acting in a fiduciary capacity, the
beneficiary must be included in the title of the case and shall be
deemed to be the real party-in-interest. The name of such beneficiaries
shall, likewise, be included in the complaint.
Facts showing the capacity of a party to sue or be sued, or the
authority of a party to sue or be sued in a representative capacity must
be averred in the complaint. In order to maintain an action in a court of
justice, the plaintiff must have an actual legal existence, that is, he or
she or it must be a person in law and possessed of a legal entity as
either a natural or an artificial person, and no suit can lawfully be
prosecuted in the name of that person. The party bringing suit has the
burden of proving the sufficiency of the representative character that
he claims.
If a complaint is filed by one who claims to represent a party as plaintiff
but who is not authorized to do so, such complaint is not deemed filed
and the court does not acquire jurisdiction over the complaint. An
unauthorized complaint does not produce any legal effect.
Corollary, the defendant can assail the facts alleged therein
through a MTD on the ground that the plaintiff has no capacity to
sue under 1(d) of Rule 16, that is, he does not have the
representative he claims.
Thus, the presence of all INDISPENSABLE PARTIES is a condition
sine qua non for the exercise of judicial power. It is precisely when an
indispensable party is not before the court that the action should be
dismissed. The plaintiff is mandated to implead all indispensable
parties, and the absence of one renders all subsequent actions of
the court null and void for want of authority to act, not only as to
the absent parties, but even as to those present. One who is a
party to a case is not bound by any decision of the court;
otherwise, he will be deprived of his right to due process.
LOTTE PHILIPPINES vs. DELA CRUZ

Under 7, indispensable parties must always be joined either as


plaintiffs or defendants, for the court cannot proceed without them.
NECESSARY PARTIES must be joined, under 8, in order to
adjudicate the whole controversy and avoid multiplicity of suits.
Indispensable parties are those with such an interest in the controversy
that a final decree would necessarily affect their rights, so that the
courts cannot proceed without their presence. NECESSARY PARTIES
are those whose presence is necessary to adjudicate the whole
controversy, but whose interests are so far separable that a final
decree can be made in their absence without affecting them.
QUIOMBING vs. COURT OF APPEALS
The essence of active solidarity consists in the authority of each
creditor to claim and enforce the rights of all, with the resulting
obligation of paying everyone what belongs to him; there is no merger,
much less a renunciation of rights, but only mutual representation.
Where the obligation of the parties is solidary, either one of the parties
is indispensable, and the other is not even necessary (now proper)
because complete relief may be obtained from either.
DOMINGO vs. SCHEER
The NON-JOINDER OF INDISPENSABLE PARTIES is not a ground
for the dismissal of an action and the remedy is to implead the nonparty claimed to be indispensable. Parties may be added by order of
the court on motion of the party or on its own initiative at any stage of
the action and/or such times as are just. If the petitioner refuses to
implead an indispensable party despite the order of the court, the latter
may dismiss the complaint/petition for the petitioner/plaintiffs failure to
comply therefor.
CHUA vs. TORRES
Misjoinder of parties is not fatal to the complaint. The rule prohibits
dismissal of a suit on the ground of non-joinder or misjoinder of parties.
Moreover, the dropping of misjoined parties from the complaint may be
done motu proprio by the court, at any stage, without need for a motion

CIVIL PROCEDURE:

to such effect from the adverse party. 11 of Rule 3 indicates that the
misjoinder of parties, while erroneous, may be corrected with ease
through amendment, without further hindrance to the prosecution of
the suit.
Any act or omission committed by a misjoined party plaintiff should not
be cause for impediment to the prosecution of the case, much less for
the dismissal of the suit.
REPUBLIC vs. CAMPOS

MALAGARTE vs. COURT OF APPEALS


Any one of the co-owners may bring an action for ejectment. The
article covers all kinds of actions for the recovery of possession,
including an accion publiciana and a reivindicatory action. A co-owner
may file suit without necessarily joining all the other co-owners
as co-plaintiffs because the suit is deemed to be instituted for the
benefit of all. Any judgment of the court in favor of the plaintiff will
benefit the other co-owners, but if the judgment is adverse, the same
cannot prejudice the rights of the unimpleaded co-owners.
Thus, petitioners do not have to implead their co-owners as parties.
The only EXCEPTION TO THIS RULE is when the action is for the
benefit of the plaintiff alone who claims to be the sole owner and is,
thus, entitled to the possession thereof. In such a case, the action will
not prosper unless the plaintiff impleads the other co-owners who are
indispensable parties.
OFFICE OF THE CITY MAYOR vs. EBIO
Art. 457 of the Civil code provides that alluvial deposits along the
banks of a creek do not form part of the public domain as the alluvial
property automatically belongs to the owner of the estate to which it
may have been added. The only restriction provided for by law is that
the owner of the adjoining property must register the same under the
Torrens system; otherwise, the alluvial property may be subject to
acquisition through prescription by third persons.
The action for prohibition seeks to enjoin the city government of
Paraaque from proceeding with its implementation of the road
construction project. The State is neither a necessary nor an
indispensable party to an action where no positive act shall be
required from it or where no obligation shall be imposed upon it,
such as in the case at bar. Neither would it be an indispensable party
if none of its properties shall be divested nor any of its rights infringed.
CARANDANG vs. DE GUZMAN
Lack of jurisdiction over the person, being subject to waiver, is a
personal defense which can only be asserted by the party who can
thereby waive it by silence.
The underlying principle behind the FORMAL SUBSTITUTION OF
HEIRS is not really because substitution of heirs is a jurisdictional
requirement, but because non-compliance results in the undeniable
violation of the right to due process of those who, though not duly
notified of the proceedings, are substantially affected by the decision
rendered therein. Such violation of due process can only be asserted
by the persons whose rights are claimed to have been violated, namely
the heirs to whom the adverse judgment is sought to be enforced.
Further, proceedings that took place after the death of the party are
void, we gave another reason for such nullity: the attorneys for the
offended party ceased to be the attorneys for the deceased upon the
death of the latter, the principal.
PRO-FORMA PARTIES can either be indispensable, necessary or
neither indispensable nor necessary. The third case occurs if, for
example, a husband files an action to recover a property which he
claims to be part of his exclusive property. The wife may have no legal

CASE

D OC T R I N E S |9

interest in such property, but the rules nevertheless require that she be
joined as a party.
In cases of pro-forma parties who are neither indispensable nor
necessary, the general rule under 11, Rule 3 must be followed: such
non-joinder is not a ground for dismissal. Hence, in a case concerning
an action to recover a sum of money, we held that the failure to join the
spouse in that case was not a jurisdictional defect. The non-joinder of
a spouse does not warrant dismissal as it is merely a formal
requirement which may be cured by amendment.
Conversely, in the instances that the pro-forma parties are also
indispensable or necessary parties, the rules concerning indispensable
or necessary parties, as the case may be, should be applied. Thus,
dismissal is warranted only if the pro-forma party not joined in the
complaint is an indispensable party.
BULAWAN vs. AQUENDER
A person who was not impleaded in the complaint cannot be bound by
the decision rendered therein, for no man shall be affected by a
proceeding in which he is a stranger.
In a petition for ANNULMENT OF JUDGMENT, the judgment may be
annulled on the grounds of extrinsic fraud and lack of jurisdiction.
Fraud is extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court, or where it operates upon
matters pertaining not to the judgment itself but to the manner in which
it is procured.
Annulment of judgment is a remedy in law independent of the case
where the judgment sought to be annulled was rendered.
Consequently, an action for annulment of judgment may be availed of
even if the judgment to be annulled had already been fully executed or
implemented.
CHIANG KAI SHEK vs. COURT OF APPEALS
Having contracted with the private respondent every year for 32 years
and thus represented itself as possessed of juridical personality to do
so, the petitioner is now estopped from denying such personality to
defeat her claim against it. According to Article 1431 of the Civil Code,
"through estoppel an admission or representation is rendered
conclusive upon the person making it and cannot be denied or
disproved as against the person relying on it."
As the school itself may be sued in its own name, there is no
need to apply Rule 3, 15, under which the persons joined in an
association without any juridical personality may be sued with
such association. Besides, it has been shown that the individual
members of the board of trustees are not liable, having been appointed
only after the private respondent's dismissal.
NUGUID VDA. DE HABERER vs. CA, MARTINEZ
In the absence of a retainer from the heirs or authorized
representatives of his deceased client, the attorney would thereafter
have no further power or authority to appear or take any further action
in the case, save to inform the court of the client's death and take the
necessary steps to safeguard the deceased's rights in the case.
When a party dies in an action that survives, and no order is issued by
the court for the appearance of the legal representative or of the heirs
of the deceased in substitution of the deceased, and as a matter of fact
no such substitution has ever been effected, the trial held by the court
without such legal representatives or heirs and the judgment rendered
after such trial are null and void because the court acquired no
jurisdiction over the persons of the legal representatives or of the heirs
upon whom the trial and the judgment would be binding.
VDA. DE SALAZAR vs. CA, NEPOMUCENO

CIVIL

Formal substitution of heirs is not necessary when the heirs


themselves voluntarily appeared, participated in the case and
presented evidence in defense of deceased defendant.

PROCEDURE:

CASE

D O C T R I N E S | 10

Failure of the counsel to comply with his duty to inform the court of the
death of his client, such that no substitution is effected, will not
invalidate the proceedings and the judgment rendered thereon if the
action survives the death of such party.

GOCHAN vs. YOUNG


The Rules, while permitting an executor or administrator to represent
or to bring suits on behalf of the deceased, do not prohibit the heirs
from representing the deceased. The rules are easily applicable to
cases in which an administrator has already been appointed. But no
rule categorically addresses the situation in which special
proceedings for the settlement of an estate have already been
instituted, yet no administrator has been appointed. In such
instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to see if the
administrator appointed would care enough to file a suit to
protect the rights and the interests of the deceased; and in the
meantime do nothing while the rights and the properties of the
decedent are violated or dissipated.
For the protection of the interests of the decedent, this Court has
recognized the heirs as proper representatives of the decedent, even
when there is already an administrator appointed by the court. When
no administrator has been appointed, there is all the more reason to
recognize the heirs as the proper representatives of the deceased.
The heirs cannot be expected to wait for the appointment of an
administrator; then wait further to see if the administrator appointed
would care enough to file a suit to protect the rights and the interests of
the deceased; and in the meantime do nothing while the rights and the
properties of the decedent are violated or dissipated.
JUDGE SUMALJAG vs. SPOUSES LITERATO and RODRIGO
The "legal representatives" that the provision speaks of, refer to those
authorized by law - the administrator, executor or guardian who, under
the rule on settlement of estate of deceased persons, is constituted to
take over the estate of the deceased.
The reason for the Rule is to protect all concerned who may be
affected by the intervening death, particularly the deceased and her
estate.
VENTANILLA ENTERPRISES vs. TAN and SHERIFF VELASQUEZ
It is the party's duty to inform the court of its counsel's demise, and
failure to apprise the court of such fact shall be considered negligence
on the part of said party.
It is not the duty of the courts to inquire, during the progress of a case.
They cannot pass the blame to the court, which is not tasked to
monitor the changes in the circumstances of the parties and their
counsel.
Litigants who are represented by counsel should not expect that all
they need to do is sit back, relax and await the outcome of their cases.
Relief will not be granted to a party who seeks avoidance from the
effects of the judgment when the loss of the remedy at law was due to
his own negligence.
ATTY. SARSABA vs. FE VDA. DE TE
The rule on substitution by heirs is not a matter of jurisdiction, but a
requirement of due process. The rule on substitution was crafted to
protect every party's right to due process. It was designed to ensure
that the deceased party would continue to be properly represented in
the suit through his heirs or the duly appointed legal representative of
his estate. Moreover, non-compliance with the Rules results in the
denial of the right to due process for the heirs who, though not duly
notified of the proceedings, would be substantially affected by the
decision rendered therein. Thus, it is only when there is a denial of due
process, as when the deceased is not represented by any legal
representative or heir, that the court nullifies the trial proceedings and
the resulting judgment therein.

Criteria for determining whether an action survives the death of a


plaintiff: The question as to whether an action survives or not
depends on the nature of the action and the damage sued for. If
the causes of action which survive the wrong complained [of]
affects primarily and principally property and property rights, the
injuries to the person being merely incidental, while in the causes
of action which do not survive the injury complained of is to the
person the property and rights of property affected being
incidental.
DAGADAG vs. TONGNAWA and GAMMOD
Where the petitioner (a public officer) ceases to be mayor, the appeal
and/or action he initiated may be continued and maintained by his
successor if there is substantial need to do so. If the successor failed
to pursue the appeal and/or action, the same should be dismissed.
CARANDANG vs. HEIRS OF DE GUZMAN

TORRES vs. RODELLAS


16, Rule 3 of the Revised Rules of Court, a counsel, within 30 days
from his clients death, is duty-bound to inform the court of such fact,
and to submit the names and addresses of the deceased clients legal
representatives. Thereafter, the court shall order, forthwith, the
appearance of and substitution by the deceased partys legal
representatives within another period of 30 days from notice.
The heirs must be allowed to continue any litigation to protect said
property or property rights and to substitute themselves for the
deceased party in accordance with appropriate rules.
The decision could not have attained finality because of the nonsubstitution of the heirs for the deceased. The heirs must be given the
opportunity to contest the adverse judgment that affects the property
and property rights to which they succeeded. A rule intended to protect
due process cannot be invoked to defeat the same.
AGUAS vs. LLEMOS
ACTIONS THAT SURVIVE DEATH [against a decedent's executors or
administrators]: (1) actions to recover real and personal property from
the estate; (2) actions to enforce a lien thereon; and (3) actions to
recover damages for an injury to person or property.
RULE 4: VENUE OF ACTIONS
MARCOS-ARANETA vs. CA, BENEDICTO
Venue essentially concerns a rule of procedure which, in personal
actions, is fixed for the greatest convenience possible of the plaintiff
and his witnesses. The ground of improperly laid venue must be raised
seasonably, else it is deemed waived. Where the defendant failed to
either file a motion to dismiss on the ground of improper venue or
include the same as an affirmative defense, he is deemed to have
waived his right to object to improper venue.
When there is more than one plaintiff in a personal action case, the
residences of the principal parties should be the basis for determining
proper venue.
ANG and ACERON vs. SPOUSES ALAN ANG
The Rules give the plaintiff the option of choosing where to file his
complaint. He can file it in the place (1) where he himself or any of
them resides, or (2) where the defendant or any of the defendants

CIVIL PROCEDURE:

resides or may be found. The plaintiff or the defendant must be


residents of the place where the action has been instituted at the time
the action is commenced. However, if the plaintiff does not reside in
the Philippines, the complaint in such case may only be filed in the
court of the place where the defendant resides.
The situs for bringing real and personal civil actions is fixed by the
Rules of Court to attain the greatest convenience possible to the
litigants and their witnesses by affording them maximum accessibility
to the courts. And even as the regulation of venue is primarily for the
convenience of the plaintiff, as attested by the fact that the choice of
venue is given to him, it should not be construed to unduly deprive a
resident defendant of the rights conferred upon him by the Rules of
Court.

CASE

D O C T R I N E S | 11

YOUNG AUTO SUPPLY vs. CA, CHIONG ROXAS


The Corporation Code precisely requires each corporation to specify in
its articles of incorporation the "place where the principal office of the
corporation is to be located which must be within the Philippines". The
purpose of this requirement is to fix the residence of a corporation in a
definite place, instead of allowing it to be ambulatory.
To allow an action to be instituted in any place where the corporation
has branch offices, would create confusion and work untold
inconvenience to said entity. By the same token, a corporation cannot
be allowed to file personal actions in a place other than its principal
place of business unless such a place is also the residence of a coplaintiff or a defendant.

UNIVERSAL ROBINA vs. LIM


SALUDO vs. AMERICAN EXPRESS INTL
The rules states that defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. The court may
only dismiss an action motu proprio in case of lack of jurisdiction over
the subject matter, litis pendentia, res judicata and prescription.
Improper venue not impleaded in the motion to dismiss or in the
answer is deemed waived. Thus, a court may not dismiss an action
motu proprio on the ground of improper venue as it is not one of the
grounds wherein the court may dismiss an action motu proprio on the
basis of the pleadings.

For purposes of venue, the less technical definition of "residence" is


adopted. Thus, it is understood to mean as "the personal, actual or
physical habitation of a person, actual residence or place of abode. It
signifies physical presence in a place and actual stay thereat. The term
means merely residence, that is, personal residence, not legal
residence or domicile. Residence simply requires bodily presence as
an inhabitant in a given place, while domicile requires bodily presence
in that place and also an intention to make it one's domicile."
R. SAN LUIS vs. F. SAGALONGOS a.k.a. SAN LUIS

GO vs. UCPB
The controlling factor in determining venue is the primary objective for
which the case is filed. The cancellation of the real estate mortgage is
a real action, considering that a real estate mortgage is a real right and
a real property by itself. An action for cancellation of real estate
mortgage is necessarily an action affecting the title to the property. It is,
therefore, a real action which should be commenced and tried in the
place where the subject property lies.
HOECHST PHILIPPINES vs. TORRES and DONATO
Change or transfer of venue from that fixed in the rules may be
effected upon written agreement of the parties not only before the
actual filing of the action but even after the same has been filed. It is
not only binding between the parties but also enforceable by the
courts. It is only after the action has been filed already that change or
transfer of venue by agreement of the parties is understandably
controllable in the discretion of the court.

"Resides" should be viewed or understood in its popular sense,


meaning, the personal, actual or physical habitation of a person, actual
residence or place of abode. It signifies physical presence in a place
and actual stay thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or domicile.
Residence simply requires bodily presence as an inhabitant in a given
place, while domicile requires bodily presence in that place and also an
intention to make it ones domicile. No particular length of time of
residence is required though; however, the residence must be more
than temporary.
UNITED OVERSEAS BANK (WESTMONT) vs. ROSEMOORE
MINING and PASCUAL
The venue of real actions affecting properties found in different
provinces is determined by the singularity or plurality of the
transactions involving said parcels of land. Where said parcels are the
object of one and the same transaction, the venue is in the court of
ANY of the provinces wherein a parcel of land is situated.

On the other hand, the Court may declare the agreement as to venue
to be in effect contrary to public policy, whenever it is shown that a
stipulation as to venue works injustice by practically denying to the
party concerned a fair opportunity to file suit in the place designated by
the rules.

In the case, there is only one proceeding sought to be nullified and that
is the extra-judicial mortgage foreclosure sale. And there is only one
initial transaction which served as the basis of the foreclosure sale and
that is the MORTGAGE CONTRACT.

PHILIPPINE BANKING CORP. vs. HON. TENSUAN

RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS

Venue stipulations in a contract, while considered valid and


enforceable, do not as rule supersede the general rule set forth in Rule
4 of the Revised Rules of Court. In the absence of qualifying or
restrictive words, they should be considered merely as an agreement
on additional forum, not as limiting venue to the specified place. They
are not exclusive but, rather permissive. For, to restrict venue only to
that place stipulated in the agreement is a construction purely based
on technicality which, on the contrary, should be liberally construed.

BAYUBAY vs. CA, BIG MAK BURGER

PBCom vs. LIM, CALDERON and TRI-ORO


A restrictive stipulation on the venue of actions contained in a
promissory note applies to the surety agreement supporting it, because
the nature of the two contracts and the factual circumstances
surrounding their execution are intertwined or interconnected. The
surety agreement is merely an accessory to the principal loan
agreement embodied in the promissory note. Hence, the enforcement
of the former depends upon the latter.

Rules of procedure are intended to ensure the orderly administration of


justice and the protection of substantive rights in judicial and extrajudicial proceedings. It is a mistake to suppose that substantive law
and adjective law are contradictory to each other or, as has been often
suggested, that enforcement of procedural rules should never be
permitted if it will result in prejudice to the substantive rights of the
litigants. This is not exactly true; the concept is much misunderstood.
As a matter of fact the policy of the courts is to give effect to both kinds
of law, as complementing each other, in the just and speedy resolution
of the dispute between the parties. Observance of both substantive
and procedural rights is equally guaranteed by due process, whatever
the source of such rights, be it the Constitution itself or only a statute
or a rule of court.
LUCAS vs. FABROS

CIVIL

Sec. 19 (c) of the Revised Rules on Summary Procedure effective


November 15, 1991: "The motion prohibited by this is that which
seeks reconsideration of the judgment rendered by the court after trial
on the merits of the case."
BONGATO vs. SPOUSES MALVAR
An action for forcible entry is a quieting process that is summary in
nature. It is designed to recover physical possession in speedy
proceedings that are restrictive in nature, scope and time limits. The
one-year bar within which to bring the suit is prescribed to complement
its summary nature. Thus, after the one-year period has lapsed,
plaintiffs can no longer avail themselves of the summary proceedings
in the municipal trial court but must litigate, in the normal course, in the
regional trial court in an ordinary action to recover possession, or to
recover both ownership and possession.
PASCUAL vs. JUDGE JOVELLANOS
Municipal trial court judges ought to be familiar with the Rules on
Summary Procedure governing ejectment cases. Failure to observe
them constitutes gross ignorance of the law.
LUNA vs. MIRAFUENTE
Liberal interpretation or construction of the law or rules, however, is not
a free commodity that may be availed of in all instances under the
cloak of rendering justice. Liberality in the interpretation and application
of Rules applies only in proper cases and under justifiable causes and
circumstances. While it is true that litigation is not a game of
technicalities, it is equally true that every case must be prosecuted in
accordance with the prescribed procedure to insure an orderly and
speedy administration of justice.
GO vs. CA and STAR GROUP RESOURCES
Private respondent cannot appeal the order, being interlocutory. But
neither can it file a petition for certiorari, because ejectment suits fall
under the Revised Rules on Summary Procedure.
Where the trial court abuses its discretion by indefinitely suspending
summary proceeding involving ejectment cases, a petition for certiorari
may be entertained by the proper court to correct the blunder. In the
interest of justice and in view of the procedural void on the subject, an
appeal may be treated as a petition for certiorari for this purpose and
only in this instance, pro hac vice.
SEC. LIMA vs. GATDULA
Summary
procedure
only
applies
to
lower
courts
(MTC/MTCC/MCTCs). It is mind-boggling how this rule could possibly
apply to proceedings in an RTC. Aside from that, this Court limited the
application of summary procedure to certain civil and criminal cases. A
writ of Amparo is a special proceeding. It is a remedy by which a party
seeks to establish a status, a right or particular fact. It is not a civil nor
a criminal action. Hence, the application of the Revised Rule on
Summary Procedure is seriously misplaced.
The Return in Amparo cases allows the respondents to frame the
issues subject to a hearing. Hence, it should be done prior to the
hearing, not after. A memorandum, on the other hand, is a synthesis of
the claims of the party litigants and is a final pleading usually required
before the case is submitted for decision. One cannot substitute for the
other since these submissions have different functions in facilitating the
suit.
More importantly, a memorandum is a prohibited pleading under the
Rule on the Writ of Amparo.
The privilege of the Writ of Amparo should be distinguished from the
actual order called the Writ of Amparo. The privilege includes availment
of the entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on
the Writ of Amparo. After examining the petition and its attached
affidavits, the Return and the evidence presented in the summary

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D O C T R I N E S | 12

hearing, the judgment should detail the required acts from the
respondents that will mitigate, if not totally eradicate, the violation of or
the threat to the petitioner's life, liberty or security.
A judgment which simply grants "the privilege of the writ" cannot be
executed. It is tantamount to a failure of the judge to intervene and
grant judicial succor to the petitioner. Petitions filed to avail of the
privilege of the Writ of Amparo arise out of very real and concrete
circumstances. Judicial responses cannot be as tragically symbolic or
ritualistic as "granting the privilege of the Writ of Amparo."
RULE 6: KINDS OF PLEADINGS
VICTORINA vs. BREWMASTER INTL
A COMPLAINT must make a plain, concise, and direct statement of the
ultimate facts on which the plaintiff relies for his claim. ULTIMATE
FACTS mean the important and substantial facts which either directly
form the basis of the plaintiff's primary right and duty or directly make
up the wrongful acts or omissions of the defendant. They refer to the
principal, determinative, constitutive facts upon the existence of which
the cause of action rests. The term does not refer to details of
probative matter or particulars of evidence which establish the material
elements.
The TEST OF SUFFICIENCY of the facts alleged in a complaint to
constitute a cause of action is whether, admitting the facts alleged, the
court could render a valid judgment upon the same in accordance with
the prayer of the petition or complaint.
MONGAO vs. PRYCE PROPERTIES
Where an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party's pleading, the court may, on
motion of that party, direct judgment on such pleading. The answer
would fail to tender an issue, of course, if it does not comply with the
requirements for a specific denial set out in 10 (or 8) of Rule 8; and it
would admit the material allegations of the adverse party's pleadings
not only where it expressly confesses the truthfulness thereof but also
if it omits to deal with them at all.
If an answer does in fact specifically deny the material averments of
the complaint in the manner indicated by said 10 of Rule 8, and/or
asserts affirmative defenses (allegations of new matter which, while
admitting the material allegations of the complaint expressly or
impliedly, would nevertheless prevent or bar recovery by the plaintiff) in
accordance with 4 and 5 of Rule 6, a judgment on the pleadings
would naturally not be proper.
There is JOINDER OF ISSUES when the answer makes a specific
denial of the material allegations in the complaint or asserts affirmative
defenses which would bar recovery by the plaintiff. Where there is
proper joinder of issues, the trial court is barred from rendering
judgment based only on the pleadings filed by the parties and must
conduct proceedings for the reception of evidence. On the other hand,
an answer fails to tender an issue where the allegations admit the
allegations in support of the plaintiffs cause of action or fail to address
them at all. In either case, there is no genuine issue and judgment on
the pleadings is proper.
An answer may allege affirmative defenses which may strike down the
plaintiffs cause of action. An AFFIRMATIVE DEFENSE is one which is
not a denial of an essential ingredient in the plaintiffs cause of action,
but one which, if established, will be a good defensei.e. an
"avoidance" of the claim. Affirmative defenses include fraud, statute of
limitations, release payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, and any other matter by way
of confession and avoidance. When the answer asserts affirmative
defenses, there is proper joinder of issues which must be ventilated in
a full-blown trial on the merits and cannot be resolved by a mere
judgment on the pleadings.
BUNCAYAO vs. FORT ILOCANDIA PROPERTIES

CIVIL

A COMPULSORY COUNTERCLAIM is any claim for money or any


relief, which a defending party may have against an opposing party,
which at the time of suit arises out of, or is necessarily connected with,
the same transaction or occurrence that is the subject matter of the
plaintiff's complaint. It is compulsory in the sense that it is within the
jurisdiction of the court, does not require for its adjudication the
presence of third parties over whom the court cannot acquire
jurisdiction, and will be barred in the future if not set up in the answer
to the complaint in the same case. Any other counterclaim is
permissive.
The compelling test of compulsoriness characterizes a counterclaim as
compulsory if there should exist a logical relationship between the
main claim and the counterclaim.
The CRITERIA TO DETERMINE whether the counterclaim is
compulsory or permissive are as follows:
a)

Are issues of fact and law raised by the claim and by the
counterclaim largely the same?

b)

Would res judicata bar a subsequent suit on defendant's claim,


absent the compulsory rule?

c)

Will substantially the same evidence support or refute plaintiff's


claim as well as defendant's counterclaim?

d)

Is there any logical relations between the claim and the


counterclaim?
GSIS vs. HEIRS OF CABALLERO

TESTS: (a) Are the issues of fact and law raised by the claim and by
the counterclaim largely the same? (b) Would res judicata bar a
subsequent suit on defendants claims, absent the compulsory
counterclaim rule? (c) Will substantially the same evidence support or
refute plaintiffs claim as well as the defendants counterclaim? and (d)
Is there any logical relation between the claim and the counterclaim? A
positive answer to all four questions would indicate that the
counterclaim is compulsory.
The rule in PERMISSIVE COUNTERCLAIMS is that for the trial court
to acquire jurisdiction, the counterclaimant is bound to pay the
prescribed docket fees.
CALO vs. AJAX
A compulsory counterclaim not set up is barred, when applied to the
municipal court, presupposes that the amount involved is within the
said court's jurisdiction.
For, even if the counterclaim in excess of the amount cognizable by the
inferior court is set up, the defendant cannot obtain positive relief. The
Rules allow this only for the defendant to prevent plaintiff from
recovering from him. This means that should the court find both
plaintiff's complaint and defendant's counterclaim (for an amount
exceeding said court's jurisdiction) meritorious, it will simply dismiss
the complaint on the ground that defendant has a bigger credit. Since
defendant still has to institute a separate action for the remaining
balance of his counterclaim, the previous litigation did not really settle
all related controversies.
ICTSI vs. COURT OF APPEALS
Rule 17, Sec. 2 "if a counterclaim has been pleaded by a defendant
prior to the service upon him of a motion to dismiss, the action shall not
be dismissed against the defendants objection unless the
counterclaim can remain pending for independent adjudication by the
Court."
A counterclaim is permissive if it does not arise out of nor is it
necessarily connected with the subject matter of the opposing partys
claim. It is not barred even if not set up in the action.

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D O C T R I N E S | 13

METALS ENGINEERING vs. COURT OF APPEALS


COMPULSORY COUNTERCLAIM cannot be made the subject of a
separate action but should be asserted in the same suit involving the
same transaction or occurrence giving rise to it. Where the
counterclaim is made the subject of a separate suit, it may be abated
upon a plea of auter action pendant or litis pendentia, and or dismissed
on the ground of res judicata.
A compulsory counterclaim is auxiliary to the proceeding in the original
suit and derives its jurisdictional support therefrom, inasmuch as it
arises out of or is necessarily connected with the transaction or
occurrence that is the subject matter of the complaint. It follows that if
the court does not have jurisdiction to entertain the main action of the
case and dismisses the same, then the compulsory counterclaim,
being ancillary to the principal controversy, must likewise be dismissed
since no jurisdiction remained for any grant of relief under the
counterclaim.
A counterclaim presupposes the existence of a claim against the party
filing the counterclaim. Where there is no claim against the
counterclaimant, then the counterclaim is improper and should be
dismissed.
COJUANGCO vs. VILLEGAS
A counterclaim or cross-claim not set up shall be barred if it arises out
of or is necessarily connected with, the transaction or occurrence that
is the subject-matter of the opposing party's or co-party's claim and
does not require for its adjudication the presence of third parties of
whom the court cannot acquire jurisdiction.
Villegas failed to set up such alternative defense (i.e. a builder in good
faith is entitled to recover the value of improvements) and instead
relied on the sole defense that she inherited the land from her parents,
the rejection thereof was a complete resolution of the controversy
between the parties which bars a later case based upon the unpleaded
defense. The adjudication of the issue joined by the parties in the
earlier case constitutes res judicata, the theory being that what is
barred by prior judgment are not only the matters actually raised and
litigated upon, but also such other matters as could have been raised
but were not.
AGANA vs. LAGMAN
Administrative Circular No. 04-94 does not apply to compulsory
counterclaims. The circular applies to initiatory and similar pleadings.
A compulsory counterclaim set up in the answer is not an "initiatory" or
similar pleading. The initiatory pleading is the plaintiff's complaint. A
respondent has no choice but to raise a compulsory counterclaim the
moment the plaintiff files the complaint. Otherwise, respondent waives
the compulsory counterclaim. The compulsory counterclaim is a
reaction or response, mandatory upon pain of waiver, to an initiatory
pleading which is the complaint.
If it is a permissive counterclaim, the lack of a certificate of non-forum
shopping is fatal. If it is a compulsory counterclaim, the lack of a
certificate of non-forum shopping is immaterial.
PHILTRANCO vs. PARAS and INLAND TRAILWAYS
In an action for breach of contract of carriage commenced by a
passenger against his common carrier, the plaintiff can recover
damages from a third-party defendant brought into the suit by the
common carrier upon a claim based on tort or quasi-delict. The liability
of the third-party defendant is independent from the liability of the
common carrier to the passenger.
A THIRD-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-party defendant, for contribution, indemnity, subrogation or
any other relief, in respect of his opponents claim.

CIVIL

The impleader of new parties under this rule is proper only when a
right to relief exists under the applicable substantive law. This rule is
merely a procedural mechanism, and cannot be utilized unless there is
some substantive basis under applicable law.
The REQUISITES for a third-party action are, firstly, that the party to
be impleaded must not yet be a party to the action; secondly, that the
claim against the third-party defendant must belong to the original
defendant; thirdly, the claim of the original defendant against the thirdparty defendant must be based upon the plaintiffs claim against the
original defendant; and, fourthly, the defendant is attempting to
transfer to the third-party defendant the liability asserted against him by
the original plaintiff.
The third-party claim need not be based on the same theory as the
main claim. For example, there are cases in which the third-party claim
is based on an express indemnity contract and the original complaint is
framed in terms of negligence. Similarly, there need not be any legal
relationship between the third-party defendant and any of the other
parties to the action. Impleader also is proper even though the third
partys liability is contingent, and technically does not come into
existence until the original defendants liability has been established. In
addition, the words is or may be liable in Rule 14(a) make it clear that
impleader is proper even though the third-party defendants liability is
not automatically established once the third-party plaintiffs liability to
the original plaintiff has been determined.
SINGAPORE AIRLINES vs. COURT OF APPEALS
The third-party complaint is actually independent of and separate and
distinct from the plaintiff's complaint. . . . When leave to file the thirdparty complaint is properly granted, the Court renders in effect two
judgments in the same case, one on the plaintiff's complaint and the
other on the third-party complaint. When he finds favorably on both
complaints, as in this case, he renders judgment on the principal
complaint in favor of plaintiff against defendant and renders another
judgment on the third-party complaint in favor of defendant as thirdparty plaintiff, ordering the third-party defendant to reimburse the
defendant whatever amount said defendant is ordered to pay plaintiff in
the case. Failure of any of said parties in such a case to appeal the
judgment as against him makes such judgment final and executory. By
the same token, an appeal by one party from such judgment does NOT
inure to the benefit of the other party who has not appealed nor can it
be deemed to be an appeal of such other party from the judgment
against him.
There is no question that a third-party defendant is allowed to set up in
his answer the defenses which the third-party plaintiff (original
defendant) has or may have to the plaintiff's claim.

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D O C T R I N E S | 14

same interest in both actions; (2) identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (3) the
identity on the two preceding particulars should be such that any
judgment which may be rendered on the other action will regardless of
which party is successful, amount to res adjudicata in the action under
consideration.
SAMEER OVERSEAS vs. SANTOS, ET AL.
An UNSIGNED PLEADING produces no legal effect. However, the
court ay, in its discretion, allow such deficiency to be remedied if it shall
appear that the same was due to mere inadvertence and not intended
for delay. Counsel who deliberately files an unsigned pleading, or signs
a pleading in violation of this Rule, or alleges scandalous or indecent
matter therein, or fails to promptly report to the court a change of his
address, shall be subject to appropriate disciplinary action.
FORUM SHOPPING is defined as an act of a party, against whom an
adverse judgment or order has been rendered in one forum, of seeking
and possibly getting a favorable opinion in another forum, other than
by appeal or special civil action for certiorari. It may also be the
institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would make
a favorable disposition.
There is forum shopping where the elements of litis pendentia are
present, namely: (a) there is identity of parties, or at least such parties
as represent the same interest in both actions; (b) there is identity of
rights asserted and relief prayed for, the relief being founded on the
same set of facts; and (c) the identity of the two preceding particulars
is such that any judgment rendered in the pending case, regardless of
which party is successful, would amount to res judicata in the other.
ANDERSON vs. HO
A "certification is a peculiar personal representation on the part of the
principal party, an assurance given to the court or other tribunal that
there are no other pending cases involving basically the same parties,
issues and causes of action." "Obviously, it is the petitioner, and not
always the counsel whose professional services have been retained
for a particular case, who is in the best position to know whether she
actually filed or caused the filing of a petition in that case." Per the
above guidelines, however, if a petitioner is unable to sign a
certification for reasonable or justifiable reasons, she must execute an
SPA designating her counsel of record to sign on her behalf. "A
certification which had been signed by counsel without the proper
authorization is defective and constitutes a valid cause for the
dismissal of the petition."
BUAN vs. LOPEZ

While the third-party defendant; would benefit from a victory by the


third-party plaintiff against the plaintiff, this is true only when the thirdparty plaintiff and third-party defendant have NON-CONTRADICTORY
DEFENSES.
RULE 7: PARTS OF A PLEADING
QUIMPO vs. DELA VICTORIA
Where the plaintiff stated that the allegations in the complaint are true
and correct, but omitted to state that said conclusion was reached of
his own knowledge, it is logically inferable that his statement is of his
own knowledge since he was a party and it does not appear that he
was verifying upon information and belief. If petitioner entertained
doubt about the true character of the verification, he should have
asked that it be made more definite. Moreover, even if the verification
is insufficient, that insufficiency would not render the complaint, or the
whole proceedings in the court below, void. Requirement regarding
verification is not jurisdictional, but merely formal.
In order that the ground of pendency of another action between the
same parties for the same cause may be availed of in a motion to
dismiss there must be, between the action under consideration and the
other action, (I) identity of parties, or at least such as representing the

There thus exists between the action before this Court and RTC Case
IDENTITY OF PARTIES, or at least such parties as represent the
same interests in both actions, as well as Identity of rights asserted
and relief prayed for, the relief being founded on the same facts, and
the Identity on the two preceding particulars is such that any judgment
rendered in the other action, will regardless of which party is
successful, amount to res adjudicata in the action under consideration:
all the requisites, in fine, of auter action pendant.
LOQUIAS vs. OFFICE OF THE OMBUDSMAN
It is the plaintiff or principal party who shall certify under oath that he
has not commenced any action involving the same issues in any court.
The attestation contained in the certification on non-forum shopping
requires personal knowledge by the party who executed the same.
Utter disregard of the rules cannot justly be rationalized by harking on
the policy of liberal construction.
DOCENA vs. LAPESURA
Under the Family Code, the administration of the conjugal property
belongs to the husband and the wife jointly. However, unlike an act of
alienation or encumbrance where the consent of both spouses is

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required, joint management or administration does not require that the


husband and wife always act together. Each spouse may validly
exercise full power of management alone, subject to the intervention of
the court in proper cases as provided under Article 124 of the Family
Code. It is believed that even under the provisions of the Family Code,
the husband alone could have filed the petition for certiorari and
prohibition to contest the writs of demolition issued against the
conjugal property with the Court of Appeals without being joined by his
wife. The signing of the attached certificate of non-forum shopping only
by the husband is not a fatal defect and should be deemed to
constitute substantial compliance with the rules.

position to verify the truthfulness and correctness of the allegations in


the petition.

FUENTABELLA vs. CASTRO

CHUA vs. METROBANK

The petitioner or the principal party must execute the certification


against forum shopping. The reason for this is that the principal party
has actual knowledge whether a petition has previously been filed
involving the same case or substantially the same issues. If, for any
reason, the principal party cannot sign the petition, the one signing on
his behalf must have been duly authorized.

Forum shopping exists when a party repeatedly avails himself of


several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions and
the same essential facts and circumstances, and all raising
substantially the same issues either pending in or already resolved
adversely by some other court.

This requirement is intended to apply to both natural and juridical


persons. Where the petitioner is a corporation, the certification against
forum shopping should be signed by its duly authorized director or
representative.

Ultimately, what is truly important in determining whether forum


shopping exists or not is the vexation caused the courts and partylitigant by a party who asks different courts to rule on the same or
related causes and/or to grant the same or substantially the same
reliefs, in the process creating the possibility of conflicting decisions
being rendered by the different fora upon the same issue.

Where there are several petitioners, it is insufficient that only one of


them executes the certification, absent a showing that he was so
authorized by the others. That certification requires personal
knowledge and it cannot be presumed that the signatory knew that his
co-petitioners had the same or similar actions filed or pending.
An omission in the certificate of non-forum shopping about any event
that would not constitute res judicata and litis pendentia, as in the
present case, is not fatal as to merit the dismissal and nullification of
the entire proceedings considering that the evils sought to be
prevented by the said certificate are not present.
STO. TOMAS UNIVERSITY vs. SURLA
The real office of Administrative Circular No. 04-94 is to curb the
malpractice commonly referred to also as forum-shopping. It is an act
of a party against whom an adverse judgment has been rendered in
one forum of seeking and possibly getting a favorable opinion in
another forum, other than by appeal or the special civil action of
certiorari, or the institution of two or more actions or proceedings
grounded on the same cause on the supposition that one or the other
court would make a favorable disposition. The language of the circular
distinctly suggests that it is primarily intended to cover an initiatory
pleading or an incipient application of a party asserting a claim for
relief.
The foregoing rationale of the circular aptly taken, to sustain the view
that the circular in question has not, in fact, been contemplated to
include a kind of claim which, by its very nature as being auxiliary to
the proceedings in the suit and as deriving its substantive and
jurisdictional support therefrom, can only be appropriately pleaded in
the answer and not remain outstanding for independent resolution
except by the court where the main case pends.
CAGAYAN VALLEY vs. CIR
The following officials or employees of the company can sign the
verification and certification without need of a board resolution: (1) the
Chairperson of the Board of Directors, (2) the President of a
corporation, (3) the General Manager or Acting General Manager, (4)
Personnel Officer, and (5) an Employment Specialist in a labor case.
While the above cases do not provide a complete listing of authorized
signatories to the verification and certification required by the rules, the
determination of the sufficiency of the authority was done on a case to
case basis. The rationale applied in the foregoing cases is to justify
the authority of corporate officers or representatives of the corporation
to sign the verification or certificate against forum shopping, being in a

However, appending the board resolution to the complaint or petition is


the better procedure to obviate any question on the authority of the
signatory to the verification and certification. The required submission
of the board resolution is grounded on the basic precept that corporate
powers are exercised by the board of directors, and not solely by an
officer of the corporation. Hence, the power to sue and be sued in any
court or quasi-judicial tribunal is necessarily lodged with the said
board.

Forum shopping can be committed in three ways: (1) filing multiple


cases based on the same cause of action and with the same prayer,
the previous case not having been resolved yet (where the ground for
dismissal is litis pendentia); (2) filing multiple cases based on the same
cause of action and the same prayer, the previous case having been
finally resolved (where the ground for dismissal is res judicata); and (3)
filing multiple cases based on the same cause of action, but with
different prayers (splitting of causes of action, where the ground for
dismissal is also either litis pendentia or res judicata).
RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
VDA. DE DAFFON vs. COURT OF APPEALS
In the determination of whether a complaint fails to state a cause of
action, only the statements in the complaint may be properly
considered.9 Moreover, a defendant who moves to dismiss the
complaint on the ground of lack of cause of action hypothetically
admits all the averments thereof. The TEST OF SUFFICIENCY of the
facts found in a complaint as constituting a cause of action is whether
or not admitting the facts alleged the court can render a valid judgment
upon the same in accordance with the prayer thereof. The hypothetical
admission extends to the relevant and material facts well pleaded in
the complaint and inferences fairly deducible therefrom. Hence, if the
allegations in the complaint furnish sufficient basis by which the
complaint can be maintained, the same should not be dismissed
regardless of the defense that may be assessed by the defendants.
There is no need for the complaint to specifically allege respondents'
claim of co-ownership of the properties. The complaint needs only to
allege the ultimate facts on which the plaintiffs rely for their claim.
The rules of procedure require that the complaint must make a concise
statement of the ultimate facts or the essential facts constituting the
plaintiff's cause of action. A FACT IS ESSENTIAL if it cannot be
stricken out without leaving the statement of the cause of action
inadequate. A COMPLAINT STATES A CAUSE OF ACTION only when
it has its three indispensable elements.
TORIBIO vs. BIDIN
DEEDS OF SALE are actionable documents. The Rule covers both an
action or a defense based on documents.

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The PURPOSE for the rule on contesting actionable documents is:


Reasonably construed, the purpose of the enactment appears to have
been to relieve a party of the trouble and expense of proving in the first
instance an alleged fact, the existence or nonexistence of which is
necessarily within the knowledge of the adverse party, and of the
necessity (to his opponent's case) of establishing which such adverse
party is notified by his opponent's pleading.
The following question furnishes an ABSOLUTE TEST AS TO THE
ESSENTIALITY OF ANY ALLEGATION: Can it be made the subject of
a material issue? In other words, if it be denied, win the failure to prove
it decide the case in whole or in part? If it will not, the fact is not
essential. It is not one of those which constitute the cause of action,
defense, or reply. A fact is essential if it cannot be stricken out without
leaving the statement of the cause of action or defense insufficient.
BOUGH vs. CANTIVEROS
When an action is brought upon a written instrument and the complaint
contains or has annexed a copy of such instrument, the genuineness
and due execution of the instrument shall be deemed admitted, unless
specifically denied under oath in the answer; and when the DEFENSE
to an action, or a COUNTERCLAIM stated in an answer, is founded
upon a written instrument and the copy thereof is contained in or
annexed to the answer, the genuineness and due execution of such
instrument shall be deemed admitted, unless specifically denied under
oath by the plaintiff in his pleadings.
When the law makes use of the phrase "genuineness and due
execution of the instrument" it means nothing more than that the
instrument is not spurious, counterfeit, or of different import on its face
from the one executed. However, the failure of the party to file an
affidavit denying the genuineness and due execution of the document
does not estop him from controverting it by evidence of fraud mistake,
compromise, payment, statute of limitations, estoppel, and want of
consideration.
HIBBERD vs. RHODE
Admission of the genuineness and due execution of the instrument
does not bar the defense of want of consideration.
Execution can only refer to the actual making and delivery, but it
cannot involve other matters without enlarging its meaning beyond
reason. The only object of the rule was to enable a plaintiff to make out
a prima facie, NOT A CONCLUSIVE CASE, and it cannot preclude a
defendant from introducing any defense on the merits which does not
contradict the execution of the instrument introduced in evidence.
JABALDE vs. PNB
Where written instrument set forth in answer is not denied by affidavit,
yet if evidence in respect to that matter, and tending to show that
instrument is not genuine, or was not delivered, is introduced by
plaintiff without objection on part of defendant, or motion to strike out,
and is met by counter-evidence on part of defendant, the latter ought
not to be permitted to claim that genuineness and due execution of
instrument are admitted.
TITAN CONSTRUCTION vs. CA
While 8, Rule 8 is mandatory, it is a discovery procedure and must be
reasonably construed to attain its purpose, and in a way as not to
effect a denial of substantial justice. The interpretation should be one
which assists the parties in obtaining a speedy, inexpensive, and most
important, a just determination of the disputed issues.
However, it was held that where a party acted in complete disregard of
or wholly overlooked 8, Rule 8 and did not object to the introduction
and admission of evidence questioning the genuineness and due
execution of a document, he must be deemed to have waived the
benefits of said Rule.
CONSOLIDATED BANK vs. DEL MONTE

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How to deny the genuineness and due execution of an actionable


document:
This means that the defendant must declare under oath that he did not
sign the document or that it is otherwise false or fabricated. Neither
does the statement of the answer to the effect that the instrument was
procured by fraudulent representation raise any issue as to its
genuineness or due execution. On the contrary such a plea is an
admission both of the genuineness and due execution thereof, since it
seeks to avoid the instrument upon a ground not affecting either.
The best evidence rule is not absolute. The rule accepts of
exceptions one of which is when the original of the subject document is
in the possession of the adverse party.
When the defendant fails to deny specifically and under oath the due
execution and genuineness of a document copied in a complaint, the
plaintiff need not prove that fact as it is considered admitted by the
defendant.
LUISTRO vs. COURT OF APPEALS
In a MOTION TO DISMISS based on lack of cause of action, the
question posed to the court for determination is the sufficiency of the
allegation of facts made in the complaint to constitute a cause of
action. To sustain a motion to dismiss for lack of cause of action, it
must be shown that the claim for relief does not exist, rather than that a
claim has been defectively stated, or is ambiguous, indefinite or
uncertain.
In all averments of fraud or mistake, the circumstances constituting
fraud or mistake must be stated with particularity. Malice, intent,
knowledge or other condition of the mind of a person may be averred
generally.
CAPITOL MOTORS vs. YABUT
3 MODES OF SPECIFIC DENIAL: (1) by specifying each material
allegation of fact in the complaint the truth of which the defendant does
not admit, and, whenever practicable, setting forth the substance of the
matters which he will rely upon to support his denial or (2) by
specifying so much of an averment in the complaint as is true and
material and denying only the remainder or (3) by stating that the
defendant is without knowledge or information sufficient to form a belief
as to the truth of a material averment in the complaint, which has the
effect of a denial, and he has adopted the third mode of specific denial,
his answer tendered an issue, and, consequently the court a quo could
not render a valid judgment on the pleadings.
The rule authorizing an answer to the effect that the defendant has no
knowledge or information sufficient to form a belief as to the truth of an
averment and giving such answer the effect of a denial, DOES NOT
APPLY where the fact as to which want of knowledge is asserted, is so
plainly and necessarily within the defendant's knowledge that his
averment of ignorance must be palpably untrue.
A mere allegation of ignorance of the facts alleged in the complaint, is
INSUFFICIENT to raise an issue; the defendant must aver positively or
state how it is that he is ignorant of the facts so alleged.
ANTAM CONSOLIDATED vs. COURT OF APPEALS
The acts of these corporations should be distinguished from a SINGLE
OR ISOLATED BUSINESS TRANSACTION or occasional, incidental
and casual transactions which do not come within the meaning of the
law. Where a single act or transaction , however, is not merely
incidental or casual but indicates the foreign corporation's intention to
do other business in the Philippines, said single act or transaction
constitutes 'doing' or 'engaging in' or 'transacting' business in the
Philippines.
While plaintiff is a foreign corporation without license to transact
business in the Philippines, it does not follow that it has no capacity to

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bring the present action. Such license is ' not necessary because it is
not engaged in business in the Philippines.
The DOCTRINE OF LACK OF CAPACITY TO SUE based on failure to
first acquire a local license is based on considerations of sound public
policy. It intended to favor domestic corporations who enter was never
into solitary transactions with unwary foreign firms and then repudiate
their obligations simply because the latter are not licensed to do
business in this country.

b)

STEELCASE vs. DESIGN INTERNATIONAL

d)

The rule that an unlicensed foreign corporations doing business in the


Philippine do not have the capacity to sue before the local courts is
well-established.
The phrase doing business is clearly defined in 3(d) of R.A. No.
7042 (Foreign Investments Act of 1991) and was supplemented by its
IRR which elaborated on the meaning of the same phrase
The following acts shall not be deemed doing business in the
Philippines:
1. Mere investment as a shareholder by a foreign entity in domestic
corporations duly registered to do business, and/or the exercise of
rights as such investor;
2. Having a nominee director or officer to represent its interest in such
corporation;

c)

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D O C T R I N E S | 17

answer was due to fraud, accident, mistake or excusable


neglect, and that he has meritorious defenses; (Sec 3, Rule
18)
If the judgment has already been rendered when the
defendant discovered the default, but before the same has
become final and executory, he may file a motion for new
trial under 1(a) of Rule 37;
If the defendant discovered the default after the judgment
has become final and executory, he may file a petition for
relief under 2 of Rule 38; and
He may also appeal from the judgment rendered against him
as contrary to the evidence or to the law, even if no petition
to set aside the order of default has been presented by him.
(Sec. 2, Rule 41)

A defending party declared in default retains the RIGHT TO APPEAL


FROM THE JUDGMENT BY DEFAULT. However, the grounds that
may be raised in such an appeal are restricted to any of the following:
first, the failure of the plaintiff to prove the material allegations of the
complaint; second, the decision is contrary to law; and third, the
amount of judgment is excessive or different in kind from that prayed
for. In these cases, the appellate tribunal should only consider the
pieces of evidence that were presented by the plaintiff during the ex
parte presentation of his evidence.
A defendant who has been declared in default is precluded from raising
any other ground in his appeal from the judgment by default since,
otherwise, he would then be allowed to adduce evidence in his
defense, which right he had lost after he was declared in default.
DULOS vs. COURT OF APPEALS

3. Appointing a representative or distributor domiciled in the


Philippines which transacts business in the representative's or
distributor's own name and account;
4. The publication of a general advertisement through any print or
broadcast media;
5. Maintaining a stock of goods in the Philippines solely for the
purpose of having the same processed by another entity in the
Philippines;
6. Consignment by a foreign entity of equipment with a local company
to be used in the processing of products for export;
7. Collecting information in the Philippines; and
8. Performing services auxiliary to an existing isolated contract of sale
which are not on a continuing basis, such as installing in the
Philippines machinery it has manufactured or exported to the
Philippines, servicing the same, training domestic workers to operate it,
and similar incidental services.
RULE 9: EFFECT OF FAILURE TO PLEAD
OTERO vs. TAN
A defendant who fails to file an answer may, upon motion, be declared
by the court in default. Loss of standing in court, the forfeiture of ones
right as a party litigant, contestant or legal adversary, is the
consequence of an order of default. A party in default LOSES his right
to present his defense, control the proceedings, and examine or crossexamine witnesses. He has no right to expect that his pleadings would
be acted upon by the court nor may be object to or refute evidence or
motions filed against him.
REMEDIES AVAILABLE TO PARTY WHO HAS BEEN DECLARED IN
DEFAULT:
a)

The defendant in default may, at any time after discovery


thereof and before judgment, file a motion, under oath, to set
aside the order of default on the ground that his failure to

motion for reconsideration of a judgment of default may be considered


a petition for relief under 2 of Rule 38 only if the following requisites
are present: (1) it must be verified; (2) it must be filed within 60 days
from the time petitioner learns of the decision but not more than 6
months from entry thereof; and (3) in case of failure to file an answer,
the motion must be accompanied by affidavits of merit showing the
fraud, accident, mistake and excusable negligence relied upon.
a motion for reconsideration may be considered a motion for new trial
under Sec. 2, Rule 37, if it is accompanied by an affidavit of merit. The
requirement of such an affidavit is essential because a new trial would
be only a waste of the time of the court if the complaint turns out to be
groundless or the defense ineffective.
GOCHANGCO vs. CFI NEGROS OCCIDENTAL
The underlying philosophy of the DOCTRINE OF DEFAULT is that the
defendant's failure to answer the complaint despite receiving copy
thereof together with summons, is attributable to one of two causes:
either (a) to his realization that he has no defenses to the plaintiffs
cause and hence resolves not to oppose the complaint, or, (b) having
good defenses to the suit, to fraud, accident, mistake or excusable
negligence which prevented him from seasonably filing an answer
setting forth those defenses.
If the defendant have good defenses, it would be unnatural for him not
to set them up properly and timely, and if he did not in fact set them up,
it must be presumed that some insuperable cause prevented him from
doing so: fraud, accident, mistake, excusable negligence. In this event,
the law will grant him relief, and the law is in truth quite liberal in the
reliefs made available to him: a motion to set aside the order of default
prior to judgment; a motion for new trial to set aside the default
judgment; an appeal from the judgment by default even if no motion to
set aside the order of default or motion for new trial had been
previously presented; a special civil action for certiorari impugning the
court's jurisdiction.
INDIANA AEROSPACE vs. CHED
There are remedies available to a defendant declared in default.
However, these remedies are available only to a defendant who has
been validly declared in default. Such defendant irreparably loses the

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right to participate in the trial. On the other hand, a defendant


improvidently declared in default may retain and exercise such right
after the order of default and the subsequent judgment by default are
annulled, and the case remanded to the court of origin. The former is
limited to the remedy set forth in 2, paragraph 3 of Rule 41 of the
pre-97 Rules of Court, and can therefore contest only the judgment by
default on the designated ground that it is contrary to evidence or law.
However, the latter has the following options: to resort to this same
remedy; to interpose a petition for certiorari seeking the nullification of
the order of default, even before the promulgation of a judgment by
default; or in the event that judgment has been rendered, to have such
order and judgment declared void.
While there are instances when a party may be properly declared in
default, these cases should be deemed exceptions to the rule and
should be resorted to only in clear cases of obstinate refusal or
inordinate neglect in complying with the orders of the court.
GAJUDO vs. TRADERS ROYAL BANK
The mere fact that a defendant is declared in default does not
automatically result in the grant of the prayers of the plaintiff. To win,
the latter must still present the same quantum of evidence that would
be required if the defendant were still present. A party that defaults is
not deprived of its rights, except the right to be heard and to present
evidence to the trial court. If the evidence presented does not support
a judgment for the plaintiff, the complaint should be dismissed, even if
the defendant may not have been heard or allowed to present any
countervailing evidence.
MONZON vs. SPS. RELOVA
Failure to file a responsive pleading within the reglementary period,
and not failure to appear at the hearing, is the sole ground for an order
of default, except the failure to appear at a pre-trial conference wherein
the effects of a default on the part of the defendant are followed, that
is, the plaintiff shall be allowed to present evidence ex parte and a
judgment based thereon may be rendered against the defendant (5,
Rule 18). Also, a default judgment may be rendered, even if the
defendant had filed his answer, under the circumstance in 3(c), Rule
29.
The effects of default are followed only in three instances: (1) when
there is an actual default for failure to file a responsive pleading; (2)
failure to appear in the pre-trial conference; and (3) refusal to comply
with modes of discovery under the circumstance in Sec. 3(c), Rule 29.
REQUIREMENTS OF A DEFAULT ORDER: (1) the court must have
validly acquired jurisdiction over the person of the defendant either by
service of summons or voluntary appearance; (2) the defendant failed
to file his answer within the time allowed therefor; and (3) there must
be a motion to declare the defendant in default with notice to the latter.
In the case at bar, petitioner had not failed to file her answer.
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
LEOBRERA vs. COURT OF APPEALS
The Court may allow a party upon motion to serve a supplemental
pleading after reasonable notice has been given the other party.
The notice of hearing is intended to prevent surprise and to afford the
adverse party a chance to be heard before the motion is resolved by
the trial court. While the court has said that a literal observance of the
notice requirements in 4, 5 and 6 of Rule 15 is not necessary, a
seasonable service of a copy of the motion on adverse party or
counsel with a notice of hearing indicating the time and place of
hearing of the motion are mandatory requirements that cannot be
dispensed with as these are the minimum requirements of procedural
due process.
A supplemental complaint should supply only deficiencies in aid of an
original complaint. It should contain only causes of action relevant and
material to the plaintiff's right and which help or aid the plaintiff's right

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D O C T R I N E S | 18

or defense. The supplemental complaint must be based on matters


arising subsequent to the original complaint related to the claim or
defense presented therein, and founded on the same cause of action.
It cannot be used to try a new matter or a new cause of action.
PASAY CITY GOVERNMENT vs. CFI & VICENTE ISIP
The compromise agreement was final and immediately executory, and
in fact was already enforced, the respondent Court was in error when it
still entertained the supplemental complaint filed by the respondentappellee for by then the respondent Court had no more jurisdiction
over the subject matter. When a decision has become final and
executory, the court no longer has the power and jurisdiction to alter,
amend or revoke, and its only power thereof is to order its execution.
Supplemental pleadings are meant to supply deficiencies in aid of
original pleading, not to entirely substitute the latter. A supplemental
complaint must be consistent with and in aid of, the cause of action set
forth in the original complaint and a new and independent cause of
action cannot be set up by such complaint, especially where judgment
has already been obtained by him in the original action.
TORRES vs. COURT OF APPEALS
The Amended Complaint takes the place of the original. The latter is
regarded as abandoned and ceases to perform any further function as
a pleading. The original complaint no longer forms part of the record.
If petitioner had desired to utilize the original complaint she should
have offered it in evidence. Having been amended, the original
complaint lost its character as a judicial admission, which would have
required no proof, and became merely an extrajudicial admission, the
admissibility of which, as evidence, required its formal offer.
VERSOZA & MARTINEZ vs. COURT OF APPEALS
An amendment to a complaint which introduces a new or different
cause of action, making a new or different demand, is equivalent to a
fresh suit upon a new cause of action, and the statute of limitations
continues to run until the amendment is filed.
When the amended complaint does not introduce new issues, causes
of action, or demands, the suit is deemed to have commenced on the
date the original complaint was filed, not on the date of the filing of the
amended complaint. For demands already included in the original
complaint, the suit is deemed to have commenced upon the filing of
such original complaint.
For purposes of determining the
commencement of a suit, the original complaint is deemed abandoned
and superseded by the amended complaint only if the amended
complaint introduces a new or different cause of action or demand.
An amendment which merely supplements and amplifies the facts
originally alleged relates back to the date of the commencement of the
action and is not barred by the statute of limitations, the period of
which expires after service of the original complaint but before service
of amendment. It is the actual filing in court that controls and not the
date of the formal admission of the amended pleading.
MAGASPI vs. RAMOLETE
When a pleading is amended, the original pleading is deemed
abandoned. The original ceases to perform any further function as a
pleading. The case stands for trial on the amended pleading only. The
additional docket fee to be paid should be based on the amended
complaint.
MWSS vs. COURT OF APPEALS
5 of Rule 10 is premised on the fact that evidence had been
introduced on an issue not raised by the pleadings without any
objection thereto being raised by the adverse party. In the case at bar,
no evidence whatsoever had been introduced by petitioner on the
issue of removability of the improvements and the case was decided

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on a stipulation of facts. Consequently, the pleadings could not be


deemed amended to conform to the evidence.
NORTHERN CEMENT vs. IAC
Even without the necessary amendment, the amount proved at the trial
may be validly awarded, if the facts shown entitled plaintiff to relief
other than that asked for, no amendment to the complaint was
necessary, especially where defendant had himself raised the point on
which recovery was based. The Court could treat the pleading as
amended to conform to the evidence although the pleadings were not
actually amended. Amendment is also unnecessary when only clerical
errors or non-substantial matters are involved.
The rule on
amendment need not be applied rigidly, particularly where no surprise
or prejudice is caused the objecting party.
SPS. LAMBINO vs. PRESIDING JUDGE
6 is a useful device which enables the court to award complete relief
in one action and to avoid the cost delay and waste of separate action.
Thus, a supplemental pleading is meant to supply deficiencies in aid of
the original pleading and not to dispense with or substitute the latter.
As a general rule, leave will be granted to file a supplemental
complaint which alleges any material fact which happened or came
within plaintiffs knowledge since the original complaint was filed, such
being the office of a supplemental complaint. The purpose of the rule
is that the entire controversy might be settled in one action; to broaden
the scope of the issues in an action owing to the light thrown on it by
facts, events and occurrences which have accrued after the filing of the
original pleading; to bring into record the facts enlarging or charging
the kind of relief to which plaintiff is entitled.
The admission or non-admission of a supplemental pleading is not a
matter of right but is discretionary on the court. Among the factors that
the court will consider are: (1) resulting prejudice to the parties; and (2)
whether the movant would be prejudiced if the supplemental pleading
were to be denied. What constitutes prejudice to the opposing party
depends upon the particular circumstance of each case. An opposing
party who has had notice of the general nature of the claim or matter
asserted in the supplemental pleading from the beginning of the action
will not be prejudiced by the granting of leave to file a supplemental
pleading.
WALLEM PHILS. vs. S.R. FARMS
The filing of an Amended Pleading does not retroact to the date of the
filing of the original. Hence, the statute of limitation runs until the
submission of the Amendment. An exception to this rule is an
Amendment which merely supplements and amplifies facts originally
alleged in the complaint relates back to the date of the commencement
of the action and is not barred by the statute of limitations which
expired after the service of the original complaint. However, the
exception would not apply to the party impleaded for the first time in
the Amended Complaint.
SPS. DIONISIO vs. LINSANGAN
An Amended Complaint that changes the plaintiff's cause of action is
technically a new complaint. Consequently, the action is deemed filed
on the date of the filing of such amended pleading, not on the date of
the filing of its original version. Thus, the statute of limitation resumes
its run until it is arrested by the filing of the amended pleading.
However, the Court acknowledges that an amendment which does not
alter the cause of action but merely supplements or amplifies the facts
previously alleged, does not affect the reckoning date of filing based on
the original complaint. The cause of action, unchanged, is not barred
by the statute of limitations that expired after the filing of the original
complaint.
To determine if an amendment introduces a different cause of action,
the test is whether such amendment now requires the defendant to

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answer for a liability or obligation which is completely different from


that stated in the original complaint.
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
DELBROS vs. IAC
A supplemental pleading is not like an amended pleading substitute
for the original one. It does not supersede the original, but assumes
that the original pleading is to stand, and the issues joined under the
original pleading remain as issues to be tried in the action." While it is
conceded that there is authority in support of a default judgment being
predicated upon defendant's failure to answer a supplemental
complaint, the same cannot apply here. The reason is that although in
the supplemental complaint, the relief prayed for was altered from
termination of the management contract to judicial confirmation of its
termination, the basic and principal issue of whether or not petitioner
was entitled to terminate the management contract, remained. As this
basic issue had been previously traversed and joined by the Answer
filed by HILTON and Chapman, there was no necessity for requiring
them to plead further to the Supplemental Complaint. Consequently,
the trial judge did not have a legal ground for declaring them in default
for such failure to plead.
SPS. BARRAZA vs. CAMPOS
Under 3 of Rule 16, the court after hearing may deny or grant the
motion or allow amendment of pleading, or may defer the hearing and
determination of the motion until the trial if the ground alleged therein
does not appear to be indubitable. And it is only from the time that the
movant receives notice of the denial or deferment of the Motion to
Dismiss that the period within which he shall file his Answer is
computed, which period is prescribed by Rule 11, unless the court
provides a different period.
The petitioner having filed a Motion to Dismiss, he was entitled to have
that motion resolved before being required to answer, since a motion to
dismiss interrupts the time to plead. Therefore, it follows that the
petitioner was incorrectly declared in default, and the holding of the
trial of the case on the merits in his absence, without notice to him of
the day of the hearing, was a denial of due process.
DAVID vs. GUTIERREZ-FRUELDA
One declared in default has the following remedies:
a) The defendant in default may, at any time after discovery thereof
and before judgment, file a motion under oath to set aside the order of
default on the ground that his failure to answer was due to fraud,
accident, mistake or excusable negligence, and that he has a
meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);
b) If the judgment has already been rendered when the defendant
discovered the default, but before the same has become final and
executory, he may file a motion for new trial under 1(a) of Rule 37;
c) If the defendant discovered the default after the judgment has
become final and executory, he may file a petition for relief under 2
[now 1] of Rule 38; and
d) He may also appeal from the judgment rendered against him as
contrary to the evidence or to the law, even if no petition to set aside
the order of default has been presented by him (Sec. 2, Rule 41).
Moreover, a petition for certiorari to declare the nullity of a judgment by
default is also available if the trial court improperly declared a party in

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default, or even if the trial court properly declared a party in default, if


grave abuse of discretion attended such declaration.

with compelling reasons of substantive justice manifest in the petition


and in the surrounding circumstances of the case.

In this case, petitioner used the first remedy, but failed to comply with
the basic requirements of 3(b) of Rule 9. The motion was not under
oath. There was no allegation that petitioners failure to file an Answer
or any responsive pleading was due to fraud, accident, mistake, or
excusable negligence.

Additionally, in the same way that an original complaint must be served


on the defendant, a copy of the complaint-in-intervention must be
served on the adverse party with the requisite proof of service duly
filed prior to any valid court action. Absent these or any reason duly
explained and accepted excusing strict compliance, the court is without
authority to act on such complaint; any action taken without the
required service contravenes the law and the rules, and violates the
adverse partys basic and constitutional right to due process.

RULE 12: BILL OF PARTICULARS


SALITA vs. MAGTOLIS
A complaint only needs to state the "ultimate facts constituting the
plaintiffs cause or causes of action." Ultimate facts are those facts
which the expected evidence will support." The term does not refer to
the details of probative matter or particulars of evidence by which
these material elements are to be established. It refers to "the facts
which the evidence on the trial will prove, and not the evidence which
will be required to prove the existence of those facts. A motion for bill of
particulars will not be granted if the complaint, while not very definite,
nonetheless already states a sufficient cause of action. A motion for bill
of particulars may not call for matters which should form part of the
proof of the complaint upon trial. Such information may be obtained by
other means.
AGCANAS vs. MERCADO
Both a motion to dismiss and a motion for a bill of particulars interrupt
the time to file a responsive pleading. In the case of a motion to
dismiss, the period starts running against as soon as the movant
receives a copy of the order of denial. In the case of a motion for a bill
of particulars, the suspended period shall continue to run upon service
on the movant of the bill of particulars, if the motion is granted, or of
the notice of its denial, but in any event he shall have not less than five
days within which to file his responsive pleading.
SANTOS vs. LIWAG
The allowance of a motion for a more definite statement or bill of
particulars rests within the sound judicial discretion of the court and, as
usual in matters of a discretionary nature, the ruling of the trial court in
that regard will not be reversed unless there has been a palpable
abuse of discretion or a clearly erroneous order.
RULE 13: FILING AND SERVICE OF PLEADINGS
GARRUCHO vs. CA, PIMENTEL
2, Rule 13 provides that if any party has appeared by counsel, service
upon him shall be made upon his counsel unless served upon the
party himself is ordered by the trial court. Notice or service made upon
a party who is represented by counsel is a nullity. Notice to the client
and not to his counsel of record is not notice in law. The rule admits of
exceptions, as when the court or tribunal orders service upon a party
or when the tribunal defendant is waived.

BARRAMEDA vs. CASTILLO


The exception in service by registered mail refers to constructive
service, not to actual receipt of the mail, it is evident that the fair and
just application of that exception depends upon conclusive proof that a
first notice was sent by the postmaster to the addressee.
It is incumbent upon a party, who relies on constructive service or who
contends that his adversary was served with a copy of a final order or
judgment upon the expiration of five days from the first notice of
registered mail sent by the postmaster to prove that first notice was
sent and delivered to the addressee. A certification from the
postmaster would be the best evidence of that fact. The mailman's
testimony may also be adduced to prove that fact.
The postmaster's certification as to the sending of the first notice
should include the data not only as to whether or not the corresponding
notices were issued or sent but also as to how, when and to whom the
delivery thereof was made.
PNB vs. CFI OF RIZAL
As between the denial of the petitioners' counsel that he received the
notice of the registered mail and the postmaster's certification that said
notices were sent to him, the postmaster's claim should prevail. The
postmaster has the official duty to send notices of registered mail and
the presumption is that official duty was regularly performed.
UP vs. SIZON
It is settled that where a party has appeared by counsel, service must
be made upon such counsel. Service on the party or the partys
employee is not effective because such notice is not notice in law.
QUELNAN vs. VHF, INC.
Service by registered mail is complete upon actual receipt by the
addressee. However, if the addressee fails to claim his mail from the
post office within 5 days from the date of the first notice, service
becomes effective upon the expiration of 5 days therefrom. In such a
case, there arises a presumption that the service was complete at the
end of the said 5-day period. This means that the period to appeal or
to file the necessary pleading begins to run after 5 days from the first
notice given by the postmaster. This is because a party is deemed to
have received and to have been notified of the judgment at that point.

In the absence of a proper and adequate notice to the court of a


change of address, the service of the order or resolution of a court
upon the parties must be made at the last address of their counsel on
record. It is the duty of the party and his counsel to device a system for
the receipt of mail intended for them, just as it is the duty of the
counsel to inform the court officially of a change in his address. It is
also the responsibility of a party to inform the court of the change of his
address so that in the event the court orders that an order or resolution
be served on the said party to enable him to receive the said resolution
or order.

The failure to claim a registered mail matter of which notice had been
duly given by the postmaster is not an excusable neglect that would
warrant the reopening of a decided case.

REPUBLIC vs. CAGUIOA

AMEN-AMEN vs. COURT OF APPEALS

Service of the petition on a party, when that party is represented by a


counsel of record, is a patent nullity and is not binding upon the party
wrongfully served. However, this rule admits of exceptions when faced

11 of Rule 13 provides that service and filing of pleadings and other


papers must, whenever practicable, be done personally.
The
mandatory nature of this rule requiring personal service whenever

Whenever necessary and expedient, the presumption of completeness


of service ought to be applied. While it is true that the rule on
completeness of service by registered mail only provides for a
disputable presumption, the burden is on petitioner to show that the
postmasters notice never reached him and that he did not acquire
knowledge of the judgment.

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practicable, said gives the court the discretion to consider a pleading


or paper as not filed if the other modes of service or filing were
resorted to and no written explanation was made as to why personal
service was not done in the first place.

court was an action for collection of a sum of money and did NOT
involve the titles to, possession or ownership of the subject property or
an interest therein and, therefore, was not a proper subject of a notice
of lis pendens.

GARVIDA vs. SALES


Filing a pleading by facsimile transmission is not sanctioned by the
COMELEC Rules of Procedure, much less by the Rules of Court. A
facsimile is not a genuine and authentic pleading. It is, at best, an
exact copy preserving all the marks of an original. 23 Without the
original, there is no way of determining on its face whether the
facsimile pleading is genuine and authentic and was originally signed
by the party and his counsel. It may, in fact, be a sham pleading. The
uncertainty of the authenticity of a facsimile pleading should have
restrained the COMELEC en banc from acting on the petition and
issuing the questioned order.

RULE 14: SUMMONS

BELEN vs. CHAVEZ


As a GENERAL RULE, when a party is represented by counsel of
record, service of orders and notices must be made upon said attorney
and notice to the client and to any other lawyer, not the counsel of
record, is not notice in law. The EXCEPTION to this rule is when
service upon the party himself has been ordered by the court. In cases
where service was made on the counsel of record at his given address,
notice sent to petitioner itself is not even necessary.
Upon the death of Atty. Alcantara, the lawyer-client relationship
between him and petitioners has ceased and thus, the service of the
RTC decision on him is ineffective and did not bind petitioners. The
subsequent service on petitioners purported last known address by
registered mail is also defective because it does not comply with the
requisites of 7 of Rule 13 on service by registered mail.
7 of Rule 13 contemplates service at the present address of the party
and not at any other address of the party. Service at the partys former
address or his last known address or any address other than his
present address does not qualify as substantial compliance with the
requirements of 7 of Rule 13. Therefore, service by registered mail
presupposes that the present address of the party is known and if the
person who receives the same is not the addressee, he must be duly
authorized by the former to receive the paper on behalf of the party.
PENOSA vs. DONA
Jurisprudence holds that the rule that a pleading must be accompanied
by a written explanation why the service or filing was not done
personally is mandatory.
However, the court may exercise its discretionary power under 11 of
Rule 13, taking account the following factors: (1) the practicability of
personal service; (2) the importance of the subject matter of the case
or the issues involved therein; and (3) the prima facie merit of the
pleading sought to be expunged for violation of 11.
AFP MUTUAL BENEFIT vs. COURT OF APPEALS
The Revised Rules of Court allows the annotation of a notice of lis
pendens in actions affecting the title or right of possession of real
property, or an interest in such real property. The rule of lis
pendens applied to suits brought "to establish an equitable estate,
interest, or right in specific real property or to enforce any lien, charge,
or encumbrance against it."
Pencil markings are not an accepted form of annotating a notice of lis
pendens. The Court cannot accept the argument that such pencil
annotation can be considered as a valid annotation of notice of lis
pendens, and thus an effective notice to the whole world as to the
status of the title to the land. The law requires proper annotation, not
"provisional" annotation of a notice of lis pendens.
In the present case, there could be no valid annotation on the titles
because the case used as basis of the annotation pending with the trial

RAPID REALTY vs. ORLANDO VILLA


Jurisdiction over the defendant in a civil case is acquired either by the
coercive power of legal processes exerted over his person, or his
voluntary appearance in court.
One who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. The filing of motions 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, is considered
voluntary submission to the courts jurisdiction.
However, this is
tempered by the concept of conditional appearance, such that a party
who makes a special appearance to challenge, among others, the
courts jurisdiction over his person cannot be considered to have
submitted to its authority.
It is thus clear that:
(1) Special appearance operates as an exception to the general rule
on voluntary appearance;
(2) Accordingly, objections to the jurisdiction of the court over the
person of the defendant must be explicitly made, i.e., set forth in an
unequivocal manner; and
(3) Failure to do so constitutes voluntary submission to the jurisdiction
of the court, especially in instances where a pleading or motion
seeking affirmative relief is filed and submitted to the court for
resolution.
PARAMOUNT INSURANCE vs. JAPZON
Although petitioner questioned the propriety of the service of
summons, it failed to substantiate its allegation that it was not properly
served with summons. Hence, the disputable presumption that official
duty has been regularly performed prevails.
BOTICANO vs. CHU
Defects in jurisdiction arising from irregularities in the commencement
of the proceedings, defective process or even absence of process may
be waived by a failure to make seasonable objections. It cannot be
raised for the first time in appeal.
Under 23 of Rule 14, the defendant's voluntary appearance in the
action shall be equivalent to service. Thus, under this principle, the
defect of summons is cured by the voluntary appearance of the
defendant.
PAN ASIATIC TRAVEL vs. COURT OF APPEALS
Summons on the first amended complaint was properly served on
PAN-ASIATIC. After which, the company filed several motions for
extension of time within which to file responsive pleading, and then a
Motion for Bill of Particulars, all of which motions were granted by the
trial court. With the filing of these motions, PAN-ASIATIC had
effectively appeared in the case and voluntarily submitted itself to the
jurisdiction of the court. Hence, no new summons on the Second
Amended Complaint was necessary, ordinary service being sufficient.
SANDOVAL vs. HRET
Summons upon a respondent or a defendantmust be served by
handing a copy thereof to him in person or, if he refuses to receive it,

CIVIL

by tendering it to him. If however efforts to find him personally would


make prompt service impossible, service may be completed by
substituted service.
Substituted service derogates the regular method of personal service.
It is required that statutory restrictions for substituted service must be
strictly, faithfully and fully observed. For service of summons to be
valid, it is necessary first to establish the following circumstances: (a)
impossibility of service of summons within a reasonable time, (b)
efforts exerted to locate the petitioners and, (c) service upon a person
of sufficient age and discretion residing therein or some competent
person in charge of his office or regular place of business. It is also
essential that the pertinent facts proving these circumstances be stated
in the proof of service or officer's return itself and only under
exceptional terms may they be proved by evidence aliunde. Failure to
comply with this rule renders absolutely void the substituted service
along with the proceedings taken thereafter for lack of jurisdiction over
the person of the defendant or the respondent.
To be a "competent" person to receive the summons means that he
should be "duly qualified" and "having sufficient capacity, ability or
authority. 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.
OAMINAL vs. CASTILLO
The receipt of the summons by the legal secretary of the defendants -respondents herein -- is deemed proper, because they admit the actual
receipt thereof, but merely question the manner of service. Moreover,
when they asked for affirmative reliefs in several motions and thereby
submitted themselves to the jurisdiction of the trial court, whatever
defects the service of summons may have had were cured.
Moreoever, respondents did not raise in their Motion to Dismiss the
issue of jurisdiction over their persons; they raised only improper
venue and litis pendentia. Hence, whatever defect there was in the
manner of service should be deemed waived.

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In a proceeding in rem or quasi in rem, jurisdiction over the person of


the defendant is not a prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over the res. Jurisdiction
over the res is acquired either (1) by the seizure of the property under
legal process, whereby it is brought into actual custody of the law; or
(2) as a result of the institution of legal proceedings, in which the power
of the court is recognized and made effective.15
Nonetheless, summons must be served upon the defendant not for the
purpose of vesting the court with jurisdiction but merely for satisfying
the due process requirements.
While the trial court acquired jurisdiction over the res, its jurisdiction is
limited to a rendition of judgment on the res. It cannot extend its
jurisdiction beyond the res and issue a judgment enforcing petitioners
personal liability. In doing so without first having acquired jurisdiction
over the person of petitioner, as it did, the trial court violated her
constitutional right to due process, warranting the annulment of the
judgment rendered in the case.
BPI vs. SANTIAGO
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.
PHILAMGEN vs. BREVA
A case should not be dismissed simply because an original summons
was wrongfully served. It should be difficult to conceive, for example,
that when a defendant personally appears before a Court complaining
that he had not been validly summoned, that the case against him
should be dismissed. An alias summons can be actually served on
said defendant. It is not pertinent whether the summons is designated
as an "original" or an "alias" summons as long as it has adequately
served its purpose. What is essential is that the summons complies
with the requirements under the Rules of Court and it has been duly
served on the defendant together with the prevailing complaint.
Moreover, the second summons was technically not an alias summons
but more of a new summons on the amended complaint. It was not a
continuation of the first summons considering that it particularly
referred to the amended complaint and not to the original complaint.

MASON vs. COURT OF APPEALS


The designation of persons or officers who are authorized to accept
summons for a domestic corporation or partnership is now limited and
more clearly specified in 11 of Rule 14. The rule now states "general
manager" instead of only "manager"; "corporate secretary" instead of
"secretary"; and "treasurer" instead of "cashier." The new rule is
restricted, limited and exclusive

SANTOS vs. PNOC EXPLORATION


14 of Rule 14 applies "[i]n 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." Thus, it now applies to any action, whether in personam, in
rem or quasi in rem.

JOSE vs. BOYON


DOMAGAS vs. JENSEN
In an action in personam, jurisdiction over the person of the defendant
is necessary for the court to validly try and decide the case.
Jurisdiction over the person of a resident defendant who does not
voluntarily appear in court can be acquired by personal service of
summons as provided under 7 of Rule 14. If he cannot be personally
served with summons within a reasonable time, substituted service
may be made in accordance with 8 of said Rule. If he is
TEMPORARILY OUT OF THE COUNTRY, any of the following modes
of service may be resorted to: (a) substituted service set forth in 8; (2)
personal service outside the country, with leave of court; (3) service by
publication, also with leave of court; or (4) any other manner the court
may deem sufficient.
BIACO vs. PHIL. COUNTRYSIDE RURAL BANK

Service of summons by publication is proved by the affidavit of the


printer, his foreman or principal clerk, or of the editor, business or
advertising manager of the newspaper which published the summons.
The service of summons by publication is complemented by
service of summons by registered mail to the 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 prepaid, directed to the
defendant by registered mail to his last known address."
However, the rules 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.

CIVIL

WONG vs. FACTOR-KOYAMA


The Return failed to relay if sufficient efforts were exerted by Sheriff
Baloloy to locate Wong, as well as the impossibility of personal service
of summons upon Wong within a reasonable time. Sheriff Baloloys
three visits to Wongs residence hardly constitute effort on his part to
locate Wong; and Wongs absence from his residence during Sheriff
Baloloys visits, since Wong was at the office or out-of-town, does not
connote impossibility of personal service of summons upon him. It
must be stressed that, before resorting to substituted service, a sheriff
is enjoined to try his best efforts to accomplish personal service on the
defendant. And since the defendant is expected to try to avoid and
evade service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the
defendant.
SANSIO PHILS. vs. SPS. MOGOL
Summons upon a respondent or a defendant must be served by
handing a copy thereof to him in person or, if he refuses to receive it,
by tendering it to him. Personal service of summons most effectively
ensures that the notice desired under the constitutional requirement of
due process is accomplished. The essence of personal service is the
handing or tendering of a copy of the summons to the defendant
himself, wherever he may be found; that is, wherever he may be,
provided he is in the Philippines.
6 of Rule 14 does not require that the service of summons on the
defendant in person must be effected only at the latters residence as
stated in the summons. On the contrary, the provision is crystal clear
that, whenever practicable, summons shall be served by handing a
copy thereof to the defendant; or if he refuses to receive and sign for it,
by tendering it to him.
BD LONG SPAN vs. R.S. AMEPLOQUIO REALTY
As a rule, summons should be personally served on the defendant. In
case of a domestic private juridical entity, the service of summons must
be made upon an officer who is named in the statute (i.e., the
president, managing partner, general manager, corporate secretary,
treasurer, or in-house counsel), otherwise, the service is insufficient.
PLANTERS DEVT BANK vs. CHANDUMAL
Requisites for a valid substituted service of summons are summed up
as follows: (1) impossibility of prompt personal service the party
relying on substituted service or the sheriff must show that the
defendant cannot be served promptly or there is impossibility of prompt
service; (2) specific details in the return the sheriff must describe in
the Return of Summons the facts and circumstances surrounding the
attempted personal service; (3) a person of suitable age and discretion
the sheriff must determine if the person found in the alleged dwelling
or residence of defendant is of legal age, what the recipients
relationship with the defendant is, and whether said person
comprehends the significance of the receipt of the summons and his
duty to immediately deliver it to the defendant or at least notify the
defendant of said receipt of summons, which matters must be clearly
and specifically described in the Return of Summons; and (4) a
competent person in charge, who must have sufficient knowledge to
understand the obligation of the defendant in the summons, its
importance, and the prejudicial effects arising from inaction on the
summons.
MACASAET VS. CO
To warrant the substituted service of the summons and copy of the
complaint, the serving officer must first attempt to effect the same upon
the defendant in person. Only after the attempt at personal service has
become futile or impossible within a reasonable time may the officer
resort to substituted service.

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Nonetheless, the requisite showing of the impossibility of prompt


personal service as basis for resorting to substituted service may be
waived by the defendant either expressly or impliedly.
HSBC LTD. vs. CATALAN
For purposes of the rule on summons, the fact of doing business must
first be "established by appropriate allegations in the complaint" and
the court in determining such fact need not go beyond the allegations
therein.
NM ROTHSCHILD vs. LEPANTO CONSOLIDATED
Breaking down Section 15, Rule 14, it is apparent that there are only
four instances wherein a defendant who is a non-resident and is
not found in the country may be served with summons by
extraterritorial service, to wit: (1) when the action affects the personal
status of the plaintiffs; (2) when the action relates to, or the subject of
which is property, within the Philippines, in which the defendant claims
a lien or an interest, actual or contingent; (3) when the relief demanded
in such action consists, wholly or in part, in excluding the defendant
from any interest in property located in the Philippines; and (4) when
the defendant non-resident's property has been attached within the
Philippines. In these instances, service of summons may be effected
by (a) personal service out of the country, with leave of court; (b)
publication, also with leave of court; or (c) any other manner the court
may deem sufficient.
MONTEFALCON vs. VASQUEZ
As an overseas seafarer, Vasquez was a Filipino resident temporarily
out of the country. Hence, service of summons on him is governed by
16 of Rule 14. Since 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-seaman.
Personal service of summons was not practicable since the defendant
was temporarily out of the country. To proceed with personal service of
summons on a defendant-seaman who went on overseas contract
work would not only be impractical and futile it would also be
absurd. The substituted service was valid and justified.
The absence in the final sheriff's return of a statement about the
impossibility of personal service does not conclusively prove that the
service is invalid. Such failure should not unduly prejudice petitioners if
what was undisclosed was in fact done. Proof of prior attempts at
personal service may have been submitted by the plaintiff during the
hearing of any incident assailing the validity of the substituted
service24 had Vasquez surfaced when the case was heard.
CARIAGA vs. MALAYA
Under Section 17, extraterritorial service of summons is proper: (1)
when the action affects the personal status of the plaintiff; (2) when the
action relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or interest,
actual or contingent; (3) when the relief demanded in such an action
consists, wholly or in part, in excluding the defendant from any interest
in property located in the Philippines; and (4) when defendant nonresident's property has been attached within the Philippines (Sec. 17,
Rule 14, Rules of Court).
In any of such four cases, the service of summons may, with leave of
court, be effected out of the Philippines in three ways: (1) by personal
service; (2) 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 should be sent by registered
mail to the last known address of the defendant; and (3) in any other
manner which the court may deem sufficient. The third mode of
extraterritorial service of summons was substantially complied with in
this case.

CIVIL

LICAROS vs. LICAROS


As a rule, when the defendant does not reside and is not found in
the Philippines, Philippine courts cannot try any case against him
because of the impossibility of acquiring jurisdiction over his
person unless he voluntarily appears in court. But when the case is
one of ACTIONS IN REM OR QUASI IN REM enumerated in Section
15,10 Rule 14 of the Rules of Court, Philippine courts have
jurisdiction to hear and decide the case. In such instances,
Philippine courts have jurisdiction over the res, and jurisdiction
over the person of the non-resident defendant is not essential.11
Actions in personam12 and actions in rem or quasi in rem differ in that
actions in personam are directed against specific persons and seek
personal judgments. On the other hand, actions in rem or quasi in
rem are directed against the THING or PROPERTY or STATUS of a
person and seek judgments with respect thereto as against the
whole world.
Under 15 of Rule 14, a defendant who is a NON-RESIDENT and is
not found in the country may be served with summons by
extraterritorial service in four instances: (1) when the action affects the
personal status of the plaintiff; (2) when the action relates to, or the
subject of which is property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent; (3)
when the relief demanded consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines; or (4)
when the property of the defendant has been attached within the
Philippines.

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PRESYLER vs. MANILA SOUTHCOAST


As a rule, a motion without a notice of hearing is considered pro
forma and does not affect the reglementary period for the appeal or the
filing of the requisite pleading.
The three-day notice rule is NOT absolute. A liberal construction of the
procedural rules is proper where the lapse in the literal observance of a
rule of procedure has not prejudiced the adverse party and has not
deprived the court of its authority.
As an integral component of the procedural due process, the three-day
notice required by the Rules is not intended for the benefit of the
movant. Rather, the requirement is for the purpose of avoiding
surprises that may be sprung upon the adverse party, who must be
given time to study and meet the arguments in the motion before a
resolution of the court. The test is the presence of opportunity to be
heard, as well as to have time to study the motion and meaningfully
oppose or controvert the grounds upon which it is based.
DELA PENA vs. DELA PENA
5 of Rule 15 provide that the notice shall be directed to the parties
concerned, and shall state the time and place for the hearing of the
motion, are mandatory. If not religiously complied with, they render the
motion pro forma. As such the motion is a useless piece of paper that
will not toll the running of the prescriptive period.
MANACOP vs. COURT OF APPEALS

In these instances, extraterritorial service of summons may be effected


under any of three modes: (1) by personal service out of the country,
with leave of court; (2) by publication and sending a copy of the
summons and order of the court by registered mail to the defendants
last known address, also with leave of court; or (3) by any other
means the judge may consider sufficient.

8 of Rule 15 provides that A motion attacking a pleading or a


proceeding shall include all objections then available, and all
objections not so included shall be deemed waived.

BUSUEGO vs. COURT OF APPEALS

SARMIENTO vs. ZARATAN

Specification in the sheriff's return is essential for enforcement of the


rule under the Revised Rules of Court that substituted service may be
resorted to only where it is not possible to serve the defendant or
defendants promptly in person.

A motion for extension of time is not a litigated motion where notice to


the adverse party is necessary to afford the latter an opportunity to
resist the application, but an ex parte motion made to the court in
behalf of one or the other of the parties to the action, in the absence
and usually without the knowledge of the other party or parties. As a
GENERAL RULE, notice of motion is required where a party has a
right to resist the relief sought by the motion and principles of natural
justice demand that his rights be not affected without an opportunity to
be heard.

PINLAC vs. COURT OF APPEALS


While the service of summons by publication may have been done with
the approval of the trial court, it does not cure the fatal defect that the
"Metropolitan Newsweek" is not a newspaper of general circulation in
Quezon City .The Rules strictly require that publication must be "in a
newspaper of general circulation and in such places and for such time
as the court may order." The court orders relied upon by petitioners
did not specify the place and the length of time that the summons was
to be published. In the absence of such specification, publication in
just any periodical does not satisfy the strict requirements of the
rules. The incomplete directive of the court a quo coupled with the
defective publication of the summons rendered the service by
publication ineffective.
RULE 15: MOTIONS
JOSE DELA REYES vs. RAMNANI
The subject motion is a non-litigious motion. While, as a GENERAL
RULE, all written motions should be set for hearing under 4 of Rule
15, EXCEPTED from this rule are non-litigious motions or motions
which may be acted upon by the court without prejudicing the rights of
the adverse party. As already discussed, respondent is entitled to the
issuance of the final certificate of sale as a matter of right and
petitioner is powerless to oppose the same.

The spirit that surrounds the foregoing statutory norm is to require the
movant to raise all available exceptions for relief during a single
opportunity so that multiple and piece-meal objections may be avoided

However, ex parte motions are frequently permissible in procedural


matters, and also in situations and under circumstances of emergency;
and an exception to a rule requiring notice is sometimes made where
notice or the resulting delay might tend to defeat the objective of the
motion.
ANECO REALTY DEVT vs. LANDEX
It must be stressed that there are no vested right to technicalities. It is
within the courts sound discretion to relax procedural rules in order to
fully adjudicate the merits of a case. Lapses in the literal observance
of a rule of procedure may be overlooked when they have not
prejudiced the adverse party and have not deprived the court of its
authority.
We find that the procedural lapse committed by Landex was
sufficiently cured when it filed another motion setting a hearing for its
defective motion for reconsideration. Records reveal that the RTC set
a hearing for the motion for reconsideration but Anecos counsel failed
to appear.
PNB vs. DEANG

CIVIL

Concomitant to a liberal application of the rules of procedure should be


an effort on the part of the party invoking liberality to explain his failure
to abide by the rules.
Good faith is central to the concept of "excusable neglect" justifying
failure to answer. An attempt to cover up the procedural lapses and
obscure the technical imperfections negates good faith on the part of
the party imploring the accommodating arm of the court.
RULE 16: MOTION TO DISMISS
BARRAZA vs. CAMPOS
A MOTION TO DISMISS is the usual, proper and ordinary method of
testing the legal sufficiency of a complaint. The issue raised by a
motion to dismiss is similar to that formerly raised by a demurrer under
the Code of Civil Procedure. A motion to dismiss must be filed within
the time for pleading, that is, within the time to answer.
1 of Rule 11 in relation to 4 of Rule 16 allows the defendant to file
his answer not only within the original fifteen (15) days period but also
within "a different period (as) fixed by the court.
Under 3 of Rule 16, the court after hearing may deny or grant the
motion or allow amendment of pleading, or may defer the hearing and
determination of the motion until the trial if the ground alleged therein
does not appear to be indubitable. And it is only from the time that the
movant receives notice of the denial or deferment of the motion to
dismiss that the period within which he shall file his answer is
computed, which period is prescribed by Rule 11, unless the court
provides a different period.
BA FINANCE vs. PINEDA
Within the period of time for pleading, the defendant is entitled to move
for dismissal of the action on any of the ground enumerated in Rule 16.
If the motion to dismiss is denied or if determination thereof is deferred,
the movant shall file his answer within the period prescribed by Rule
11, computed from the time he receives notice of the denial or
deferment, unless the court provides a different period. In sum, the
period for filing a responsive pleading commences to run all over to
again from the time the defendant receives notice of the denial of his
motion to dismiss.
CONEJOS vs. BOCANEGRA
The respondents failure to raise the alleged lack of jurisdiction over
their persons in their very first motion to dismiss was fatal to their
cause. They are already deemed to have waived that particular ground
for dismissal of the complaint. The trial court plainly abused its
discretion when it dismissed the complaint on the ground of lack of
jurisdiction over the person of the defendants. Under the Rules, the
only grounds the court could take cognizance of, even if not pleaded in
the motion to dismiss or answer, are: (a) lack of jurisdiction over the
subject matter; (b) existence of another action pending between the
same parties for the same cause; and (c) bar by prior judgment or by
statute of limitations.
PANGANIBAN vs. PILIPINAS SHELL CORP.
The requirement that a MOTION TO DISMISS should be filed within
the time for filing the answer is NOT absolute. Even after an answer
has been filed, a defendant can still file a motion to dismiss on the
following grounds: (1) lack of jurisdiction, (2) litis pendentia (3) lack of
cause of action, and (4) discovery during trial of evidence that would
constitute a ground for dismissal. Litis pendentia is also one of the
grounds that authorize a court to dismiss a case motu proprio.
PADLAN vs. DINGLASAN
Jurisdiction over the subject matter of a case is conferred by law and
determined by the allegations in the complaint which comprise a
concise statement of the ultimate facts constituting the plaintiff's cause

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D O C T R I N E S | 25

of action. The nature of an action, as well as which court or body has


jurisdiction over it, is determined based on the allegations contained in
the complaint of the plaintiff, irrespective of whether or not the plaintiff
is entitled to recover upon all or some of the claims asserted therein.
The averments in the complaint and the character of the relief sought
are the ones to be consulted. Once vested by the allegations in the
complaint, jurisdiction also remains vested irrespective of whether or
not the plaintiff is entitled to recover upon all or some of the claims
asserted therein.
What determines the jurisdiction of the court is the nature of the action
pleaded as appearing from the allegations in the complaint. The
averments therein and the character of the relief sought are the ones
to be consulted.
UNIVERSAL ROBINA CORP. vs. LIM
Improper venue not impleaded in the MOTION TO DISMISS or in the
answer is deemed waived. Thus, a court may NOT dismiss an action
motu proprio on the ground of improper venue as it is not one of the
grounds wherein the court may dismiss an action motu proprio on the
basis of the pleadings.
GALINDO vs. HEIRS OF MARCIANO ROXAS
The party bringing suit has the burden of proving the sufficiency of the
representative character that he claims. If a complaint is filed by one
who claims to represent a party as plaintiff but who, in fact, is not
authorized to do so, such complaint is not deemed filed and the court
does not acquire jurisdiction over the complaint. An unauthorized
complaint does not produce any legal effect. Corollary, the defendants
can assail the facts alleged in the complaint through a motion to
dismiss on the ground that the plaintiff has no capacity to sue under
1(d) of Rule 16, that is, that he does not have the representative he
claims.
A deceased person does not have such legal entity as is necessary to
bring action so much so that a motion to substitute cannot lie and
should be denied by the court. An action begun by a decedents estate
cannot be said to have been begun by a legal person, since an estate
is not a legal entity; such an action is a nullity and a motion to amend
the party plaintiff will not, likewise, lie, there being nothing before the
court to amend. Considering that capacity to be sued is a correlative of
the capacity to sue, to the same extent, a decedent does not have the
capacity to be sued and may not be named a party defendant in a
court action.
BENEDICTO RAMOS vs. PERALTA, SPS. ORTANEZ & P.R.
ROMAN. INC.
LITIS PENDENTIA to be invoked as a ground for the dismissal of an
action, the concurrence of the following requisites is necessary: (a)
Identity of parties or at least such as represent the same interest in
both actions; (b) Identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and (c) The identity in the two
cases should be such that the judgment that may be rendered in one
would, regardless of which party is successful, amount to res
judicata in the other.
The rule on litis pendentia does not require that the later case should
yield to the earlier case. What is required merely is that there be
another pending action, not a prior pending action.
CHU vs. SPS. CUNANAN, BENELDA ESTATE & SPOUSES
CARLOS
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.
Under the DOCTRINE OF RES JUDICATA, a final judgment or decree
on the merits rendered by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all later suits
and on all points and matters determined in the previous suit.

CIVIL

The following REQUISITES must concur: (a) the former judgment


must be final; (b) it must have been rendered by a court having
jurisdiction of the subject matter and the parties; (c) it must be a
judgment on the merits; and (d) there must be between the first and
second actions (i) identity of parties, (ii) identity of the subject matter,
and (iii) identity of cause of action.
There is IDENTITY OF PARTIES when the parties in both actions are
the same, or there is privity between them, or they are successors-ininterest by title subsequent to the commencement of the action
litigating for the same thing and under the same title and in the same
capacity. ABSOLUTE IDENTITY of parties was not a condition sine
qua non for res judicata to apply, because a shared identity of interest
sufficed. Mere substantial identity of parties, or even community of
interests between parties in the prior and subsequent cases, even if
the latter were not impleaded in the first case, was sufficient.
MANILA BANKERS vs. ABAN
Under the Insurance Code, the so-called "incontestability clause"
precludes the insurer from raising the defenses of false
representations or concealment of material facts insofar as health and
previous diseases are concerned if the insurance has been in force for
at least two years during the insureds lifetime.

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D O C T R I N E S | 26

The enumeration of "brothers and sisters" as members of the same


family does not comprehend "sisters-in-law". In that case, then "sistersin-law", also "brothers-in-law" are not listed under Art. 217 of the New
Civil Code as members of the same family.
CUA vs. WALLEM
The defendant may either raise the grounds in a motion to dismiss or
plead them as an affirmative defense in his answer. The failure to raise
or plead the grounds generally amounts to a waiver, EXCEPT if the
ground pertains to (1) lack of jurisdiction over the subject matter,
(2) litis pendentia, (3) res judicata, or (4) prescription. If the facts
supporting any of these four listed grounds are apparent from the
pleadings or the evidence on record, the courts may consider these
grounds motu proprio and accordingly dismiss the complaint.
The ALLEGATION of an agreement extending the period to file an
action in Cuas complaint is a material averment that, under 11, Rule
8 of the Rules of Court, must be specifically denied by the
respondents; otherwise, the allegation is deemed admitted.
Given the respondents failure to specifically deny the agreement on
the extension of the period to file an action, the Court considers the
extension of the period as an admitted fact.

VITANGCOL VS. NEW VISTA PROPERTIES

CALIFORNIA & HAWAIIAN SUGAR vs. C.F. SHARP

Lack of cause of action is not a ground for a dismissal of the complaint


through a MOTION TO DISMISS under Rule 16, for the determination
of a lack of cause of action can only be made during and/or after trial.
What is dismissible via that mode is FAILURE of the complaint to state
a cause of action. 1(g) of Rule 16 provides that a motion may be
made on the ground "that the pleading asserting the claim states no
cause of action."

A preliminary hearing on the affirmative defenses may be allowed only


when no motion to dismiss has been filed. However, 6 must be
viewed in the light of 3 of the same Rule, which requires courts to
resolve a motion to dismiss and prohibits them from deferring its
resolution on the ground of indubitability. Clearly then, 6 disallows a
preliminary hearing of affirmative defenses once a motion to dismiss
has been filed because such defense should have already been
resolved. However, in the present case, the trial court did not
categorically resolve petitioners Motion to Dismiss, but merely
deferred resolution thereof.

COLUMBIA PICTURES vs. COURT OFA PPEALS

LACK OF LEGAL CAPACITY TO SUE means that the plaintiff is not in


the exercise of his civil rights, or does not have the necessary
qualification to appear in the case, or does not have the character or
representation he claims. 31 On the other hand, a case is dismissible for
LACK OF PERSONALITY TO SUE upon proof that the plaintiff is not
the real party in interest, hence grounded on failure to state a cause of
action. 32 The term "lack of capacity to sue" should not be confused
with the term "lack of personality to sue." While the former refers to a
plaintiff's general disability to sue, such as on account of minority,
insanity, incompetence, lack of juridical personality or any other
general disqualifications of a party, the latter refers to the fact that the
plaintiff is not the real party in interest. Correspondingly, the first can be
a ground for a motion to dismiss based on the ground of lack of legal
capacity to sue; 33 whereas the second can be used as a ground for a
motion to dismiss based on the fact that the complaint, on the face
thereof, evidently states no cause of action. 34
The ground available for barring recourse to our courts by an
unlicensed foreign corporation doing or transacting business in the
Philippines should properly be "lack of capacity to sue," not "lack of
personality to sue."
GUERRERO vs. RTC OF ILOCOS

The attempt to compromise as well as the inability to succeed is a


condition precedent to the filing of a suit between members of the
same family, the absence of such allegation in the complaint being
assailable at any stage of the proceeding, even on appeal, for lack of
cause of action.

A preliminary hearing is not mandatory, but subject to the discretion of


the trial court. Verily, where a preliminary hearing appears to suffice,
there is no reason to go on to trial.
SPS. RASDAS vs. ESTENOR
The GENERAL RULE must be reiterated that the preliminary hearing
contemplated under 6, Rule 16 applies only if no motion to
dismiss has been filed. An EXCEPTION was carved out
in California and Hawaiian Sugar Company v. Pioneer
Insurance,9 wherein the Court noted that while 6 disallowed a
preliminary hearing of affirmative defenses once a motion to
dismiss has been filed, such hearing could nonetheless be had if
the trial court had NOT categorically resolved the motion to
dismiss.
The DOCTRINE OF RES JUDICATA has two aspects.15 The first,
known as "bar by prior judgment," or "estoppel by verdict," is the
effect of a judgment as a bar to the prosecution of a second action
upon the same claim, demand or cause of action. The second, known
as "conclusiveness of judgment" or otherwise known as the rule
of auter action pendant, ordains that issues actually and directly
resolved in a former suit cannot again be raised in any future case
between the same parties involving a different cause of action. 16 It has
the effect of preclusion of issues only.
TAN vs. TAN
As for the applicability to petitioners motion to dismiss of 7 of the
Rule on the Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, petitioner is correct. 7 of the Rule
on the Declaration of Absolute Nullity of Void Marriages and Annulment
of Voidable Marriages provides: 7. Motion to dismiss. No motion to
dismiss the petition shall be allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties; provided,

CIVIL

however, that any other ground that might warrant a dismissal of the
case may be raised as an affirmative defense in an answer.
The clear intent of the provision is to allow the respondent
to ventilate all possible defenses in an answer, instead of a mere
motion to dismiss, so that judgment may be made on the merits.
In construing a statute, the purpose or object of the law is an important
factor to be considered. Further, the letter of the law admits of no
other interpretation but that the provision applies only to a
respondent, not a petitioner. Only a respondent in a petition for the
declaration of absolute nullity of void marriage or the annulment of
voidable marriage files an answer where any ground that may warrant
a dismissal may be raised as an affirmative defense pursuant to the
provision. The only logical conclusion is that 7 of the Rule does not
apply to a motion to dismiss filed by the party who initiated the
petition for the declaration of absolute nullity of void marriage or the
annulment of voidable marriage.
Since petitioner is not the respondent in the petition for the
annulment of the marriage, 7 of the Rule does not apply to the motion
to dismiss filed by her.
ALDERSGATE COLLEGE vs. GAUUAN

In an ordinary civil action, a MOTION TO DISMISS must generally be


filed "within the time for but before filing the answer to the
complaint" and on the grounds enumerated in 1, Rule 16 of the Rules
of Court.
However, the rule is different with respect to intra-corporate
controversies. Under 8, Rule 1 of the Interim Rules of Procedure
for Intra-Corporate Controversies, a motion to dismiss is a
prohibited pleading.

RULE 17: DISMISSAL OF ACTIONS


GO vs. CRUZ
The dismissal of civil actions is always addressed to the sound
judgment and discretion of the court; this, whether the dismissal is
sought after a trial has been completed or otherwise, or whether it is
prayed for by a defending party or by a plaintiff or claimant. There is
one instance however where the dismissal of an action rests
exclusively on the will of a plaintiff or claimant, to prevent which the
defending party and even the court itself is powerless, requiring in fact
no action whatever on the part of the court except the acceptance and
recording of the causative document. This is dealt with in 1, Rule 17
of the Rules of Court.
What marks the loss by a plaintiff of the right to cause dismissal
of the action by mere notice is not the filing of the defendant's
answer with the Court (either personally or by mail) but
the service on the plaintiff of said answer or of a motion for
summary judgment. This is the plain and explicit message of the
Rules. "The FILING of pleadings, appearances, motions, notices,
orders and other papers with the court," according to 1, Rule 13 of
the Rules of Court, means the delivery thereof to the clerk of the court
either personally or by registered mail. SERVICE, on the other hand,
signifies delivery of the pleading or other paper to the parties affected
thereby through their counsel of record, unless delivery to the party
himself is ordered by the court, by any of the modes set forth in the
Rules, i.e., by personal service, service by mail, or substituted
service.

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D O C T R I N E S | 27

VALLANGCA vs. COURT OF APPEALS


When the issue of res judicata is raised, at least two (2) actions before
a competent court are necessarily involved; one, still pending and the
other, already decided with finality. It is the final judgment that ends
the controversy and precludes a relitigation of the same causes
of action.
A writ of injunction presupposes the pendency of a principal or main
action. There being no main action when the 7 July 1971 suit for
injunction was filed, the latter was correctly dismissed. Accordingly,
there could be no prior judgment on the merits to speak of that
resulted in res judicata, from such dismissal of the injunction
suit.
A dismissal order is generally deemed to be without prejudice to
the filing of another action. The only instance when dismissal of
an action is with prejudice is, when the order itself so states.
Stated differently, when the court issues, upon the plaintiff's
instance, a dismissal order that is silent as to whether it is with or
without prejudice, such as in the case at bar, the presumption is,
that it is without prejudice. Dismissals of actions (under 3) which
do not expressly state whether they are with or without prejudice are
held to be with prejudice or on the merits.
SAMSON vs. FIEL-MACARAIG
After the last pleading has been served and filed, it shall be the duty
of the plaintiff to promptly move ex parte that the case be set for
pre-trial.
If, for no justifiable cause, the plaintiff fails to appear on the date of
the presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to
comply with these Rules or any order of the court, the complaint
may be dismissed upon motion of the defendant or upon the courts
own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits,
unless otherwise declared by the court.
ELOISA MERCHANDISING vs. TREBEL INTL
Under 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended,
the failure on the part of the plaintiff, without any justifiable cause, to
comply with any order of the court or the Rules, or to prosecute his
action for an unreasonable length of time, may result in the dismissal
of the complaint either motu proprio or on motion by the defendant.
The failure of a plaintiff to prosecute the action without any justifiable
cause within a reasonable period of time will give rise to the
presumption that he is no longer interested to obtain from the court the
relief prayed for in his complaint; hence, the court is authorized to
order the dismissal of the complaint on its own motion or on motion of
the defendants. The presumption is not, by any means, conclusive
because the plaintiff, on a motion for reconsideration of the order of
dismissal, may allege and establish a justifiable cause for such
failure. The burden to show that there are compelling reasons that
would make a dismissal of the case unjustified is on the petitioners.
Under 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended,
it is the duty of the plaintiff, after the last pleading has been served and
filed, to promptly move ex parte that the case be set for pre-trial.
While under the present Rules (A.M. No. 03-1-09-SC), it is now the
duty of the clerk of court to set the case for pre-trial if the plaintiff fails
to do so within the prescribed period, this does not relieve the plaintiff
of his own duty to prosecute the case diligently.
RULE 18: PRE-TRIAL

CIVIL

PPA vs. CITY OF ILOILO


A PRE-TRIAL is primarily intended to make certain that all issues
necessary to the disposition of a case are properly raised. Thus to
obviate the element of surprise, parties are expected to disclose at the
pre-trial conference all issues of law and fact which they intend to raise
at the trial. Consequently, the determination of issues at a pre-trial
conference bars the consideration of other questions on appeal.
A party who deliberately adopts a certain theory upon which the case is
tried and decided by the lower court will not be permitted to change
theory on appeal. Points of law, theories, issues and arguments not
brought to the attention of the lower court need not be, and ordinarily
will not be, considered by a reviewing court, as these cannot be raised
for the first time at such late stage.
ALARCON vs. CA & JUANI
The rules have made mandatory that a pre-trial should first be
conducted before hearing any case. The parties themselves are
required to attend or their representative with written authority from
them in order to arrive at a possible amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and documents. The purpose of entering into a
stipulation of facts or admission of facts is to expedite trial and to
relieve the parties and the court of the costs of proving facts which will
not be disputed on trial and the truth of which can be ascertained by
reasonable inquiry.
All of the matters taken up during the pre-trial including the
stipulation of facts and the admissions made by the parties are
required to be recorded in a pre-trial order. The admissions
clearly made during the pre-trial conference are conclusive upon
the parties making it.
TIU vs. MIDDLETON

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D O C T R I N E S | 28

Although the power of attorney in question does not specifically


mention the authority of petitioner's counsel to appear and bind the
petitioner at the pre-trial conference, the terms of said power of
attorney are comprehensive enough as to include the authority to
appear for the petitioner at the pre-trial conference.
SAGUID vs. COURT OF APPEALS
6 of Rule 18 provides that the failure of the defendant to file a pretrial brief shall have the same effect as failure to appear at the pretrial, i.e., the plaintiff may present his evidence ex parte and the court
shall render judgment on the basis thereof.
However, the plaintiff is not automatically entitled to the relief prayed
for. The law gives the defendant some measure of protection as the
plaintiff must still prove the allegations in the complaint. Favorable
relief can be granted only after the court is convinced that the facts
proven by the plaintiff warrant such relief. Indeed, the party alleging a
fact has the burden of proving it and a mere allegation is not evidence.
The burden of proof rests upon the party who, as determined by the
pleadings or the nature of the case, asserts an affirmative issue.
Contentions must be proved by competent evidence and reliance must
be had on the strength of the partys own evidence and not upon the
weakness of the opponents defense.
The regime of limited co-ownership of property governing the union of
parties who are not legally capacitated to marry each other, but who
nonetheless live together as husband and wife, applies to properties
acquired during said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent of the proven
actual contribution of money, property or industry. Absent proof of the
extent thereof, their contributions and corresponding shares shall be
presumed to be equal.
TOLENTINO vs. LAUREL

Pre-trial is an essential device for the speedy disposition of disputes.


Hence, parties cannot brush it aside as a mere technicality. Where the
pre-trial brief does not contain the names of witnesses and the
synopses of their testimonies as required by the Rules of Court, the
trial court, through its pre-trial order, may bar the witnesses from
testifying. However, an order allowing the presentation of unnamed
witnesses may no longer be modified during the trial without the
consent of the parties affected.

The failure of a party to appear at the pre-trial has adverse


consequences. If the absent party is the plaintiff, then his case shall be
dismissed. If it is the defendant who fails to appear, then the plaintiff is
allowed to present his evidence ex parte and the court shall render
judgment on the basis thereof. Thus, the plaintiff is given the privilege
to present his evidence without objection from the defendant, the
likelihood being that the court will decide in favor of the plaintiff, the
defendant having forfeited the opportunity to rebut or present its own
evidence.

Judges have the discretion to exclude witnesses and other pieces of


evidence not listed in the pre-trial brief, provided the parties are given
prior notice to this effect.

SON vs. SON

The parties must pay attention not only to the pre-trial briefs, but also
to the pre-trial order. In his PRE-TRIAL ORDER, the trial judge did not
exercise his discretion to exclude the unlisted or unnamed witnesses.
Since the Order allowed respondents to present witnesses, it
necessarily follows that it should grant the same right to petitioner.
By their silence, respondents acquiesced to the Pre-trial Order allowing
the presentation of petitioner's unnamed witnesses. Modifying a pretrial order during the trial or when the defendant is about to present
witnesses will indubitably result in manifest injustice.
TROPICAL HOMES vs. VILLALUZ
While there are instances when a party may be properly defaulted,
these should be the exception rather than the rule, and should be
allowed only in clear cases of obstinate refusal or inordinate neglect to
comply with the orders of the court. Absent such a showing, a party
must be given every reasonable opportunity to present his side and to
refute the evidence of the adverse party in deference to due process of
law.

A PRE-TRIAL HEARING is meant to serve as a device to clarify and


narrow down the basic issues between the parties, to ascertain the
facts relative to those issues and to enable the parties to obtain the
fullest possible knowledge of the issues and facts before civil trials and
thus prevent that said trials are carried on in the dark.
Parties are expected to disclose at a pre-trial conference all issues of
law and fact which they intend to raise at the trial, EXCEPT such as
may involve privileged or impeaching matters. The determination of
issues at a pre-trial conference bars the consideration of other
questions on appeal.
A PRE-TRIAL ORDER is not meant to be a detailed catalogue of each
and every issue that is to be or may be taken up during the trial. Issues
that are impliedly included therein or may be inferable therefrom by
necessary implication are as much integral parts of the pre-trial order
as those that are expressly stipulated. When issues are not raised in
the pre-trial, but are presented during the trial, the lack of objection
amounts to an implied consent conferring jurisdiction on the court to try
said issues and to depart from the issues contained in the pre-trial
order.
CORPUZ vs. CITIBANK

CIVIL

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5 of Rule 18 provides that the dismissal of an action due to the


plaintiffs failure to appear at the pre-trial shall be with prejudice,
unless otherwise ordered by the court. In this case, the trial court
deemed the plaintiffs-herein spouses as non-suited and ordered the
dismissal of their Complaint. As the dismissal was a final order, the
proper remedy was to file an ordinary appeal and not a petition for
certiorari. The spouses petition for certiorari was thus properly
dismissed by the appellate court.

certificate simply evidences the government's recognition of the


grantee as the party qualified to avail of the statutory mechanisms for
the acquisition of ownership of the land tilled by him as provided under
P.D. No. 27. Neither is this recognition permanent nor irrevocable.
Failure on the part of the farmer/grantee to comply with his obligation
to pay his lease rentals or amortization payments when they fall due
for a period of 2 years to the landowner or agricultural lessor is a
ground for forfeiture of his certificate of land transfer.

While 4 of Rule 18 allows as an exception a valid cause for the nonappearance of a party at the pre-trial, the instances cited by the
spouses and their counsel hardly constitute compelling exigencies or
situations which warrant occasional flexibility of litigation rules.

Clearly, it is only after compliance with the above conditions which


entitle a farmer or grantee to an emancipation patent that he acquires
the vested right of absolute ownership in the landholding a right
which has become fixed and established, and is no longer open to
doubt or controversy. At best, the farmer/grantee, prior to compliance
with these conditions, merely possesses a contingent or expectant
right of ownership over the landholding.

To constitute excusable negligence, the absence must be due to


petitioners counsels failure to take the proper steps at the proper time,
not in consequence of his carelessness, inattention or willful disregard
of the process of the court, but in consequence of some unexpected or
unavoidable hindrance or accident.
SEC. 3. Dismissal due to fault of plaintiff. If, for no justifiable
cause, the plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of the
defendant or upon the courts own motion, without prejudice to the right
of the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court, explained:
3, [of Rule 17] on the other hand, contemplates a dismissal not
procured by plaintiff, albeit justified by causes imputable to him and
which, in the present case, was petitioners failure to appear at the pretrial. This situation is also covered by 3, as extended by judicial
interpretation, and is ordered upon motion of defendant or motu proprio
by the court. Here, the issue of whether defendant has a pending
counterclaim, permissive or compulsory is not of determinative
significance. The dismissal of plaintiffs complaint is evidently a
confirmation of the failure of evidence to prove his cause of action
outlined therein, hence the dismissal is considered, as a matter of
evidence, an adjudication on the merits. This does not, however, mean
that there is likewise such an absence of evidence to prove
defendants counterclaim although the same arises out of the subject
matter of the complaint which was merely terminated for lack of
proof. To hold otherwise would not only work injustice to defendant but
would be reading a further provision into 3 and wresting a meaning
therefrom although neither exists even by mere implication.
RULE 19: INTERVENTION
PAGTULUNAN vs. TAMAYO
Intervention is not a matter of right but may be permitted by the courts
when the applicant shows facts which satisfy the requirements of the
law authorizing intervention.
Under 2, Rule 12 of the Revised Rules of Court, what qualifies a
person to intervene is his possession of a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest
against both, or when he is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court
or an officer thereof. The Court has ruled that such interest must be
actual, direct and material, and not simply contingent and expectant.
Hence, the mere issuance of the certificate of land transfer does not
vest in the farmer/grantee ownership of the land described therein. The

MAGSAYSAY-LABRADOR vs. COURT OF APPEALS


To allow intervention, [a] it must be shown that the movant has legal
interest in the matter in litigation, or otherwise qualified; and [b]
consideration must be given as to whether the adjudication of the
rights of the original parties may be delayed or prejudiced, or whether
the intervenor's rights may be protected in a separate proceeding or
not. Both requirements must concur as the first is not more important
than the second.
The INTEREST which entitles a person to intervene in a suit between
other parties must be in the matter in litigation and of such direct and
immediate character that the intervenor will either gain or lose by
the direct legal operation and effect of the judgment. Otherwise, if
persons not parties of the action could be allowed to intervene,
proceedings will become unnecessarily complicated, expensive and
interminable. And this is not the policy of the law.
The words "AN INTEREST IN THE SUBJECT" mean a direct interest
in the cause of action as pleaded, and which would put the intervenor
in a legal position to litigate a fact alleged in the complaint, without the
establishment of which plaintiff could not recover.
ORDONEZ vs. GUSTILO
An intervention has been regarded as "merely collateral or
accessory or ancillary to the principal action and not an
independent proceeding; an interlocutory proceeding dependent on
or subsidiary to, the case between the original parties." The main
action having ceased to exist, there is no pending proceeding whereon
the intervention may be based.
A judgment approving a compromise agreement is final and
immediately executory. All pending issues will become moot and
academic once a compromise submitted by the parties is approved by
the trial court.
METROBANK vs. JUDGE, RAYCOR AIRCONTROL
The intervenor in a pending case is entitled to be heard like any other
party. A claim in intervention that seeks affirmative relief prevents a
plaintiff from taking a voluntary dismissal of the main action. 13 Where a
complaint in intervention was filed before plaintiff's action had been
expressly dismissed, the intervenor's complaint was not subject to
dismissal on the ground that no action was pending, since dismissal of
plaintiffs action did not affect the rights of the intervenor or affect the
dismissal of intervenor's complaint. 14 An intervenor's petition showing
it to be entitled to affirmative relief will be preserved and heard
regardless of the disposition of the principal action.
Any person who has or claims an interest in the matter in litigation, in
the success of either of the parties to an action, or against both, may
intervene in such action, and WHEN HE HAS BECOME A PARTY
thereto it is error for the court to dismiss the action, including the

CIVIL

intervention suit on the basis of an agreement between the original


parties to the action. Any settlement made by the plaintiff and the
defendant is necessarily ineffective unless the intervenor is a party to
it.
MACTAN-CEBU INTL vs. HEIRS OF MINOZA
The allowance or disallowance of a motion for intervention rests on the
sound discretion of the court after consideration of the appropriate
circumstances. It is not an absolute right.
An independent controversy cannot be injected into a suit by
intervention. Hence, intervention will not be allowed where it would
enlarge the issues in the action and expand the scope of the remedies.
It is not proper where there are certain facts giving the intervenors
case an aspect peculiar to himself and differentiating it clearly from that
of the original parties. The proper course is for the would-be intervenor
to litigate his claim in a separate suit.
Intervention is not intended to change the nature and character of the
action itself, or to stop or delay the placid operation of the machinery of
the trial. The remedy of intervention is not proper where it will have the
effect of retarding the principal suit or delaying the trial of the action.
RULE 21: SUBPOENA
UNIVERSAL RUBBER vs. COURT OF APPEALS
In order to entitle a party to the issuance of a "subpoena duces
tecum", it must appear, by clear and unequivocal proof, that the book
or document sought to be produced contains evidence relevant and
material to the issue before the court, and that the precise book, paper
or document containing such evidence has been so designated or
described that it may be identified. A "SUBPOENA DUCES TECUM
once issued by the court may be quashed upon motion if the issuance
thereof is unreasonable and oppressive or the relevancy of the books,
documents or things does not appear, or if the persons in whose behalf
the subpoena is issued fails to advance the reasonable cost of
production thereof.
PEOPLE OF THE PHILIPPINES vs. MONTEJO
whether a Court of First Instance possesses authority in a criminal
case "to compel by subpoena the attendance of the witness who, as in
this case, resides hundreds of miles away from the place of trial."
According to him, "an examination of the placement on Section 9 of
Rule 23 discloses to us that it is found under the topic Procedure in
Courts of First Instance which unquestionably would include both
criminal and civil cases. It will be noted further that the provision of
Section 9, Rule 23 above quoted makes no distinction between a
criminal or civil case and it is a fundamental rule or statutory
construction that where the law makes no distinction it is not proper for
the interpreter to make any such distinction." After which counsel
invoked the Constitution as well as the Rules of Court,9 particularly the
provisions contained therein granting to the accused in a criminal case
the right to have compulsory process issued to secure the attendance
of witnesses in his behalf, which right was not conferred on the
prosecution. Thus, he would sustain the actuations of respondent
Judge not only as free from error but as correct and proper.
While not lacking in plausibility, this contention of respondents failed to
enlist the assent of a majority of the Court. It is loathe to clip what
undoubtedly is the inherent power of the Court to compel the
attendance of persons to testify in a case pending therein.10 Section 9
of Rule 23 is thus interpreted to apply solely to civil cases. A
recognition of such power in a court of first instance conducting the trial
of an accused may be gleaned from principle that justifies it when
satisfied "by proof or oath, that there is reason to believe that a
material witness for the prosecution will not appear and testify when
required," to order that he "give bail in sum as [it] may deem proper for
such appearance. Upon refusal to give bail, the court must commit him
to prison until he complies or is legally discharged."11

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Under the circumstances, in view of the serious handicap to which the


prosecution would thus be subjected in proving its case, the order of
respondent judge denying the motion for an order of arrest or a citation
for contempt in the alternative, based on a clear misapprehension of
the Rules of Court, could be viewed as amounting to grave abuse of
discretion. It would follow then that respondent Judge should decide
said motion without taking into consideration Section 9 of Rule 23.
RULE 22: COMPUTATION OF TIME
MAYOR vs. INTERMEDIATE APPELLATE COURT
A similar issue was raised in the case of Lloren v. De Veyra (4 SCRA
637), to wit: Applying the rule of computation prescribed in Rule 28 that
the first day should be excluded and the last included, it follows that
when he filed ms notice of appeal and appeal bond on April 17, 1958,
the same were filed exactly within the reglementary period of 15 days.
The Court resolved not to follow the ruling in either of them and to
adhere strictly to the rule of computation embodied in Rule 28 of our
rules. The idea that prevailed is that since petitioner Lloren filed his
motion for reconsideration on the 15th day of the period within which
he may perfect his appeal, that day should be excluded so that when
he received copy of the order denying his motion for reconsideration
he had still 1 day within which to perfect his appeal. This period of one
day should be computed again in accordance with the rule above cited
by excluding the day of receipt and including the next day, which in this
case is April 17, 1958. Hence, the Court concluded that the appeal
interposed by petitioner Lloren was still within the reglementary
period."
NEYPES vs. COURT OF APPEALS
The right to appeal is neither a natural right nor a part of due process.
It is merely a statutory privilege and may be exercised only in the
manner and in accordance with the provisions of law. Thus, one who
seeks to avail of the right to appeal must comply with the requirements
of the Rules.
SEC. 3. Period of ordinary appeal. The appeal shall be taken within
fifteen (15) days from the notice of the judgment or final order
appealed from. Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal within thirty (30)
days from the notice of judgment or final order.
The period to appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be allowed.
Based on the foregoing, an appeal should be taken within 15 days
from the notice of judgment or final order appealed from. A final
judgment or order is one that finally disposes of a case, leaving nothing
more for the court to do with respect to it. It is an adjudication on the
merits which, considering the evidence presented at the trial, declares
categorically what the rights and obligations of the parties are; or it
may be an order or judgment that dismisses an action.[12]
To standardize the appeal periods provided in the Rules and to
afford litigants fair opportunity to appeal their cases, the Court deems
it practical to allow a fresh period of 15 days within which to file
the notice of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new trial or motion
for reconsideration. [30]
Henceforth, this fresh period rule shall also apply to Rule 40
governing appeals from the Municipal Trial Courts to the Regional Trial
Courts; Rule 42 on petitions for review from the Regional Trial Courts
to the Court of Appeals; Rule 43 on appeals from quasi-judicial
agencies[31] to the Court of Appeals and Rule 45 governing appeals
by certiorari to the Supreme Court.[32] The new rule aims to regiment or
make the appeal period uniform, to be counted from receipt of the
order denying the motion for new trial, motion for reconsideration
(whether full or partial) or any final order or resolution.

CIVIL

We thus hold that petitioners seasonably filed their notice of appeal


within the fresh period of 15 days, counted from July 22, 1998 (the
date of receipt of notice denying their motion for reconsideration). This
pronouncement is not inconsistent with Rule 41, Section 3 of the Rules
which states that the appeal shall be taken within 15 days from notice
of judgment or final order appealed from. The use of the disjunctive
word or signifies disassociation and independence of one thing from
another. It should, as a rule, be construed in the sense in which it
ordinarily implies.[33] Hence, the use of or in the above provision
supposes that the notice of appeal may be filed within 15 days from the
notice of judgment or within 15 days from notice of the final order,
which we already determined to refer to the July 1, 1998 order denying
the motion for a new trial or reconsideration.
Neither does this new rule run counter to the spirit of Section 39 of BP
129 which shortened the appeal period from 30 days to 15 days to
hasten the disposition of cases. The original period of appeal (in this
case March 3-18, 1998) remains and the requirement for strict
compliance still applies. The fresh period of 15 days becomes
SIGNIFICANT ONLY when a party opts to file a motion for new
trial or motion for reconsideration. In this manner, the trial court
which rendered the assailed decision is given another opportunity to
review the case and, in the process, minimize and/or rectify any error
of judgment. While we aim to resolve cases with dispatch and to have
judgments of courts become final at some definite time, we likewise
aspire to deliver justice fairly.
In this case, the new period of 15 days eradicates the confusion as to
when the 15-day appeal period should be counted from receipt of
notice of judgment (March 3, 1998) or from receipt of notice of final
order appealed from (July 22, 1998).
To recapitulate, a party litigant may either file his NOTICE OF
APPEAL within 15 days from receipt of the Regional Trial Courts
decision or file it within 15 days from receipt of the order (the final
order) denying his motion for new trial or motion for
reconsideration. Obviously, the new 15-day period may be availed
of only if either motion is filed; otherwise, the decision becomes final
and executory after the lapse of the original appeal period provided in
Rule 41, Section 3.
RULE 23: DEPOSITION PENDING ACTION
KOH vs. INTERMEDIATE APPELLATE COURT
The rules on discovery (Rules 24, 25, 26, 27, 28 and 29 of the Revised
Rules of Court) are intended to enable a party to obtain knowledge of
material facts within the knowledge of the adverse party or of third
parties through depositions to obtain knowledge of material facts or
admissions from the adverse party through written interrogatories; to
obtain admissions from the adverse party regarding the genuineness
of relevant documents or relevant matters of fact through requests for
admission; to inspect relevant documents or objects and lands or other
property in the possession or control of the adverse party; and to
determine the physical or mental condition of a party when such is in
controversy. This mutual discovery enables a party to discover the
evidence of the adverse party and thus facilitates an amicable
settlement or expedites the trial of the case. All the parties are required
to lay their cards on the table so that justice can be rendered on the
merits of the case.
Trial judges should, therefore, encourage the proper utilization of
the rules on discovery. However, recourse to discovery
procedures is not mandatory. If the parties do not choose to resort to
such procedures, the pre-trial conference should be set pursuant to the
mandatory provisions of Section 1 of Rule 20.
REPUBLIC (PCGG) vs. SANDIGANBAYAN, TANTOCO &
SANTIAGO

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The undertaking of laying the facts before the court is accomplished by


the pleadings filed by the parties; but that, only in a very general way.
Only "ultimate facts" are set forth in the pleadings; hence, only the
barest outline of the facfual basis of a party's claims or defenses is
limned in his pleadings. If this requirement is not observed, i.e., the
ultimate facts are alleged too generally or "not averred with sufficient
definiteness or particularity to enable . . (an adverse party) properly to
prepare his responsive pleading or to prepare for trial," a bill of
particulars seeking a "more definite statement" may be ordered
by the court on motion of a party. The office of a bill of particulars
is, however, limited to making more particular or definite
the ultimate facts in a pleading It is not its office to supply
evidentiary matters. And the common perception is that said
evidentiary details are made known to the parties and the court only
during the trial, when proof is adduced on the issues of fact arising
from the pleadings.
The truth is that "evidentiary matters" may be inquired into and
learned by the parties before the trial. Indeed, it is the purpose
and policy of the law that the parties before the trial if not
indeed even before the pre-trial should discover or inform
themselves of all the facts relevant to the action, not only those
known to them individually, but also those known to adversaries;
and the Rules of Court make this ideal possible through the depositiondiscovery mechanism set forth in Rules 24 to 29.
The deposition-discovery procedure was designed to remedy the
conceded inadequacy and cumbersomeness of the pre-trial functions
of notice-giving, issue-formulation and fact revelation theretofore
performed primarily by the pleadings. The various modes or
instruments of discovery are meant to serve (1) as a device, along
with the pre-trial hearing under Rule 20, to narrow and clarify the
basic issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The evident
purpose is, to repeat, to enable parties, consistent with
recognized privileges, to obtain the fullest possible knowledge of
the issues and facts before trials and thus prevent that said trials
are carried on in the dark.
To this end, the field of inquiry that may be covered by depositions or
interrogatories is as broad as when the interrogated party is called as a
witness to testify orally at trial. The inquiry extends to all facts which
are relevant, whether they be ultimate or evidentiary, excepting only
those matters which are privileged. The objective is as much to give
every party the fullest possible information of all the relevant facts
before the trial as to obtain evidence for use upon said trial. The
principle is reflected in Section 2, Rule 24 (governing depositions)
which generally allows the examination of a deponent
1) "regarding any matter, not privileged, which is relevant to the
subject of the pending action, whether relating to the claim or defense
of any other party;"
2) as well as:
(a) "the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things" and
(b) "the identity and location of persons having knowledge of
relevant facts."

CIVIL

What is chiefly contemplated is the discovery of every bit of information


which may be useful in the preparation for trial, such as the identity
and location of persons having knowledge of relevant facts; those
relevant facts themselves; and the existence, description, nature,
custody, condition, and location of any books, documents, or other
tangible things. Hence, "the deposition-discovery rules are to be
accorded a broad and liberal treatment. No longer can the timehonored cry of "fishing expedition" serve to preclude a party from
inquiring into the facts underlying his opponent's case.
In line with this principle of according liberal treatment to the
deposition-discovery mechanism, such MODES OF DISCOVERY as
(a) depositions (whether by oral examination or written interrogatories)
under Rule 24, (b) interrogatories to parties under Rule 25, and (c)
requests for admissions under Rule 26, may be availed of without
leave of court, and generally, without court intervention. The Rules of
Court explicitly provide that leave of court is not necessary to avail of
said modes of discovery after an answer to the complaint has been
served. It is only when an answer has not yet been filed (but after
jurisdiction has been obtained over the defendant or property subject
of the action) that prior leave of court is needed to avail of these modes
of discovery, the reason being that at that time the issues are not yet
joined and the disputed facts are not clear.
On the other hand, leave of court is required as regards discovery by
(a) production or inspection of documents or things in accordance with
Rule 27, or (b) physical and mental examination of persons under Rule
28, which may be granted upon due application and a showing of due
cause.
There are limitations to discovery, even when permitted to be
undertaken without leave and without judicial intervention. As indicated
by (the) Rules, limitations inevitably arise when it can be shown that
the examination is being conducted in bad faith or in such a manner as
to annoy, embarass, or oppress the person subject to the inquiry. 39
And . . . further limitations come into existence when the inquiry
touches upon the irrelevant or encroaches upon the recognized
domains of privilege."
In fine, the liberty of a party to make discovery is unrestricted if the
matters inquired into are otherwise relevant and not privileged, and the
inquiry is made in good faith and within the bounds of the law.
CAGUIAT vs. HON. TORRES
The trial court has jurisdiction to direct, in its discretion, that a
deposition shall not be taken, if there are valid reasons for so ruling.
That the right of a party to take depositions as means of discovery is
not exactly absolute is implicit in the provisions of the Rules of Court
cited by appellants themselves, sections 16 and 18 of Rule 24, which
are precisely designed to protect parties and their witnesses, whenever
in the opinion of the trial court, the move to take their depositions under
the guise of discovery is actually intended to only annoy, embarrass or
oppress them. In such instances, these provisions expressly authorize
the court to either prevent the taking of a deposition or stop one that is
already being taken.
In the case at bar, aside from having practically disclosed all his
evidence at the pre-trial, appellee expressed willingness to enter into a
stipulation of facts, which offer, appellants rejected. Moreover,
according to Court of Appeals, the parties herein filed a joint motion for
hearing on the merits even before the orders in question were issued.

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D O C T R I N E S | 32

Under these circumstances, it is inevitable to conclude that there was


indeed no further need for the deposition desired by appellants. It
could have served no useful purpose, for there was nothing anymore
to discover. Appellants have not shown any real concrete reason for
such deposition.
SANTIAGO LAND DEVELOPMENT vs. COURT OF APPEALS
Section 5, Rule 29 of the Rules of Court warrants the dismissal of the
complaint when the plaintiff fails or refuses to answer the written
interrogatories. If plaintiff fails or refuses to answer the interrogatories,
it may be a good basis for the dismissal of his complaint for not-suit
unless he can justify such failure or refusal. 7 It should be noted that it
is discretionary on the court to order the dismissal of the action.
VDA. DE MANGUERRA vs. RISOS, YONGCO, ABARQUEZ
As exceptions, Rules 23 to 28 of the Rules of Court provide for the
different modes of discovery that may be resorted to by a party to an
action. These rules are adopted either to perpetuate the testimonies of
witnesses or as modes of discovery. In criminal proceedings, Sections
12,29 1330 and 15,31 Rule 119 of the Revised Rules of Criminal
Procedure, which took effect on December 1, 2000, allow the
conditional examination of both the defense and prosecution
witnesses.
In the case at bench, in issue is the examination of a prosecution
witness, who, according to the petitioners, was too sick to travel and
appear before the trial court. Section 15 of Rule 119 thus comes into
play, and it provides:
Section 15. Examination of witness for the prosecution. When it
satisfactorily appears that a witness for the prosecution is too sick or
infirm to appear at the trial as directed by the court, or has to leave the
Philippines with no definite date of returning, he may forthwith be
conditionally examined before the court where the case is pending.
Such examination, in the presence of the accused, or in his absence
after reasonable notice to attend the examination has been served on
him, shall be conducted in the same manner as an examination at the
trial. Failure or refusal of the accused to attend the examination after
notice shall be considered a waiver. The statement taken may be
admitted in behalf of or against the accused.
It is true that Section 3, Rule 1 of the Rules of Court provides that the
rules of civil procedure apply to all actions, civil or criminal, and special
proceedings. In effect, it says that the rules of civil procedure have
suppletory application to criminal cases. However, it is likewise true
that the criminal proceedings are primarily governed by the Revised
Rules of Criminal Procedure. Considering that Rule 119 adequately
and squarely covers the situation in the instant case, we find no cogent
reason to apply Rule 23 suppletorily or otherwise.
To reiterate, the conditional examination of a prosecution witness for
the purpose of taking his deposition should be made before the court,
or at least before the judge, where the case is pending. Such is the
clear mandate of Section 15, Rule 119 of the Rules. We find no
necessity to depart from, or to relax, this rule. As correctly held by the
CA, if the deposition is made elsewhere, the accused may not be able
to attend, as when he is under detention. More importantly, this
requirement ensures that the judge would be able to observe the
witness deportment to enable him to properly assess his credibility.

CIVIL

This is especially true when the witness testimony is crucial to the


prosecutions case.

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D O C T R I N E S | 33

Republic of the Philippines, or (b) before such person or officer


as may be appointed by commission or under letters rogatory
(Sec. 11, Rule 24) (Dasmarias Garments, Inc. vs. Judge, et al, 225
SCRA 622.)

RULES 24-28: OTHER MODES OF DISCOVERY


LANADA vs. COURT OF APPEALS
Rule 26, SEC. 2. Implied admission. Each of the matters of which an
admission is requested shall be deemed admitted unless, within a
period designated in the request, which shall not be less than ten (10)
days after service thereof, or within such further time as the court may
allow on motion and notice, the party to whom the request is
directed serves upon the party requesting the admission a sworn
statement either denying specifically or setting forth in detail the
reasons why he cannot truthfully either admit or deny those matters.
Thus, when Rule 26 states that a party shall respond to the request for
admission, it should not be restrictively construed to mean that a party
may not engage the services of counsel to make the response in his
behalf. Indeed, the theory of petitioner must not be taken seriously;
otherwise, it will negate the principles on agency in the Civil Code, as
well as Sec. 23, Rule 138, of the Rules of Court.
A party should not be compelled to admit matters of fact already
admitted by his pleading and concerning which there is no
issue,nor should he be required to make a second denial of those
already denied in his answer to the complaint. A request for
admission is not intended to merely reproduce or reiterate the
allegations of the requesting partys pleading but should set forth
relevant evidentiary matters of fact, or documents described in
and exhibited with the request, whose purpose is to establish
said partys cause of action or defense. Unless it serves that
purpose, it is, as correctly observed by the Court of Appeals,
"pointless, useless," and "a mere redundancy."
SECURITY BANK CORP. vs. DEL ALCAZAR, et al.
Section 4 of Rule 24 of the Rules of Court is explicit:
SEC. 4.Use of depositions. - At the trial or upon the hearing of a
motion of an interlocutory proceeding, any part or all of a deposition, so
far as admissible under the rules of evidence, may be used against
any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with any of
the following provisions:
(c)The deposition of a witness, whether or not aparty, may be
used by any party for any purpose if the court finds: 1) that the witness
is dead; or 2) that the witness if out of the province and at a greater
distance than fifty (50) kilometers from the place of trial or hearing, or
is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or 3) that the witness is
unable to attend to testify because of age, sickness, infirmity, or
imprisonment; or 4) that the party offering the deposition has been
unable to procure the attendance of the witness by subpoena; or 5)
upon application and notice, that such exceptional circumstances exist
as to make it desirable, in the interest of justice and with due regard to
the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used.
It is apparent then that the deposition of any person may be taken
wherever he may be, in the Philippines or abroad. If the party or
witness is in the Philippines, his deposition shall be taken before
any judge, municipal, or notary public (Sec. 10, Rule 24, Rules of
Court). If he is in a foreign state or country, the deposition shall
be taken: (a) on notice before a secretary or embassy or legation,
consul general, consul, vice-consul, or consular agent of the

ROSETE vs. LIM


Section 1 of Rule 24 of the Revised Rules of Court reads:
Depositions pending action, when may be taken. By leave of court
after jurisdiction has been obtained over any defendant or over
property which is the subject of the action, or without such leave after
an answer has been served, the testimony of any person, whether a
party or not, may be taken, at the instance of any party, by deposition
upon oral examination or written interrogatories. The attendance of
witnesses may be compelled by the use of a subpoena as provided in
Rule 23. Depositions shall be taken only in accordance with these
rules. The deposition of a person confined in prison may be taken only
by leave of court on such terms as the court prescribes.
Once an answer has been served, the testimony of a person, whether
a party or not, may be taken by deposition upon oral examination or
written interrogatories. In the case before us, petitioners contend they
have not yet served an answer to respondents because the answers
that they have filed with the trial court were made ex abudanti cautela.
We find petitioners contention to be untenable. Ex abudanti cautela
means "out of abundant caution" or "to be on the safe side." An
answer ex abudanti cautela does not make their answer less of an
answer. A cursory look at the answers filed by petitioners shows that
they contain their respective defenses. An answer is a pleading in
which a defending party sets forth his defenses and the failure to
file one within the time allowed herefore may cause a defending
party to be declared in default. Thus, petitioners, knowing fully well
the effect of the non-filing of an answer, filed their answers despite the
pendency of their appeal with the Court of Appeals on the denial of
their motion to dismiss.
SECURITY BANK CORP. vs. COURT OF APPEALS
The Court enumerated the requisites in order that a party may compel
the other party to produce or allow the inspection of documents or
things, viz.:
(a)
The party must file a motion for the production or inspection of
documents or things, showing good cause therefor;
(b) Notice of the motion must be served to all other parties of the
case;
(c) The motion must designate the documents, papers, books,
accounts, letters, photographs, objects or tangible things which the
party wishes to be produced and inspected;
(d) Such documents, etc., are not privileged;
(e)
Such documents, etc., constitute or contain evidence material to
any matter involved in the action, and
(f)
Such documents, etc., are in the possession, custody or control
of the other party.
RULE 29: REFUSAL TO COMPLY WITH MODES OF DISCOVERY
FORTUNE CORP. vs. COURT OF APPEALS INTER-MERCHANTS
CORP.
It is true that to ensure that availment of the modes of discovery would
be untrammeled and efficacious, Rule 29 imposes serious sanctions
on the party who refuses to comply with or respond to the modes of
discovery, such as dismissing his action or proceeding or part thereof,

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or rendering judgment by default against the disobedient party;


contempt of court, or arrest of the party or agent of the party; payment
of the amount of reasonable expenses incurred in obtaining a court
order to compel discovery; taking the matters inquired into as
established in accordance with the claim of the party seeking
discovery; refusal to allow the disobedient party to support or oppose
designated claims or defenses; striking out his pleadings or parts
thereof; or staying further proceedings.
But then, there are concomitant limitations to discovery, even when
permitted to be undertaken without leave of court and without judicial
intervention. As indicated by the Rules, limitations inevitably arise
when it can be shown that the examination is being conducted in bad
faith or in such a manner as to annoy, embarrass, or oppress the
person subject to the inquiry. Also, further limitations come into
existence when the inquiry touches upon the irrelevant or encroaches
upon the recognized domains of privilege.
As a general rule, the scope of discovery is to be liberally construed so
as to provide the litigants with information essential to the expenditious
and proper litigation of each of the facts in dispute. Moreover, it cannot
be disputed that the various methods of discovery as provided for in
the Rules are clearly intended to be cumulative, as opposed to
alternative or mutually exclusive. Rules the fact that a party has
resorted to a particular method of discovery will not bar
subsequent use of other discovery devices, as long as the party
is not attempting to circumvent a ruling of the court, or to harass
or oppress the other party.
RULE 30: TRIAL
LALUAN vs. MALPAYA
The provisions of Rule 33 of the Rules of Court invoked by both parties
properly relate to the reference by a court of any or all of the issues in
a case to a person so commissioned to act or report thereon. These
provisions explicitly spell out the rules governing the conduct of the
court, the commissioner, and the parties before, during, and after the
reference proceedings. Compliance with these rules of conduct
becomes imperative only when the court formally orders a reference of
the case to a commissioner. Strictly speaking then, the provisions of
Rule 33 find no application to the case at bar where the court a
quo merely directed the clerk of court to take down the testimony of the
witnesses 6 presented
and
to
mark
the
documentary
evidence 7 proffered on a date previously set for hearing.
No provision of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party litigant.
After all, the reception of evidence by the clerk of court constitutes but
a ministerial task the taking down of the testimony of the witnesses
and the marking of the pieces of documentary evidence, if any,
adduced by the party present. This task of receiving evidence
precludes, on the part of the clerk of court, the exercise of judicial
discretion usually called for when the other party who is present
objects to questions propounded and to the admission of the
documentary evidence proffered. 8 More importantly, the duty to render
judgment on the merits of the case still rests with the judge who is
obliged to personally and directly prepare the decision based upon the
evidence reported. 9
But where the proceedings before the clerk of court and the
concomitant result thereof, i.e., the judgment rendered by the

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court based on the evidence presented in such limited


proceedings, prejudice the substantial rights of the aggrieved
party, then there exists sufficient justification to grant the latter
complete opportunity to thresh out his case in court.
VICENTE YU vs. EMILIO MAPAYO
Order of Trial: Since the answer admitted defendant's obligation as
stated in the complaint, albeit special defenses were pleaded, plaintiff
had every right to insist that it was for defendant to come forward with
evidence in support of his special defenses. Section 2 of Revised Rule
of Court 129 plainly supports appellant:
Sec. 2. Judicial admissions. Admissions made by the parties in the
pleadings, or in the course of the trial or other proceedings do not
require proof and cannot be contradicted unless previously shown to
have been made through palpable mistake.
LEE vs. HON. ROMILLO
The petitioners question the delegation of the reception of the
evidence ex-parte in the lower court to its legal researcher invoking our
ruling in Lim Tanhu v. Ramolete (66 SCRA 425).<re||an1w> They
argue that such practice does not have any basis in law. Their
argument is not meritorious. In the case of The National Housing
Authority v. Court of Appeals(121 SCRA 777, 781), we categorically
stated that:
The contention that the Trial Court cannot delegate the reception of
evidence to its Clerk of Court, citing the case of Lim Tanhu v. Ramolete
(supra) is not well taken. Suffice it to say, for purposes of this suit, that
the Id case referred to reception of evidence by a Clerk of Court after
declaration of defendant's default. No default is involved herein. As
held in the case of Laluan v. Manalo (65 SCRA 494 [1975l), no
provision of law or principle of public policy prohibits a Court from
authorizing its Clerk of Court to receive the evidence of a party litigant.
More important, however, is the fact that the trial court reconsidered its
earlier order and allowed the petitioners to present their evidence. For
almost three years, from July 20, 1978 to May 22, 1981, the petitioners
participated in the protracted trials which followed.
CONTINENTAL BANK vs. HON. JOEL P. TIANGCO
The trial court granted the motion in a minute order which reads:
"Considering the allegations contained, the arguments advanced and
the doctrine cited in defendants' motion to dismiss as well as those of
the opposition filed thereto by the plaintiff, the Court resolves to grant
the motion." The plaintiff appealed under Republic Act 5440.
We have admonished the trial courts not to issue a minute order lie the
one under appeal. A trial court should specify in its order the reasons
for the dismissal of the complaint so that when the order is appealed,
this Court can readily determine from a casual perusal thereof whether
there is a prima facie justification for the dismissal.
The contention that the action for revival of the judgment had
prescribed is manifestly devoid of merit. "A judgment may be
executed on motion within five (5 years from the date of its entry
or from the date it becomes final and executory. After the lapse of
such time, and before it is barred by the statute of limitations, a

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judgment may be enforced by action." (Sec. 6, Rule 39, Rules of


Court.) The prescriptive period for enforcing a judgment is ten years
(Art. 1144[3], Civil Code).

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Phil. 787; Alano vs. Court of First Instance, L-14557, October 30,
1959).
RULE 33: DEMURRER TO EVIDENCE

RULE 31: CONSOLIDATION OR SEVERANCE


RADIOWEALTH FINANCE COMPANY vs. SPOUSES ROSARIO
METROPOLITAN BANK AND TRUST COMPANY vs. HON.
EDILBERTO G. SANDOVAL
The court, in furtherance of convenience or to avoid prejudice, may
order a separate trial of any claim, cross-claim, counterclaim, or thirdparty complaint, or of any separate issue or of any number of claims,
cross-claims, counterclaims, third-party complaints or issues. But a
separate trial may be denied if a party is thereby deprived of his
right to be heard upon an issue dealt with and determined in the
main trial.
The piecemeal trial of separate issues in a single suit is not to be the
usual course. It should be resorted to only in the exercise of informed
discretion when the court believes that separation will achieve the
purposes of the rule.
In actions at law, the general practice is to try all the issues in a case at
one time; and it is only in exceptional instances where there are
special and persuasive reasons for departing from this practice that
distinct causes of action asserted in the same case may be made the
subjects of separate trials. Whether this reasonably may be done in
any particular instance rests largely in the courts discretion.
Exceptions to the general rule are permitted only when there are
extraordinary grounds for conducting separate trials on different issues
raised in the same case, or when separate trials of the issues will avoid
prejudice, or when separate trials of the issues will further
convenience, or when separate trials of the issues will promote justice,
or when separate trials of the issues will give a fair trial to all parties.
Otherwise, the general rule must apply.
RULE 32: TRIAL BY COMMISSIONER
WASSMER vs. VELEZ
A petition for relief from judgment on grounds of fraud, accident,
mistake or excusable negligence, must be duly supported by an
affidavit of merits stating facts constituting a valid defense. (Sec. 3,
Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his
petition stated: "That he has a good and valid defense against plaintiff's
cause of action, his failure to marry the plaintiff as scheduled having
been due to fortuitous event and/or circumstances beyond his control."
An affidavit of merits like this stating mere conclusions or
opinions instead of facts is not valid.
Defendant, however, would contend that the affidavit of merits was in
fact unnecessary, or a mere surplusage, because the judgment sought
to be set aside was null and void, it having been based on evidence
adduced before the clerk of court. In Province of Pangasinan vs.
Palisoc, L-16519, October 30, 1962, the Court pointed out that the
procedure of designating the clerk of court as commissioner to
receive evidence is sanctioned by Rule 34 (now Rule 33) of the
Rules of Court. Now as to defendant's consent to said procedure,
the same did not have to be obtained for he was declared in
default and thus had no standing in court (Velez vs. Ramas, 40

When a demurrer to evidence granted by a trial court is reversed


on appeal, the reviewing court cannot remand the case for further
proceedings. Rather, it should render judgment on the basis of
the evidence proffered by the plaintiff. Inasmuch as defendants in
the present case admitted the due execution of the Promissory Note
both in their Answer and during the pretrial, the appellate court should
have rendered judgment on the bases of that Note and on the other
pieces of evidence adduced during the trial.
SECTION 1. Demurrer to Evidence. After the plaintiff has completed
the presentation of his evidence, the defendant may move for
dismissal on the ground that upon the facts and the law the plaintiff has
shown no right to relief. If his motion is denied, he shall have the right
to present evidence. If the motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have waived the right to
present evidence.
The defendant is permitted, without waiving his right to offer evidence
in the event that his motion is not granted, to move for a dismissal (i.e.,
demur to the plaintiffs evidence) on the ground that upon the facts as
thus established and the applicable law, the plaintiff has shown no right
to relief. If the trial court denies the dismissal motion, i.e., finds that
plaintiffs evidence is sufficient for an award of judgment in the absence
of contrary evidence, the case still remains before the trial court which
should then proceed to hear and receive the defendants evidence so
that all the facts and evidence of the contending parties may be
properly placed before it for adjudication as well as before the
appellate courts, in case of appeal. Nothing is lost.
However, the rule imposes the condition by the same token that if his
demurrer is granted by the trial court, and the order of dismissal
is reversed on appeal, the movant losses his right to present evidence
in his behalf and he shall have been deemed to have elected to stand
on the insufficiency of plaintiffs case and evidence. In such event, the
appellate court which reverses the order of dismissal shall proceed to
render judgment on the merits on the basis of plaintiffs evidence.
LENI O. CHOA vs. ALFONSO C. CHOA
Though interlocutory in character, an order denying a demurrer to
evidence may be the subject of a certiorari proceeding, provided the
petitioner can show that it was issued with grave abuse of discretion;
and that appeal in due course is not plain, adequate or speedy under
the circumstances. Indeed, when the plaintiffs evidence is utterly and
patently insufficient to prove the complaint, it would be capricious for a
trial judge to deny the demurrer and to require the defendant to present
evidence to controvert a non-existing case. Verily, the denial
constitutes an unwelcome imposition on the courts docket and an
assault on the defendants resources and peace of mind. In short,
such denial needlessly delays and, thus, effectively denies justice.
A demurrer to evidence is defined as an objection or exception
by one of the parties in an action at law, to the effect that the
evidence which his adversary produced is insufficient in point of
law (whether true or not) to make out his case or sustain the
issue. The demurrer challenges the sufficiency of the plaintiffs
evidence to sustain a verdict. In passing upon the sufficiency of the
evidence raised in a demurrer, the court is merely required to ascertain

CIVIL

whether there is competent or sufficient proof to sustain the indictment


or to support a verdict of guilt.
NEPOMUCENO vs. COMELEC
Petitioners are obviously misled by the title of Rule 35 of the Rules of
Court, "Judgment on Demurer to Evidence." Said Rule, consisting of
only one section, allows the defendant to move for dismissal of the
case after the plaintiff has presented his evidence on the ground of
insufficiency of evidence, and provides for the effects of the dismissal
or non-dismissal, as the case may be, on the right of the defendant to
present his cause. Otherwise stated, it authorizes a judgment on the
merits of the case without the defendant having to submit
evidence on his part as the relief sought. The demurrer, therefore,
is an aid or instrument for the expeditious termination of an
action, similar to a motion to dismiss, which the court or tribunal
may either grant or deny.
It is thus apparent that the requirement of Section 1 of Rule 36 1 would
only apply if the demurrer is granted, for in this event, there would in
fact be an adjudication on the merits of the case, leaving nothing more
to be done, except perhaps to interpose an appeal. However, a denial
of the demurrer is not a final judgment, but merely interlocutory in
character as it does not finally dispose of the case, the defendant
having yet the right to present his evidence, as provided for under
Section 1 of Rule 35.
CASENT REALTY vs. PHILBANKING CORPORATION
What should be resolved in a motion to dismiss based on a demurrer
to evidence is whether the plaintiff is entitled to the relief based on the
facts and the law. The evidence contemplated by the rule on
demurrer is that which pertains to the merits of the case, excluding
technical aspects such as capacity to sue. 22 However, the plaintiffs
evidence should not be the only basis in resolving a demurrer to
evidence. The "facts" referred to in Section 8 should include all the
means sanctioned by the Rules of Court in ascertaining matters in
judicial proceedings. These include judicial admissions, matters of
judicial notice, stipulations made during the pre-trial and trial,
admissions, and presumptions, the only exclusion being the
defendants evidence.
In this case, since respondent failed to deny the genuineness and due
execution of the Dacion and Confirmation Statement under oath, then
these are deemed admitted and must be considered by the court in
resolving the demurrer to evidence.
JOANIE SURPOSA UY vs. JOSE NGO CHUA
A demurrer to evidence may be issued when, upon the facts and
the law, the plaintiff has shown no right to relief. Where the
plaintiff's evidence together with such inferences and
conclusions as may reasonably be drawn therefrom does not
warrant recovery against the defendant, a demurrer to evidence
should be sustained. A demurrer to evidence is likewise
sustainable when, admitting every proven fact favorable to the
plaintiff and indulging in his favor all conclusions fairly and
reasonably inferable therefrom, the plaintiff has failed to make out
one or more of the material elements of his case, or when there is
no evidence to support an allegation necessary to his claim. It
should be sustained where the plaintiff's evidence is prima facie
insufficient for a recovery.

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The essential question to be resolved in a demurrer to


evidence is whether petitioner has been able to show that she is
entitled to her claim, and it is incumbent upon RTC-Branch 24 to make
such a determination. A perusal of the Resolution dated 25 June 2008
of RTC-Branch 24 in Special Proceeding No. 12562-CEB shows that it
is barren of any discussion on this matter. It did not take into
consideration any of the evidence presented by petitioner. RTCBranch 24 dismissed Special Proceedings No. 12562-CEB on the sole
basis of res judicata, given the Decision dated 21 February 2000 of
RTC-Branch 9 in Special Proceeding No. 8830-CEB, approving the
Compromise Agreement between petitioner and respondent. Hence,
the Resolution dated 25 June 2008 of RTC-Branch 24 should be
deemed as having dismissed Special Proceeding No. 12562-CEB
on the ground of res judicata rather than an adjudication on the
merits of respondents demurrer to evidence. Necessarily, the
last line of Section 1, Rule 33 of the Rules of Court should not
apply herein and respondent should still be allowed to present
evidence before RTC-Branch 24 in Special Proceedings No.
12562-CEB.
RULE 34: JUDGMENT ON THE PLEADINGS
WOOD TECHNOLOGY CORP. vs. EQUITABLE BANKING CORP.
A judgment on the pleadings is proper when an answer fails to
tender an issue, or otherwise admits the material allegations of
the adverse partys pleading.
We note now that (1) the RTC knew that the Answer asserted special
and affirmative defenses; (2) the Court of Appeals recognized that
certain issues were raised, but they were not genuine issues of fact;
(3) petitioners insisted that they raised genuine issues; and (4)
respondent argued that petitioners defenses did not tender genuine
issues. However, whether or not the issues raised by the Answer are
genuine is not the crux of inquiry in a motion for judgment on the
pleadings. It is so only in a motion for summary judgment. 14 In a case
for judgment on the pleadings, the Answer is such that no issue
is raised at all. The essential question in such a case is whether
there are issues generated by the pleadings.15 This is the distinction
between a proper case of summary judgment, compared to a proper
case for judgment on the pleadings.
The existence or appearance of ostensible issues in the pleadings, on
the one hand, and their sham or fictitious character, on the other, are
what distinguish a proper case for summary judgment from one for a
judgment on the pleadings. In a proper case for judgment on the
pleadings, there is no ostensible issue at all because of the failure of
the defending partys answer to raise an issue . On the other hand, in
the case of a summary judgment, issues apparently existi.e. facts are
asserted in the complaint regarding which there is as yet no admission,
disavowal or qualification; or specific denials or affirmative defenses
are in truth set out in the answerbut the issues thus arising from
the pleadings are sham, fictitious or not genuine, as shown by
affidavits, depositions, or admissions.
SUMMARY JUDGMENT17 is a procedure aimed at weeding out sham
claims or defenses at an early stage of the litigation. The proper inquiry
in this regard would be whether the affirmative defenses offered by
petitioners constitute genuine issues of fact requiring a full-blown
trial.18 In a summary judgment, the crucial question is: are the issues
raised by petitioners not genuine so as to justify a summary judgment?
19
A "GENUINE ISSUE" means an issue of fact which calls for the
presentation of evidence, as distinguished from an issue which is
fictitious or contrived, an issue that does not constitute a genuine issue
for trial.

CIVIL

MUNICIPALITY OF TIWI vs. ANTONIO B. BETITO


A judgment on the pleadings is proper when the answer admits all
the material averments of the complaint. But where SEVERAL
ISSUES are properly tendered by the answer, a trial on the merits
must be resorted to in order to afford each party his day in court.
A MOTION FOR JUDGMENT ON THE PLEADINGS admits the truth
of all the material and relevant allegations of the opposing party and
the judgment must rest on those allegations taken together with such
other allegations as are admitted in the pleadings.14 It is PROPER
when an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse partys pleading. 15 However, when
it appears that NOT ALL THE MATERIAL ALLEGATIONS of the
complaint WERE ADMITTED in the answer for some of them were
either denied or disputed, and the defendant has set up certain
special defenses which, if proven, would have the effect of
nullifying plaintiffs main cause of action, judgment on the
pleadings cannot be rendered.

EDWARD ROCO TAN and EDWIN ROCO TAN vs.


BENIGNO DE LA VEGA, ANGELA TUASON STALEY and ANTONIO
PEREZ Y TUASON
Where a motion for judgment on the pleadings is filed, the essential
question is whether there are issues generated by the pleadings. In
a proper case for judgment on the pleadings, there is no ostensible
issue at all because of the failure of the defending partys answer to
raise an issue.14 The answer would fail to tender an issue, of
course, if it does not deny the material allegations in the
complaint or admits said material allegations of the adverse
partys pleadings by confessing the truthfulness thereof and/or
omitting to deal with them at all. Now, if an answer does in fact
specifically deny the material averments of the complaint and/or
asserts affirmative defenses (allegations of new matter which,
while admitting the material allegations of the complaint
expressly or impliedly, would nevertheless prevent or bar
recovery by the plaintiff), a judgment on the pleadings would
naturally be improper.15

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D O C T R I N E S | 37

affidavits, depositions, or other documents x x x. In spite of its


expediting character, RELIEF BY SUMMARY JUDGMENT can only be
allowed after compliance with the minimum requirement of vigilance by
the court in a summary hearing considering that this remedy is in
derogation of a party's right to a plenary trial of his case. At any rate, a
party who moves for summary judgment has the burden of
demonstrating clearly the absence of any genuine issue of fact, or that
the issue posed in the complaint is so patently unsubstantial as not to
constitute a genuine issue for trial, and any doubt as to the existence
of such an issue is resolved against the movant.35
"A SUMMARY JUDGMENT is permitted only if there is no genuine
issue as to any material fact and [the] moving party is entitled to a
judgment as a matter of law."36 The TEST OF THE PROPRIETY of
rendering summary judgments is the existence of a genuine issue of
fact,37 "as distinguished from a sham, fictitious, contrived or false
claim."38 "[A] factual issue raised by a party is considered as SHAM
when by its nature it is evident that it cannot be proven or it is
such that the party tendering the same has neither any sincere
intention nor adequate evidence to prove it. This usually happens in
denials made by defendants merely for the sake of having an issue
and thereby gaining delay, taking advantage of the fact that their
answers are not under oath anyway.
The FILING OF A MOTION and the CONDUCT OF A HEARING ON
THE MOTION are therefore important because these enable the court
to determine if the parties pleadings, affidavits and exhibits in support
of, or against, the motion are sufficient to overcome the opposing
papers and adequately justify the finding that, as a matter of law, the
claim is clearly meritorious or there is no defense to the action.41 The
non-observance of the procedural requirements of filing a motion
and conducting a hearing on the said motion warrants the setting
aside of the summary judgment.42

RULE 35: SUMMARY JUDGMENTS

In the case at bar, the trial court proceeded to render summary


judgment with neither of the parties filing a motion therefor. In
fact, the respondent itself filed an opposition when the trial court
directed it to file the motion for summary judgment. Respondent
insisted that the case involved a genuine issue of fact. Under these
circumstances, it was improper for the trial court to have persisted
in rendering summary judgment. Considering that the remedy of
summary judgment is in derogation of a party's right to a plenary
trial of his case, the trial court cannot railroad the parties rights
over their objections.

ANICETO CALUBAQUIB vs. REPUBLIC OF THE PHILIPPINES

FAUSTO AUMAN vs. HON. NUMERIANO G. ESTENZO

SUMMARY JUDGMENTS are proper when, UPON MOTION of the


plaintiff or the defendant, the court finds that the answer filed by
the defendant does not tender a genuine issue as to any material
fact and that one party is entitled to a judgment as a matter of law .

A SUMMARY JUDGMENT is one granted by the court, upon motion by


any of the parties, for the prompt and expeditious settlement of the
case, after both parties have pleaded, the motion to be supported by
affidavits, depositions, or other documents, after notice thereof had
been served upon the adverse party, who in turn may oppose the
motion with supporting affidavits and other documents and, after
hearing, it appears that there is no genuine issue as to any
material fact, except as to the amount of damages, and that the
movant or the moving party is entitled to a judgment as a matter
of law.

Where the facts pleaded by the parties are disputed or contested,


proceedings for a summary judgment cannot take the place of a
trial.
An examination of the Rules will readily show that a summary
judgment is by no means a hasty one. It assumes a scrutiny of facts in
a summary hearing after the filing of a motion for summary
judgment by one party supported by affidavits, depositions,
admissions, or other documents, with notice upon the adverse
party who may file an opposition to the motion supported also by

The purpose of a MOTION FOR SUMMARY JUDGMENT 14 is to


enable the trial court to determine whether or not a bona fide issue
exists between the parties, and if none ' for the court to render a
summary judgment as prayed for. This the court can do only AFTER
proper notice to the adverse party who has to be served with a
copy of the motion for summary judgment with its supporting
affidavits at least ten days before the date of the hearing of the

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motion (Sec. 3, Rule 34). The adverse or opposing party is given by


the Rules sufficient time to prepare and submit on the date of the
hearing his own counter affidavits, depositions, or other documents to
show that it has a real and valid defense which raises a genuine issue
of fact proper for trial.
Rule 34 of the Rules of Court : does not vest in the court jurisdiction
summarily to try the issues on depositions and affidavits, but give the
court limited authority to enter summary judgment only if it clearly
appears that there is no genuine issue of material fact. Upon a motion
for summary judgment the COURT'S SOLE FUNCTION IS TO
DETERMINE whether there is an issue of fact to be tried, and all
doubts as to the existence of an issue of fact must be resolved
against the moving party. On a motion for summary judgment the
court is not authorized to decide an issue of fact, but is to determine
whether the pleadings and record before the court create an issue of
fact to be tried. In other words, the rule (Rule 34 sec. 3) does not invest
the court with jurisdiction summarily to try the factual issues on
affidavits, but authorizes summary judgment only if it clearly appears
that there Is no genuine issue as to any material fact.
GREGORIO ESTRADA vs. HONORABLE FRANCISCO
CONSOLACION
When the MOVING PARTY IS A DEFENDING PARTY, his pleadings,
depositions or affidavits must show that his defenses or denials are
sufficient to defeat the claimant's claim. The affidavit submitted by the
party moving for summary judgment shall be by persons having
personal knowledge of the facts; it shall recite all material facts and
show that there is no defense to the cause of action or that the cause
of action has no merits. The motion shall be served on the adverse
party at least ten (10) days prior to the time specified in the hearing.
The adverse party may also, prior to said date, serve opposing
affidavits. The opposing papers, including pleadings, depositions, and
affidavits must establish a genuine issue of fact in order to defeat a
motion for summary judgment. After hearing, the motion for summary
judgment shall be granted if, on the basis of all the papers and proofs
submitted, the cause of action or defense shall be established
sufficiently to warrant the court as a matter of law in directing judgment
in favor of any party. The motion shall be denied if any party shall show
facts sufficient to require a trial of any issue of fact other than an issue
as to the amount or extent of the damages.
Summary Judgment or Accelerated Judgment is a device for weeding
out sham claims or defenses at an early stage of the litigation, thereby
avoiding the expense and loss of time involved in a trial. 6 The very
object is "to separate what is formal or pretended in denial or averment
from what is genuine and substantial, so that only the latter may
subject a suitor to the burden of a trial. 7 In conducting the hearing, the
purpose of the judge is not to try the issue, but merely to determine
whether there is a meritorious issue to be tried . Where a motion is
made for summary judgment, such motion is not directed to the
pleadings and deals only with the question of whether there are
triable issues of facts and where such issues exist summary
judgment must be denied.8 Summary judgment should not be
granted where it fairly appears that there is a triable issue to be
tried. 9 "The Court should not pass, on questions of credibility or weight
of evidence, and that the summary judgment procedure 'should not be
perverted to the trial of disputed questions of fact upon
affidavits". 10 The TEST, therefore, of a motion for summary judgment
is whether the pleadings, affidavits and exhibits in support of the
motions are sufficient to overcome the opposing papers and to
justify a finding as a matter of law that there is no defense to the
action or the claim is clearly meritorious. 11
In proceedings for summary judgment, the burden of proof is upon the
plaintiff to prove the cause of action and to show that the defense is
interposed solely for the purpose of delay. 12 After plaintiff's burden has
been discharged, defendant has the burden to show facts sufficient to
entitle him to defend. 13

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D O C T R I N E S | 38

GRAND FARMS, INC. vs. COURT OF APPEALS


The Rules of Court authorize the rendition of a summary judgment
if the pleadings, depositions and admissions on file, together with
the affidavits, show that, EXCEPT as to the amount of damages,
there is no issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. 10 Although an issue
may be raised formally by the pleadings but there is no genuine issue
of fact, and all the facts are within the judicial knowledge of the court,
summary judgment may be granted. 11
The real TEST, therefore, of a motion for summary judgment is
whether the pleadings, affidavits and exhibits in support of the
motion are sufficient to overcome the opposing papers and to
justify a finding as a matter of law that there is no defense to the
action or that the claim is clearly meritorious. 12
Applying said criteria to the case at bar, we find petitioners' action in
the court below for annulment and/or declaration of nullity of the
foreclosure proceedings and damages ripe for summary judgment.
Private respondent tacitly admitted in its answer to petitioners' request
for admission that it did not send any formal notice of foreclosure
to petitioners. Stated otherwise, and as is evident from the records,
there has been no denial by private respondent that no personal
notice of the extrajudicial foreclosure was ever sent to petitioners
prior thereto. This omission, by itself, rendered the foreclosure
defective and irregular for being contrary to the express
provisions of the mortgage contract. There is thus no further
necessity to inquire into the other issues cited by the trial court,
for the foreclosure may be annulled solely on the basis of such defect.
KALILID WOOD INDUSTRIES CORPORATION vs. INTERMEDIATE
APPELLATE COURT
We agree with the ruling of the trial Judge and the respondent
appellate court that petitioner Kalilid, due to its failure to verify its
answer, is deemed to have admitted by implication the
authenticity and due execution of promissory notes PBC No.
1202-76 and PBC No. 1255-76, which were both annexed to and
made the basis for respondent Bank's complaint. 7Consequently,
defenses relating to the genuineness and due execution of the notes,
such as that the instruments are spurious counterfeit, or of different
import on their faces from the ones executed by the parties; or that the
signatures appearing therein are forgeries; or that said signatures
were unauthorized as in the case of an agent signing for his principal
or one signing in behalf of a partnership or corporation; or that the
corporation was not authorized under its charter to sign the
instruments; or that the party charged signed the instruments in some
capacity other than that set out in the instruments; or that the
instruments were never delivered, are effectively cut off, 8 placing
petitioner Kalilid in estoppel from disclaiming liability under those
promissory notes. No genuine issue having been raised in the trial
court by petitioner Kalilid regarding the existence and validity of
its liabilities under promissory notes PBC No. 1202-76 and PBC
No. 1255-76, SUMMARY JUDGMENT was properly and
appropriately rendered in the case at bar.
EXCELSA INDUSTRIES, INC. vs. COURT OF APPEALS
The term "GENUINE ISSUE" has been defined as an issue of fact
which calls for the presentation of evidence as distinguished from an
issue which is sham, fictitious, contrived, set up in bad faith and
patently unsubstantial so as not to constitute a genuine issue for trial.
The court can determine this on the basis of the pleadings,
admissions, documents, affidavits and/or counter-affidavits submitted
by the parties to the court. Where the facts pleaded by the parties are
disputed or contested, proceedings for a summary judgment cannot
take the place of a trial.

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Although determination of the efficacy of a motion for summary


judgment depends on the particular circumstances of the case, the
general test is whether the pleadings, affidavits and exhibits in
support of the motion are sufficient to overcome the opposing
papers as to justify a finding as a matter of law that there is no
defense to the action or the claim is clearly meritorious.
In case there is doubt as to the propriety of a summary judgment,
the doubt shall be resolved against the moving party. The court
should take that view of evidence most favorable to the party against
whom it is directed and give that party the benefit of all favorable
inferences. The trial courts have but limited authority to render
summary judgments and may do so only in cases where there is
clearly no genuine issue as to any material fact. The rule does not
invest the court with jurisdiction summarily to try the factual issue on
affidavits, but authorizes summary judgment only if it clearly appears
that there is no genuine issue as to any material fact.
BENJAMIN BITANGA vs. PYRAMID CONSTRUCTION
ENGINEERING
For a SUMMARY JUDGMENT TO BE PROPER, the movant must
establish two requisites: (a) there must be no genuine issue as to
any material fact, except for the amount of damages; and (b) the
party presenting the motion for summary judgment must be
entitled to a judgment as a matter of law. Where, on the basis of the
pleadings of a moving party, including documents appended thereto,
no genuine issue as to a material fact exists, the burden to produce a
genuine issue shifts to the opposing party. If the opposing party fails,
the moving party is entitled to a summary judgment.27
In a summary judgment, the crucial question is: are the issues raised
by the opposing party not genuine so as to justify a summary
judgment?
the issue regarding the propriety of the service of a copy of the
demand letter on the petitioner in his office is a sham issue. It is not a
bar to the issuance of a summary judgment in respondents favor.
A GENUINE ISSUE is an issue of fact which requires the presentation
of evidence as distinguished from an issue which is a sham, fictitious,
contrived or false claim. To forestall summary judgment, it is essential
for the non-moving party to confirm the existence of genuine issues, as
to which he has substantial, plausible and fairly arguable
defense, i.e.,29 issues of fact calling for the presentation of evidence
upon which reasonable findings of fact could return a verdict for the
non-moving party, although a mere scintilla of evidence in support of
the party opposing summary judgment will be insufficient to preclude
entry thereof.
RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY
ATTY. UBALDINO A. LACUROM vs. JUDGE JUANITA C. TIENZO
Section 1, Rule 36 of the Rules of Court likewise reflects the foregoing
mandate, thus:
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 court.

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D O C T R I N E S | 39

The MEMORANDUM DECISION, to be valid, cannot


incorporate the findings of fact and the conclusions of law of
the lower court only by remote reference, which is to say that
the challenged decision is not easily and immediately
available to the person reading the memorandum decision.
For the incorporation by reference to be allowed, it must
provide for direct access to the facts and the law being
adopted, which must be contained in a statement attached to
the said decision. In other words, the memorandum
decision authorized under Section 40 of B.P. Blg. 129
should actually embody the findings of fact and
conclusions of law of the lower court in an annex
attached to and made an indispensable part of the
decision.
It is obvious that the decision rendered by respondent judge failed
to conform to this requirement. The cryptic decision simply
referenced the appealed decision of the MTCC and forthwith found the
same as compliant with procedural due process under the Rules of
Summary Procedure. Nowhere in the decision does respondent
judge make a statement of the facts which led to the filing of the
appeal. More importantly, the decision does not contain
respondent judges factual findings, albeit affirming those of the
MTCC, from which she based her conclusions of law. Ineluctably,
respondent judge transgressed the constitutional directive.
DATU SAMAD MANGELEN vs. COURT OF APPEALS
The challenged decision leaves much to be desired. What was filed
before the public respondent was an ordinary appeal from a judgment
by default. This necessitated a full-blown decision taking into account
the five (5) assigned errors which touch on both substantive and
procedural matters. Accordingly, public respondent promulgated its 30
January 1989 decision following a meticulous review of the
proceedings had before the trial court and careful re-appraisal of the
evidence adduced before it. Thus, that decision faithfully complied with
Section 14, Article VIII of the Constitution which provides that no
decision shall be rendered by any court without expressing therein
clearly and distinctly the facts of the law on which it is based. Now, if
such decision had to be completely overturned or set aside, upon the
filing of a motion for reconsideration, in a subsequent action via a
resolution or modified decision, such resolution or decision should
likewise state the factual and legal foundation relied upon. The reason
is obvious: aside from being required by the Constitution, the court
should be able to justify such a sudden change of course; it must be
able to convincingly explain the taking back of its solemn conclusions
and pronouncements in the earlier decision. In the instant case, the
public respondent miserably failed to do so; this is reflected in the
quoted resolution of 12 July 1989 which leaves in limbo the trial court's
challenged decision because it is not the latter which is reserved but
rather the public respondent's own decision of 30 January 1989. Public
respondent simply restore the parties to the status quo obtaining prior
to 30 January 1989. Clearly, therefore, an amended decision on the
appeal proper or on the merits of the decision of the trial court would
be in order.
There is more to the confusion. Public respondent ordered the remand
of the case to the trial court for further proceedings, thereby placing the
latter in a quandary as to what it was supposed to do. The trial court
would not know what "further proceedings" means as the public
respondent neither nullified the order of default nor set aside the
evidence received ex parte. Thus, the former would be hard pet at
finding a satisfactory solution to the problem presented for its
resolution.

CIVIL

VANGIE BARRAZONA vs. REGIONAL TRIAL COURT


We have admonished the trial courts not to issue a minute order or
resolution like the one specified above. A trial court should state in its
order the reasons for the dismissal of the complaint so that when the
order is appealed, the appellate court can readily determine from a
casual perusal thereof whether there is a prima facie justification for
the dismissal.
The court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable. In every case, the
resolution shall state clearly and distinctly the reasons therefor.
This requirement proscribes the common practice of perfunctorily
dismissing a motion to dismiss for "lack of merit." Such cavalier
dispositions can often pose difficulty and misunderstanding on the part
of the aggrieved party in taking recourse therefrom and likewise on the
higher court called upon to resolve the same, usually on certiorari.4
LUISA ECHAUS vs. COURT OF APPEALS
Time honored and of constant observance is the principle that no
judgment, or order whether final or interlocutory, has juridical
existence until and unless it is set down in WRITING, SIGNED,
AND PROMULGATED, i.e., delivered by the Judge to the Clerk of
Court
for
filing,
RELEASE
to
the
parties
and
implementation, 1 and that indeed, even after promulgation, it
does not bind the parties until and unless notice thereof is duly
served on them by any of the modes prescribed by law. 2 This is so
even if the order or judgment has in fact been orally pronounced in the
presence of the parties, or a draft thereof drawn up and signed and/or
copy thereof somehow read or acquired by any party. 3 In truth, even
after promulgation (i.e., filing with the clerk of court), and even after
service on the parties of notice of an order or judgment, the Court
rendering it indisputably has plenary power to recall and amend or
revise it in substance or form on motion of any party or even motu
proprio, provided that in the case of a final order or judgment, the same
has not attained finality.
In line with the fundamental principles set forth in the opening
paragraph of this opinion, the oral order approving the record on
appeal had no juridical existence; to give it that existence it had
to be reduced to writing and promulgated (i.e., Med with the clerk of
court). 23 But even if it had been written and promulgated, indeed
even if it had already been properly served on the parties, it
nonetheless was yet plainly within the power of the Judge to
recall it and set it aside. For every court has the inherent power,
among others, to "amend and control its process and orders so as
to make them conformable to law and justice." 24 And this Court
has had occasion to rule that a trial court may set aside its order
approving a record on appeal prior to the transmittal of the
record. 25 So, even conceding arguendo, efficacy to the oral order
approving Echaus's record on appeal, the respondent Judge
nevertheless had the power to recall said order, or, as he actually
did, hold approval thereof in abeyance until after he had resolved
other pending incidents. This Court thus perceives no error on the
part of the Appellate Court in giving its imprimatur to that act of the
respondent Judge in the light of the attendant circumstances.
RULE 37: NEW TRIAL OR RECONSIDERATION
ABE INDUSTRIES, INC. vs. COURT OF APPEALS
Section 23 of the Rules and Guidelines promulgated by this Court, we
hold that if one party has already perfected his appeal, the clause
"upon the expiration of the last day to appeal by any party" obviously
no longer applies to him, but only to the other party whose period to
appeal has not yet expired.

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D O C T R I N E S | 40

Thus, in the instant case, since the petitioners had already perfected
their appeal on November 15, 1985, although they had until November
22, 1985 within which to file their appeal, the latter date had become
immaterial. However, the other party received the decision on
November 4, 1985, hence she had until November 19, 1985 within
which to appeal. Her motion for execution pending appeal which was
filed on November 19, 1985 was therefore filed on time. Had she filed
the motion on November 22, 1985 it would have been filed late.
JULIAN MENDOZA vs. HON. CRISPIN V. BAUTISTA
A motion to dismiss based on the failure of the complaint to state
a cause of action is to be resolved solely on the basis of the facts
alleged in the complaint and no others, which facts are deemed
hypothetically admitted for the purpose of such motion. If such
facts constitute a cause of action on the basis of which the court
may render a valid judgment, the motion to dismiss on this
ground must be denied.
The contention that the petition was filed out of time is predicated on
the claim that the motion for reconsideration was defective for
being pro-forma and for failing to comply with the requirements of the
Rules of Court regarding such a motion. We fail to see how the motion
for reconsideration filed by the petitioner may be considered proforma, the same having called the attention of the trial court to a point
which the latter totally ignored in the order dismissing the complaint.
The requirement which the petitioner supposedly failed to observe in
filing his motion for reconsideration was the failure to attach an affidavit
of merit to the same. Private respondents argue that a motion for
reconsideration is equivalent to a motion for new trial and, under
Section 2 of Rule 37, when the motion for new trial is filed, affidavits of
merits should be attached to the motion. Once again, private
respondents misinterpreted the rules. While it is true that a motion
for reconsideration is equivalent to a motion for new trial if based
on a ground for new trial (2 Moran, 1970 Edition, p. 222), the socalled "motion for reconsideration" which is not called as such in
Rule 37 is the term commonly used to refer to a motion for new
trial under subdivision (c) of Section I of Rule 37. An AFFIDAVIT
OF MERIT is required in a motion for new trial pursuant to Section 2 of
Rule 37 if the motion for new trial is based on any of the causes
mentioned in subdivision (a) of Section I of Rule 37, to wit, fraud,
accident, mistake or excusable negligence. No similar requirement is
imposed for a motion for new trial or motion for reconsideration under
subdivision (c) of the same section.
MOISES LLANTERO vs. COURT OF APPEALS
It is an established rule that the date of mailing of a motion pleading
or any other paper, as shown by the post office registry receipt,
shall be considered as the date of their filing in
Court. 5 Nevertheless, this is not the issue at bar. Petitioner's Motion,
although seasonably presented from the foregoing standpoint, bore an
erroneous docket number. For this reason, it could not be attached to
the expediente of the correct case. To all intents and purposes, the
Motion was legally inexistent. Thus, the Court of Appeals committed no
error in remanding the case to the Court of origin for execution of the
judgment.
PCIB vs. HON. RODOLFO ORTIZ
It is true that when fraud, accident, mistake or excusable negligence is
invoked as ground of a MOTION FOR NEW TRIAL , 23 it should "be
proved in the manner provided for proof of motions," 24 i.e., by
"affidavits or depositions" unless the court should direct that "the
matter be heard wholly or partly on oral testimony or depositions." 25 It
is also required that "AFFIDAVITS OF MERITS" be attached to the
motion. 26 A motion for new trial grounded on fraud, accident, mistake
or excusable negligence should thus ordinarily be accompanied by
two (2) affidavits: one, setting forth the facts and circumstances
alleged to constitute such fraud, accident, mistake, or excusable

CIVIL

negligence; and the other, an affidavit of merits, setting forth the


particular facts claimed to constitute the movant's meritorious cause of
action or defense. 27 The reason for the first is quite obvious: it is to
enable the court to determine if the movant's claim of fraud, etc., is not
a mere conclusion but is indeed borne out by the relevant facts. The
reason for the second is equally evident: it would be useless, a waste
of time, to set aside the judgment and reopen the case to allow the
movant to adduce evidence when he has no valid cause of action or
meritorious defense. 28
Where, therefore, a MOTION FOR NEW TRIAL on the ground of
fraud, etc., is unaccompanied by either or both affidavits, the motion
is pro forma a scrap of paper, as it were, and will not interrupt the
running of the period of appeal. 29 But where, as here, the motion for
new trial is founded not only on fraud, accident, mistake or excusable
negligence, but also on the ground of " award of excessive
damages," 30 as to which no affidavit of fraud, etc., or of merits is
required, what being required of the movant being to "point out
specifically the findings or conclusions of the judgment" demonstrating
the invoked ground, the motion cannot be denied as pro forma simply
because no affidavit of merits is appended thereto, provided there be a
specification of the findings or conclusions of the judgment alleged to
be erroneous because awarding excessive damages. The tenability of
the grounds is dependent upon different premises. The untenability of
one does not of itself, render the other unmeritorious.
Finally, it bears stressing that the filing of a proper motion for new
trial interrupts the running of the period of appeal which begins to
run again from receipt of notice by the movant of the order
denying his motion.
REPUBLIC OF THE PHILIPPINES vs. RAMON G. ASUNCION
a MOTION FOR RECONSIDERATION is equivalent to a motion for
new trial IF based on a ground for new trial.26Section 1, Rule 37 of
the Rules of Court provides that a motion for new trial must be based
on the following causes: (a) fraud, accident, mistake or excusable
negligence which ordinary prudence could not have guarded against
and by reason of which such aggrieved party has probably been
impaired in his rights; or (b) newly discovered evidence, which he
could not, with reasonable diligence, have discovered and produced at
the trial, and which if presented would probably alter the result.
Here, the Solicitor General's motion for reconsideration did not
aver grounds for new trial. The motion was not based on fraud,
accident, mistake or excusable negligence that would need affidavits of
merit, nor is the motion based on newly discovered evidence as to
require affidavits of witnesses.
Mere reiteration of issues already passed upon by the court does not
automatically make a motion for reconsideration pro forma. What is
essential is compliance with the requisites of the Rules.
REYNANTE TADEJA vs. PEOPLE OF THE PHILIPPINES
Section 1 of Rule 121 of the Rules of Court provides that a new trial
may only be granted by the court on motion of the accused, or motu
proprio with the consent of the accused "(a)t any time before a
judgment of conviction becomes final." In this case, petitioners
judgment of conviction already became final and executory on 26 July
2007 the date on which the Decision of this Court denying the
petition and affirming the ruling of the CA was recorded in the Book of
Entries of Judgments. Thus, pleas for the remand of this case to the
trial court for the conduct of a new trial may no longer be entertained.

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D O C T R I N E S | 41

Petitioners premise their motion for a new trial on the ground of newly
discovered evidence, i.e. Plaridels extrajudicial confession, executed
with the assistance of Atty. Cirilo Tejoso, Jr., and the spot report of the
police on Plaridels apprehension.
NEWLY DISCOVERED EVIDENCE refers to that which (a) is
discovered after trial; (b) could not have been discovered and
produced at the trial even with the exercise of reasonable
diligence; (c) is material, not merely cumulative, corroborative or
impeaching; and (d) is of such weight that it would probably
change the judgment if admitted.58
The most important requisite is that the evidence could not have been
discovered and produced at the trial even with reasonable diligence;
hence, the term "newly discovered." The confession of Plaridel does
not meet this requisite. He participated in the trial before the RTC and
even gave testimony as to his defense.59 It was only after he and
petitioners had been convicted by the trial court that he absconded.
Thus, the contention that his confession could not have been obtained
during trial does not hold water.
RULE 38: RELIEF FROM JUDGMENTS
ANTONIO DEMETRIOU vs. COURT OF APPEALS
An ACTION TO ANNUL A FINAL JUDGMENT on the ground of fraud
will lie only if the fraud is extrinsic or collateral in character.
EXTRINSIC FRAUD refers to any fraudulent act of the prevailing party
in the litigation which is committed outside of the trial of the case,
whereby the defeated party has been prevented from exhibiting fully
his side of the case, by fraud or deception practiced on him by his
opponent (Macabingkil vs. People's Homesite and Housing
Corporation, 72 SCRA 326 cited in Canlas vs. CA, 164 SCRA 160). On
the other hand, INTRINSIC FRAUD takes the form of "acts of a party in
a litigation during the trial such as the use of forged or false document
or perjured testimony, which did not affect the presentation of the case,
but did prevent a fair and just determination of the case" (Libudan vs.
Gil, 45 SCRA 17). In the present petition, the allegation of fraud
involves admission by the respondent court of an alleged false
affidavit of loss, which alleged fraud is intrinsic in character. Thus,
as the alleged fraud committed by the private respondent is not
extrinsic in character, the instant petition for annulment of the said
December 1, 1990 order of the lower court should be dismissed.
The appellate court is certainly right in holding that the use of a false
affidavit of loss does not constitute extrinsic fraud to warrant the
invalidation of a final judgment . The use of the alleged false affidavit
of loss by private respondent is similar to the use during trial or
forged instruments or perjured testimony.
But a judgment otherwise final may be annulled not only on the
ground of extrinsic fraud but also because of LACK OF
JURISDICTION OF THE COURT WHICH RENDERED IT. In Serra
Serra v. Court of Appeals, 3 on facts analogous to those involved in this
case, this Court already held that if a certificate of title has not been
lost but is in fact in the possession of another person, the
reconstituted title is void and the court rendering the decision has
not acquired jurisdiction. Consequently the decision may be
attacked any time. Indeed, Rep. Act No. 26, 18 provides that "in case
a certificate of title, considered lost or destroyed be found or
recovered, the same shall prevail over the reconstituted certificate of
title." It was, therefore, error for the Court of Appeals to dismiss the
petition for annulment of judgment of the petitioners.

CIVIL

LAUREANO ARCILLA vs. BASILISA ARCILLA, ET AL


The Court has said time and again that the doctrine of finality of
judgments is grounded on fundamental considerations of public
policy and sound practice that at the risk of occasional error, the
judgments of courts must become final at some definite date fixed
by law. The law gives an exception or "last chance" of a
timely petition for relief from judgment within the
reglementary period (within 60 days from knowledge and 6
months from entry of judgment) under Rule 38 supra, but
such grace period must be taken as "absolutely fixed,
inextendible, never interrupted and cannot be subjected to
any condition or contingency. Because the period fixed is itself
devised to meet a condition or contingency (fraud, accident,
mistake or excusable neglect), the equitable remedy is an act
of grace, as it were, designed to give the aggrieved party
another and last chance, and failure to avail of such last
chance within the grace period fixed by the statute or the
Rules of Court is fatal.
The rule, therefore, is that in order for a petition for relief filed under
Rule 38 to be entertained by the court, the petitioner must satisfactorily
show that he has faithfully and strictly complied with the provisions of
said Rule 38. Consequently, in assailing the lower court's dismissal of
his petition for relief for having been filed out of time, it is incumbent
upon herein petitioner to show that the said petition was filed within the
reglementary period specified in Section 3, Rule 38. He has failed to
do so, instead he argues on the merits of his petition for relief, without
first showing that the same was filed on time in the court below. On this
ground alone, the instant case should be dismissed.
HOUDINI IBABAO, NENITA IBABAO and GENOVEVA IBABAO vs.
IAC
Relief from judgment under Rule 38 of the Rules of Court is a
remedy provided by law to any person against whom a decision
or order is entered into through fraud, accident, mistake or
excusable negligence. The relief provided for is of equitable
character, allowed only in exceptional cases as when there is no
other available or adequate remedy. When a party had another
adequate remedy available to him, which was either a motion for new
trial or appeal from the adverse decision of the lower court, and he was
not prevented by fraud, accident, mistake or excusable negligence
from filing such motion or taking the appeal, he cannot avail himself of
the relief provided in Rule 38. The rule is that relief will not be
granted to a party who seeks to be relieved from the effects of the
judgment when the loss of the remedy at law was due to his own
negligence, or a mistaken mode of procedure; otherwise, the
petition for relief will be tantamount to reviving the right of appeal
which has already been lost either because of inexcusable
negligence or due to a mistake in the mode of procedure by
counsel.
ANDY QUELNAN vs. VHF PHILIPPINES
A petition for relief from judgment must be filed within: (a) 60 days from
knowledge of judgment, order or other proceedings to be set aside;
and (b) six (6) months from entry of such judgment, order or other
proceeding. These two periods must concur. Both periods are also
not extendible and never interrupted.[12] Strict compliance with these
periods stems from the equitable character and nature of the petition
for relief. Indeed, relief is allowed only in exceptional cases as when
there is no other available or adequate remedy. As it were, a petition
for relief is actually the last chance given by law to litigants to
question a final judgment or order. And failure to avail of such last
chance within the grace period fixed by the Rules is fatal.
JULIO B. PURCON, JR. vs. MRM PHILIPPINES, INC.

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A PETITION for relief from judgment under Rule 38 of the 1997


Rules of Civil Procedure is an equitable remedy that is allowed
only in exceptional cases when there is no other available or
adequate remedy. It may be availed of only AFTER a judgment,
final order, or other proceeding was taken against petitioner in
any court through fraud, accident, mistake, or excusable
negligence.
Can petitioner avail of a petition for relief from judgment under
Rule 38 of the 1997 Rules of Civil Procedure from Our resolution
denying his petition for review?
We answer in the negative. A petition for relief from judgment is not
an available remedy in the Supreme Court.
although Section 1 of Rule 38 states that when a judgment or final
order is entered through fraud, accident, mistake, or excusable
negligence, a party in any court may file a petition for relief from
judgment, this rule must be interpreted in harmony with Rule 56,
which enumerates the original cases cognizable by the Supreme
Court.
In Dela Cruz v. Andres,10 We reiterated Our pronouncement in Mesina
v. Meer,11 that a petition for relief from judgment is not an available
remedy in the Court of Appeals and the Supreme Court. The Court
explained that under the 1997 Revised Rules of Civil Procedure, the
petition for relief must be filed within sixty (60) days after petitioner
learns of the judgment, final order or other proceeding to be set aside
and must be accompanied with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon, and the facts
constituting petitioners good and substantial cause of action or
defense, as the case may be. Most importantly, it should be filed with
the same court which rendered the decision.
While Rule 38 uses the phrase "any court," it refers only to
Municipal/Metropolitan and Regional Trial Courts. The procedure in
the CA and the Supreme Court are governed by separate
provisions of the Rules of Court. The procedure in the CA from
Rules 44 to 55, with the exception of Rule 45 which pertains to the
Supreme Court, identifies the remedies available before said
Court such as annulment of judgments or final orders or
resolutions (Rule 47), motion for reconsideration (Rule 52), and
new trial (Rule 53). Nowhere is a petition for relief under Rule 38
mentioned.
ABUBAKAR and FATIMA AFDAL vs. ROMEO CARLOS
SEC. 1. Petition for relief from judgment, order or other proceedings. When a judgment or final order is entered, or any other proceeding is
thereafter taken against a party in any court through fraud, accident,
mistake or excusable negligence, he may file a petition in such
court and in the same case praying that the judgment, order or
proceeding be set aside.
A petition for relief from judgment, if allowed by the Rules and not a
prohibited pleading, should be filed with and resolved by the court in
the same case from which the petition arose.
In the present case, petitioners cannot file the petition for relief
with the MTC because it is a prohibited pleading in an unlawful
detainer case. Petitioners cannot also file the petition for relief
with the RTC because the RTC has no jurisdiction to entertain
petitions for relief from judgments of the MTC. Therefore, the RTC
did not err in dismissing the petition for relief from judgment of
the MTC.

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The REMEDY of petitioners in such a situation is to file a petition for


certiorari with the RTC under Rule 65 18 of the Rules of Court on the
ground of lack of jurisdiction of the MTC over the person of
petitioners in view of the absence of summons to petitioners.
RULE 39: EXECUTION, SATISFACTION AND EFFECT OF
JUDGEMENTS
SPOUSES TOPACIO vs. BANCO FILIPINO SAVINGS
In the present case, we note that the December 16, 1986 Dismissal
Order cannot be deemed to have become final and executory in
view of the absence of a valid service, whether personally or via
registered mail, on the respondents counsel. We note in this
regard that the petitioners do not dispute the CA finding that the
"records failed to show that the private respondent was furnished with
a copy of the said order of dismissal[.]" 47 Accordingly, the Dismissal
Order never attained finality.
We fail to understand the arguments of the appellant in support of the
above assignment, except in so far as it supports his theory that after a
decision in a land registration case has become final, it may not be
enforced after the lapse of a period of 10 years, except by another
proceeding to enforce the judgment or decision. Authority for this
theory is the provision in the Rules of Court to the effect that judgment
may be enforced within 5 years by motion, and after five years but
within 10 years, by an action (Sec. 6, Rule 39). This provision of the
Rules refers to civil actions and is not applicable to special
proceedings, such as a land registration case. This is so because
a party in a civil action must immediately enforce a judgment that
is secured as against the adverse party, and his failure to act to
enforce the same within a reasonable time as provided in the
Rules makes the decision unenforceable against the losing party.
In SPECIAL PROCEEDINGS the purpose is to establish a status,
condition or fact; in land registration proceedings, the ownership
by a person of a parcel of land is sought to be established. After
the ownership has been proved and confirmed by judicial
declaration, no further proceeding to enforce said ownership is
necessary, except when the adverse or losing party had been in
possession of the land and the winning party desires to oust him
therefrom.
In the present case, Section 6, Rule 39 of the Rules of Court is not
applicable to an ex parte petition for the issuance of the writ of
possession as it is not in the nature of a civil action 54 governed by
the Rules of Civil Procedure but a judicial proceeding governed
separately by Section 7 of Act No. 3135 which regulates the
methods of effecting an extrajudicial foreclosure of mortgage. The
provision states:
Section 7. Possession during redemption period. In any sale made
under the provisions of this Act, the purchaser may petition the
[Regional Trial Court] where the property or any part thereof is
situated, to give him possession thereof during the redemption
period, furnishing bond in an amount equivalent to the use of the
property for a period of twelve months, to indemnify the debtor in
case it be shown that the sale was made without violating the
mortgage or without complying with the requirements of this Act.
ANDRES and GLORIA DY vs. COURT OF APPEALS
may such a judgment or order of the regional trial court be
immediately executed even before a copy thereof was served on
the losing party? The answer must be in the negative.

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Given a judgment or order that finally disposes of an action or


proceeding, if no appeal therefrom had been interposed within the
reglementary period, execution shall issue as a matter of
right. 5 There should be PROOF OF SERVICE of a copy of said
judgment or order on the parties to determine if the period of
appeal had lapsed, BEFORE a motion of execution thereof may be
granted and implemented.
under Section 2, Rule 39 of the Rules of Court, the execution
pending appeal of a judgment or order may be granted upon
motion of the prevailing party, upon good reasons, with notice to
the adverse party. Of course, such judgment or order may not be
considered to be pending appeal unless notice of such judgment or
order had been served on the losing party. Thus, its execution
pending appeal cannot be authorized without previous notice to
the losing party of such judgment or order.
Applying these rules in a suppletory manner to cases falling under the
Rules on Summary Procedure, it is clear that a judgment or order of
a Regional Trial Court which disposes of the action or
proceeding must be served on the losing party before the same
may be considered immediately executory. While an exparte motion for issuance of a writ of execution thereof may be filed in
the proper court, such motion must be supported by a proof of
service of the judgment or order on the losing party.
Consequently, the Court finds and so holds that in a civil case which
was decided under the Rules of Summary Procedure, the
immediate execution of the judgment of the Regional Trial Court
may not be effected unless prior notice of the judgment or order
had been served on the losing party and proof of such service
accompanies the motion for execution of the judgment. This will
enable the losing party to take any appropriate steps to protect his
interests when warranted. The losing party is entitled to such notice as
an essential requirement of due process; otherwise, the entire
proceedings leading to the execution of the judgment may be nullified
and set aside.
ANASTACIO TUBALLA HEIRS vs. RAUL CABRERA, ET AL.
A decision that has acquired finality becomes immutable and
unalterable. A final judgment may no longer be modified in any
respect, even if the modification is meant to correct erroneous
conclusions of fact and law; and whether it be made by the court
that rendered it or by the highest court in the land.
The only EXCEPTIONS to the rule that final judgments may no longer
be modified in any respect are (1) the correction of clerical errors,
(2) the so-called nunc pro tunc entries which cause no prejudice
to any party, and (3) void judgments.
Heirs of the Late Justice JOSE B. L. REYES vs. COURT OF
APPEALS
Incidentally, the resolution was signed by only two members of the
Court of Appeals, Special Fourth Division, namely, Justice
Demetrio G. Demetria, ponente, and Justice Ramon A. Barcelona,
member, concurring. Justice Omar U. Amin, member, did not sign.
Hence, the resolution is VOID, which the division clerk of court
should not have received for filing, much less served on the
parties. By law, the attendance of three members of the Court of
Appeals shall constitute a quorum for the sessions of a division. The
unanimous vote of three members of a division shall be necessary for
the pronouncement of a decision, or final resolution which shall be
reached in consultation before the writing of the opinion by any

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member of the division.28 This rule applies to interlocutory


resolutions.29 True, any member of the Court of Appeals may issue
preliminary injunction or temporary restraining order.30 However, this
power is exercised only in case of extreme urgency, and in the tradition
of the Supreme Court, the Court en banc or division ratifies or confirms
the act of the single justice at the very next session of the Court.
One final word. It was bad enough that the Court of Appeals erred in
ruling that the lease contract must be judicially rescinded before
respondent MMB, Inc. may be evicted from the premises. It was
worse that the Court of Appeals immediately enforced its decision
pending appeal restoring respondent in possession of the leased
premises and worst, appointed a special sheriff to carry out the
writ of execution. In the first place, we emphatically rule that the
Court of Appeals has no authority to issue immediate execution
pending
appeal of
its own
decision. DISCRETIONARY
EXECUTION under Rule 39, Section 2 (a), 1997 Rules of Civil
Procedure, as amended, is allowed pending appeal of a judgment
or final order of the TRIAL COURT, upon good reasons to be
stated in a special order after due hearing. A judgment of the
Court of Appeals cannot be executed pending appeal. Once final
and executory, the judgment must be remanded to the lower
court, where a motion for its execution may be filed only after its
entry.66 In other words, before its finality, the judgment cannot be
executed. There can be no discretionary execution of a decision of
the Court of Appeals.
In the second place, even in discretionary executions, the same must
be firmly founded upon good reasons. The court must state in a
special order the "good reasons" justifying the issuance of the
writ.67 The good reasons allowing execution pending appeal must
constitute superior circumstances demanding urgency that will
outweigh the injuries or damages to the adverse party if the
decision is reversed.68
The Court of Appeals adopted its resolution granting execution
pending appeal on September 18, 1998, after the petition for
review was already filed in the Supreme Court.81 It thereby
encroached on the hallowed grounds of the Supreme Court. Worst of
all, the Court of Appeals has no authority to appoint a special
sheriff.82 It appointed an employee of the mailing section, who
was not even bonded as required by law.
O. VENTANILLA ENT. CORP. vs. ADELINA TAN
The Court strikes down the argument that the CA Decision in CA-G. R.
CV No. 58817 did not attain finality because petitioner's counsel, who
died while the case was pending before the CA, was unable to receive
a copy thereof. The CA was correct in ruling that there is no
extraordinary circumstance in this case that would merit a recall
of the entry of judgment to reopen the case. The reason given by
petitioner, that its former counsel had died before the CA Decision was
promulgated, hence, it was not properly notified of the judgment, is too
tenuous to be given serious consideration. In Mojar, et al. v. Agro
Commercial Security Service Agency, Inc.,17 the Court explained
that it is the party's duty to inform the court of its counsel's
demise, and failure to apprise the court of such fact shall be
considered negligence on the part of said party.
First of all, as held in Legaspi v. Ong,18 "[e]xecution pending appeal
does not bar the continuance of the appeal on the merits, for the Rules
of Court precisely provides for restitution according to equity in case
the executed judgment is reversed on appeal."19?r?l1
Secondly, contrary to petitioner's claim, private respondent merely
paid the amount of P9,073,694.76 in compliance with the writ of
execution pending appeal, and not by reason of a compromise
agreement. No such agreement or contract appears on record.

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Furthermore, petitioner's claim is belied by the fact that private


respondent actively pursued the appeal of the case, which
resulted in the CA Decision decreasing the amounts awarded by
the RTC.
Petitioner then contends that there is a substantial variance between
the writ of execution and the CA Decision, as the latter did not make
mention of petitioner having to make a refund. However, note Section
5, Rule 39 of the Rules of Court, which provides that:
Sec. 5. Effect of reversal of executed judgment. - Where the executed
judgment is reversed totally or partially, or annulled, on appeal or
otherwise, the trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and justice may
warrant under the circumstances.
Evidently, the action of the RTC in ordering the issuance of the writ of
execution against herein petitioner for it to return the excess amount
private respondent has paid in compliance with the execution pending
appeal, is in accordance with the Rules.
MACARIO DIAZ CARPIO vs. COURT OF APPEALS
In the present case, what is involved is a writ of execution that this
Court has declared void with finality; and what is in issue is the
legal effect of the actions done pursuant to the writ. There is no
question as to the ministerial nature of the duty of the sheriff or
the propriety of his proceeding to implement the writ.
In any case, we proceed to rule that because the writ of execution
was void, all actions and proceedings conducted pursuant to it
were also void and of no legal effect.
Since the writ of execution was manifestly void for having been
issued without compliance with the rules, it is without any legal
effect.21 In other words, it is as if no writ was issued at
all.22 Consequently, all actions taken pursuant to the void writ of
execution must be deemed to have not been taken and to have
had no effect. Otherwise, the Court would be sanctioning a violation of
the right to due process of the judgment debtors respondent-spouses
herein.
The execution of the RTC judgment does not automatically mean
that the issues on appeal have become moot and academic.
Moreover, even assuming that the writ of execution in the instant case
were not void, the execution of the RTC judgment cannot be
considered as a supervening event that would automatically moot
the issues in the appealed case for accion publiciana, which is
pending before the CA. Otherwise, there would be no use appealing a
judgment, once a writ of execution is issued and satisfied. That
situation would be absurd. On the contrary, the Rules of Court in fact
provides for cases of reversal or annulment of an executed judgment.
Section 5 of Rule 39 provides that in those cases, there should be
restitution or reparation as warranted by justice and equity.
Therefore, barring any supervening event, there is still the
possibility of the appellate courts reversal of the appealed
decision - even if already executed - and, consequently, of a
restitution or a reparation.
GEORGE KATON vs. MANUEL PALANCA JR.
Where prescription, lack of jurisdiction or failure to state a cause
of action clearly appear from the complaint filed with the trial
court, the action may be dismissed motu proprio by the Court of

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Appeals, even if the case has been elevated for review on


different grounds. Verily, the dismissal of such cases
appropriately ends useless litigations.
RESIDUAL PREROGATIVES: Under Section 1 of Rule 9 of the Rules
of Court, defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived, except when (1) lack of
jurisdiction over the subject matter, (2) litis pendentia, (3) res
judicata and (4) prescription are evident from the pleadings or the
evidence on record. In the four excepted instances, the court shall
motu proprio dismiss the claim or action.
RESIDUAL JURISDICTION" is embodied in Section 9 of Rule 41 of
the Rules of Court, as follows:
"SEC. 9. Perfection of appeal; effect thereof. A partys appeal by
notice of appeal is deemed perfected as to him upon the filing of the
notice of appeal in due time.
"A partys appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the approval of the
record on appeal filed in due time.

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an exception to the general rule which provides that the taking of


an appeal stays the execution of the judgment and that advance
executions will only be allowed if there are urgent reasons
therefor. The aforesaid provision peremptorily calls for immediate
execution of all judgments for support and makes no distinction
between those which are the subject of an appeal and those which are
not. To consider then petitioner's argument that there should be good
reasons for the advance execution of a judgment would violate the
clear and explicit language of the rule mandating immediate execution.
EDUARDO JALANDONI vs. COURT OF APPEALS
It should be borne in mind that an action upon a judgment must be
brought within ten years from the time the right of action accrues
(Art. 1144, Civil Code). As clarified in the Rules of Court, that
prescriptive period means that "a judgment may be executed on
motion within five (5) years from the date of its entry or from the
date it becomes final and executory" and "after the lapse of such
time, and before it is barred by the statute of limitations, a
judgment may be enforced by action" (Sec. 6, Rule 39).
JAIME PELEJO vs. COURT OF APPEALS

"In appeals by notice of appeal, the court loses jurisdiction over


the case upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
"In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the records on
appeal filed in due time and the expiration of the time to appeal of the
other parties.
"In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Section 2 of Rule
39, and allow withdrawal of the appeal."
The "RESIDUAL JURISDICTION" of trial courts is available at a
stage in which the court is normally deemed to have lost
jurisdiction over the case or the subject matter involved in the
appeal. This stage is reached upon the perfection of the appeals by
the parties or upon the approval of the records on appeal, but prior to
the transmittal of the original records or the records on
appeal.13 In either instance, the trial court still retains its so-called
residual jurisdiction to issue protective orders, approve compromises,
permit appeals of indigent litigants, order execution pending appeal,
and allow the withdrawal of the appeal.
AUGUSTUS CAEZAR R. GAN vs. HON. ANTONIO C. REYES
A careful review of the facts and circumstances of this case fails to
persuade this Court to brand the issuance of the writ of execution by
the trial court and affirmed by the Court of Appeals with the vice of
grave abuse of discretion. There is no evidence indeed to justify the
setting aside of the writ on the ground that it was issued beyond the
legitimate bounds of judicial discretion.
Section 4, Rule 39, of the Rules of Court clearly states that, unless
ordered by the trial court, judgments in actions for support are
immediately executory and cannot be stayed by an appeal. This is

A mandatory injunction is granted only on a showing that (a) the


invasion of the right is material and substantial; (b) the right of
complainant is clear and unmistakable; and (c) there is an urgent and
permanent necessity for the writ to prevent serious damages.
Petitioners' right over the property is not clear. As stated above, the title
to the property in question is already in the names of private
respondents who, therefore, have better right to the possession
thereof.
The procedural error incurred by private respondents in not asking for
affirmative relief in the dispositive portion of the lower court's order
dismissing the case and which led to the dispute surrounding the
propriety of the issuance of the writ of possession is a mere
technicality which would not prevail over considerations of substantial
justice. There is no point in prolonging the litigation when private
respondents are the owners of the property and therefore are entitled
to its possession. It would be an injustice to allow petitioners to
continue holding subject property.
CITY OF MANILA vs. COUT OF APPEALS
The cardinal issue in this case is Whether or not the respondent
Court of Appeals committed grave abuse of discretion when it set
aside the special order of execution issued by the trial court
pending appeal. The petitioner's complaint that the Court of Appeals
made use of the writ of centiorari to set aside the order of execution
would hardly require discussion for it is settled that it can do so
provided the trial co committed a grave abuse of discretion in issuing
the order. 1
Section 2 of Rule 39 of the Rules of Court which en the the conditions
in order that a JUDGMENT MAY BE EXECUTED before the
expiration of the time to appeal is hereunder quoted:
On motion of the Prevailing party with notice to the adverse party the
court may, in its division order execution to issue before the
expiration of the time to appeal upon GOOD REASONS to be
stated in a special order. If a record on appeal is filed thereafter
the motion and the special order shall be included the rein.
Of the three conditions required (to wit: (a) there must be a motion by
the prevailing party with notice to the adverse party; (b) there

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must be good reasons for issuing execution; and (e) the good
reasons must be stated in a special order), only the existence of
good reasons is disputed.

The core issue is on the REQUISITES for an action to revive


judgment. Did private respondents have to prove the
enforceability of the judgment?

Even though the element that gives validity to an execution Pending


appeal is the existence of good reasons in support thereof, the statute,
nevertheless, does not determine, enumerate, or give examples of
what may be considered good reasons to justify execution. What these
good reasons are must therefore, necessarily be addressed to the
discretion of the court.

Sec. 6 Rule 39 of the Rules of Court states that an ACTION TO


REVIVE JUDGMENT only requires proof of a final judgment which
has not prescribed and has remained unexecuted after the lapse
of five (5) years but not more than ten (10) years from its
finality.6 Nowhere does the rule require proof that the judgment is still
enforceable by and against the original parties who have died. While
the action is still subject to defenses and counterclaims which arose
after the judgment became effective, proof of the death of some of the
parties is not required because the judgment call still be enforced by
the executor, administrator or successor-in-interest of the judgment
creditor against the judgment debtor.7

Inasmuch as the issuance of the writ of execution depends on the


discretion of the trial court, such issuance must necessarily be
controlled by the judgment of the judge in accordance with his
own conscience and by a sense of justice and equity, free from
the control of another's judgment or conscience.
The discretion given by statute to issue execution pending appeal is
not however unconfined, vagrant, absolute, and arbitrary. Rather, it is
sound discretion, for the court may grant such execution only when
there are good reasons therefore, and which are to be stated in a
special order. Provided there are good reasons for execution according
to the judgment of the trial judge, such judgment should generally not
be interfered with, modified, controlled, or inquired into by the appellate
court; the latter should generally not substitute its way of thinking for
that of the trial court, otherwise, the discretionary power given to the
trial court would have no meaning. The APPELLATE COURT may,
however, interfere with that discretion lodged in the trial court
only in case of GRAVE ABUSE 5 OR IN CASE CONDITIONS HAVE
SO FAR CHANGED SINCE THE ISSUANCE OF THE ORDER AS TO
NECESSITATE THE INTERVENTION of the appellate court to
protect the interests of the parties to contingencies which were
not or could have not been contemplated by the trial judge at the
time of the issuance of the order. 6
The TRIAL COURT RETAINS ITS DISCRETION to issue an order of
immediate execution pending appeal even when the losing party
posts a supersedeas bond to stay execution. 7 It is necessary,
however, in order that the trial court may disregard the
supersedeas bond, that there be special and compelling reasons
justifying immediate execution. 8 In the case before us where the
Company offered to post a supersedeas bond to stay immediate
execution, the basic issue raised can be resolved by determining
whether there are good, special and compelling reasons justifying the
questioned order of execution. In such determination, the facts and
circumstances which impelled the court to act as it did and its own
assessment of the equities are entitled to considerable weight, for the
issuance of the order of immediate execution is within its sound
discretion. 9
even upon the filing of the supersedeas bond, the losing party is
not entitled as a matter of right to a suspension of the excecution
Section 3 of Rule 39 of the Rules of Court merely empowers the
Court to order such suspension in the exercise of its sound
discretion. 23 The acceptance and approval of i supersedeas bond
to stay execution lies within the discretion of the court. 24 Hence,
the trial court may disregard the supersedeas bond and order
immediate execution provided there are special and compelling
reasons justifying execution, which reasons obtain in this case.
JUAN ENRIQUEZ, et al. vs. COURT OF APPEALS

Petitioners further alleged that respondents are not the owners of the
subject premises, hence the action must fail. An action to revive
judgment is not meant to retry the case all over again. 8 Its cause
of action is the judgment itself and not the merits of the original
action.9 The non-ownership by private respondents refer to the
merits of the first civil case which has long been decided with
finality and thus become conclusive between the parties.
MORTIMER F. CORDERO vs. ALAN G. GO

Rule 39, 2(a) of the 1997 Rules of Civil Procedure provides:


On MOTION OF THE PREVAILING PARTY with notice to the adverse
party filed in the trial court while it has jurisdiction over the case
and is in possession of either the original record or the record on
appeal, as the case may be, at the time of the filing of such motion
said court may, in its discretion, order execution of a judgment or
final order even before the expiration of the period to appeal.
After the trial court had lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be
stated in a special order after due hearing.
On the other hand, Rule 41, 9 pertinently states:
In appeals by NOTICE OF APPEAL, the court loses jurisdiction
over the case upon the perfection of the appeals filed in due time
and the expiration of the time to appeal of the other parties.
....
[P]rior to the transmittal of the original record . . ., the court may
issue orders for the protection and preservation of the rights of
the parties which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Section 2 of Rule 39, and
allow withdrawal of the appeal.
To be sure, the trial court still had jurisdiction of the case when it
ordered the execution of its judgment pending appeal. However, the
fact is that the enforcement of its order was restrained by the
Court of Appeals in CA G.R. SP No. 60354. On the other hand, the

CIVIL

subsequent perfection of respondents appeal forced the


elevation of the records of the case to the Court of Appeals. The
twin moves of respondents rendered execution pending appeal
impossible not only while the TRO was effective but even after its
expiration, in view of the elevation of the records to the Court of
Appeals. Eventually, on January 29, 2001, the Court of Appeals set
aside the trial courts order of execution pending appeal. Petitioner
cannot take advantage of the expiration of the TRO to seek an
implementation of the trial courts order of execution, as this was
the very issue in CA G.R. SP No. 60354 (for certiorari).
The trial court properly held itself to have no jurisdiction to act
further on the case. Instead, in its order of December 18, 2001, it
referred petitioner to the Court of Appeals in CA G.R. CV No. 69113
with regard to his efforts to seek implementation of the order of
execution. Petitioner did not appeal from this ruling.

2.

3.

4.

LUZON SURETY COMPANY, INC. vs. IAC


The ten-year period within which an action for revival of a
judgment should be brought, commences to run from the date of
finality of the judgment, and not from the expiration of the fiveyear period within which the judgment may be enforced by mere
motion (Art. 11 52, Civil Code).
The decision in Civil Case No. 59506 became final and executory
on April 13, 1967. The judgment was not enforced. The petitioner
instituted Civil Case No. 93268 within the prescriptive period to
revive the judgment in Civil Case No. 59506. The revived
judgment was rendered on May 24, 1974. This judgment became
final and executory sometime in 1974. Again, this was not
enforced. On September 1, 1982, the petitioner filed a claim in Special
Proceedings No. Q-32291 before the then Court of First Instance of
Rizal. What is sought is a second revival of the judgment that had
become final in 1967. This can no longer be done due to the lapse
of the allowable period.
REPUBLIC OF THE PHILIPPINES vs. COURT OF APPEALS
In computing the time limited for suing out an execution, although there
is authority to the contrary, the general rule is that there should not be
included the time when execution is stayed, either by agreement of the
parties for a definite time, by injunction, by the taking of an appeal or
writ of error so as to operate as supersedeas, by the death of a party,
or otherwise. Any interruption or delay occasioned by the debtor
will extend the time within which the writ may be issued without
scire facias. 23
In the case at bar, the resultant interruption in the execution of the
judgment, being occasioned by and attributable to the private
respondents, the filing by petitioner Republic of the Philippines, of
a motion for the issuance of an alias writ of execution on January
25, 1974 (private respondents' petition having been dismissed by
this Court on July 12, 1973 and the entry of judgment issued on
November 1, 1973) is thus still seasonable and well within the five
(5) year period. The statute of limitations has been devised to operate
primarily against those who slept on their rights and not against those
desirous to act but cannot do so for causes beyond their control.
ATAL and AMADO MOSLEM vs. ANTONIO M. SORIANO
1.

REMEDIAL LAW; CIVIL PROCEDURE; ORDINARY JUDGMENT;


FROM DISTINGUISHED FROM A SPECIAL JUDGMENT. It is
plain from records that the judgment enforced is an ordinary one.
It is not a special judgment. The case filed by Antonio M. Soriano

5.

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is an ordinary civilization for the recovery of possession of a


parcel of land and damages. The judgment directing the
petitioners to vacate the land is nothing but a judgment to deliver
possession of real property. A special judgment under Section 9,
Rule 39 is one which "requires the performance of any other act
than the payment of money, or the sale or delivery of real or
personal property.
ID.; ID.; ID.; HOW ENFORCED. Under Section 8(d) of Rule 39.
if the judgment he for the delivery of the possession of real
property, -the writ of execution must; require the sheriff or other
officer to whom it must be directed to deliver the possession of
the property, describing it to the party entitled thereto. This means
that the sheriff must dispossession thereof to the winning party.
ID.; ID.; ID.; ID.; MERE REFUSAL TO RELINQUISH PROPERTY;
NOT A CASE CONTEMPT. In Rom v. Cobadora (28 SCRA
758), the Court declared that the mere refusal or un willingness
on the part of the defeated party to defeated party would not
constitute contempt.
ID.; ID.; ID.; ID.; ENTRY OR ATTEMPT OF LOSING PARTY TO
EXECUTIVE ACTS OF OWNERSHIP OR POSSESSION UPON
THE REAL PROPERTY AFTER DISPOSSESSION OR
EJECTMENT; CONSTITUTES CONTEMPT. If subsequent to
dispossession or ejectment the losing party enters or attempts to
enter into or upon the real property, for the purpose of executing
acts of ownership or possession or in any manner disturbs the
possession of the person adjudged to be entitled there to, then
and only then may the loser he charged with and punished for
contempt under paragraph (h) of Section 3, Rule 64.
CIVIL LAW; PROPERTY; BUILDER IN GOOD FAITH; RIGHT TO
REIMBURSEMENT DESPITE FINALITY OF JUDGMENT IN THE
RECOVERY OF POSSESSION CASE; CLAIM FOR
REIMBURSEMENT VALID IN RESPECT OF THE CONTEMPT
CASE. There are special reasons, however, why the builder in
good faith issue should not be ignored or considered closed in
spite of the finality of the decision in the recovery of possession
case. In the first place, the timbers have the presumption of good
faith under Article 572 of the Civil Code in their favor. In the
drafting of the answer and during pre-trial, the petitioners do not
seem to have had the benefit of counsel, in the real meaning of its
availability. The petitioners first counsel limited the issues to as
certaining whether or not the two defendants were inside the titled
property of the plaintiff. Atal and Amado are members of a cultural
minority group. They appear not even to have any surname. Their
family name "Moslem" appears to be more of a descriptive
appellation than a surname. There is nothing in the records before
us to show whether or not Atal and Amado were mere squatters
who entered land already titled in someone else name. It is not
also shown whether the two were already working and cultivating
land which they thought was public land when the same was titled
by a person more knowledgeable in acquisition of real estate. The
builder in good faith argument is therefore, a valid one insofar as
this contempt case is concerned. The petitioners are not
precluded from pursuing further legal steps to be reimbursed for
their improvements if their claim is supported by satisfactory
proof.

A writ of execution under Section 8(d) requires the sheriff or other


proper officer to whom it is directed:
"(d) If it be for the delivery of the possession of real or personal
property, to deliver the possession of the same, describing it, to the
party entitled thereto, and to satisfy any costs, damages, rents, or
profits covered by the judgment out of the personal property of the
person against whom it was rendered, and if sufficient personal
property cannot be found, then out of the real property."
On the other hand, Section 9 which the lower court ruled as
applicable, provides:
Writ of execution of special judgment. When a judgment requires
the performance of any other act than the payment of money, or the
sale or delivery of real or personal property, a certified copy of the

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judgment shall be attached to the writ of execution and shall be served


by the officer upon the party against whom the same is rendered, or
upon any other person required thereby, or by law, to the same, and
such party or person may be punished for contempt if he disobeys
such judgment.
It is plain from the records that the judgment being enforced is an
ordinary one. It is not a special judgment. The case filed by Antonio
M. Soriano is an ordinary civil action for the recovery of possession of
a parcel of land and damages. The judgment directing the petitioners
to vacate the land is nothing but a judgment to deliver possession of
real property. A special judgment under Section 9, Rule 39 is one
which "requires the performance of any other act than the payment of
money, or the sale or delivery of real or personal property."
How is an ordinary judgment enforced? Section 13 of Rule 39
provides:
How execution for the dealer or restitution of property enforced. The
officer must enforce an execution for the delivery or restitution of
property by ousting therefrom the person against whom the
judgment is rendered and placing the judgment creditor in
possession of such property, and by levying as hereinafter
provided upon so much of the property of the judgment debtor as
will satisfy the amount of the judgment and costs included in the
writ of execution.
DIONISIO FIESTAN & JUANITA ARCONADO vs. COURT OF
APPEALS
The formalities of a levy, as an essential requisite of a valid execution
sale under Section 15 of Rule 39 and a valid attachment lien under
Rule 57 of the Rules of Court, are not basic requirements before an
extrajudicially foreclosed property can be sold at public auction. At the
outset, distinction should be made of the three different kinds of sales
under the law, namely: an ordinary execution sale, a judicial
foreclosure sale, and an extrajudicial foreclosure sale, because a
different set of law applies to each class of sale mentioned. An
ordinary execution sale is governed by the pertinent provisions of
Rule 39 of the Rules of Court. Rule 68 of the Rules of Court
applies in cases of judicial foreclosure sale. On the other hand, Act
No. 3135, as amended by Act No. 4118 otherwise known as "An
Act to Regulate the Sale of Property under Special Powers
Inserted in or Annexed to Real Estate Mortgages" applies in cases
of extrajudicial foreclosure sale.
LEVY, as understood under Section 15, Rule 39 of the Rules of
Court in relation to execution of money judgments, has been
defined by this Court as the act whereby a sheriff sets apart or
appropriates for the purpose of satisfying the command of the
writ, a part or the whole of the judgment-debtor's property. 5
In extrajudicial foreclosure of mortgage, the property sought to be
foreclosed need not be identified or set apart by the sheriff from
the whole mass of property of the mortgagor for the purpose of
satisfying the mortgage indebtedness. For, the essence of a
contract of mortgage indebtedness is that a property has been
identified or set apart from the mass of the property of the debtormortgagor as security for the payment of money or the fulfillment of an
obligation to answer the amount of indebtedness, in case of default of
payment. By virtue of the special power inserted or attached to the
mortgage contract, the mortgagor has authorized the mortgageecreditor or any other person authorized to act for him to sell said
property in accordance with the formalities required under Act No.
3135, as amended.
The prohibition mandated by par. (2) of Article 1491 in relation to Article
1409 of the Civil Code does not apply in the instant case where the

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sale of the property in dispute was made under a special power


inserted in or attached to the real estate mortgage pursuant to Act No.
3135, as amended. It is a familiar rule of statutory construction that, as
between a specific statute and general statute, the former must prevail
since it evinces the legislative intent more clearly than a general
statute does. 7 The Civil Code (R.A. 386) is of general character while
Act No. 3135, as amended, is a special enactment and therefore the
latter must prevail. 8
Under Act No. 3135, as amended, a mortgagee-creditor is allowed to
participate in the bidding and purchase under the same conditions as
any other bidder, as in the case at bar, thus:
Section 5. At any sale, the creditor, trustee, or
other person authorized to act for the creditor, may
participate in the bidding and purchase under the
same conditions as any other bidder, unless the
contrary has been expressly provided in the
mortgage or trust deed under which the sale is
made.
In other words, Section 5 of Act No. 3135, as amended, creates and
is designed to create an exception to the general rule that a
mortgagee or trustee in a mortgage or deed of trust which
contains a power of sale on default may not become the
purchaser, either directly or through the agency of a third person,
at a sale which he himself makes under the power. Under such an
exception, the title of the mortgagee-creditor over the property
cannot be impeached or defeated on the ground that the
mortgagee cannot be a purchaser at his own sale.
PCIB vs. COURT OF APPEALS
Garnishment is considered as a specie of attachment for reaching
credits belonging to the judgment debtor and owing to him from a
stranger to the litigation. Under the above-cited rule, the garnishee [the
third person] is obliged to deliver the credits, etc. to the proper officer
issuing the writ and "the law exempts from liability the person having in
his possession or under his control any credits or other personal
property belonging to the defendant, . . . if such property be delivered
or transferred, . . . to the clerk, sheriff, or other officer of the court in
which the action is pending."
ANDREW B. NUDO vs. HON. AMADO S. CAGUIOA
An action TO ANNUL A FINAL JUDGMENT is an extraordinary
remedy, which is not to be granted indiscriminately by the Court. It is a
recourse equitable in character allowed only in exceptional cases. The
reason for the restriction is to prevent this extraordinary action from
being used by a losing party to make a complete farce of a duly
promulgated decision that has long become final and
executory.15 Under Section 2, Rule 47 of the Rules of Civil Procedure,
the only grounds for annulment of judgment are extrinsic fraud
and lack of jurisdiction. Lack of jurisdiction as a ground for
annulment of judgment refers to either lack of jurisdiction over
the person of the defending party or over the subject matter of the
claim.16
Non-substitution of the heirs of a deceased party is not jurisdictional.
The rule on substitution by heirs is not a matter of jurisdiction, but a
requirement of due process. It was designed to ensure that the
deceased party would continue to be properly represented in the suit
through his heirs or the duly appointed legal representative of his
estate.17 It is only when there is a denial of due process, as when the

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deceased is not represented by any legal representative or heir, that


the court nullifies the trial proceedings and the resulting judgment
therein.
PERLA COMPANIA DE SEGUROS, INC. vs. HON. JOSE R.
RAMOLETE
GARNISHMENT has been defined as a species of attachment for
reaching any property or credits pertaining or payable to a judgment
debtor. 13 In legal contemplation, it is a forced novation by the
substitution of creditors: 14 the judgment debtor, who is the original
creditor of the garnishee is, through service of the writ of garnishment,
substituted by the judgment creditor who thereby becomes creditor of
the garnishee. Garnishment has also been described as a warning to a
person having in his possession property or credits of the judgment
debtor, not to pay the money or deliver the property to the latter, but
rather to appear and answer the plaintiff's suit. 15
In order that the trial court may validly acquire jurisdiction to bind the
person of the garnishee, it is not necessary that summons be
served upon him. The garnishee need not be impleaded as a party
to the case. All that is necessary for the trial court lawfully to bind
the person of the garnishee or any person who has in his
possession credits belonging to the judgment debtor is service
upon him of the writ of garnishment.
The Rules of Court themselves do not require that the garnishee be
served with summons or impleaded in the case in order to make him
liable.
Rule 39, Section 15 provides:
Sec. 15. Execution of money judgments. The officer must
enforce an execution of a money judgment by levying on all the
property, real or personal of every name and nature whatsoever, and
which may be disposed of for value, of the judgment debtor not exempt
from execution . . .
Real property, stocks, shares, debts, credits, and other personal
property, or any interest in either real or personal property, may be
levied on in like manner and with like effect as under a writ of
attachment.
Rule 57, Section 7(e) in turn reads:
Sec. 7. Attachment of real and personal property; recording
thereof. Properties shall be attached by the officer executing the
order in the following manner:
(e) Debts and credits, and other personal property not capable of
manual delivery, by leaving with the person owing such debts, or
having his possession or under his control such credits or other
personal property, or with his agent, a copy of the order, and
notice that the debts owing by him to the party against whom
attachment is issued, and the credits and other personal property in
his possession, or under his control, belonging to said party, are
attached in pursuance of such order;
Through SERVICE OF THE WRIT OF GARNISHMENT, the garnishee
becomes a "virtual party" to, or a "forced intervenor" in, the case
and the trial court thereby acquires jurisdiction to bind him to
compliance with all orders and processes of the trial court with a
view to the complete satisfaction of the judgment of the court.

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the asset or credit garnished is thereupon subjected to a specific lien:


The garnishment of property to satisfy a writ of execution
operates as an attachment and fastens upon the property a lien
by which the property is brought under the jurisdiction of the
court issuing the writ. It is brought into custodia legis, under the
sole control of such court. 18
In the present case, there can be no doubt, therefore, that the trial
court actually acquired jurisdiction over petitioner Perla when it
was served with the writ of garnishment of the third-party liability
insurance policy it had issued in favor of judgment debtor Nelia
Enriquez. Perla cannot successfully evade liability thereon by such a
contention.
a separate action needs to be commenced when the garnishee
"claims an interest in the property adverse to him (judgment
debtor) or denies the debt."
JEROME SOLCO vs. CLAUDINA V. PROVIDO
EXECUTION is the final stage of litigation, the end of the suit. It cannot
be frustrated except for serious reasons demanded by justice and
equity. In this jurisdiction, the rule is that when a judgment becomes
final and executory, it is the ministerial duty of the court to issue a
writ of execution to enforce the judgment,27 upon motion within five
years from the date of its entry, or after the lapse of such time and
before it is barred by the statute of limitations, by an independent
action.28 Either party can move for the execution of the decision so
long as the decision or any part of it is in favor of the moving
party. The rule on execution of final judgments does NOT make
the filing of the motion for execution EXCLUSIVE to the prevailing
party.
In the instant case, the Villaruels moved to quash the writ of
execution because it allegedly varied the terms of the judgment.
They claimed that the writ directed the sheriff to execute the decision
only as against them, contrary to the dispostive portion of the decision
which likewise ordered Solco to pay the balance of the purchase price.
This contention is untenable. Although the portion of the decision
ordering Solco to pay the balance of the contract price was not
categorically expressed in the dispositive portion of the writ of
execution, the same was explicitly reiterated in the body of the writ.
Villaruels remedy was not to move for the quashal of the writ of
execution but to move for its modification to include the portion of the
decision which ordered Solco to pay the balance of the contract price.
a sheriff is under obligation to enforce the execution of a money
judgment by demanding from the judgment obligor the immediate
payment directly to the judgment obligee or his representative of
the full amount stated in the writ of execution and all lawful fees.
However, if the judgment obligee or his representative is not
present to receive the payment, the rules require the sheriff to
receive the payment which he must turn over within the same day
to the clerk of court. If it is not practicable to deliver the amount
to the clerk of court within the same day, the sheriff shall deposit
the amount in a fiduciary account with the nearest government
depository bank. The clerk of court then delivers the amount to
the judgment obligee in satisfaction of the judgment. If the
judgment obligor cannot pay all or part of the obligation, the
sheriff shall levy upon the properties of the judgment obligor.
The Rules do not specify the period within which the sheriffs
must implement the writ of execution. When writs are placed in their
hands, it is their mandated ministerial duty, in the absence of any
instructions to the contrary, to proceed with reasonable promptness to

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execute them in accordance with their mandate. 36 If the judgment


cannot be satisfied in full within 30 days after receipt of the writ, they
shall report to the court and state the reason or reasons therefor. They
are likewise tasked to make a report to the court every 30 days on the
proceedings taken thereon until the judgment is satisfied in full or its
effectivity expires.
procedural lapse on the part of the sheriff should not affect the
validity of the November 23, 2005 Order of the RTC accepting the
MBTC check as full payment of the contract price which was
based on the August 8, 2005 letter of the Villaruels to the clerk of
court requesting for the full implementation of the writ.
HECTOR L. ONG vs. MARILYN TATING
The issue in this case concerns the jurisdiction of an inferior
Court to take cognizance of a motion impugning the sheriff's
authority to execute a final judgment in an ejectment case
which commands payment of rentals in arrears against personalty
claimed as theirs by persons formerly residing in the leased premises
together with the evicted defendant-lessee.
money judgments are enforceable only against property
unquestionably belonging to the judgment debtor. One man's
goods shall not be sold for another man's debts, as the saying
goes. 29 Therefore, the sheriff acts properly only when he subjects to
execution property undeniably belonging to the judgment debtor. But to
the extent that he levies on assets of a third person, in which the
judgment debtor has no interest, to that extent he acts as a
trespasser, and to that extent he is amenable to control and
correction by the Court. 30
When the sheriff thus seizes property of a third person in which the
judgment debtor holds no right or interest, and so incurs in error, the
supervisory power of the Court which has authorized execution may be
invoked by the third person. Upon due APPLICATION by the third
person, and after SUMMARY HEARING, the Court may command
that the property be released from the mistaken levy and restored
to the rightful owner or possessor. What the Court can do in these
instances however is limited to a determination of whether the
sheriff has acted rightly or wrongly in the performance of his
duties in the execution of the judgment, more specifically, if he has
indeed taken hold of property not belonging to the judgment debtor.
The Court does not and cannot pass upon the question of title to
the property, with any character of finality. It can treat of that matter
only in so far as may be necessary to decide if the Sheriff has acted
correctly or not. 31 The Court can require the sheriff to restore the
property to the claimant's possession if warranted by the
evidence. If the claimant's proofs do not however persuade the Court
of his title or right of possession thereof, the claim will of course be
denied.
This remedy is not that of intervention, which is dealt with in Rule
12 of the Rules of Court, and may be availed of only before or during
trial, not thereafter, and certainly not when judgment is executory.
It is rather simply an invocation of the Court's power of supervision and
control over the actuations of its officers and employees to the end that
it be assured that these conform to the law. 32
Independently of the recourse just indicated, and even before or
without availment thereof, the person who claims that his property
has been wrongfully seized by resort to the remedy known as
TERCERIA set out in Section 17, Rule 39 of the Rules of Court, viz:

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SEC. 17. Proceedings where property claimed by third person. If


property levied on be claimed by any other person than the
judgment debtor or his agent, and such person make an affidavit of
his title thereto or right to the possession thereof, stating the
grounds of such right or title, and serve the same upon the officer
making the levy, and a copy thereof upon the judgment creditor, the
officer shag not be bound to keep the property, unless such
judgment creditor or his agent, on demand of the officer, indemnify
the officer against such claim by a bond in a sum not greater than
the value of the property levied on. In case of disagreement as to
such value, the same shall be determined by the court issuing the
writ of execution.
The officer is not liable for damages, for the taking or keeping of the
property, to any third-party claimant unless a claim is made by the
latter and unless an action for damages is brought by him against
the officer within one hundred twenty (120) days from the date of the
filing of the bond. But nothing herein contained shall prevent such
claimant or any third person from vindicating his claim to the
property by any proper action.
The remedies just mentioned are without prejudice to "any proper
action" that a third-party claimant may deem suitable, to vindicate
"his claim to the property." Such a "proper action," in the context of
Section 17 of Rule 39, has been held to refer to an action DISTINCT
AND SEPARATE from that in which the judgment is being
enforced.
Such a "PROPER ACTION" is, quite obviously, entirely distinct from
the explicitly described in Section 17 of Rule 39, i.e., "an action for
damages ** brought (by a third-party claimant) against the officer within
one hundred twenty (120) days from the date of the filing of the bond **
for the taking or keeping of the property" subject of the terceria. Quite
obviously, too, this "proper action" would have for its object the
recovery of the possession of the property seized by the sheriff,
as well as damages resulting from the allegedly wrongful seizure
and detention thereof despite the third-party claim; and it may be
brought against the sheriff, of course, and such other parties as may
be alleged to have wrongful with the sheriff in the supposedly wrongful
execution proceedings, such as the judgment creditor himself. And
such a "proper action," as above pointed out, is and should be an
entirety separate and distinct action from that in which execution has
issued, if instituted by a stranger to the latter suit. 33
** (C)onstruing Section 17 of Rule 39 of the Revised Rules of Court,
the rights of third-party claimant over certain properties levied
upon by the sheriff to satisfy the judgment should not be
decided in the action where the third- party claims have been
presented, but in the separate action instituted by the
claimants.
In such separate action, the court may issue a writ of preliminary
injunction against the sheriff enjoining him from proceeding with
the execution sale. 34- A
Upon the other hand, IF THE CLAIM OF IMPROPRIETY ON THE
PART OF THE SHERIFF in the execution proceedings is made by a
party to the action, not a stranger thereto, any relief therefrom may
be applied for with, and obtained from, only the executing court;
and this is true even if a new party has been impleaded in the Suit.
NOVERNIA P. NAGUIT vs. COURT OF APPEALS

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Section 17 of Rule 39 of the old Rules of Civil Procedure, which


provides that Proceedings where property claimed by third person. -If property
levied on be claimed by any other person than the judgment debtor
or his agent, and such person make an affidavit of his title thereto or
right to the possession thereof, stating the grounds of such right or
title, and serve the same upon the officer making the levy, and copy
thereof upon the judgment creditor, the officer shall not be bound to
keep the property, unless such judgment creditor or his agent, on
demand of the officer, indemnify the officer against such claim by a
bond in a sum not greater than the value of the property levied on. In
case of disagreement as to the value, the same shall be determined
by the court issuing the writ of execution.
The officer is not liable for damages, for the taking or keeping
of the property, to any third party claimant unless a claim is
made by the latter and unless an action for damages is brought
by him against the officer within one hundred twenty (120) days
from the date of the filing of the bond . But nothing herein
contained shall prevent such claimant or any third person from
vindicating his claims to the property by any proper action. 6
xxx

xxx

xxx

The "PROPER ACTION" mentioned in Section 17 would have for its


object the recovery of ownership or possession of the property seized
by the sheriff, as well as damages resulting from the allegedly wrongful
seizure and detention thereof despite the third party claim and it may
be brought against the sheriff and such other parties as may be
alleged to have colluded with him in the supposedly wrongful execution
proceedings, such as the judgment creditor himself. If instituted by a
STRANGER to the suit in which execution has issued, such "proper
action" should be a totally separate and distinct action from the former
suit.7
In addition to the filing of a "proper action," the third-party claimant may
also avail of the remedy known as "TERCERIA," by executing an
AFFIDAVIT OF HIS TITLE or right of possession over the property
seized and serving the same upon the officer making the levy and the
judgment creditor. Thereafter, the officer shall not be bound to keep the
property, unless the judgment creditor or his agent indemnifies the
officer against such claim by a bond in a sum not greater than the
value of the property levied on. An action for damages may be brought
against the officer within one hundred twenty (120) days from the date
of the filing of the bond.
These abovementioned REMEDIES ARE CUMULATIVE and any one
of them may be resorted to by a third-party claimant without availing of
the others. Thus, the availment of the remedy of terceria is not a
condition sine qua non to the filing of a "proper action." An
independent action may be resorted to even before or without
need of filing a claim in the court which issued the writ.8
ALFARO FORTUNADO, ET AL. vs. COURT OF APPEALS
1. REMEDIAL LAW; CIVIL PROCEDURE; EXECUTION OF
JUDGMENTS; VALIDITY OF TENDER OF PAYMENT THROUGH
CROSSED CHECK FOR EXERCISE OF RIGHT OF REDEMPTION.
The central issue in this case is whether or not redemption has
been validly effected by the private respondents. Petitioners contended
that the check issued by NSC, not being legal tender, could not be
considered payment of the redemption price. Private respondents

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however contended that Article 1249 of the New Civil code is


inapplicable as it "deals with a mode of extinction of debts" while the
"right to redeem is not an obligation, nor is it intended to discharge a
pre-existing debt." Tolentino v. Court of Appeals, besides citing
Javellana, stresses the liberality of the courts in redemption cases. On
the issue of the applicability of Article 1249 of the Civil Code and the
validity of the tender of payment through check, this Court held:
Redemption is not rendered invalid by the fact that the said officer
accepted a check for the amount necessary to make the redemption
instead of requiring payment in money. It goes without saying that if he
had seen fit to do so, the officer could have required payment to be
made in lawful money, and he undoubtedly, in accepting a check,
placed himself in a position where he could be liable to the purchaser
at the public auction if any damage had been suffered by the latter as a
result of the medium in which payment was made. But this cannot
affect
the
validity
of
the
payment.
2. ID.; ID.; ID.; REDEMPTION WITH RESERVATION OF RIGHT AND
REMEDIES, NOT WRONG. We find nothing wrong with Bautistas
letter of March 21, 1985, where he made his redemption of the lot
covered by TCT No. T-7625 subject to the reservation that "the same
shall not be taken to mean my acknowledgment of the validity of the
aforesaid writ of execution and sale . . . nor . . . as waiver on my part of
any of the legal rights and remedies available to me under the
circumstances." Had he not done so, estoppel might have operated
against him. As we held in Cometa v. IAC, "redemption is an implied
admission of the regularity of the sale and would estop the petitioner
from later impugning its validity on that ground" In questioning the writ
of execution and sale and at the same time redeeming his property,
Bautista was exercising alternative reliefs.
3. ID.; ID.; ID.; TENDER OF CHECK SUFFICIENT TO COMPEL
REDEMPTION BUT IS NOT IN ITSELF A PAYMENT. We are not, by
this decision, sanctioning the use of a check for the payment of
obligations over the objection of the creditor. What we are saying is
that a check may be used for the exercise of the right of redemption,
the same being a right and not an obligation. The tender of a check is
sufficient to compel redemption but is not in itself a payment that
relieves the redemptioner from his liability to pay the redemption price.
In other words, while we hold that the private respondents properly
exercised their right of redemption, they remain liable, of course, for
the payment of the redemption price.
VICENTA and JOSE TOLENTINO vs. COURT OF APPEALS
Under existing jurisprudence, what the redemptioner should pay, is
not the amount of the "loan for which the mortgage was
constituted" as stated by the Court of Appeals, but the auction
purchase price plus 1 % interest per month on the said amount up
to the time of redemption, together with the taxes or assessment
paid by the purchaser after the purchase, if any. 15 And in this
connection, a FORMAL OFFER TO REDEEM, accompanied by
a bona fide tender of the redemption price , although proper, is not
essential where, as in the instant case, the right to redeem is
exercised thru the filing of judicial action, which as noted earlier
was made simultaneously with the deposit of the redemption
price with the Sheriff, within the period of redemption. The formal
offer to redeem, accompanied by a bona fide tender of the redemption
price within the period of redemption prescribed by law, is only
essential to preserve the right of redemption for future
enforcement even beyond such period of redemption. The filing of
the action itself, within the period of redemption, is equivalent to a
formal offer to redeem.16 Should the court allow redemption, the
redemptioners should then pay the amount already adverted to.
Moreover, when the action to redeem was filed, a simultaneous deposit
of the redemption money was tendered to the Sheriff and under the
last sentence of Section 31, Rule 39 of the Rules of Court, it is
expressly provided that the tender of the redemption money may
be made to the Sheriff who made the sale. 17 And the redemption is
not rendered invalid by the fact that the said officer accepted a

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check for the amount necessary to make the redemption instead


of requiring payment in money. It goes without saying that if he had
seen fit to do so, the officer could have required payment to be made
in lawful money, and he undoubtedly, in accepting a check, placed
himself in a position where he could be liable to the purchaser at the
public auction if any damage had been suffered by the latter as a result
of the medium in which payment was made. But this cannot affect the
validity of the payment. The check as a medium of payment in
commercial transactions is too firmly established by usage to permit of
any doubt upon this point at the present day. 18 No importance may
thus be attached to the circumstance that a stop-payment order was
issued against said check the day following the deposit, for the same
will not militate against the right of the Tolentinos to redeem, in the
same manner that a withdrawal of the redemption money being
deposited cannot be deemed to have forfeited the right to redeem,
such redemption being optional and not compulsory. 19Withal, it is not
clearly shown that said stop payment order was made in bad faith. But
while we uphold the right of redemption of the Tolentinos, the
same does not apply to the homestead land, for the reason that
shall be indicated in the discussion of the third issue.
MA. FE BACOS vs. DOMINGO ARCEGA
Petitioner contends inter alia that the Court of Appeals erred in
dismissing the petition, claiming that Section 16, Rule 39 of the
1997 Rules of Civil Procedure, as amended, merely requires the
third-party claimant to submit an affidavit of his title to the
property. The Rule does not require that her title of ownership be
produced.
The petition lacks merit.
Section 16, Rule 39 of the 1997 Rules of Civil Procedure, as
amended, provides:
SEC. 16. Proceedings where property claimed by third person. If
the property levied on is claimed by any person other than the
judgment obligor or his agent, and such person makes an affidavit
of his title thereto or right to the possession thereof, stating the
grounds of such right or title, and serves the same upon the
officer making the levy and a copy thereof upon the judgment
obligee, the officer shall not be bound to keep the property, unless
such judgment obligee, on demand of the officer, files a bond
approved by the court to indemnify the third-party claimant in a sum
not less than the value of the property levied on. In case of
disagreement as to such value, the same shall be determined by the
court issuing the writ of execution. No claim for damages for the
taking or keeping of the property may be enforced against the bond
unless the action therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
Corollarily, Sections 2 and 3, Rule VI of the NLRC Manual of
Instructions for Sheriffs provide:
Section 2. Proceedings. If property levied upon be claimed by
any person other than the losing party or his agent, such person
shall make an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title and
shall file the same with the sheriff and copies thereof served upon
the Labor Arbiter or proper officer issuing the writ and upon the
prevailing party. Upon receipt of the third-party claim, all
proceedings with respect to the execution of the property
subject of the third-party claim shall automatically be
suspended and the Labor Arbiter or proper officer issuing the

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writ shall conduct a hearing with due notice to all parties


concerned and resolve the validity of the claim within ten (10)
working days from receipt thereof and his decision is appealable to
the Commission within ten (10) working days from notice, and the
Commission shall likewise resolve the appeal within the same
period.
Section 3. Resolution of the Third-Party Claim, Effect. In the event
the third party claim is declared to be valid, the sheriff shall
immediately release the property to the third party claimant, his
agent or representative and the levy on execution shall immediately
be lifted or discharged. However, should the third party claim be
found to be without factual or legal basis, the sheriff must
proceed with the execution of the property levied upon as if no
third party claim has been filed.
It is thus clear that a third-party claim must be supported by an
affidavit stating the claimants title to, or right to possession of
the property, and the grounds therefor. In other words, a mere
affidavit will not suffice. The circumstances supporting the third-party
claimants ownership or possession of the levied properties must be
specified.
Here, both the Labor Arbiter and the NLRC found that the Deed of
Absolute Sale involving the sewing machines between petitioner and
Marlon Viado is spurious. Likewise, the Court of Appeals found that
no copy of the said document is on file with the Clerk of Court.
The appellate court aptly held that the absence of such document is
"itself a badge of fraud and simulation that could make any court
suspicious and wary of imputing any legitimacy and validity to
the same, and actually militates against its use as basis for
petitioners claim."

APPEALS
Payment of Docket Fee
CAMPOSAGRADO vs. CAMPOSAGRADO
Payment of docket fees within the prescribed period is mandatory for
the perfection of an appeal
4. Appellate court docket and other lawful fees. Within the period for
taking an appeal, the appellant shall pay to the clerk of court which
rendered the judgment or final order appealed from, the full amount of
the appellate court docket and other lawful fees. Proof of payment of
said fees shall be transmitted to the appellate court together with the
original record or the record on appeal.
However, failure to pay the appellate docket fee does not
automatically result in the dismissal of an appeal, dismissal being
discretionary on the part of the appellate court, considering all
attendant circumstances and must be exercised wisely and prudently,
never capriciously, with a view to substantial justice.
No appeal period; Appellate court acquires no jurisdiction to
review judgment that by express provision of law is immediately
final and executor
REPUBLIC vs. BERMUDEZ-LORINO
In SUMMARY JUDICIAL PROCEEDINGS under the Family Code,
there is no reglementary period within which to perfect an appeal,
because judgments rendered are, by express provision of 247, Family
Code, are "immediately final and executor." It was erroneous on the

CIVIL

part of the RTC to give due course to the Republics appeal and order
the transmittal of the entire records of the case to the Court of Appeals.
An appellate court acquires NO JURISDICTION to review a
judgment which, by express provision of law, is immediately final
and executory. The right to appeal is not a natural right nor is it a part
of due process, for it is merely a statutory privilege. Since, by express
mandate of Article 247 of the Family Code, all judgments rendered in
summary judicial proceedings in Family Law are "immediately final and
executory", the right to appeal was not granted to any of the parties
therein.
Mode of Appeal from Special Courts
LAND BANK vs. DE LEON
A petition for review is the correct mode of appeal from decisions of
Special Agrarian Courts.
Appeal from Amended Judgment
DE GRANO vs. LACABA
When a judgment is amended, the date of the amendment should be
considered the date of the decision in the computation of the period for
perfecting the appeal. For all intents and purposes, the lower court
rendered a new judgment from which the time to appeal must be
reckoned. However, this rule presupposes that the amendment
consists of a material alteration of such substance and proportion that
would, in effect, give rise to an entirely new judgment. But when the
amendment merely consists of the correction of a clerical error,
no new judgment arises. In such case, the period for filing the
appeal should still be counted from the receipt of the original
judgment.
CAB: In this case, there was no material alteration of the judgment.
The amendment merely consisted of changing the word "defendant"
with "plaintiff" in the dispositive portion, and it is obvious that it was
"plaintiff" who filed the motion for reconsideration. Hence, the
prescriptive period for filing the petition for review with the CA should
be counted from the date respondent received a copy of the first
judgment denying his motion for reconsideration.
RULE 40: MTC TO RTC
1. Where to appeal. An appeal from a judgment or final order of a
Municipal Trial Court may be taken to the Regional Trial Court
exercising jurisdiction over the area to which the former pertains. The
title of the case shall remain as it was in the court of origin, but the
party appealing the case shall be further referred to as the appellant
and the adverse party as the appellee. (a)
2. When to appeal. An appeal may be taken within 15 days after
notice to the appellant of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice
of appeal and a record on appeal within 30 days after notice of the
judgment or final order.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to file a
motion for new trial or reconsideration shall be allowed. (n)

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3. How to appeal. The appeal is taken by filing a notice of appeal


with the court that rendered the judgment or final order appealed from.
The notice of appeal shall indicate the parties to the appeal, the
judgment or final order or part thereof appealed from, and state the
material dates showing the timeliness of the appeal.
A record on appeal shall be required only in special proceedings
and in other cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where
required, shall be served on the adverse party. (n)
4. Perfection of appeal; effect thereof. The perfection of the appeal
and the effect thereof shall be governed by the provisions of 9, Rule
41. (n)
5. Appellate court docket and other lawful fees. Within the period
for taking an appeal, the appellant shall pay to the clerk of the court
which rendered the judgment or final order appealed from the full
amount of the appellate court docket and other lawful fees. Proof
of payment thereof shall be transmitted to the appellate court together
with the original record or the record on appeal, as the case may be.
(n)
6. Duty of the clerk of court. Within 15 days from the perfection of
the appeal, the clerk of court or the branch clerk of court of the lower
court shall transmit the original record or the record on appeal,
together with the transcripts and exhibits, which he shall certify as
complete, to the proper Regional Trial Court. A copy of his letter of
transmittal of the records to the appellate court shall be furnished the
parties. (n)
7. Procedure in the Regional Trial Court.
(a) Upon receipt of the complete record or the record on appeal,
the clerk of court of the Regional Trial Court shall notify the parties of
such fact.
(b) Within 15 days from such notice, it shall be the duty of the
appellant to submit a MEMORANDUM which shall briefly discuss the
errors imputed to the lower court, a copy of which shall be
furnished by him to the adverse party. Within 15 days from receipt
of the appellant's memorandum, the appellee may file his
memorandum. Failure of the appellant to file a memorandum shall
be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the
expiration of the period to do so, the case shall be considered
submitted for decision. The Regional Trial Court shall decide the case
on the basis of the entire record of the proceedings had in the court of
original and such memoranda as are filed. (n)
8. Appeal from orders dismissing case without trial; lack of
jurisdiction. If an appeal is taken from an ORDER of the lower court
dismissing the case without a trial on the merits, the Regional Trial
Court may affirm or reverse it, as the case may be. In case of
affirmance and the ground of dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction thereover,
shall try the case on the merits as if the case was originally filed with it.
In case of reversal, the case shall be remanded for further
proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on appeal
shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without

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prejudice to the admission of amended pleadings and additional


evidence in the interest of justice. (n)
9. Applicability of Rule 41. The other provisions of Rule 41 shall
apply to appeals provided for herein insofar as they are not
inconsistent with or may serve to supplement the provisions of this
Rule. (n)
Non-payment of Appeal Fee
BADILLO vs. TAYAG
The NHA, a GOCC, is exempt from paying appellate docket fees
when it sues or is sued in relation to its governmental function of
providing mass housing. It is likewise exempt from filing a
supersedeas bond that will stay the execution of a forcible entry case.
In order to have some bases for fixing the reasonable amount of rent in
a forcible entry case, courts must rely on the evidence presented by
the parties.
Created by virtue of PD No. 757, the NHA is a government-owned and
controlled corporation with an original charter. As a general rule,
however, such corporations -- with or without independent charters -are required to pay legal fees under 21 of Rule 141:
21. Government Exempt. - The Republic of the Philippines, its
agencies and instrumentalities, are exempt from paying the legal fees
provided in this rule. Local governments and government-owned or
controlled corporations with or without independent charters are not
exempt from paying such fees.
However, the NHA is mandated by PD No. 757 to develop and
implement a comprehensive, integrated housing program for the
greatest number of people. Thus, to be able to perform its
governmental functions, the housing agency is vested with sovereign
powers. Such powers include, among others, the exercise of the right
of eminent domain or the right to acquire by purchase privately owned
lands for purposes of housing development, resettlement, and related
services and facilities.
Filing of Appeal Memorandum
MACADANGDANG vs. GAVIOLA
7, Rule 40 provides that failure of the appellant to file a memorandum
shall be a ground for dismissal of the appeal. However, the failure to
file appellants brief can qualify as simple negligence but it does not
amount to gross negligence to justify the annulment of the proceedings
below.

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The rule is clear. It is obligatory on the part of petitioner to file his


memorandum on appeal within fifteen days from receipt of the notice to
file the same; otherwise, his appeal will be dismissed. Submission is
not a matter of discretion on his part. His failure to comply with this
mandate or to perform said duty will compel the RTC to dismiss his
appeal.
In rules of procedure, an act which is jurisdictional, or of the
essence of the proceedings, or is prescribed for the protection or
benefit of the party affected is mandatory.
RULE 41: APPEAL FROM RTC
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 thirdparty complaints, while the main case is pending, unless the court
allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special
civil action under Rule 65. (n)
2. Modes of appeal.
(a) ORDINARY APPEAL. The appeal to the Court of Appeals
in cases decided by the Regional Trial Court in the exercise of its
ORIGINAL JURISDICTION shall be taken by filing a notice of appeal
with the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other cases
of multiple or separate appeals where law on these Rules so require.
In such cases, the record on appeal shall be filed and served in like
manner.
(b) PETITION FOR REVIEW. The appeal to the Court of
Appeals in cases decided by the Regional Trial Court in the exercise
of its APPELLATE JURISDICTION shall be by petition for review in
accordance with Rule 42.

Appeal Memorandum is obligatory and mandatory


MEJILLANO vs. LUCILLO
Section 7 (b), Rule 40 of the Revised Rules of Court expressly states
that: within fifteen (15) days from such notice, it shall be the duty of
the appellant to submit a memorandum which shall briefly
discuss the errors imputed to the lower court, a copy of which shall
be furnished by him to the adverse party. Within fifteen (15) days from
receipt of the appellants memorandum, the appellee may file his
memorandum. Failure of the appellant to file a memorandum shall
be a ground for dismissal of the appeal.

(c) APPEAL BY CERTIORARI. In all cases where only


QUESTIONS OF LAW are raised or involved, the appeal shall be to
the Supreme Court by petition for review on certiorari in accordance
with the Rule 45. (n)
3. Period of ordinary appeal. The appeal shall be taken within
fifteen (15) days from notice of the judgment or final order appealed
from. Where a record on appeal is required, the appellant shall file a
notice of appeal and a record on appeal within thirty (30) days from
notice of the judgment or final order.

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The period of appeal shall be interrupted by a timely motion for


new trial or reconsideration. No motion for extension of time to file a
motion for new trial or reconsideration shall be allowed. (n)
4. Appellate court docket and other lawful fees. Within the period
for taking an appeal, the appellant shall pay to the clerk of the court
which rendered the judgment or final order appealed from, the full
amount of the appellate court docket and other lawful fees. Proof of
payment of said fees shall be transmitted to the appellate court
together with the original record or the record on appeal. (n)
5. Notice of appeal. The notice of appeal shall indicate the parties
to the appeal, specify the judgment or final order or part thereof
appealed from, specify the court to which the appeal is being taken,
and state the material dates showing the timeliness of the appeal. (4a)
6. Record on appeal; form and contents thereof. The full names of
all the parties to the proceedings shall be stated in the caption of the
record on appeal and it shall include the judgment or final order from
which the appeal is taken and, in chronological order, copies of only
such pleadings, petitions, motions and all interlocutory orders as are
related to the appealed judgment or final order for the proper
understanding of the issue involved, together with such data as will
show that the appeal was perfected on time. If an issue of fact is to be
raised on appeal, the record on appeal shall include by reference all
the evidence, testimonial and documentary, taken upon the issue
involved. The reference shall specify the documentary evidence by the
exhibit numbers or letters by which it was identified when admitted or
offered at the hearing, and the testimonial evidence by the names of
the corresponding witnesses. If the whole testimonial and documentary
evidence in the case is to be included, a statement to that effect will be
sufficient without mentioning the names of the witnesses or the
numbers or letters of exhibits. Every record on appeal exceeding
twenty (20) pages must contain a subject index. (6a)
7. Approval of record on appeal. Upon the filing of the record on
appeal for approval and if no objection is filed by the appellee within
five (5) days from receipt of a copy thereof, the trial court may approve
it as presented or upon its own motion or at the instance of the
appellee, may direct its amendment by the inclusion of any omitted
matters which are deemed essential to the determination of the issue
of law or fact involved in the appeal. If the trial court orders the
amendment of the record, the appellant, within the time limited in the
order, or such extension thereof as may be granted, or if no time is
fixed by the order within ten (10) days from receipt thereof, shall redraft
the record by including therein, in their proper chronological sequence,
such additional matters as the court may have directed him to
incorporate, and shall thereupon submit the redrafted record for
approval, upon notice to the appellee, in like manner as the original
draft. (7a)
8. Joint record on appeal. Where both parties are appellants, they
may file a joint record on appeal within the time fixed by section 3 of
this Rule, or that fixed by the court. (8a)
9. Perfection of appeal; effect thereof. A party's APPEAL BY
NOTICE of appeal is deemed perfected as to him upon the filing of
the notice of appeal in due time.
A party's appeal by RECORD ON APPEAL is deemed perfected
as to him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the
case upon the perfection of the appeals filed in due time AND the
expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the records on
appeal filed in due time and the expiration of the appeal of the other
parties.

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In either case, prior to the transmittal of the original record or the


record on appeal, the court may issue orders for the protection and
preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending appeal in
accordance with 2 of Rule 39, and allow withdrawal of the appeal. (9a)
10. Duty of clerk of court of the lower court upon perfection of appeal.
Within thirty (30) days after perfection of all the appeals in
accordance with the preceding section, it shall be the duty of the clerk
of court of the lower court:
(a) To verify the correctness of the original record or the record on
appeal, as the case may be aid to make certification of its correctness;
(b) To verify the completeness of the records that will be,
transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be
required to complete the records, availing of the authority that he or the
court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his
letter of transmittal the exhibits or transcripts not included in the
records being transmitted to the appellate court, the reasons for their
non-transmittal, and the steps taken or that could be taken to have
them available.
The clerk of court shall furnish the parties with copies of his letter
of transmittal of the records to the appellate court. (10a)
11. Transcript. Upon the perfection of the appeal, the clerk shall
immediately direct the stenographers concerned to attach to the record
of the case five (5) copies of the transcripts of the testimonial evidence
referred to in the record on appeal. The stenographers concerned shall
transcribe such testimonial evidence and shall prepare and affix to
their transcripts an index containing the names of the witnesses and
the pages wherein their testimonies are found, and a list of the exhibits
and the pages wherein each of them appears to have been offered and
admitted or rejected by the trial court. The transcripts shall be
transmitted to the clerk of the trial court who shall thereupon arrange
the same in the order in which the witnesses testified at the trial, and
shall cause the pages to be numbered consecutively. (12a)
12. Transmittal. The clerk of the trial court shall transmit to the
appellate court the original record or the approved record on appeal
within thirty (30) days from the perfection of the appeal, together with
the proof of payment of the appellate court docket and other lawful
fees, a certified true copy of the minutes of the proceedings, the order
of approval, the certificate of correctness, the original documentary
evidence referred to therein, and the original and three (3) copies of
the transcripts. Copies of the transcripts and certified true copies of the
documentary evidence shall remain in the lower court for the
examination of the parties. (11a)
13. Dismissal of appeal. Prior to the transmittal of the original
record or the record on appeal to the appellate court, the trial court
may motu propio or on motion dismiss the appeal for having been
taken out of time. (14a)
Appeal from denial of motion for execution
VALDEZ vs. FINANCIER MANILA
The proper remedy was an appeal, as the case had proceeded from a
denial of a motion for execution of a judgment. Certiorari is not the
proper substitute for a lost appeal. However, it admits of several
EXCEPTIONS:

CIVIL

1) Where the appeal does not constitute a speedy and adequate


remedy (Salvadades vs. Pajarillo, et al., 78 Phil. 77), as where 33
appeals were involved from orders issued in a single proceeding which
will inevitably result in a proliferation of more appeals (PCIB vs.
Escolin, et al., L-27860 and 27896, Mar. 29, 1974);

(2) Where the orders were also issued either in excess of or without
jurisdiction (Aguilar vs. Tan, L-23600, June 30, 1970, Cf. Bautista, et al.
vs. Sarmiento, et al., L-45137, Sept., 231985);

(3) For certain special consideration, as public welfare or public policy


(See Jose vs. Zulueta, et al. L-16598, May 31, 1961);

(4) Where in criminal actions, the court rejects rebuttal evidence for the
prosecution as, in case of acquittal, there could be no remedy (People
vs. Abalos, L-29039, Nov. 28, 1968);

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Rule 42 on petitions for review from the Regional Trial Courts to


the Court of Appeals;
Rule 43 on appeals from quasi-judicial agencies to the Court of
Appeals and
Rule 45 governing appeals by certiorari to the Supreme Court.

The new rule aims to regiment or make the appeal period uniform, to
be counted from receipt of the order denying the motion for new trial,
motion for reconsideration (whether full or partial) or any final order or
resolution.
To recapitulate, a party litigant may either file his NOTICE OF
APPEAL within 15 days from receipt of the Regional Trial Courts
decision or file it within 15 days from receipt of the order (the final
order) denying his motion for new trial or motion for
reconsideration. Obviously, the new 15-day period may be availed
of only if either motion is filed; otherwise, the decision becomes final
and executory after the lapse of the original appeal period provided in
Rule 41, 3.
FIRST AQUA vs. BPI
A party litigant may now file his notice of appeal either within fifteen
days from receipt of the original decision or within fifteen days from the
receipt of the order denying the motion for reconsideration. Being
procedural in nature, Neypes is deemed to be applicable to actions
pending and undetermined at the time of its effectivity and is thus
retroactive in that sense and to that extent.
Period to appeal

(5) Where the order is a patent nullity (Marcelo vs. De Guzman, et al.,
L-29077, June 29, 1982); and

(6) Where the decision in the certiorari case will avoid future litigations
(St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21,
1975)."
Period of time to appeal
NEYPES vs. COURT OF APPEALS
The right to appeal is neither a natural right nor a part of due process.
It is merely a statutory privilege and may be exercised only in the
manner and in accordance with the provisions of law. Thus, one who
seeks to avail of the right to appeal must comply with the requirements
of the Rules 3, Rule 41
An appeal should be taken within 15 days from the notice of judgment
or final order appealed from. A FINAL JUDGMENT OR ORDER is one
that finally disposes of a case, leaving nothing more for the court to do
with respect to it. It is an adjudication on the merits which, considering
the evidence presented at the trial, declares categorically what the
rights and obligations of the parties are; or it may be an order or
judgment that dismisses an action.
To standardize the appeal periods provided in the Rules and to afford
litigants fair opportunity to appeal their cases, the Court deems it
practical to allow a FRESH PERIOD OF 15 DAYS within which to
file the notice of appeal in the Regional Trial Court, COUNTED
FROM RECEIPT OF THE ORDER dismissing a motion for a new
trial or motion for reconsideration.
Henceforth, the fresh period rule shall also apply to
Rule 40 governing appeals from the Municipal Trial Courts to the
Regional Trial Courts;

EDA vs. COURT OF APPEALS


An appeal is not perfected merely by the payment of the appeal fee.
9, Rule 41 of the Rules of Civil Procedure categorically states that an
appeal by notice of appeal is deemed perfected as to him upon the
filing of the notice of appeal in due time. In other words, an appeal
filed out of time cannot be perfected.
Anyone seeking exemption from the application of the reglementary
period for filing an appeal has the burden of proving the existence of
exceptionally meritorious instances warranting such deviation. 23 In this
case, we find that the petitioner failed to show any compelling reason
to exempt him from the application of the prescriptive period for filing
an appeal.
Presence of grave abuse
SAMSON vs. MACARAIG
Even assuming that certiorari may lie, the Court still cannot grant the
instant petition because the petitioners failed to show that public
respondent, in issuing the assailed Orders, acted without or in excess
of jurisdiction, or gravely abused her discretion amounting to lack or
excess of jurisdiction. As mentioned earlier, the RTC issued the
assailed Order in accordance with 3, Rule 17, in relation to 1, Rule
18 of the Revised Rules of Civil Procedure. There is no showing that
the RTC judge issued the Order in a despotic or arbitrary manner, or
that she was motivated by passion or personal hostility against
petitioners. Grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction
or, in other words, where the power is exercised in an arbitrary manner
by reason of passion, prejudice, or personal hostility,22 and it must be
so patent or gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.23 Such is wanting in this case.

CIVIL

RULE 42: PETITION FOR REVIEW FROM RTC TO CA


1. How appeal taken; time for filing. A party desiring to appeal from
a decision of the Regional Trial Court rendered in the exercise of its
appellate jurisdiction may file a verified petition for review with the
Court of Appeals, paying at the same time to the clerk of said court the
corresponding docket and other lawful fees, depositing the amount of
P500.00 for costs, and furnishing the Regional Trial Court and the
adverse party with a copy of the petition. The petition shall be filed and
served within fifteen (15) days from notice of the decision sought to be
reviewed or of the denial of petitioner's motion for new trial or
reconsideration filed in due time after judgment. Upon proper motion
and the payment of the full amount of the docket and other lawful fees
and the deposit for costs before the expiration of the reglementary
period, the Court of Appeals may grant an additional period of
fifteen (15) days only within which to file the petition for review.
No further extension shall be granted except for the most compelling
reason and in no case to exceed fifteen (15) days. (n)
2. Form and contents. The petition shall be filed in seven (7)
legible copies, with the original copy intended for the court being
indicated as such by the petitioner, and shall (a) state the full names of
the parties to the case, without impleading the lower courts or judges
thereof either as petitioners or respondents; (b) indicate the specific
material dates showing that it was filed on time; (c) set forth concisely
a statement of the matters involved, the issues raised, the specification
of errors of fact or law, or both, allegedly committed by the Regional
Trial Court, and the reasons or arguments relied upon for the
allowance of the appeal; (d) be accompanied by clearly legible
duplicate originals or true copies of the judgments or final orders of
both lower courts, certified correct by the clerk of court of the Regional
Trial Court, the requisite number of plain copies thereof and of the
pleadings and other material portions of the record as would support
the allegations of the petition.
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore commenced any
other action involving the same issues in the Supreme Court, the Court
of Appeals or different divisions thereof, or any other tribunal or
agency; if there is such other action or proceeding, he must state the
status of the same; and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or different divisions thereof, or any other
tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days
therefrom. (n)
3. Effect of failure to comply with requirements. The failure of the
petitioner to comply with any of the foregoing requirements regarding
the payment of the docket and other lawful fees, the deposit for
costs, proof of service of the petition, and the contents of and the
documents which should accompany the petition shall be
sufficient ground for the dismissal thereof. (n)
4. Action on the petition. The Court of Appeals may require the
respondent to file a comment on the petition, not a motion to dismiss,
within ten (10) days from notice, or dismiss the petition if it finds the
same to be patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are too insubstantial to
require consideration. (n)
5. Contents of comment. The comment of the respondent shall be
filed in seven (7) legible copies, accompanied by certified true copies
of such material portions of the record referred to therein together with
other supporting papers and shall (a) state whether or not he accepts
the statement of matters involved in the petition; (b) point out such
insufficiencies or inaccuracies as he believes exist in petitioner's
statement of matters involved but without repetition; and (c) state the
reasons why the petition should not be given due course. A copy
thereof shall be served on the petitioner. (a)

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6. Due course. If upon the filing of the comment or such other


pleadings as the court may allow or require, or after the expiration of
the period for the filing thereof without such comment or pleading
having been submitted, the Court of Appeals finds prima facie that the
lower court has committed an error of fact or law that will warrant a
reversal or modification of the appealed decision, it may accordingly
give due course to the petition. (n)
7. Elevation of record. Whenever the Court of Appeals deems it
necessary, it may order the clerk of court of the Regional Trial Court to
elevate the original record of the case including the oral and
documentary evidence within fifteen (15) days from notice. (n)
8. Perfection of appeal; effect thereof. (a) Upon the timely filing of
a petition for review and the payment of the corresponding docket
and other lawful fees, the appeal is deemed perfected as to the
petitioner.
The Regional Trial Court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time
to appeal of the other parties.
However, before the Court of Appeals gives due course to the
petition, the Regional Trial Court may issue orders for the protection
and preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in accordance with
section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on Summary
Procedure, the appeal shall stay the judgment or final order unless
the Court of Appeals, the law, or these Rules shall provide
otherwise. (a)
9. Submission for decision. If the petition is given due course, the
Court of Appeals may set the case for oral argument or require the
parties to submit memoranda within a period of fifteen (15) days from
notice. The case shall be deemed submitted for decision upon the filing
of the last pleading or memorandum required by these Rules or by the
court itself. (n)
Form and contents
SPS. LANARIA vs. PLANTA
Section 2, Rule 42 of the 1997 Rules of Civil Procedure embodies the
procedure for appeals from the Decision of the RTC in the exercise of
its appellate jurisdiction. Non-compliance with 2 is a ground for the
dismissal of a petition based on 3 of the same Rule.
Petitioners' subsequent submission of the following documents
annexed to their Motion for Reconsideration - viz, Complaint for
Ejectment, Transfer Certificate of Title, Answer to the Complaint, Four
Affidavits, Position Paper filed by petitioners, Memorandum on Appeal,
Appellee's Memorandum, and Motion for Reconsideration constitutes substantial compliance with 2, Rule 42. Jurisprudence
pertaining to the same has established that "submission of a document
together with the motion for reconsideration constitutes substantial
compliance with the requirement that relevant or pertinent documents
be submitted along with the petition, and calls for the relaxation of
procedural rules."
Moreover, under 3(d), Rule 3 of the Revised Internal Rules of the
Court of Appeals, the Court of Appeals is with authority to require
the parties to submit additional documents as may be necessary
to promote the interests of substantial justice. When a petition
does not have the complete annexes or the required number of copies,

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the Chief of the Judicial Records Division shall require the petitioner to
complete the annexes or file the necessary number of copies of the
petition before docketing the case.
CAB: It is sufficient that the assailed judgment, order or resolution be a
certified true copy. Jurisprudence on this matter has consistently held
that in Petitions for Review as governed under Rule 42 of the
Revised Rules of Court, ONLY judgments or final orders of the
lower courts need to be certified true copies or duplicate
originals.
PEREZ vs. FALCATAN
In any event, under 3, Rule 52 "[a] motion for reconsideration filed
[on] time shall stay the final order sought to be examined."18 Thus,
respondents timely filing of their motion for reconsideration of the 3
March 1997 Resolution prevented that Resolution (and consequently
the RTC Decision) from attaining finality. Indeed, to uphold petitioners
contention would be to ignore Section 3 and correspondingly deny
respondents their right to seek reconsideration under Section 1, Rule
52.
Petitioner also contends that the Court of Appeals erred in admitting
respondents "corrected petition" because the requirement that the
petitioner submit with the petition a certificate of non-forum shopping is
mandatory and not subject to subsequent compliance.
Admittedly, the petitioner in a petition for review in the Court of
Appeals and in this Court must submit with the petition a
certificate of non-forum shopping. However, this Court has
relaxed this rule in cases where, as here, there is need to conduct
a review. In those instances, the Court allowed petitioners to comply
with the requirement after they had filed their petitions. Hence, the
Court of Appeals did not err in observing the same liberality to
respondents petition.
ANG vs. DE GRAGEDA
The December 2, 2002 Order of the RTC dismissing petitioners
appeal for her failure to file her memorandum despite her successive
motions for extension of time to do so was a final order. The remedy
of petitioner from said Order of the RTC, as well as the January 20,
2003 Order denying her motion for reconsideration, was to appeal by
filing a petition for review in the CA under Rule 42 of the Rules of
Court. It bears stressing that when the RTC issued the Order, it did so
in the exercise of its appellate jurisdiction.
Perfection of an appeal within the statutory or reglementary
period is not only mandatory but also jurisdictional; failure to do
so renders the questioned decision/final order, final and
executory and deprives the appellate court of jurisdiction to alter
the judgment or final order, much less to entertain the appeal.
CAB: When the RTC issued its December 2, 2002 and January 20,
2003 Orders, the court was exercising its appellate jurisdiction over the
judgment rendered by the MeTC of Muntinlupa City. To reiterate, the
December 2, 2002 Order of the RTC denying the appeal of petitioner
was a final order, appealable to the CA via petition for review under
Rule 42 of the Rules of Court within the 15-day reglementary period
thereof.
Period to appeal
BALGAMI vs. COURT OF APPEALS

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No appeal was perfected from the decision of the trial court within the
reglementary period, for which reason the decision sought to be
appealed to the CA had become final and executory and, therefore,
immutable. Thus, the CA was without jurisdiction to review the same.
Otherwise stated, beyond the period to appeal, a judgment is no longer
within the scope of the power of review of any court.
This Court has invariably ruled that perfection of an appeal in the
manner and within the period laid down by law is not only mandatory
but also jurisdictional. The failure to perfect an appeal as required by
the rules has the effect of defeating the right to appeal of a party and
precluding the appellate court from acquiring jurisdiction over the case.
The right to appeal is not a natural right nor a part of due process; it is
merely a statutory privilege, and may be exercised only in the manner
and in accordance with the provisions of the law. The party who seeks
to avail of the same must comply with the requirement of the rules.
Failing to do so, the right to appeal is lost.
RULE 43: APPEAL FROM CTA/Q-J AGENCIES TO CA

1. Scope. This Rule shall apply to appeals from judgments or final


orders of the Court of Tax Appeals and from awards, judgments, final
orders or resolutions of or authorized by any quasi-judicial agency in
the exercise of its quasi-judicial functions.
Among these agencies are the:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.

Civil Service Commission


Central Board of Assessment Appeals
Securities and Exchange Commission
Office of the President
Land Registration Authority
Social Security Commission
Civil Aeronautics Board
Bureau of Patents
Trademarks and Technology Transfer
National Electrification Administration
Energy Regulatory Board
National Telecommunications Commission
Department of Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System
Employees Compensation Commission
Agricultural Invention Board
Insurance Commission
Philippine Atomic Energy Commission
Board of Investments
Construction Industry Arbitration Commission, and voluntary
arbitrators authorized by law

2. Cases not covered. This Rule shall NOT apply to judgments or


final orders issued under the Labor Code of the Philippines. (n)
3. Where to appeal. An appeal under this Rule may be taken to the
Court of Appeals within the period and in the manner herein provided,
whether the appeal involves questions of fact, of law, or mixed
questions of fact and law. (n)
4. Period of appeal. The appeal shall be taken within fifteen (15)
days from notice of the award, judgment, final order or resolution,
or from the date of its last publication, if publication is required by
law for its effectivity, or of the denial of petitioner's motion for new trial
or reconsideration duly filed in accordance with the governing law of
the court or agency a quo. Only one (1) motion for reconsideration
shall be allowed. Upon proper motion and the payment of the full

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amount of the docket fee before the expiration of the reglementary


period, the Court of Appeals may grant an additional period of fifteen
(15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and
in no case to exceed fifteen (15) days. (n)
5. How appeal taken. Appeal shall be taken by filing a verified
petition for review in seven (7) legible copies with the Court of
Appeals, with proof of service of a copy thereof on the adverse party
and on the court or agency a quo. The original copy of the petition
intended for the Court of Appeals shall be indicated as such by the
petitioner.
Upon the filing of the petition, the petitioner shall pay to the clerk
of court of the Court of Appeals the docketing and other lawful fees
and deposit the sum of P500.00 for costs. Exemption from payment
of docketing and other lawful fees and the deposit for costs may be
granted by the Court of Appeals upon a verified motion setting forth
valid grounds therefor. If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful fees and deposit for
costs within fifteen (15) days from notice of the denial. (n)
6. Contents of the petition. The petition for review shall (a) state
the full names of the parties to the case, without impleading the court
or agencies either as petitioners or respondents; (b) contain a concise
statement of the facts and issues involved and the grounds relied upon
for the review; (c) be accompanied by a clearly legible duplicate
original or a certified true copy of the award, judgment, final order or
resolution appealed from, together with certified true copies of such
material portions of the record referred to therein and other supporting
papers; and (d) contain a sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule 42. The petition shall
state the specific material dates showing that it was filed within the
period fixed herein. (2a)
7. Effect of failure to comply with requirements. The failure of the
petitioner to comply with any of the foregoing requirements regarding
the payment of the docket and other lawful fees, the deposit for costs,
proof of service of the petition, and the contents of and the documents
which should accompany the petition shall be sufficient ground for the
dismissal thereof. (n)
8. Action on the petition. The Court of Appeals may require the
respondent to file a comment on the petition not a motion to dismiss,
within ten (10) days from notice, or dismiss the petition if it finds the
same to be patently without merit, prosecuted manifestly for delay,
or that the questions raised therein are too unsubstantial to
require consideration. (6a)
9. Contents of comment. The comment shall be filed within ten
(10) days from notice in seven (7) legible copies and accompanied by
clearly legible certified true copies of such material portions of the
record referred to therein together with other supporting papers. The
comment shall (a) point out insufficiencies or inaccuracies in
petitioner's statement of facts and issues; and (b) state the reasons
why the petition should be denied or dismissed. A copy thereof shall be
served on the petitioner, and proof of such service shall be filed with
the Court of Appeals. (9a)
10. Due course. If upon the filing of the comment or such other
pleadings or documents as may be required or allowed by the Court of
Appeals or upon the expiration of the period for the filing thereof, and
on the records the Court of Appeals finds prima facie that the court or
agency concerned has committed errors of fact or law that would
warrant reversal or modification of the award, judgment, final order or
resolution sought to be reviewed, it may give due course to the
petition; otherwise, it shall dismiss the same. The findings of fact of
the court or agency concerned, when supported by substantial
evidence, shall be binding on the Court of Appeals. (n)

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11. Transmittal of record. Within fifteen (15) days from notice that
the petition has been given due course, the Court of Appeals may
require the court or agency concerned to transmit the original or a
legible certified true copy of the entire record of the proceeding under
review. The record to be transmitted may be abridged by agreement of
all parties to the proceeding. The Court of Appeals may require or
permit subsequent correction of or addition to the record. (8a)
12. Effect of appeal. The appeal shall NOT stay the award,
judgment, final order or resolution sought to be reviewed unless
the Court of Appeals shall direct otherwise upon such terms as it may
deem just. (10a)
13. Submission for decision. If the petition is given due course, the
Court of Appeals may set the case for oral argument or require the
parties to submit memoranda within a period of fifteen (15) days from
notice. The case shall be deemed submitted for decision upon the filing
of the last pleading or memorandum required by these Rules or by the
court of Appeals. (n)
Formal Requirements
DALTON-REYES vs. COURT OF APPEALS
The appeal should be taken within 15 days from the notice of judgment
or from the denial of the motion for reconsideration, and that, upon
motion and payment of the docket fees before the expiration of the
reglementary period, the CA may grant an extension to file the petition
for review. Moreover, there must be a proof of service of a copy of the
petition on the adverse party and the court a quo, and a written
explanation why service was not done personally, in case the service is
made through registered mail or other modes of services.
Some of the reasons considered by the Court in justifying a LIBERAL
APPLICATION of the rules of procedure are the following:
(1) Matters of life, liberty, honor or property;
(2) Counsels negligence without any participatory negligence on the
part of the client;
(3) The existence of special or compelling circumstances;
(4) The merits of the case;
(5) A cause not entirely attributable to the fault or negligence of the
party favored by the suspension of the rules;
(6) A lack of any showing that the review sought is merely frivolous and
dilatory; and
(7) the other party will not be unjustly prejudiced thereby.

CAB: The records of the case buttress the petitioners contention that
the delay in filing the motion was not intended to delay the
administration of justice. The last day for filing the petition for review,
June 8, 2001, fell on a Friday. On the other hand, the petitioner filed
her motion for extension of time to file the petition for review on June
11, 2001, Monday, which was the next working day. Therefore, the
delay in filing the motion for extension was actually for one (1) day

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only. Considering the petitioners assertion that she was not assisted
by a lawyer at that time and did not know about the 15-day
reglementary period for filing a petition for review, the one-day delay
may be considered as an excusable negligence on her part.

Quasi-judicial bodies

OROSA vs. ROA

Recourse from the decision of the Secretary of Justice should be to the


President, instead of the CA, under the established principle of
exhaustion of administrative remedies. Immediate recourse to the court
would be premature and precipitate; subject to defined exception, a
case is susceptible of dismissal for lack of cause of action should a
party fail to exhaust administrative remedies. Notably, 1 of Rule 43
includes the Office of the President in the agencies named therein,
thereby accentuating the fact that appeals from rulings of department
heads must first be taken to and resolved by that office before any
appellate recourse may be resorted to.

VILLORENTA vs. LAIYA

The Conversion Order of the DAR was a final order, because it


resolved the issue of whether the subject property may be converted to
non-agricultural use. The finality of such Conversion Order is not
dependent upon the subsequent determination, either by agreement of
the parties or by the DAR, of the compensation due to the
tenants/occupants of the property caused by its conversion to nonagricultural use. Once final and executory, the Conversion Order can
no longer be questioned.

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the Ombudsman) on the availability of appeal before the Supreme


Court to assail a decision or order of the Ombudsman in administrative
cases. In Fabian, we invalidated 27 of R.A. No. 6770 (and Section 7,
Rule III of A.O. No. 7 and the other rules implementing the Act) insofar
as it provided for appeal by certiorari under Rule 45 from the decisions
or orders of the Ombudsman in administrative cases . We held that
Section 27 of R.A. No. 6770 had the effect, not only of increasing the
appellate jurisdiction of this Court without its advice and concurrence in
violation of Section 30, Article VI of the Constitution; it was also
inconsistent with 1, Rule 45 of the Rules of Court which provides
that a petition for review on certiorari shall apply only to a review
of "judgments or final orders of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court, or other courts authorized by law." We pointedly said:
As a consequence of our ratiocination that Section 27 of Republic Act
No. 6770 should be struck down as unconstitutional, and in line with
the regulatory philosophy adopted in appeals from quasi-judicial
agencies in the 1997 Revised Rules of Civil Procedure, appeals from
decisions of the Office of the Ombudsman in ADMINISTRATIVE
DISCIPLINARY CASES should be taken to the CA under the
provisions of Rule 43.
We restated this doctrine in several cases27 and further elaborated on
the recourses from Ombudsman actions in other cases we have
decided since then. In Lapid v. CA, we explained that an appeal under
Rule 43 to the CA only applies to administrative cases where the right
to appeal is granted under Section 27 of R.A. No. 6770.28 In Lopez v.
CA29and Herrera v. Bohol,30 we recognized that no appeal is allowed
in administrative cases where the penalty of public censure,
reprimand, suspension of not more than one month, or a fine
equivalent to one month salary, is imposed. We pointed out that
decisions of administrative agencies that are declared by law to
be final and unappealable are still subject to judicial review if they
fail the test of arbitrariness or upon proof of gross abuse of
discretion;31 the complainants legal recourse is to file a petition
for certiorari under Rule 65 of the Rules of Court, applied as rules
suppletory to the Rules of Procedure of the Office of the
Ombudsman.32 The use of this recourse should take into account the
last paragraph of Section 4, Rule 65 of the Rules of Court i.e., the
petition shall be filed in and be cognizable only by the CA if it involves
the acts or omissions of a quasi-judicial agency, unless otherwise
provided by law or by the Rules.33
In the present case, the Ombudsmans decision and order imposing
the penalty of reprimand on the petitioner are final and unappealable.
Thus, the petitioner availed of the correct remedy when she filed a
petition for certiorari before the CA to question the Ombudsmans
decision to reprimand her.

PHILLIPS SEAFOOD vs. BOI


1, Rule 43 of the Rules of Court provides that final orders of quasijudicial bodies in the exercise of their quasi-judicial functions, including
the DAR under Republic Act No. 6657, may be appealed to the CA via
a petition for review. Under 4 of the Rule, the petition should be filed
within 15 days from notice of the said final order or from the date of its
last publication, if publication is required by law for its effectivity, or of
the denial of the petitioners motion for reconsideration duly filed in
accordance with the governing law of the court or agency a quo.

RUIVIVAR vs. OMBUDSMAN

The case of Fabian v. Desierto arose from the doubt created in the
application of 27 of R.A. No. 6770 (The Ombudsmans Act) and
Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of

In determining the appellate procedure governing administrative


agencies exercising quasi-judicial or regulatory functions such as
respondent BOI, a perusal of the legislative enactments creating them
is imperative.
E.O. No. 226 provides for various remedies from the action or decision
of the BOI, depending on the nature of the controversy. These
remedies, which are interspersed among the provisions of E.O. No.
226, are as follows:
Art. 7. Powers and Duties of the Board. The Board shall be responsible for the
regulation and promotion of investments in the Philippines. x x x The presence of
four (4) governors shall constitute a quorum and the affirmative vote of four (4)
governors in a meeting validly held shall be necessary to exercise its powers and
perform its duties, which shall be as follows:

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(4) After due hearing, decide controversies concerning the implementation of the
relevant books of this Code that may arise between registered enterprises or
investors therein and government agencies, within thirty (30) days after the
controversy has been submitted for decision: Provided, That the investor or the
registered enterprise may appeal the decision of the Board within thirty (30)
days from receipt thereof to the President;
Art. 36. Appeal from Boards Decision. Any order or decision of the Board shall
be final and executory after thirty (30) days from its promulgation. Within the
said period of thirty (30) days, said order or decision may be appealed to
the Office of the President. Where an appeal has been filed, said order or
decision shall be final and executory ninety (90) days after the perfection of the
appeal, unless reversed.
Art. 50. Cause for Cancellation of Certificate of Authority or Payment of Fine. A
violation of any of the requirements set forth in Article 49 of the terms and
conditions which the Board may impose shall be sufficient cause to cancel the
certificate of authority issued pursuant to this Book and/or subject firms to the
payment of fines in accordance with the rules and regulations issued by the
Board: x x x Provided, further, That where the issuance of said license has been
irregular or contrary to law, any person adversely affected thereby may file an
action with the Regional Trial Court where said alien or foreign business
organization resides or has its principal office to cancel said license. In such
cases, no injunction shall issue without notice and hearing; and appeals and
other proceedings for review shall be filed directly with the Supreme Court.
Art. 82. Judicial Relief. All orders or decisions of the Board in cases involving
the provisions of this Code shall immediately be executory. No appeal from the
order or decision of the Board by the party adversely affected shall stay such
order or decision: Provided, That all appeals shall be filed directly with the
Supreme Court within thirty (30) days from receipt of the order or decision.

E.O. No. 226 allows two avenues of appeal from an action or decision
of the BOI, depending on the nature of the controversy. One mode is to
elevate an appeal to the Office of the President when the action or
decision pertains to either of these two instances: first, in the decisions
of the BOI over controversies concerning the implementation of the
relevant provisions of E.O No. 226 that may arise between registered
enterprises or investors and government agencies under Article 7; and
second, in an action of the BOI over applications for registration under
the investment priorities plan under Article 36.
Another mode of review is to elevate the matter directly to judicial
tribunals. For instance, under Article 50, E.O. No. 226, a party
adversely affected by the issuance of a license to do business in favor
of an alien or a foreign firm may file with the proper Regional Trial
Court an action to cancel said license. Then, Article 82, which
authorizes the direct appeal to the Supreme Court from any order or
decision of respondent BOI "involving the provisions of E.O. No. 226."
E.O. No. 226 contains no provision specifically governing the remedy
of a party whose application for an ITH has been denied by the BOI in
the same manner that Articles 7 and 36 thereof allow recourse to the
Office of the President in certain instances. Nevertheless, Article 82
of E.O. No. 22 is the catch-all provision allowing the appeal to the
courts from all other decisions of respondent BOI involving the
other provisions of E.O. No. 226.
In relation to Article 82, E.O. No. 226, Section 1 of Rule 43 of the
1997 Rules of Civil Procedure expressly includes respondent BOI
as one of the quasi-judicial agencies whose judgments or final
orders are appealable to the Court of Appeals via a verified
petition for review. Appeals from judgments and final orders of quasijudicial agencies are now required to be brought to the Court of
Appeals on a verified petition for review, under the requirements and
conditions in Rule 43 which was precisely formulated and adopted to

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provide for a uniform rule of appellate procedure for quasi-judicial


agencies.31
Thus, petitioner should have immediately elevated to the Court of
Appeals the denial by respondent BOI of its application for an ITH.
From the letter dated 09 October 2003 of respondent BOI, which
informed petitioner that its ITH would be extended only from 13 August
1999 to 21 October 1999, petitioner appealed to the Office of the
President, a recourse that is not sanctioned by either the Rules of Civil
Procedure or by the Omnibus Investments Code of 1987.
Impleading the lower court or agency
BASMAYOR vs. ATENCIO
CAB: The petitioner ignores the dismissal of her petition by the Court
of Appeals on technical grounds and raises instead issues unrelated to
reasons for the dismissal of her appeal by the Court of Appeals.
Petitioner had not alleged any error in the Court of Appeals resolution
that she seeks to correct, except for the ruling that the Civil Service
Commission should be impleaded as respondent. Hence, these
deficiencies are sufficient grounds to deny this petition outright.
The enumerated issues raised by the petitioner are not only factual but
also mixed questions of fact and of law. The determination of whether
Cueva was effectively absent is a mixed question because it involves
the factual determination of whether or not Cueva indeed issued the
memorandum, and then Atencio forged Cuevas signature. As the
issues raised are not purely questions of law and they are not
cognizable by this Court in a petition for review under Rule 45, we are
constrained from exercising our jurisdiction in this case.
Anent the question of whether or not the Civil Service Commission
should be impleaded as respondent in this case, the correct
procedure, as mandated by Rule 43 of the Rules of Court, is not to
implead the lower court or agency which rendered the assailed
decision. Hence, we agree with the petitioner that it is not necessary
to implead the Civil Service Commission as respondent in her petition.
Attaching a copy of judgment
COCA-COLLA vs. CABALO
In Quintano v. NLRC, when we declared that there is NO
SUBSTANTIAL DISTINCTION between a photocopy or a "Xerox copy"
and a "true copy" for as long as the photocopy is CERTIFIED BY THE
PROPER OFFICER of the court, tribunal, agency or office involved
or his duly-authorized representative and that the same is a
faithful reproduction of the original.
For all intents and purposes, a "certified Xerox copy" is no different
from a "certified true copy" of the original document. The operative
word in the term "certified true copy" under 3, Rule 46 of the Rules
of Court is "certified". The word means "made certain." It is
presumed that, before making the certification, the authorized
representative had compared the Xerox copy with the original and
found the same a faithful reproduction thereof.
A perusal of the attached NLRC Decision easily discloses that it is not
a "mere photocopy" but is, in fact, a certified photocopy of said
decision. Each page of the decision has been certified by the NLRC

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Third Divisions Deputy Clerk of Court, Atty. Catalino R. Laderas, who


is undoubtedly a proper officer to make the said certification. Moreover,
there seems to be no question that the attached copy of the NLRC
decision is a faithful reproduction thereof.
Supporting papers

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petition; otherwise, the attachments would be mere surplusages and


devoid of use and value.
Sec. 7 of Rule 43 does not prescribe outright rejection of the
petition if it is not accompanied by the required documents but
simply gives the discretion to the CA to determine whether such
breach constitutes a "sufficient ground" for dismissal.

BF SAN DIEGO vs. ALZUL


Appeal from CSC
Section 6 of Rule 43, 1997 Rules of Civil Procedure pertinently
provides The petition for review shall x x x (c) be accompanied by a
clearly legible duplicate original or a certified true copy of the award,
judgment, final order or resolution appealed from, together
with certified true copies of such material portions of the record
referred to therein and other supporting papers; x x x.
The above proviso explicitly requires the following to be appended to a
petition: 1) clearly legible duplicate original or a certified true copy of
the award, judgment, final order, or resolution appealed from; 2)
certified true copies of such material portions of the record referred to
in the petition; and 3) other supporting papers.
The rule is the reviewing court can determine the merits of the petition
solely on the basis of the submissions by the parties 14 without the use
of the records of the court a quo. It is a fact that it takes several months
before the records are elevated to the higher court, thus the resulting
delay in the review of the petition. The attachment of all essential
and necessary papers and documents is mandatory; otherwise,
the petition can be rejected outright under Sec. 7 of Rule 43 of the
Rules of Court
The rules on the different modes of appeal from the lower courts or
quasi-judicial agencies to the CA reveal that it is only Rule 43 that
specifically states that the material portions to be appended to
the petition should be certified true copies. Rule 41 of course does
not require attachment of the pertinent records since the entire records
are elevated to the CA. Rule 42 on petition for review from the trial
court in aid of its appellate jurisdiction to the CA speaks of plain copies
of the material portions of the record as would support the allegations
of the petition. Even Rule 45 on appeal by certiorari from the CA to this
Court simply speaks of material portions of the records without
indicating that these should be certified true copies. Rule 46 on original
cases to this Court only requires plain copies of the material portions of
the records. Finally, Rule 65 on special civil actions requires only
copies of relevant and pertinent pleadings and documents.
From the foregoing premises, the conclusion is that only plain and
clear copies of the material portions of the records are required
under 3 of Rule 43. This finding is buttressed by our ruling in
Cadayona v. CA, where it was held that only judgments or final orders
of the lower courts are needed to be certified true copies or duplicate
originals.17 There is no plausible reason why a different treatment or
stricter requirement should be applied to petitions under Rule 43.
The last requirement is the attachment of "other supporting papers."
Again, it is only in Rule 43 that we encounter the requirement of
annexing "supporting papers" to the petition. This can be interpreted to
mean other documents, pictures, and pieces of evidence not forming
parts of the records of the lower court or agency that can bolster and
shore up the petition. While not so specified in Sec. 3 of Rule 43, it is
inarguable that said papers must also be relevant and material to the

DECS vs. CUNANAN

The disciplining authority qualifies as a party adversely affected by the


judgment, who can file an appeal of a judgment of exoneration in an
administrative case. CSC Resolution No. 021600 allows the
disciplining authority to appeal from a decision exonerating an
erring employee, thus:

2. Coverage and Definition of Terms. - (l) PARTY ADVERSELY


AFFECTED refers to the respondent against whom a decision in a
disciplinary case has been rendered or to the disciplining authority
in an appeal from a decision exonerating the said employee.

Hence, Cuanan's exoneration under CSC Resolution No. 030069 may


be subject to a motion for reconsideration by the DepEd which, as the
appointing and disciplining authority, is a real party in interest.

The remedy of an aggrieved party from a resolution issued by the CSC


is to file a petition for review thereof under Rule 43 of the Rules of
Court within fifteen days from notice of the resolution. Recourse to a
petition for certiorari under Rule 65 renders the petition
dismissible for being the wrong remedy. Nonetheless, there are
exceptions to this rule, to wit: (a) when public welfare and the
advancement of public policy dictates; (b) when the broader interest of
justice so requires; (c) when the writs issued are null and void; or
(d) when the questioned order amounts to an oppressive exercise of
judicial authority. As will be shown forthwith, exception (c) applies to
the present case.

While a motion for reconsideration is a condition precedent to the filing


of a petition for certiorari, immediate recourse to the extraordinary
remedy of certiorari is warranted
(a)

Where the order is a patent nullity, as where the court a quo has no
jurisdiction;

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(b)

Where petitioner was deprived of due process and there is extreme


urgency for relief;

(c)

Where the proceedings in the lower court are a nullity for lack of
due process;

(d)

Where the proceeding was ex parte or one in which the petitioner


had no opportunity to object.

These exceptions find application to Cuanan's petition for certiorari in


the CA.

PROCEDURE IN THE COURT OF APPEALS

RULE 44: ORDINARY APPEALED CASES


1. Title of cases. In all cases appealed to the Court of Appeals
under Rule 41, the title of the case shall remain as it was in the court of
origin, but the party appealing the case shall be further referred to as
the appellant and the adverse party as the appellee. (1a, R46)
2. Counsel and guardians. The counsel and guardians ad litem of
the parties in the court of origin shall be respectively considered as
their counsel and guardians ad litem in the Court of Appeals. When
others appear or are appointed, notice thereof shall be served
immediately on the adverse party and filed with the court. (2a, R46)
3. Order of transmittal of record. If the original record or the record
on appeal is not transmitted to the Court of Appeals within thirty (30)
days after the perfection of the appeal, either party may file a motion
with the trial court, with notice to the other, for the transmittal of
such record or record on appeal. (3a, R46)
4. Docketing of case. Upon receiving the original record or the
record on appeal and the accompanying documents and exhibits
transmitted by the lower court, as well as the proof of payment of the
docket and other lawful fees, the clerk of court of the Court of Appeals
shall docket the case and notify the parties thereof. (4a, R46)
Within ten (10) days from receipt of said notice, the appellant, in
appeals by record on appeal, shall file with the clerk of court seven (7)
clearly legible copies of the approved record on appeal, together with
the proof of service of two (2) copies thereof upon the appellee.
Any unauthorized alteration, omission or addition in the
approved record on appeal shall be a ground for dismissal of the
appeal. (n)
5. Completion of record. Where the record of the docketed case is
incomplete, the clerk of court of the Court of Appeals shall so inform
said court and recommend to it measures necessary to complete the
record. It shall be the duty of said court to take appropriate action
towards the completion of the record within the shortest possible time.
(n)
6. Dispensing with complete record. Where the completion of the
record could not be accomplished within a sufficient period allotted for
said purpose due to insuperable or extremely difficult causes, the
court, on its own motion or on motion of any of the parties, may
declare that the record and its accompanying transcripts and

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exhibits so far available are sufficient to decide the issues raised


in the appeal, and shall issue an order explaining the reasons for such
declaration. (n)
7. Appellant's brief. It shall be the duty of the appellant to file with
the court, within forty-five (45) days from receipt of the notice of
the clerk that all the evidence, oral and documentary, are attached to
the record, seven (7) copies of his legibly typewritten, mimeographed
or printed brief, with proof of service of two (2) copies thereof upon the
appellee. (10a, R46)
8. Appellee's brief. Within forty-five (45) days from receipt of
the appellant's brief, the appellee shall file with the court seven (7)
copies of his legibly typewritten, mimeographed or printed brief, with
proof of service of two (2) copies thereof upon the appellant. (11a,
R46)
9. Appellant's reply brief. Within twenty (20) days from receipt of
the appellee's brief, the appellant may file a reply brief answering
points in the appellee's brief not covered in his main brief. (12a, R46)
10. Time of filing memoranda in special cases. In certiorari,
prohibition, mandamus, quo warranto and habeas corpus cases, the
parties shall file in lieu of briefs, their respective memoranda
within a non-extendible period of thirty (30) days from receipt of
the notice issued by the clerk that all the evidence, oral and
documentary, is already attached to the record. (13a, R46)
The failure of the appellant to file his memorandum within the
period therefor may be a ground for dismissal of the appeal. (n)
11. Several appellants or appellees or several counsel for each party.
Where there are several appellants or appellees, each counsel
representing one or more but not all of them shall be served with only
one copy of the briefs. When several counsel represent one appellant
or appellee, copies of the brief may be served upon any of them. (14a,
R46)
12. Extension of time for filing briefs. Extension of time for the
filing of briefs will not be allowed, except for good and sufficient
cause, and only if the motion for extension is filed before the expiration
of the time sought to be extended. (15, R46)
13. Contents of appellant's brief. The appellant's 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;

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(f) Under the heading "Argument," the appellant's 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 appellant's
brief shall contain, as an appendix, a copy of the judgment or final
order appealed from. (16a, R46)
14. Contents of appellee's brief. The appellee's 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 appellant's brief, or
under the heading "Counter-Statement of Facts," he shall point out
such insufficiencies or inaccuracies as he believes exist in the
appellant's statement of facts with references to the pages of the
record in support thereof, but without repetition of matters in the
appellant's statement of facts; and
(c) Under the heading "Argument," the appellee shall set forth his
arguments in the case on each assignment of error with page
references to the record. The authorities relied on shall be cited by the
page of the report at which the case begins and the page of the report
on which the citation is found. (17a, R46)
15. Questions that may be raised on appeal. Whether or not the
appellant has filed a motion for new trial in the court below he may
include in his assignment of errors any question of law or fact that
has been raised in the court below and which is within the issues
framed by the parties. (18, R46)
Grounds for dismissal of appeal
DE LEON vs. COURT OF APPEALS
The Court of Appeals did not act without jurisdiction in entertaining the
appeal filed by private respondent Estelita Batungbacal. Contrary to
petitioners apparent position, the judgments rendered by the trial court
in this case are not several judgments under the Rules of Court so that
there would be multiple periods of finality.
A SEVERAL JUDGMENT is proper only when the liability of
each party is clearly separable and distinct from that of his co-parties,
such that the claims against each of them could have been the subject
of separate suits, and judgment for or against one of them will not
necessarily affect the other. Where a common cause of action exists
against the defendants, as in actions against solidary debtors, a
several judgment is not proper.
CAB: Private respondents are sued together under a common cause
of action and are sought to be held liable as solidary debtors for a loan
contracted by Estelita. This is the clear import of the allegation in the
complaint that the proceeds of the loan benefited the conjugal
partnership.

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Thus, between the two judgments rendered by the trial court,


there could only be one judgment that finally disposes of the case on
the merits. Receipt of notice of this final judgment marks the point
when the reglementary period is to begin running. In this case, that
judgment is the decision rendered by the trial court on June 2, 1997
and it is only from the date of notice of this decision that the
reglementary period began to run. The partial judgment dated May 14,
1996 was rendered only with respect to one issue in the case and is
not the final and appealable order or judgment that finally disposes of
the case on the merits.[23] It must, therefore, only be appealed together
with the decision dated June 2, 1997.
A FINAL ORDER is that which gives an end to the litigation.
When the order or judgment does not dispose of the case completely
but leaves something to be done upon the merits, it is merely
interlocutory. The partial judgment ordering Estelita to pay petitioner is
an interlocutory order because it leaves other things for the trial court
to do and does not decide with finality the rights and obligations of the
parties. Specifically, at the time the partial judgment was rendered,
there remained other issues including whether the husband Avelino
had any liability under Article 121 of the Family Code.
The grounds for dismissal of an appeal under 1 of Rule 50 of the
Rules of Court are discretionary upon the Court of Appeals. This
can be seen from the very wording of the Rules which uses the word
may instead of shall. With the exception of Sec. 1(b), the grounds for
the dismissal of an appeal are directory and not mandatory, and it
is not the ministerial duty of the court to dismiss the appeal.
The Court of Appeals rightly exercised its discretion when, in denying
petitioners motion to dismiss, it ruled that the citations contained in the
appellants brief were in substantial compliance with the rules. Where
the citations found in the appellants brief could sufficiently enable the
appellate court to locate expeditiously the portions of the record
referred to, there is substantial compliance with the requirements of
13(c) and (d), Rule 46 of the Rules of Court. Such determination was
properly within the appellate courts discretion.
Contents of appellants brief
DE LIANO vs. COURT OF APPEALS
The brief should be so prepared as to minimize the labor of the court in
the examination of the record upon which the appeal is heard and
determined.

Relative thereto, 13, Rule 44 of the Revised Rules of Court governs


the format to be followed by the appellant in drafting his brief.
The Rules of Court prescribe 2 MODES OF APPEAL from decisions
of the Regional Trial Courts to the Court of Appeals. When the trial
court decides a case in the exercise of its original jurisdiction, the
mode of review is by an ordinary appeal in accordance with Section
2(a) of Rule 41. In contrast, where the assailed decision was rendered
by the trial court in the exercise of its appellate jurisdiction, the
mode of appeal is via a petition for review pursuant to Rule 42.
CASES ELEVATED TO THE COURT OF APPEALS are treated
differently depending upon their CLASSIFICATION into one of three
(3) categories: appealed civil cases, appealed criminal cases, and

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special cases. Be it noted that all cases are under the supervision and
control of the members of the Court of Appeals in all stages, from the
time of filing until the remand of the cases to the courts or agencies of
origin. Ordinary appealed civil cases undergo two (2) stages. The
first stage consists of completion of the records. The second stage is
for study and report, which follows when an appealed case is deemed
submitted for decision, thus:
1, Rule 51: When case deemed submitted for judgment. A
case shall be deemed submitted for judgment:

A. In ordinary appeals.
1) Where no hearing on the merits of the main case is held, upon
the filing of the last pleading, brief, or memorandum required by the
Rules or by the court itself, or the expiration of the period for its filing;
2) Where such a hearing is held, upon its termination or upon the
filing of the last pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration of the period for its
filing.
At each stage, a separate raffle is held. Thus, a preliminary raffle is
held at which time an appealed case is assigned to a Justice for
completion. After completion, when the case is deemed ripe for
judgment, a second raffle is conducted to determine the Justice to
whom the case will be assigned for study and report. Each stage is
distinct; it may happen that the Justice to whom the case was initially
raffled for completion may not be the same Justice who will write the
decision thereon.
The aforesaid distinction has a bearing on the case at bar. It becomes
apparent that the merits of the appeal can only be looked into
during the second stage. The Justice in-charge of completion
exceeds his province should he examine the merits of the case since
his function is to oversee completion only. The prerogative of
determining the merits of an appeal pertains properly to the Justice to
whom the case is raffled for study and report. The case at bar did not
reach the second stage; it was dismissed during completion
stage pursuant to Section 1(f) of Rule 50. Consequently,
petitioner's contention that the appellate court should have
considered the substance of the appeal prior to dismissing it due
to technicalities does not gain our favor.
Change of theory
MON vs. COURT OF APPEALS
Petitioner argues that from the beginning, the arrangement between
him and the Spouses Velasco - that of sharecropping as a means to
pay the lease of the land - did not result in an agricultural leasehold
contract. Petitioner contends that the Spouses Velasco are civil law
lessees, which did not give them the right to be tenants under the
agricultural leasehold system. Petitioner insists that since the Regional
Office found that the Spouses Velasco sublet the land in violation of
Section 27(2) of RA 3844, he has the right under the same RA 3844 to
evict the Spouses Velasco from his land.
CAB: Petitioners stance before the Court of Appeals is that the lease
provisions in the Civil Code apply to the present case. On the contrary,

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we find that this is not an ejectment case between a civil law lessor
and lessee but a dispute between an agricultural landlord and tenant. If
this were an ejectment case between a civil law lessor and lessee,
petitioner should have brought his action to the appropriate trial court
instead of the DARAB Regional Adjudication Office. Petitioner should
also not have invoked subletting as a prohibited act under RA 3844.
Obviously, petitioner is clutching at straws in changing his theory of the
case on appeal.
A party cannot change his theory of the case or his cause of
action on appeal. Courts of justice have no jurisdiction or power
to decide a question not in issue. A judgment that goes outside
the issues and purports to adjudicate something on which the
court did not hear the parties, is not only irregular but also extrajudicial and invalid. The rule rests on the fundamental tenets of fair
play. In the present case, the Court must stick to the issue litigated in
the DARAB and in the Court of Appeals, which is whether petitioner
has the right to eject the Spouses Velasco from the land under RA
3844.
RULE 45: APPEAL BY CERTIORARI TO SC
1. Filing of petition with Supreme Court. A party desiring to appeal
by certiorari from a judgment or final order or resolution of the Court of
Appeals, the Sandiganbayan, the Regional Trial Court or other
courts whenever authorized by law, may file with the Supreme Court
a verified petition for review on certiorari. The petition shall raise only
questions of law which must be distinctly set forth. (1a, 2a)
2. Time for filing; extension. The petition shall be filed within fifteen
(15) days from notice of the judgment or final order or resolution
appealed from, or of the denial of the petitioner's motion for new trial or
reconsideration filed in due time after notice of the judgment. On
motion duly filed and served, with full payment of the docket and other
lawful fees and the deposit for costs before the expiration of the
reglementary period, the Supreme Court may for justifiable reasons
grant an extension of thirty (30) days only within which to file the
petition. (1a, 5a)
3. Docket and other lawful fees; proof of service of petition. Unless
he has theretofore done so, the petitioner shall pay the corresponding
docket and other lawful fees to the clerk of court of the Supreme Court
and deposit the amount of P500.00 for costs at the time of the filing of
the petition. Proof of service of a copy, thereof on the lower court
concerned and on the adverse party shall be submitted together with
the petition. (1a)
4. Contents of petition. The petition shall be filed in eighteen (18)
copies, with the original copy intended for the court being indicated as
such by the petitioner and shall (a) state the full name of the appealing
party as the petitioner and the adverse party as respondent, without
impleading the lower courts or judges thereof either as petitioners or
respondents; (b) indicate the material dates showing when notice of
the judgment or final order or resolution subject thereof was received,
when a motion for new trial or reconsideration, if any, was filed and
when notice of the denial thereof was received; (c) set forth concisely a
statement of the matters involved, and the reasons or arguments relied
on for the allowance of the petition; (d) be accompanied by a clearly
legible duplicate original, or a certified true copy of the judgment or
final order or resolution certified by the clerk of court of the court a
quo and the requisite number of plain copies thereof, and such
material portions of the record as would support the petition; and (e)
contain a sworn certification against forum shopping as provided in the
last paragraph of section 2, Rule 42. (2a)
5. Dismissal or denial of petition. The failure of the petitioner to
comply with any of the foregoing requirements regarding the payment
of the docket and other lawful fees, deposit for costs, proof of service
of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal
thereof.

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The Supreme Court may on its own initiative deny the petition
on the ground that the appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration. (3a)
6. Review discretionary. A review is not a matter of right, but of
sound judicial discretion, and will be granted only when there are
special and important reasons thereof. The following, while neither
controlling nor fully measuring the court's discretion, indicate the
character of the reasons which will be considered:
(a) When the court a quo has decided a question of substance,
not theretofore determined by the Supreme Court, or has decided it in
a way probably not in accord with law or with the applicable decisions
of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted
and usual course of judicial proceedings, or so far sanctioned such
departure by a lower court, as to call for an exercise of the power of
supervision. (4a)
7. Pleadings and documents that may be required; sanctions. For
purposes of determining whether the petition should be dismissed or
denied pursuant to 5 of this Rule, or where the petition is given due
course under 8 hereof, the Supreme Court may require or allow the
filing of such pleadings, briefs, memoranda or documents as it may
deem necessary within such periods and under such conditions as it
may consider appropriate, and impose the corresponding sanctions in
case of non-filing or unauthorized filing of such pleadings and
documents or non-compliance with the conditions therefor. (n)
8. Due course; elevation of records. If the petition is given due
course, the Supreme Court may require the elevation of the complete
record of the case or specified parts thereof within fifteen (15) days
from notice. (2a)
9. Rule applicable to both civil and criminal cases. The mode of
appeal prescribed in this Rule shall be applicable to both civil and
criminal cases, except in criminal cases where the penalty imposed
is death, reclusion perpetua or life imprisonment. (n)
Question of Law
AGOTE vs. LORENZO
For a question to be one of law, the same must not involve an
examination of the probative value of the evidence presented by the
litigants or any one of them. And the distinction is well-known: there is
a QUESTION OF LAW in a given case when the doubt or difference
arises as to what the law is on a certain state of facts; there is a
QUESTION OF FACT when the doubt or difference arises as to the
truth or the falsehood of the facts alleged.
Considering that "judgments of regional trial courts in the exercise of
their original jurisdiction are to be elevated to the Court of Appeals in
cases when appellant raises questions of fact or mixed questions of
fact and law", while "appeals from judgments of the [same courts]
in the exercise of their original jurisdiction must be brought
directly to the Supreme Court in cases where the appellant raises
only questions of law", petitioner should have appealed the trial
courts ruling to this Court by way of a petition for review on certiorari in
accordance with Rule 45 of the 1997 Rules of Civil Procedure, as
amended, pursuant to Rule 41, 2(c).
By reason, then, of the availability to petitioner of the remedy of a
petition for review under Rule 45, his right to resort to a petition for
certiorari under Rule 65 was effectively foreclosed, precisely because
one of the requirements for the availment of the latter remedy is that
"there should be no appeal, or any plain, speedy and adequate remedy

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in the ordinary course of law", the remedies of appeal and certiorari


being mutually exclusive and not alternative or successive.
BPI vs. COURT OF APPEALS
In petitions for review on certiorari under Rule 45 of the Rules of Court,
the GENERAL RULE is that only questions of law may be raised by
the parties and passed upon by this Court. However, this rule admits of
EXCEPTIONS, to wit:
(a) where there is grave abuse of discretion;
(b) when the finding is grounded entirely on speculations, surmises or
conjectures;
(c) when the inference made is manifestly mistaken, absurd or
impossible;
(d) when the judgment of the Court of Appeals was based on a
misapprehension of facts;
(e) when the factual findings are conflicting;
(f) when the Court of Appeals, in making its findings, went beyond the
issues of the case and the same are contrary to the admissions of both
appellant and appellee;
(g) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties and which, if properly considered,
would justify a different conclusion; and,
(h) where the findings of fact of the Court of Appeals are contrary to
those of the trial court, or are mere conclusions without citation of
specific evidence, or where the facts set forth by the petitioner are not
disputed by the respondent, or where the findings of fact of the Court
of Appeals are premised on the absence of evidence and are
contradicted by the evidence on record.

The case at bar falls under one of the exceptions, i.e., where the
findings of fact of the Court of Appeals are contrary to those of the trial
court.
Limited Review
LOCAL SUPERIOR vs. JODY KING CONSTRUCTION
It is a hornbook doctrine that FINDINGS OF FACT OF TRIAL
COURTS are entitled to great weight on appeal and should not be
disturbed except for strong and valid reasons because the trial
court is in a better position to examine the demeanor of the
witnesses while testifying. It is not a function of this Court to analyze
and weigh evidence by the parties all over again. Our jurisdiction is in
principle limited to reviewing errors of law that might have been
committed by the Court of Appeals. A fortiori, as in this case, where the
factual findings of the trial court are affirmed in toto by the Court of
Appeals, there is great reason for not disturbing such findings and for
regarding them as not reviewable by this Court.

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PEREZ-ROSARIO vs. COURT OF APPEALS


Under Rule 65, the petitioners must show that they have no plain,
speedy, and adequate remedy in the ordinary course of law against the
error that they seek to correct. A remedy is considered "PLAIN,
SPEEDY, AND ADEQUATE" if it will promptly relieve the
petitioners from the injurious effects of the judgment and the acts
of the lower court or agency. In this case, an appeal under Rule 45
by way of petition for review on certiorari was not only available but
also a speedy and adequate remedy. When the petitioners received on
November 15, 1999 a copy of the CA Resolution dated November 8,
1999 denying their Motion for Reconsideration, and absent any motion
for extension, they had until November 30, 1999, or 15 days later,
within which to perfect their appeal. They did not. What they chose to
do was to file a "Petition for Certiorari" "based on Section 1, Rule 65"
on December 7, 1999, repeating in essence the issues and arguments
already heard by the CA. The petitioners cannot lodge a special civil
action of certiorari to make good the loss of the right of ordinary
appeal. In view of this serious procedural error, the instant petition
should be dismissed.
But even if this Court should excuse the procedural lapse in the
interest of substantial justice, the same result obtains, because the
decisions and resolutions of the DARAB and CA, as well as their
findings of fact, are in accord with law and jurisprudence.
The determination of personal cultivation is a factual issue and
requires the exercise of a function not within the province of this Court.
Well established is the rule that in an appeal via certiorari, only
questions of law may be reviewed. And so, too, is the rule that in
agrarian cases, the only function of the appellate courts is to determine
whether the findings of fact of the agrarian courts, such as the DARAB
or, its predecessor, the Court of Agrarian Relations, are supported by
substantial evidence, and where they are so supported, such findings
are conclusive and binding upon the appellate courts.
REPUBLIC vs. STA. ANA-BURGOS
The Court is not bound to analyze and weigh evidence already
presented and considered in prior proceedings. Absent any of the
established grounds for exception to this rule, the Court is compelled to
accept the findings of fact of the trial and the appellate courts.
CAB: The question of whether respondent was able to adduce
sufficient proof of ownership and possession of the subject property is
one of fact as it invites the Court to re-evaluate the evidence and,
ultimately, to substitute our judgment for that of the trial court and the
Court of Appeals. However, MATTERS OF PROOF AND EVIDENCE
are beyond the power of the Court to review under a Rule 45
petition and we find no circumstance that would justify a departure
from the rule.
Distinguished from Rule 65
TAGLE vs. EQUITABLE PCI
A SPECIAL CIVIL action for Certiorari, or simply a Petition
for Certiorari, under Rule 65 of the Revised Rules of Court is intended
for the correction of errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. Its principal
office is only to keep the inferior court within the parameters of its

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jurisdiction or to prevent it from committing such a grave abuse of


discretion amounting to lack or excess of jurisdiction.
A WRIT OF CERTIORARI may be issued only for the correction of
errors of jurisdiction or grave abuse of discretion amounting to lack or
excess of jurisdiction. Such cannot be used for any other purpose, as
its function is limited to keeping the inferior court within the bounds of
its jurisdiction.

For a petition for certiorari to prosper, the ESSENTIAL REQUISITES


that have to concur are:

(1) the writ is directed against a tribunal, a board or any officer


exercising judicial or quasi-judicial functions;
(2) such tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law.
The phrase "WITHOUT JURISDICTION" means that the court acted
with absolute lack of authority or want of legal power, right or authority
to hear and determine a cause or causes, considered either in general
or with reference to a particular matter. It means lack of power to
exercise authority. "EXCESS OF JURISDICTION" occurs when the
court transcends its power or acts without any statutory authority; or
results when an act, though within the general power of a tribunal,
board or officer (to do) is not authorized, and invalid with respect to the
particular proceeding, because the conditions which alone authorize
the exercise of the general power in respect of it are wanting. While
that of "GRAVE ABUSE OF DISCRETION" implies such capricious
and whimsical exercise of judgment as to be equivalent to lack or
excess of jurisdiction; simply put, power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice, or personal hostility;
and such exercise is so patent or so gross as to amount to an evasion
of a positive duty or to a virtual refusal either to perform the duty
enjoined or to act at all in contemplation of law.
In the present case, there is no question that the 6 September 2005
Resolution of the Court of Appeals dismissing petitioner Alfredos
petition in CA-G.R. SP No. 90461 is already a disposition on the
merits. Therefore, said Resolution, as well as the Resolutions dated 16
February 2006 and 11 April 2006 denying reconsideration thereof,
issued by the Court of Appeals, are in the nature of a final disposition
by the appellate court, and which, under Rule 45 of the Revised Rules
of Court, are appealable to this Court via a Petition for Review
on Certiorari.
DISTINCTIONS Petition for Review on Certiorari (an appeal by
certiorari) and a Petition for Certiorari (a special civil action/an original
action for Certiorari), under Rules 45 and 65:
As to the Purpose. Certiorari is a remedy designed for the correction
of errors of jurisdiction, not errors of judgment. In Pure Foods

CIVIL

Corporation v. NLRC, we explained the simple reason for the rule in


this light:
When a court exercises its jurisdiction, an error committed while so
engaged does not deprive it of the jurisdiction being exercised when
the error is committed. If it did, every error committed by a court would
deprive it of its jurisdiction and every erroneous judgment would be a
void judgment. This cannot be allowed. The administration of justice
would not survive such a rule. Consequently, an error of judgment that
the court may commit in the exercise of its jurisdiction is not
correctable through the original civil action of certiorari.
The supervisory jurisdiction of a court over the issuance of a writ
of certiorari cannot be exercised for the purpose of reviewing the
intrinsic correctness of a judgment of the lower court -- on the basis
either of the law or the facts of the case, or of the wisdom or legal
soundness of the decision. Even if the findings of the court are
incorrect, as long as it has jurisdiction over the case, such correction is
normally beyond the province of certiorari. Where the error is not one
of jurisdiction, but of an error of law or fact -- a mistake of judgment -appeal is the remedy.
As to the Manner of Filing . Over an APPEAL, the CA exercises its
appellate jurisdiction and power of review. Over a CERTIORARI, the
higher court uses its original jurisdiction in accordance with its power of
control and supervision over the proceedings of lower courts. An
appeal is thus a continuation of the original suit, while a petition
for certiorari is an original and independent action that was not part of
the trial that had resulted in the rendition of the judgment or order
complained of. The parties to an appeal are the original parties to the
action. In contrast, the parties to a petition for certiorari are the
aggrieved party (who thereby becomes the petitioner) against the
lower court or quasi-judicial agency, and the prevailing parties (the
public and the private respondents, respectively).

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alleged errors. Note also that this motion is a plain and adequate
remedy expressly available under the law. Such motion is not required
before appealing a judgment or final order.
Evidently, therefore, petitioner Alfredo erred in filing a Petition
for Certiorari instead of an ordinary appeal by certiorari, already a
sufficient justification for dismissing the instant petition. But even if his
present petition is given due course, we still find it bereft of merit.
ICB vs. COURT OF APPEALS
The remedies of appeal and certiorari are mutually exclusive and
not alternative or successive. However, this Court may set aside
technicality for justifiable reasons. The petition before the Court is
clearly meritorious. Further, the petition was filed on time both under
Rules 45 and 65. Hence, in accordance with the liberal spirit which
pervades the Rules of Court and in the interest of justice,16 we will
treat the petition as having been filed under Rule 45.
SAN MIGUEL BUKID vs. CITY OF MANDALUYONG
1, Rule 65 of the Rules of Court states that certiorari may be resorted
to when there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law. The petitioner must allege in
his petition and has the burden of establishing facts to show that
any other existing remedy is not speedy or adequate and that (a)
the writ is directed against a tribunal, board or officer exercising judicial
or quasi-judicial functions; (b) such tribunal, board or officer has acted
without or in excess of jurisdiction, or with grave abuse of discretion
amounting to excess or lack of jurisdiction; and, (c) there is no appeal
or any plain, speedy and adequate remedy in the ordinary course of
law. These matters must be threshed out and shown by petitioner.
Assignment of Errors

As to the Subject Matter. Only judgments or final orders and those


that the Rules of Court so declared are appealable. Since the issue is
jurisdiction, an original action for certiorari may be directed against an
interlocutory order of the lower court prior to an appeal from the
judgment; or where there is no appeal or any plain, speedy or
adequate remedy.
As to the Period of Filing . Ordinary appeals should be filed within
fifteen days from the notice of judgment or final order appealed from.
Where a record on appeal is required, the appellant must file a notice
of appeal and a record on appeal within thirty days from the said notice
of judgment or final order. A petition for review should be filed and
served within fifteen days from the notice of denial of the decision, or of
the petitioners timely filed motion for new trial or motion for
reconsideration. In an appeal by certiorari, the petition should be filed
also within fifteen days from the notice of judgment or final order, or of
the denial of the petitioners motion for new trial or motion for
reconsideration.
On the other hand, a petition for certiorari should be filed not later than
sixty days from the notice of judgment, order, or resolution. If a motion
for new trial or motion for reconsideration was timely filed, the period
shall be counted from the denial of the motion.
As to the Need for a Motion for Reconsideration. A motion for
reconsideration is generally required prior to the filing of a petition
for certiorari, in order to afford the tribunal an opportunity to correct the

PHIL. HAWK CORP. vs. LEE


8, Rule 51 of the 1997 Rules of Civil Procedure provides:
8. Questions that may be decided. -- No error which does not affect
the jurisdiction over the subject matter or the validity of the judgment
appealed from or the proceedings therein will be considered unless
stated in the assignment of errors, or closely related to or
dependent on an assigned error and properly argued in the brief,
save as the court pass upon plain errors and clerical errors.
In his book, Mr. Justice Florenz D. Regalado commented on this
section, thus:
1. 8, which is an amendment of the former Sec. 7 of this Rule, now
includes some substantial changes in the rules on assignment of
errors. The basic procedural rule is that only errors claimed and
assigned by a party will be considered by the court, EXCEPT
errors affecting its jurisdiction over the subject matter. To this
exception has now been added errors affecting the validity of the
judgment appealed from or the proceedings therein.
Also, even if the error complained of by a party is not expressly stated
in his assignment of errors but the same is closely related to or
dependent on an assigned error and properly argued in his brief ,
such error may now be considered by the court. These changes are of
jurisprudential origin.

CIVIL

2. The procedure in the Supreme Court being generally the same as


that in the Court of Appeals, unless otherwise indicated (see 2 and
4, Rule 56), it has been held that the latter is clothed with ample
authority to review matters, even if they are not assigned as
errors on appeal, if it finds that their consideration is necessary in
arriving at a just decision of the case. Also, an unassigned error
closely related to an error properly assigned (PCIB vs. CA, et al., L34931, Mar. 18, 1988), or upon which the determination of the question
raised by error properly assigned is dependent, will be considered by
the appellate court notwithstanding the failure to assign it as error
(Ortigas, Jr. vs. Lufthansa German Airlines, L-28773, June 30, 1975;
Soco vs. Militante, et al., G.R. No. 58961, June 28, 1983).
It may also be observed that under 8 of this Rule, the appellate court
is authorized to consider a plain error, although it was not specifically
assigned by the appellant, otherwise it would be sacrificing substance
for technicalities.
RULE 46: ORIGINAL CASES
1. Title of cases. In all cases originally filed in the Court of
Appeals, the party instituting the action shall be called the petitioner
and the opposing party the respondent. (1a)
2. To what actions applicable. This Rule shall apply to original
actions for certiorari, prohibition, mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of
judgment shall be governed by Rule 47, for certiorari, prohibition and
mandamus by Rule 65 and for quo warranto by Rule 66. (n)
3. Contents and filing of petition; effect of noncompliance with
requirements. The petition shall contain the full names and actual
addresses of all the petitioners and respondents, a concise statement
of the matters involved, the factual background of the case, and
the grounds relied upon for the relief prayed for.
In actions filed under Rule 65, the petition shall further indicate
the material dates showing when notice of the judgment or final order
or resolution subject thereof was received, when a motion for new trial
or reconsideration, if any, was filed and when notice of the denial
thereof was received.
It shall be filed in seven (7) clearly legible copies together with
proof of service thereof on the respondent with the original copy
intended for the court indicated as such by the petitioner, and shall be
accompanied by a clearly legible duplicate original or certified true
copy of the judgment, order, resolution, or ruling subject thereof, such
material portions of the record as are referred to therein, and other
documents relevant or pertinent thereto. The certification shall be
accomplished by the proper clerk of court or by his duly authorized
representative, or by the proper officer of the court, tribunal, agency or
office involved or by his duly authorized representative. The other
requisite number of copies of the petition shall be accompanied by
clearly legible plain copies of all documents attached to the original.
The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals
or different divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of the same;
and if he should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other tribunal or agency,
he undertakes to promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days therefrom.

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The petitioner shall pay the corresponding docket and other lawful
fees to the clerk of court and deposit the amount of P500.00 for costs
at the time of the filing of the petition.
The failure of the petitioner to comply any of the
requirements shall be sufficient ground for the dismissal of the
petition. (Bar Matter No. 803, 21 July 1998)
4. Jurisdiction over person of respondent, how acquired. The court
shall acquire jurisdiction over the person of the respondent by the
service on him of its order or resolution indicating its initial action on
the petition or by his voluntary submission to such jurisdiction. (n)
5. Action by the court. The court may dismiss the petition
outright with specific reasons for such dismissal or require the
respondent to file a comment on the same within ten (10) days from
notice. Only pleadings required by the court shall be allowed. All other
pleadings and papers, may be filed only with leave of court. (n)
6. Determination of factual issues. Whenever necessary to resolve
factual issues, the court itself may conduct hearings thereon or
delegate the reception of the evidence on such issue to any of its
members or to an appropriate court, agency or office. (n)
7. Effect of failure to file comment. When no comment is filed by
any of the respondents, the case may be decided on the basis of
the record, without prejudice to any disciplinary action which the court
may take against the disobedient party. (n)
Rule 65 Supplements Rule 46
REPUBLIC vs. CARMEL DEVELOPMENT
The filing of original actions for certiorari in the Court of Appeals is
governed by 3, Rule 46 of the 1997 Rules of Civil Procedure, which
requires that the petition for certiorari "be accompanied by a
clearly legible duplicate original or certified true copy of the
judgment, order, resolution, or ruling subject thereof." The same
Section provides that "the failure of the petitioner to comply with
any of the foregoing requirements shall be sufficient ground for
the dismissal of the petition.
This is the clear import of Sections 1, 2 and 3, Rule 46 (Original
Cases) of the 1997 Rules which read in pertinent parts:
1. Title of cases. In all cases originally filed in the Court of Appeals, the
party instituting the action shall be called the petitioner and the opposing party
the respondent.
2. To what actions applicable. This Rule shall apply to original
actions for certiorari, prohibition, mandamus and quo warranto.
Except as otherwise provided , the actions for annulment of judgment
shall be governed by Rule 47, for certiorari, prohibition and mandamus by Rule
65, and for quo warranto by Rule 66.
3. Contents and filing of petition; effect of non-compliance with
requirements. - x x x.
It shall be filed in seven (7) clearly legible copies together with proof of
service thereof on the respondent with the original copy intended for the court
indicated as such by the petitioner, and shall be accompanied by a clearly
legible duplicate original or certified true copy of the judgment, order,
resolution, or ruling subject thereof, such material portions of the record as are
referred to therein, and other documents relevant or pertinent thereto.xxx.

CIVIL

The phrase "[e]xcept as otherwise provided" means exactly what


it says, that is, except as otherwise provided in Rule 46, original
actions for certiorari shall be governed by Rule 65.
Rule 46 should be construed in relation to Rule 65 without rendering
any of its provisions useless. This is evident in 6 of Rule 65 which
provides that "[i]n petitions for certiorari before the Supreme Court and
the Court of Appeals, the provision of 2, Rule 56, shall be observed."
2 of Rule 56 which governs the procedure in the Supreme Court,
specifically original cases filed therein.
This simply means that "the following rules which are of primary
governance in the Court of Appeals, viz.: Rule 46 (Original Actions in
the Court of Appeals), Rule 48 (Preliminary Conference), Rule 49
(Hearings on Oral Argument), Rule 51 (Judgment), and Rule 52
(Motion for Reconsideration) have been expressly made applicable to
original actions in the Supreme Court save for those portions which
deal strictly with and are specifically intended for appealed cases in the
Court of Appeals."

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resolution shall be attached to the original copy of the petition intended


for the court and indicated as such by the petitioner.
The petitioner shall also submit together with the petition affidavits
of witnesses or documents supporting the cause of action or defense
and a sworn certification that he has not theretofore commenced any
other action involving the same issues in the Supreme Court, the Court
of Appeals or different divisions thereof, or any other tribunal or agency
if there is such other action or proceeding, he must state the status of
the same, and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts and
other tribunal or agency thereof within five (5) days therefrom. (n)
5. Action by the court. Should the court find no substantial merit in
the petition, the same may be dismissed outright with specific
reasons for such dismissal.
Should prima facie merit be found in the petition, the same shall
be given due course and summons shall be served on the respondent.
(n)

In fine, Rule 46 primarily governs original actions for certiorari filed in


the Court of Appeals but Rule 65 generally serves to supplement the
same. Rules 46 and 65 co-exist with each other and should be
construed so as to give effect to every provision of both rules.

6. Procedure. The procedure in ordinary civil cases shall be


observed. Should trial be necessary, the reception of the evidence may
be referred to a member of the court or a judge of a Regional Trial
Court. (n)

Section 3

7. Effect of judgment. A JUDGMENT OF ANNULMENT shall set


aside the questioned judgment or final order or resolution and
render the same null and void, without prejudice to the original action
being refiled in the proper court. However, where the judgment or final
order or resolution is SET ASIDE on the ground of extrinsic fraud,
the court may on motion order the trial court to try the case as if a
timely motion for new trial had been granted therein. (n)

CHINA BANKING CORP. vs. PADILLA


Section 3, Rule 46, of the 1997 Rules of Civil Procedure, as amended,
provides that the failure to comply with the requirement that the petition
shall be accompanied by a certified true copy of the resolutions, orders
or any rulings subject thereof is a sufficient ground for the dismissal of
the petition.
RULE 47: ANNULMENT OF JUDGMENTS OR
FINAL ORDER AND RESOLUTIONS
1. Coverage. This Rule shall govern the annulment by the Court
of Appeals of judgments or final orders and resolutions IN CIVIL
ACTIONS of Regional Trial Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies are
no longer available through no fault of the petitioner. (n)
2. Grounds for annulment. The annulment may be based only on
the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall NOT be a valid ground if it was availed of, or could
have been availed of, in a motion for new trial or petition for relief. (n)

8. Suspension prescriptive period. The prescriptive period for the


refiling of the aforesaid original action shall be deemed suspended
from the filing of such original action until the finality of the judgment of
annulment. However, the prescriptive period shall not be suspended
where the extrinsic-fraud is attributable to the plaintiff in the original
action. (n)
9. Relief available. The judgment of annulment may include the
award of damages, attorney's fees and other relief.
If the questioned judgment or final order or resolution had already
been executed the court may issue such orders of restitution or
other relief as justice and equity may warrant under the
circumstances. (n)
10. Annulment of judgments or final orders of Municipal Trial Courts.
An action to annul a judgment or final order of a Municipal Trial
Court shall be filed in the Regional Trial Court having jurisdiction over
the former. It shall be treated as an ordinary civil action and sections 2,
3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n)

3. Period for filing action. If based on EXTRINSIC FRAUD, the


action must be filed within four (4) years from its discovery; and if
based on LACK OF JURISDICTION, before it is barred by laches or
estoppel. (n)
Extrinsic Fraud
4. Filing and contents of petition. The action shall be commenced
by filing a verified petition alleging therein with particularity the facts
and the law relied upon for annulment, as well as those supporting the
petitioner's good and substantial cause of action or defense, as the
case may be.
The petition shall be filed in seven (7) clearly legible copies,
together with sufficient copies corresponding to the number of
respondents. A certified true copy of the judgment or final order or

JOSE vs. INTRA STRATA INSURANCE

CIVIL

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Rule 47 of the Revised Rules on Civil Procedure provides for the


remedy of annulment by the Court of Appeals of judgments or final
orders and resolutions in civil actions of Regional Trial Courts for which
the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the
petitioner. The grounds for annulment are extrinsic fraud and lack of
jurisdiction.

the party favored by the suspension of the rules; (6) a lack of any
showing that the review sought is merely frivolous and dilatory; and (7)
the other party will not be unjustly prejudiced thereby.

In their petition for annulment of judgment, petitioners anchored it on


the ground of lack of jurisdiction over their persons. As reflected above,
the CA dismissed the petition on the ground that petitioners had
already availed of the remedy of petition for relief from judgment.

Since the case below squarely falls within the abovementioned


instances, in that it involves deprivation of respondent banks
property, not to mention that its Answer introduces a valid
defense against petitioners cause of action, and that the filing of
the Answer will not unjustly prejudice or delay the case.

The 2nd paragraph of the rule clearly provides, it is only extrinsic


fraud, not lack of jurisdiction, which is excluded as a valid ground
for annulment "if it was availed of, or could not have been availed
of, in a motion for new trial or petition for relief."
Since petitioners anchored their Petition for Relief from Judgment filed
before the trial court on the ground of lack of jurisdiction over their
persons, they are not barred from filing a petition for annulment
of judgment before the CA.

As for the CAs application of the doctrine of finality of judgment to bar


annulment of the judgment, the same does not lie. If petitioners can
prove that they were indeed not duly served with summons, the trial
court never acquired jurisdiction over them, hence, the decision
against them is not "a decision" in contemplation of law and could
never become final and executor.

DELA CRUZ vs. SISON

The Court does not agree with the bank that its former counsels
mishandling of the case amounts to extrinsic fraud. A client is bound by
the negligence or mistake of his counsel. There are cases when the
Court declared that gross or reckless negligence of counsel
amounts to extrinsic fraud, but this is the exception rather than
the general rule. Not all negligence of counsel qualifies as extrinsic
fraud, and each case must be considered under its own set of
particular circumstances in ascertaining whether a counsels
negligence may provide sufficient basis to annul an otherwise final and
executory judgment.

GENERAL RULE: the negligence or mistake of counsel binds the


client, for otherwise there would never be an end to a suit so long as a
new counsel could be employed who could allege and show that the
former counsel had not been sufficiently diligent, experienced, or
learned.

RAMOS vs. COMBONG JR.

3 of Rule 47 lays down the period within which to bring an action for
annulment of judgment based on extrinsic fraud. Based on the
foregoing provision, petitioners should have filed an annulment of
judgment based on extrinsic fraud within four years from discovery of
the alleged fraudulent acts committed by private respondents.

A perusal of the petition filed before the CA shows that there is no


indication of the dates or time from whence petitioners discovered
private respondents alleged fraudulent acts. While Rule 47 does not
explicitly require that a statement of material dates should
accompany the petition, nevertheless, there must be a manifest
showing in the petition that it was filed within the four-year
period. Consequently, the CA was right in dismissing the petition, as it
had no basis for determining the timeliness of the filing of the
petition.

EXTRINSIC FRAUD exists when there is a fraudulent act


committed by the prevailing party outside of the trial of the case,
whereby the defeated party was prevented from presenting fully
his side of the case by fraud or deception practiced on him by the
prevailing party. Fraud is regarded as extrinsic where it prevents a
party from having a trial or from presenting his entire case to the court,
or where it operates upon matters pertaining not to the judgment itself
but to the manner in which it is procured. The overriding consideration
when extrinsic fraud is alleged is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in court.

ALABAN vs. COURT OF APPEALS

EXCEPTIONS: The Court reckoned to liberally apply the rules of


procedure in order to achieve the substantial ends of justice, viz.:(1)
matters of life, liberty, honor or property; (2) counsels negligence
without any participatory negligence on the part of the client; (3) the
existence of special or compelling circumstances; (4) the merits of the
case; (5) a cause not entirely attributable to the fault or negligence of

As parties to the probate proceedings, petitioners could have validly


availed of the remedies of motion for new trial or reconsideration and
petition for relief from judgment. In fact, petitioners filed a motion to
reopen, which is essentially a motion for new trial, with petitioners
praying for the reopening of the case and the setting of further

CIVIL

proceedings. However, the motion was denied for having been filed out
of time, long after the Decision became final and executory.

To sustain their allegation of extrinsic fraud, petitioners assert that as a


result of respondents deliberate omission or concealment of their
names, ages and residences as the other heirs of the decedent in his
petition for allowance of the will, they were not notified of the
proceedings, and thus they were denied their day in court. In addition,
they claim that respondents offer of a false compromise even before
the filing of the petition prevented them from appearing and opposing
the petition for probate. The Court is not convinced.

According to the Rules, notice is required to be personally given to


known heirs, legatees, and devisees of the testator. A perusal of the
will shows that respondent was instituted as the sole heir of the
decedent. Petitioners, as nephews and nieces of the decedent, are
neither compulsory nor testate heirs who are entitled to be notified of
the probate proceedings under the Rules. Respondent had no legal
obligation to mention petitioners in the petition for probate, or to
personally notify them of the same. Besides, assuming arguendo that
petitioners are entitled to be so notified, the purported infirmity is cured
by the publication of the notice. After all, personal notice upon the heirs
is a matter of procedural convenience and not a jurisdictional requisite.
The non-inclusion of petitioners names in the petition and the alleged
failure to personally notify them of the proceedings do not constitute
extrinsic fraud. Petitioners were not denied their day in court, as they
were not prevented from participating in the proceedings and
presenting their case before the probate court.

Lack of Jurisdiction

ANCHETA vs. ANCHETA

An original action in the Court of Appeals under Rule 47 of the Rules of


Court, as amended, to annul a judgment or final order or resolution
in civil actions of the RTC may be based on two grounds: (a)
extrinsic fraud; or (b) lack of jurisdiction. If based on EXTRINSIC
FRAUD, the remedy is subject to a condition precedent, namely,
the ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available through no
fault of the petitioner. The petitioner must allege in the petition that
the ordinary remedies of new trial, appeal, petition for relief from
judgment, under Rule 38 of the Rules of Court are no longer available
through no fault of hers; otherwise, the petition will be dismissed. If the
petitioner fails to avail of the remedies of new trial, appeal or relief from
judgment through her own fault or negligence before filing her petition
with the Court of Appeals, she cannot resort to the remedy under Rule
47 of the Rules; otherwise, she would benefit from her inaction or
negligence.

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The petitioner must also explain and justify her failure to avail of such
remedies. The safeguard was incorporated in the rule precisely to
avoid abuse of the remedy.

The Court of Appeals erred in dismissing the original petition and


denying admission of the amended petition. This is so because
apparently, the CA failed to take note from the material allegations
of the petition, that the petition was based not only on extrinsic
fraud but also on lack of jurisdiction over the person of the
petitioner, on her claim that the summons and the copy of the
complaint in Sp. Proc. No. NC-662 were not served on her. While
the original petition and amended petition did not state a cause of
action for the nullification of the assailed order on the ground of
extrinsic fraud, we rule, however, that it states a sufficient cause of
action for the nullification of the assailed order on the ground of
lack of jurisdiction of the RTC over the person of the petitioner,
notwithstanding the absence of any allegation therein that the ordinary
remedy of new trial or reconsideration, or appeal are no longer
available through no fault of the petitioner.
In a case where a petition for the annulment of a judgment or final
order of the RTC filed under Rule 47 of the Rules of Court is grounded
on LACK OF JURISDICTION over the person of the defendant or
respondent OR over the nature or subject of the action, the
petitioner need not allege in the petition that the ordinary remedy of
new trial or reconsideration of the final order or judgment or appeal
therefrom are no longer available through no fault of her own. This is
so because a judgment rendered or final order issued by the RTC
without jurisdiction is NULL AND VOID and may be assailed any
time either collaterally or in a direct action or by resisting such
judgment or final order in any action or proceeding whenever it is
invoked, unless barred by laches.

REPUBLIC vs. G HOLDINGS

The instant petition suffers from a basic infirmity for lack of the
requisite imprimatur from the Office of the Solicitor General, hence, it is
dismissible on that ground. The GENERAL RULE is that only the
Solicitor General can bring or defend actions on behalf of the Republic
of the Philippines and that actions filed in the name of the Republic, or
its agencies and instrumentalities for that matter, if not initiated by the
Solicitor General, should be summarily dismissed. As an
EXCEPTION to the general rule, the Solicitor General is empowered to
"deputize legal officers of government departments, bureaus, agencies
and offices to assist the Solicitor General and appear or represent the
Government in cases involving their respective offices, brought before
the courts and exercise supervision and control over such legal officers
with respect to such cases."

Here, the petition was signed and filed on behalf of the Republic
by Atty. Raul B. Villanueva, the executive officer of the legal
department of the APT, and Atty. Rhoel Z. Mabazza. However, they
did not present any proof that they had been duly deputized by
the Solicitor General to initiate and litigate this action. Thus, this
petition can be dismissed on that ground.

CIVIL

Lack of jurisdiction as a ground for annulment of judgment refers


to either lack of jurisdiction over the person of the defending
party or over the subject matter of the claim. Where the court has
jurisdiction over the defendant and over the subject matter of the case,
its decision will not be voided on the ground of absence of jurisdiction.
In a petition for annulment of judgment based on lack of jurisdiction,
the petitioner must show not merely an abuse of jurisdictional
discretion but an ABSOLUTE LACK OF JURISDICTION. Thus, the
concept of lack of jurisdiction as a ground to annul a judgment
does not embrace abuse of discretion.

Jurisdiction is distinct from the exercise thereof.

No grave abuse of discretion can be imputed to the trial court when it


rendered the decision. The pieces of evidence considered by the
court a quo to arrive at its decision were documents attached as
annexes to the various pleadings filed by the parties. Documents
attached to the pleadings form part thereof and may be considered as
evidence even if not formally introduced as evidence. The court may
and should consider as evidence documents attached to the pleadings
filed by the parties and made a part thereof, without necessity of
introducing them expressly as evidence when their authenticity and
due execution have not been denied under oath.

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other words, a void judgment is regarded as a nullity, and the situation


is the same as it would be if there was no judgment. Accordingly, it
leaves the parties litigants in the same position they were in before the
trial.

Thus, a void judgment is no judgment at all. It cannot be the source of


any right nor of any obligation. All acts performed pursuant to it and all
claims emanating from it have no legal effect. Hence, it can never
become final and any writ of execution based on it is void.

DENR vs. TECHNOLOGICAL ADVOCATES

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. It is
absence of, or no, jurisdiction; that is, the court should not have taken
cognizance of the petition because the law does not vest it with
jurisdiction over the subject matter.

In the present case, the CA has put to rest the issue of whether the
RTC had jurisdiction over respondents cause of action. The CA was
correct when it concluded that:
SPS. CUYOS vs. HEIRS OF EVARISTO CUYOS

Considering that the assailed Order is a void judgment for lack of due
process of law, it is no judgment at all. It cannot be the source of any
right or of any obligation.

In Nazareno v. Court of Appeals, the consequences of a void


judgment, thus:

A void judgment never acquires finality. Hence, while admittedly,


the petitioner in the case at bar failed to appeal timely the
aforementioned decision of the Municipal Trial Court of Naic, Cavite, it
cannot be deemed to have become final and executory. In
contemplation of law, that void decision is deemed non-existent.
Thus, there was no effective or operative judgment to appeal from. A
void judgment is not entitled to the respect accorded to a valid
judgment, but may be entirely disregarded or declared inoperative by
any tribunal in which effect is sought to be given to it. It is attended by
none of the consequences of a valid adjudication. It has no legal or
binding effect or efficacy for any purpose or at any place. It cannot
affect, impair or create rights. It is not entitled to enforcement and is,
ordinarily, no protection to those who seek to enforce. All proceedings
founded on the void judgment are themselves regarded as invalid. In

In the present case, the action a quo is one for mandamus and, under
Section 21 of Batas Pambansa Bilang 129, as amended, the Regional
Trial Court exercises original jurisdiction in the issuance of the writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus, and
injunction which may be enforced in any part of their regions. The court
a quo after evaluating the allegations in the initiatory pleading
concluded that the action is one for specific performance and
proceeded to hear it as such. In doing so, the said court retained
jurisdiction. The same law grants the Regional Trial Courts exclusive
original jurisdiction over all cases in which the subject of the litigation is
incapable of pecuniary estimation and all cases in which the demand
exceeds P100,000.00, to which the action a quo belongs.

In this recourse, petitioner is no longer questioning the jurisdiction of


the RTC based on the above arguments. Petitioner now questions the
propriety of the notice sent to the deputized counsel of the OSG,
arguing that notice to its deputized counsel is not notice to the OSG.
Hence, absent such notice, the decision of the RTC did not become
final and executory. Moreover, the failure of the RTC to serve the OSG
copies of legal notices, orders, and judicial processes constitutes lack
of due process. This Court disagrees.

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What petitioner is seeking is for this Court to nullify the decision and
orders of the RTC via the present petition after petitioner has
effectively lost its right to question the said decision and orders, the
same having become final and executory.

(c) To formulate stipulations of facts and admissions of


documentary exhibits, limit the number of witnesses to be presented in
cases falling within the original jurisdiction of the court, or those within
its appellate jurisdiction where a motion for new trial is granted on the
ground of newly discovered evidence; and
(d) To take up such other matters which may aid the court in the
prompt disposition of the case. (Rule 7, CA Internal Rules) (n)

SC Resolution

2. Record of the conference. The proceedings at such conference


shall be recorded and, upon the conclusion thereof, a resolution shall
be issued embodying all the actions taken therein, the stipulations and
admissions made and the issues defined. (n)

GRANDE vs. UP
The annulment of judgments, as a recourse, is equitable in character,
allowed only in exceptional cases, as where there is no available or
other adequate remedy. It is generally governed by Rule 47 of the
1997 Rules of Civil Procedure. Section 1 thereof expressly states that
the Rule "shall govern the annulment by the Court of Appeals of
judgments or final orders and resolutions in civil action of Regional
Trial Courts for which the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner." Clearly, Rule 47 APPLIES ONLY TO
petitions for the nullification of judgments rendered by regional
trial courts filed with the Court of Appeals. It does NOT pertain to
the nullification of decisions of the Court of Appeals.

Petitioners argue that although Rule 47 is a newly-established rule, the


procedure of annulment of judgments has long been recognized in this
jurisdiction. That may be so, but this Court has no authority to take
cognizance of an original action for annulment of judgment of any
lower court. The only original cases cognizable before this Court are
"petitions for certiorari, prohibition, mandamus, quo warranto, habeas
corpus, disciplinary proceedings against members of the judiciary and
attorneys, and cases affecting ambassadors, other public ministers
and consuls." Petitions for annulment of judgment are not among the
cases originally cognizable by this Court.

Moreover, if what is desired is an appeal from a decision of the Court


of Appeals, which petitioners could have been entitled to under
ordinary circumstances, the only mode of appeal cognizable by this
Court is "a petition for review on certiorari." That is governed by and
disposed of in accordance with the applicable provisions of the
Constitution, laws, Rules 45; 48; Sections 1, 2, and 5 to 11 of Rules 51;
52; and 56. Notably, Rule 47 on annulment of judgments has
nothing to do with the provisions which govern petitions for
review on certiorari. Thus, it is totally inappropriate to extend
Rule 47 to the review of decisions of the Court of Appeals.

RULE 48: PRELIMINARY CONFERENCE


1. Preliminary conference. At any time during the pendency of a
case, the court may call the parties and their counsel to a preliminary
conference.
(a) To consider the possibility of an amicable settlement, except
when the case is not allowed by law to be compromised
(b) To define, simplify and clarify the issues for determination;

3. Binding effect of the results of the conference. Subject to such


modifications which may be made to prevent manifest injustice, the
RESOLUTION in the preceding section shall control the
subsequent proceedings in the case UNLESS, within five (5) days
from notice thereof, any party shall satisfactorily show valid cause why
the same should not be followed. (n)

RULE 49: ORAL ARGUMENT


1. When allowed. At its own instance or upon motion of a party, the
court may hear the parties in oral argument on the merits of a case, or
on any material incident in connection therewith. (n)
The oral argument shall be limited to such matters as the court may
specify in its order or resolution. (1a, R48)
2. Conduct of oral argument. Unless authorized by the court, only
one counsel may argue for a party. The duration allowed for each
party, the sequence of the argumentation, and all other related matters
shall be as directed by the court. (n)
3. No hearing or oral argument for motions. Motions shall not be
set for hearing and, unless the court otherwise directs, no hearing or
oral argument shall be allowed in support thereof. The adverse party
may file objections to the motion within five (5) days from service, upon
the expiration of which such motion shall be deemed submitted for
resolution. (29, R49)

RULE 50: DISMISSAL OF APPEAL


1. Grounds for dismissal of appeal. An appeal may be dismissed
by the Court of Appeals, on its own motion or on that of the appellee,
on the following grounds:
(a) Failure of the record on appeal to show on its face that the
appeal was taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal
within the period prescribed by these Rules; -- MANDATORY
(c) Failure of the appellant to pay the docket and other lawful
fees as provided in section 5, Rule 40 and section 4 of Rule 41; (Bar
Matter No. 803, 17 February 1998)
(d) Unauthorized alterations, omissions or additions in the
approved record on appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number
of copies of his brief or memorandum within the time provided by
these Rules;
(f) Absence of specific assignment of errors in the appellant's
brief, or of page references to the record as required in section 13,
paragraphs (a), (c), (d) and (f) of Rule 44;

CIVIL

(g) Failure of the appellant to take the necessary steps for the
correction or completion of the record within the time limited by the
court in its order;
(h) Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders, circulars, or
directives of the court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not
appealable. (1a)
2. Dismissal of improper appeal to the Court of Appeals. An appeal
under Rule 41 taken from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed, issues
purely of law not being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by petition for review from the
appellate judgment of a Regional Trial Court shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not
be transferred to the appropriate court but shall be dismissed
outright. (3a)
3. Withdrawal of appeal. An appeal may be withdrawn as of right
at any time before the filing of the appellee's brief. Thereafter, the
withdrawal may be allowed in the discretion of the court. (4a)
Discretionary
PNB vs. PHILIPPINE MILLING
Rule 50, Section 1 which provides specific grounds for dismissal
of appeal manifestly confers a power and does not impose a duty.
What is more, it is directory, not mandatory. With the exception of
Sec. 1(b), the grounds for the dismissal of an appeal are directory and
not mandatory, and it is not the ministerial duty of the court to dismiss
the appeal. The discretion, however, must be a sound one to be
exercised in accordance with the tenets of justice and fair play having
in mind the circumstances obtaining in each case.
Direct Appeal to Supreme Court

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By way of implementation of the provisions of law, this Court issued on


March 9, 1990 CIRCULAR NO. 2-90, paragraph 2 of which provides:

2. Appeals from Regional Trial Courts to the Supreme Court.


EXCEPT in criminal cases where the penalty imposed is life
imprisonment or reclusion perpetua, judgments of regional trial
courts may be appealed to the Supreme Court only by petition for
review on certiorari in accordance with Rule 45 of the Rules of Court in
relation to 17 of the Judiciary Act of 1948, as amended, this being the
clear intendment of the provision of the Interim Rules that (a)ppeals to
the Supreme Court shall be taken by petition for certiorari which shall
be governed by Rule 45 of the Rules of Court.

Non-payment of Fee

CO-UNJIENG vs. COURT OF APPEALS

The right to appeal is merely statutory and a party seeking to avail of


that right must comply with the statute or rules.

Payment of the docket and other legal fees within the prescribed
period is both mandatory and jurisdictional, noncompliance with
which is fatal to an appeal. For, to stress, appeal is not a matter of
right, but a mere statutory privilege.

ATLAS CONSOLIDATED MINING vs. COURT OF APPEALS

Direct appeals to this Court from the trial court on questions of law
have to be through the filing of a petition for review on certiorari. It has
been held that:

When RTC adjudicates a case in the exercise of its original


jurisdiction, the correct mode of elevating the judgment to the Court
of Appeals is by ordinary appeal, or appeal by writ of error,
involving merely the filing of a notice of appeal except only if the
appeal is taken in special proceedings and other cases wherein
multiple appeals are allowed under the law, in which event the filing of
a record on appeal is additionally required. When the appeal would
involve purely questions of law or any of the other cases (except
criminal cases) specified in 5(2), Article X of the Constitution, it
should be taken to the Supreme Court by petition for review on
certiorari in accordance with Rules 42 and 45 of the Rules of Court.

An ordinary appeal from a decision or final order of the RTC to the CA


must be made within fifteen (15) days from notice. And within this
period, the full amount of the appellate court docket and other
lawful fees must be paid to the clerk of the court which rendered the
judgment or final order appealed from.

Full payment of docket fees within the prescribed period is mandatory


for the perfection of an appeal. Without such payment, the appeal
is not perfected and the appellate court does not acquire
jurisdiction to entertain the appeal, thereby rendering the decision
sought to be appealed final and executory.

The rules may be relaxed but only for persuasive and weighty reasons,
to relieve a litigant of an injustice commensurate with his failure to
comply with the prescribed procedure. With the reality obtaining in this
case that payment of the appellate docket fees was belatedly made
four (4) months after the lapse of the period for appeal, it appears clear
to us that the CA did not acquire jurisdiction over petitioners appeal

CIVIL

except to order its dismissal,23 as it rightfully did. Thus, the September


1, 1998 decision of the RTC has passed to the realm of finality and
became executory by operation of law.

Non-filing of Brief

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(c) where the interests of justice so require.

CAB: The Court cannot say that the issues being raised by
respondents are of such importance that would justify the appellate
court to exempt them from the general rule and give due course to
their appeal despite the late filing of their appellants brief.

GOVERNMENT OF THE KINGDOM OF BELGIUM vs. CA


BACHRACH vs. PPA

GUIDELINES

(1) The general rule is for the Court of Appeals to dismiss an appeal
when no appellants brief is filed within the reglementary period
prescribed by the rules;
(2) The power conferred upon the Court of Appeals to dismiss an
appeal is discretionary and directory and not ministerial or
mandatory;

Rule 50, 1 of the Rules of Court enumerates the grounds for the
dismissal of appeals; paragraph (e) thereof provides that an appeal
shall be dismissed upon [f]ailure of the appellant to serve and file the
required number of copies of his brief or memorandum within the time
provided by these Rules.

A dismissal based on this ground is neither mandatory nor ministerial;


the fundamentals of justice and fairness must be observed, bearing in
mind the background and web of circumstances surrounding the case.

(3) The failure of an appellant to file his brief within the reglementary
period does not have the effect of causing the automatic dismissal
of the appeal;
(4) In case of late filing, the appellate court has the power to still allow
the appeal; however, for the proper exercise of the courts leniency it is
imperative that:
(a) the circumstances obtaining warrant the courts liberality;
(b) that strong considerations of equity justify an exception to the
procedural rule in the interest of substantial justice;
(c) no material injury has been suffered by the appellee by the
delay;
(d) there is no contention that the appellees cause was
prejudiced;
(e) at least there is no motion to dismiss filed.

CAB: Petitioner blames its former handling lawyer for failing to file the
appellants brief on time. This lawyer was allegedly transferring to
another law office at the time the appellants brief was due to be filed.
In his excitement to transfer to his new firm, he forgot about the appeal
and the scheduled deadline; he likewise forgot his responsibility to
endorse the case to another lawyer in the law office.

Under the circumstances of this case, we find the failure to file the
appeal brief inexcusable; thus, we uphold the CAs ruling.

RULE 51: JUDGMENT


1. When case deemed submitted for judgment. A case shall be
deemed submitted for judgment:

(5) In case of delay, the lapse must be for a reasonable period; and

A. In ordinary appeals.

(6) Inadvertence of counsel cannot be considered as an adequate


excuse as to call for the appellate courts indulgence except:

1) Where no hearing on the merits of the main case is held, upon


the filing of the last pleading, brief, or memorandum required by the
Rules or by the court itself, or the expiration of the period for its filing.

(a) where the reckless or gross negligence of counsel deprives


the client of due process of law;
(b) when application of the rule will result in outright deprivation of
the clients liberty or property; or

2) Where such a hearing is held, upon its termination or upon the


filing of the last pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration of the period for its
filing.
B. In original actions and petitions for review.

CIVIL

1) Where no comment is filed, upon the expiration of the period to


comment.
2) Where no hearing is held, upon the filing of the last pleading
required or permitted to be filed by the court, or the expiration of the
period for its filing.
3) Where a hearing on the merits of the main case is held, upon
its termination or upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the court, or the
expiration of the period for its filing. (n)
2. By whom rendered. The judgment shall be rendered by the
members of the court who participated in the deliberation on the
merits of the case before its assignment to a member for the writing of
the decision. (n)
3. Quorum and voting in the court. The participation of all three
Justices of a division shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be required for the
pronouncement of a judgment or final resolution. If the three justices
do not reach a unanimous vote, the clerk shall enter the votes of the
dissenting Justices in the record. Thereafter, the Chairman of the
division shall refer the case, together with the minutes of the
deliberation, to the Presiding Justice who shall designate two Justices
chosen by raffle from among all the other members of the court to sit
temporarily with them, forming a special division of five Justices.
The participation of all the five members of the special division shall be
necessary for the deliberation required in section 2 of this Rule and the
concurrence of a majority of such division shall be required for the
pronouncement of a judgment or final resolution. (2a)
4. Disposition of a case. The Court of Appeals, in the exercise of
its appellate jurisdiction, may affirm, reverse, or modify the
judgment or final order appealed from, and may direct a new trial or
further proceedings to be had. (3a)
5. Form of decision. Every decision or final resolution of the court
in appealed cases shall clearly and distinctly state the findings of fact
and the conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or adopted from
those set forth in the decision, order, or resolution appealed from. (Sec.
40, BP Blg. 129) (n)
6. Harmless error. No error in either the admission or the exclusion
of evidence and no error or defect in any ruling or order or in anything
done or omitted by the trial court or by any of the parties is ground for
granting a new trial or for setting aside, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or defect which
does not affect the substantial rights of the parties. (5a)
7. Judgment where there are several parties. In all actions or
proceedings, an appealed judgment may be affirmed as to some of
the appellants, and reversed as to others, and the case shall
thereafter be proceeded with, so far as necessary, as if separate
actions had been begun and prosecuted, and execution of the
judgment of affirmance may be had accordingly, and costs may be
adjudged in such cases, as the court shall deem proper. (6)
8. Questions that may be decided. No error which does not
affect the jurisdiction over the subject matter or the validity of the
judgment appealed from or the proceedings therein will be considered
unless stated in the assignment of errors, or closely related to or
dependent on an assigned error and properly argued in the brief, save
as the court may pass upon plain errors and clerical errors. (7a)

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9. Promulgation and notice of judgment. After the judgment or final


resolution and dissenting or separate opinions, if any, are signed by
the Justices taking part, they shall be delivered for filing to the clerk
who shall indicate thereon the date of promulgation and cause true
copies thereof to be served upon the parties or their counsel. (n)
10. Entry of judgments and final resolutions. If no appeal or motion
for new trial or reconsideration is filed within the time provided in these
Rules, the judgment or final resolution shall forthwith be entered
by the clerk in the book of entries of judgments. The date when the
judgment or final resolution becomes executory shall be deemed as
the date of its entry. The record shall contain the dispositive part of
the judgment or final resolution and shall be signed by the clerk, with a
certificate that such judgment or final resolution has become final and
executory. (2a, R36)
11. Execution of judgment. Except where the judgment or final
order or resolution, or a portion thereof, is ordered to be immediately
executory, the motion for its execution may only be filed in the
proper court after its entry.
In original actions in the Court of Appeals, its writ of execution
shall be accompanied by a certified true copy of the entry of judgment
or final resolution and addressed to any appropriate officer for its
enforcement.
In appealed cases, where the motion for execution pending
appeal is filed in the Court of Appeals at a time that it is in possession
of the original record or the record on appeal, the resolution granting
such motion shall be transmitted to the lower court from which the case
originated, together with a certified true copy of the judgment or final
order to be executed, with a directive for such court of origin to issue
the proper writ for its enforcement. (n)
Multiple Proceedings
CRYSTAL vs. COURT OF APPEALS
RULE 52: MOTION FOR RECONSIDERATION
1. Period for filing. A party may file a motion for reconsideration of
a judgment or final resolution within fifteen (15) days from notice
thereof, with proof of service on the adverse party. (n)
2. Second motion for reconsideration. No second motion for
reconsideration of a judgment or final resolution by the same
party shall be entertained. (n)
3. Resolution of motion. In the Court of Appeals, a motion for
reconsideration shall be resolved within ninety (90) days from the
date when the court declares it submitted for resolution. (n)
4. Stay of execution. The pendency of a motion for reconsideration
filed on time and by the proper party shall stay the execution of the
judgment or final resolution sought to be reconsidered unless the
court, for good reasons, shall otherwise direct. (n)
BADIOLA vs. COURT OF APPEALS
Administrative Order No. 17, dated 15 September 2003, provides:
7. Finality and execution of decision.-Where the respondent is
absolved of the charge, and in case of conviction where the
penalty imposed is public censure or reprimand, suspension of not
more than one month, or a fine equivalent to one month salary, the
decision shall be final, executory and unappealable.

CIVIL

In all other cases, the decision may be appealed to the Court of


Appeals on a verified petition for review under the requirements and
conditions set forth in Rule 43 of the Rules of Court, within fifteen (15)
days from receipt of the written Notice of the Decision or Order denying
the Motion for Reconsideration.
From the denial by the Court of Appeals of a petition filed under Rule
43 of the Rules of Court, the party aggrieved may file a motion for
reconsideration with the same court. Should this motion be again
denied, the case may be elevated to this Court through a Petition for
Review on Certiorari filed in accordance with Rule 45 of the Rules of
Court. Rule 45 is clear that decisions, final orders or resolutions of the
Court of Appeals in any case,i.e., regardless of the nature of the action
or proceeding involved, may be appealed to this Court by filing a
petition for review, which would be but a continuation of the appellate
process over the original case.
The instant Petition for Certiorari may therefore already be dismissed,
as under Rule 56, 5(f) of the Revised Rules of Court, a wrong or
inappropriate mode of appeal, as in this case, merits an outright
dismissal.
RULE 53: NEW TRIAL
1. Period for filing; ground. At any time after the appeal from the
lower court has been perfected and before the Court of Appeals loses
jurisdiction over the case, a party may file a motion for a new trial
on the ground of newly discovered evidence which could not
have been discovered prior to the trial in the court below by the
exercise of due diligence and which is of such a character as
would probably change the result. The motion shall be accompanied
by affidavits showing the facts constituting the grounds therefor and
the newly discovered evidence. (1a)
2. Hearing and order. The Court of Appeals shall consider the new
evidence together with that adduced at the trial below, and may grant
or refuse a new trial, or may make such order, with notice to both
parties, as to the taking of further testimony, either orally in court, or by
depositions, or render such other judgment as ought to be rendered
upon such terms as it may deem just. (2a)
3. Resolution of motion. In the Court of Appeals, a motion for new
trial shall be resolved within ninety (90) days from the date when the
court declares it submitted for resolution. (n)
4. Procedure in new trial. Unless the court otherwise directs, the
procedure in the new trial shall be the same as that granted by a
Regional Trial Court. (3a)

RULE 54: INTERNAL BUSINESS


1. Distribution of cases among divisions. All the cases of the Court
of Appeals shall be allotted among the different divisions thereof for
hearing and decision. The Court of Appeals, sitting en banc, shall
make proper orders or rules to govern the allotment of cases among
the different divisions, the constitution of such divisions, the regular
rotation of Justices among them, the filing of vacancies occurring
therein, and other matters relating to the business of the court; and
such rules shall continue in force until repealed or altered by the
Supreme Court. (1a)
2. Quorum of the court. A majority of the actual members of the
court shall constitute a quorum for its sessions en banc. Three
members shall constitute a quorum for the sessions of a division.
The affirmative votes of the majority of the members present shall be

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necessary to pass a resolution of the court en banc. The affirmative


votes of three members of a division shall be necessary for the
pronouncement of a judgment or final resolution, which shall be
reached in consultation before the writing of the opinion by any
member of the division. (Sec. 11, first par. of BP Blg. 129, as amended
by Sec. 6 of EO 33). (3a)

RULE 55: PUBLICATION OF JUDGMENT AND


FINAL RESOLUTIONS
1. Publication. The judgments and final resolutions of the court
shall be published in the Official Gazette and in the Reports officially
authorized by the court in the language in which they have been
originally written, together with the syllabi therefor prepared by the
reporter in consultation with the writers thereof. Memoranda of all other
judgments and final resolutions not so published shall be made by the
reporter and published in the Official Gazette and the authorized
reports. (1a)
2. Preparation of opinions for publication. The reporter shall
prepare and publish with each reported judgment and final resolution a
concise synopsis of the facts necessary for a clear understanding of
the case, the names of counsel, the material and controverted points
involved, the authorities cited therein, and a syllabus which shall be
confined to points of law. (Sec. 22a, R.A. No. 296) (n)
3. General make-up of volumes. The published decisions and final
resolutions of the Supreme Court shall be called "Philippine Reports,"
while those of the Court of Appeals shall be known as the "Court of
Appeals Reports." Each volume thereof shall contain a table of the
cases reported and the cases cited in the opinions, with a complete
alphabetical index of the subject matters of the volume. It shall consist
of not less than seven hundred pages printed upon good paper, well
bound and numbered consecutively in the order of the volumes
published. (Sec. 23a, R.A. No. 296) (n)

RULE 56: PROCEDURE IN THE SUPREME COURT


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

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B. Appealed Cases
3. Mode of appeal. An appeal to the Supreme Court may be taken
only by a petition for review on certiorari, except in criminal cases
where the penalty imposed is death, reclusion perpetua or life
imprisonment. (n)
4. Procedure. The appeal shall be governed by and disposed of in
accordance with the applicable provisions of the Constitution, laws,
Rules 45, 48, sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule.
(n)
5. Grounds for dismissal of appeal. The appeal may be
dismissed motu proprio or on motion of the respondent on the
following grounds:
(a) Failure to take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other lawful fees or
to make a deposit for costs;
(d) Failure to comply with the requirements regarding proof of
service and contents of and the documents which should accompany
the petition;
(e) Failure to comply with any circular, directive or order of the
Supreme Court without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme Court.
6. Disposition of improper appeal. Except as provided in 3, Rule
122 regarding appeals in criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment, an appeal taken to the
Supreme Court by notice of appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court from the
Regional Trial Court submitting issues of fact may be referred to the
Court of Appeals for decision or appropriate action. The determination
of the Supreme Court on whether or not issues of fact are involved
shall be final. (n)
7. Procedure if opinion is equally divided. Where the court en
banc is equally divided in opinion, or the necessary majority cannot
be had, the case shall again be deliberated on, and if after such
deliberation no decision is reached, the original action
commenced in the court shall be dismissed, in appealed cases, the
judgment or order appealed from shall stand affirmed; and on all
incidental matters, the petition or motion shall be denied.

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Thus, as correctly pointed out by petitioner, the appeal before the CA


should have been dismissed, pursuant to Section 5(f), Rule 56 of the
Rules of Court

The dismissal of the appeal, in effect, would have sustained the RTC
Decision ordering respondent to cancel the Assessment Notices issued
by respondent, and therefore, would have rendered moot and
academic the issue of whether the local business tax on contractors
should be based on gross receipts or gross revenues.

Law of the Case/Conflicting Decisions

COLLANTES vs. COURT OF APPEALS

A decision that has acquired finality becomes immutable and


unalterable. A final judgment may no longer be modified in any
respect, even if the modification is meant to correct erroneous
conclusions of fact and law; and whether it be made by the court that
rendered it or by the highest court in the land.

There are thus THREE SOLUTIONS which we can adopt in resolving


the case at bar: the first is for the parties to assert their claims anew,
the second is to determine which judgment came first, and the third is
to determine which of the judgments had been rendered by a court of
last resort.

As there are conflicting jurisprudence on the second solution, it is


appropriate for this Court to adopt either the first or the third solution.
The first solution involves disregarding the finality of the two previous
judgments and allowing the parties to argue on the basis of the merits
of the case anew. The third solution merely involves the determination
of which judgment has been rendered by this Court, the court of last
resort in this jurisdiction.

Section 5
ERICSSON vs. CITY OF PASIG
Prospective Effect

2(c), Rule 41 of the Rules of Court provides that in all cases where
questions of law are raised or involved, the appeal shall be to this
Court by petition for review on certiorari under Rule 45.

LAND BANK vs. DE LEON

On account of the absence of jurisprudence interpreting Sections 60


and 61 of RA 6657 regarding the proper way to appeal decisions of
Special Agrarian Courts as well as the conflicting decisions of the

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D O C T R I N E S | 80

Court of Appeals thereon, LBP cannot be blamed for availing of the


wrong mode. Based on its own interpretation and reliance on the
Buenaventura ruling, LBP acted on the mistaken belief that an ordinary
appeal is the appropriate manner to question decisions of Special
Agrarian Courts.

who is about to depart from the Philippines with intent to defraud his
creditors;

Hence, in the light of the aforementioned circumstances, we find it


proper to emphasize the prospective application of our Decision dated
September 10, 2002. A prospective application of our Decision is not
only grounded on equity and fair play but also based on the
constitutional tenet that rules of procedure shall not impair substantive
rights.

(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;

In accordance with our constitutional power to review rules of


procedure of special courts, our Decision in the instant case actually
lays down a rule of procedure, specifically, a rule on the proper mode
of appeal from decisions of Special Agrarian Courts. Under
Section 5 (5), Article VIII of the 1987 Philippine Constitution, rules
of procedure shall not diminish, increase or modify substantive rights.
In determining whether a rule of procedure affects substantive rights,
the test is laid down in Fabian vs. Desierto, which provides that:

[I]n determining whether a rule prescribed by the Supreme Court, for the practice
and procedure of the lower courts, abridges, enlarges, or modifies any
substantive right, the test is whether the rule really regulates procedure, that is,
the judicial process for enforcing rights and duties recognized by substantive law
and for justly administering remedy and redress for a disregard or infraction of
them. If the rule takes away a vested right, it is not procedural. If the rule
creates a right such as the right to appeal, it may be classified as a
substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.

We hold that our Decision, declaring a petition for review as the proper
mode of appeal from judgments of Special Agrarian Courts, is a rule of
procedure which affects substantive rights. If our ruling is given
retroactive application, it will prejudice LBPs right to appeal because
pending appeals in the Court of Appeals will be dismissed outright
on mere technicality thereby sacrificing the substantial merits thereof. It
would be unjust to apply a new doctrine to a pending case involving a
party who already invoked a contrary view and who acted in good faith
thereon prior to the issuance of said doctrine.

RULE 57: PRELIMINARY ATTACHMENT


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

(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;

(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)
2. Issuance and contents of order. An order of attachment may be
issued either ex parte or upon motion with notice and hearing by
the court in which the action is pending, or by the Court of
Appeals or the Supreme Court, and must require the sheriff of the
court to attach so much of the property in the Philippines of the party
against whom it is issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand, unless such party makes
deposit or gives a bond as hereinafter provided in an amount equal
to that fixed in the order, which may be the amount sufficient to satisfy
the applicant's demand or the value of the property to be attached as
stated by the applicant, exclusive of costs. Several writs may be issued
at the same time to the sheriffs of the courts of different judicial
regions. (2a)
3. Affidavit and bond required. An ORDER OF ATTACHMENT
shall be granted only when it appears by the affidavit of the
applicant, or of some other person who personally knows the facts,
that a sufficient cause of action exists, that the case is one of those
mentioned in section 1 hereof, that there is no other sufficient
security for the claim sought to be enforced by the action, and that
the amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for
which the order is granted above all legal counterclaims. The affidavit,
and the bond required by the next succeeding section, must be duly
filed with the court before the order issues. (3a)
4. Condition of applicant's bond. The party applying for the order
must thereafter give a bond executed to the adverse party in the
amount fixed by the court in its order granting the issuance of the writ,
conditioned that the latter will pay all the costs which may be adjudged
to the adverse party and all damages which he may sustain by reason
of the attachment, if the court shall finally adjudge that the applicant
was not entitled thereto. (4a)
5. Manner of attaching property. The sheriff enforcing the writ
shall without delay and with all reasonable diligence attach, to
await judgment and execution in the action, only so much of the
property in the Philippines of the party against whom the writ is
issued, not exempt from execution, as may be sufficient to satisfy
the applicant's demand, UNLESS the former makes a deposit with
the court from which the writ is issued, or gives a counter-bond
executed to the applicant, in an amount equal to the bond fixed by
the court in the order of attachment or to the value of the property to be
attached, exclusive of costs. NO LEVY ON ATTACHMENT pursuant
to the writ issued under 2 hereof shall be enforced UNLESS it is
preceded, or contemporaneously accompanied, by service of

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summons, together with a copy of the complaint, the application


for attachment the applicant's affidavit and bond, and the order
and writ of attachment, on the defendant within the Philippines.
The requirement of PRIOR OR CONTEMPORANEOUS SERVICE of
summons shall not apply where the summons could not be
served personally or by substituted service despite diligent efforts, or
the defendant is a resident of the Philippines temporarily absent
therefrom, or the defendant is a non-resident of the Philippines, or the
action is one in rem or quasi in rem. (5a)
6. Sheriff's return. After enforcing the writ, the sheriff must likewise
without delay make a return thereon to the court from which the writ
issued, with a full statement of his proceedings under the writ and a
complete inventory of the property attached, together with any counterbond given by the party against whom attachment is issued, and serve
copies thereof on the applicant. (6a)
7. Attachment of real and personal property; recording thereof.
Real and personal property shall be attached by the sheriff executing
the writ in the following manner:
(a) Real property, or growing crops thereon, or any interest
therein, standing upon the record of the registry of deeds of the
province in the name of the party against whom attachment is
issued, or not appearing at all upon such records, or belonging to the
party against whom attachment is issued and held by any other
person, or standing on the records of the registry of deeds in the name
of any other person, by filing with the registry of deeds a copy of the
order, together with a description of the property attached, and a notice
that it is attached, or that such real property and any interest therein
held by or standing in the name of such other person are attached, and
by leaving a copy of such order, description, and notice with the
occupant of the property, if any, or with such other person or his agent
if found within the province. Where the property has been brought
under the operation of either the Land Registration Act or the Property
Registration Decree, the notice shall contain a reference to the number
of the certificate of title, the volume and page in the registration book
where the certificate is registered, and the registered owner or owners
thereof.
The registrar of deeds must index attachments filed under this
section in the names of the applicant, the adverse party, or the person
by whom the property is held or in whose name it stands in the
records. If the attachment is not claimed on the entire area of the land
covered by the certificate of title, a description sufficiently accurate for
the identification of the land or interest to be affected shall be included
in the registration of such attachment;
(b) Personal property capable of manual delivery, by taking
and safely keeping it in his custody, after issuing the corresponding
receipt therefor.
(c) Stocks or shares, or an interest in stocks or shares, of
any corporation or company, by leaving with the president or
managing agent thereof, a copy of the writ, and a notice stating that
the stock or interest of the party against whom the attachment is
issued is attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial
interest, royalties, commissions and other personal property not
capable of manual delivery, by leaving with the person owing such
debts, or having in his possession or under his control, such credits or
other personal property, or with his agent, a copy of the writ, and notice
that the debts owing by him to the party against whom attachment is
issued, and the credits and other personal property in his possession,
or under his control, belonging to said party, are attached in pursuance
of such writ;
(e) The interest of the party against whom attachment is issued in
property belonging to the estate of the decedent, whether as heir,

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D O C T R I N E S | 81

legatee, or devisee, by serving the executor or administrator or other


personal representative of the decedent with a copy of the writ and
notice that said interest is attached. A copy of said writ of attachment
and of said notice shall also be filed in the office of the clerk of the
court in which said estate is being settled and served upon the heir,
legatee or devisee concerned.
If the property sought to be attached is in custodia legis, a copy of
the writ of attachment shall be filed with the proper court or quasijudicial agency, and notice of the attachment served upon the
custodian of such property. (7a)
8. Effect of attachment of debts, credits and all other similar personal
property. All persons having in their possession or under their
control any credits or other similar personal property belonging to the
party against whom attachment is issued, or owing any debts to him, at
the time of service upon them of the copy of the writ of attachment and
notice as provided in the last preceding section, shall be liable to the
applicant for the amount of such credits, debts or other similar
personal property, until the attachment is discharged, or any
judgment recovered by him is satisfied, unless such property is
delivered or transferred, or such debts are paid, to the clerk, sheriff, or
other proper officer of the court issuing the attachment. (8a)
9. Effect of attachment of interests in property belonging to the estate
of a decedent. The attachment of the interest of an heir, legatee,
or devisee in the property belonging to the estate of a decedent shall
not impair the powers of the executor, administrator, or other
personal representative of the decedent over such property for
the purpose of administration. Such personal representative,
however, shall report the attachment to the court when any petition for
distribution is filed, and in the order made upon such petition,
distribution may be awarded to such heir, legatee or devisee, but the
property attached shall be ordered delivered to the sheriff making the
levy, subject to the claim of such heir, legatee, or devisee, or any
person claiming under him. (9a)
10. Examination of party whose property is attached and persons
indebted to him or controlling his property; delivery of property to
sheriff. Any person owing debts to the party whose property is
attached or having in his possession or under his control any credit or
other personal property belonging to such party, may be required to
attend before the court in which the action is pending, or before a
commissioner appointed by the court, and be examined on oath
respecting the same. The party whose property is attached may also
be required to attend for the purpose of giving information respecting
his property, and may be examined on oath. The court may, after such
examination, order personal property capable of manual delivery
belonging to him, in the possession of the person so required to attend
before the court, to be delivered to the clerk of the court or sheriff on
such terms as may be just, having reference to any lien thereon or
claim against the same, to await the judgment in the action. (10a)
11. When attached property may be sold after levy on attachment
and before entry of judgment. Whenever it shall be made to appear
to the court in which the action is pending, upon hearing with notice to
both parties, that the property attached is perishable, or that the
interests of all the parties to the action will be subserved by the
sale thereof, the court may order such property to be sold at
public auction in such manner as it may direct, and the proceeds of
such sale to be deposited in court to abide the judgment in the action.
(11a)
12. Discharge of attachment upon giving counter-bond. After a writ
of attachment has been enforced, the party whose property has been
attached, or the person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the security
given. The court shall, after due notice and hearing, order the
discharge of the attachment if the movant makes a cash deposit, or
files a counter-bond executed to the attaching party with the clerk
of the court where the application is made, in an amount equal to
that fixed by the court in the order of attachment, exclusive of

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costs. But if the attachment is sought to be discharged with respect to


a particular property, the counter-bond shall be equal to the value
of that property as determined by the court. In either case, the cash
deposit or the counter-bond shall secure the payment of any
judgment that the attaching party may recover in the action. A
notice of the deposit shall forthwith be served on the attaching party.
Upon the discharge of an attachment in accordance with the provisions
of this section, the property attached, or the proceeds of any sale
thereof, shall be delivered to the party making the deposit or giving the
counter-bond, or to the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the property so released.
Should such counter-bond for any reason be found to be or become
insufficient, and the party furnishing the same fail to file an additional
counter-bond, the attaching party may apply for a new order of
attachment. (12a)
13. Discharge of attachment on other grounds. The party whose
property has been ordered attached may file a motion with the court
in which he action is pending, before or after levy or even after
the release of the attached property, for an order to set aside or
discharge the attachment on the ground that the same was
improperly or irregularly issued or enforced, or that the bond is
insufficient. If the attachment is excessive, the discharge shall be
limited to the excess. If the motion be made on affidavits on the part of
the movant but not otherwise, the attaching party may oppose the
motion by counter-affidavits or other evidence in addition to that on
which the attachment was made. After due notice and hearing, the
court shall order the setting aside or the corresponding discharge of
the attachment if it appears that it was improperly or irregularly issued
or enforced, or that the bond is insufficient, or that the attachment is
excessive, and the defect is not cured forthwith. (13a)
14. Proceedings where property claimed by third person. If the
property attached is claimed by any person other than the party
against whom attachment had been issued or his agent, and such
person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds of such right or title, and
serves such affidavit upon the sheriff while the latter has
possession of the attached property, and a copy thereof upon the
attaching party, the sheriff shall not be bound to keep the property
under attachment, unless the attaching party or his agent, on
demand of the sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value
of the property levied upon. In case of disagreement as to such value,
the same shall be decided by the court issuing the writ of attachment.
No claim for damages for the taking or keeping of the property may
be enforced against the bond unless the action therefor is filed within
one hundred twenty (120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of
such property to any such third-party claimant, if such bond shall be
filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property, or prevent
the attaching party from claiming damages against a third-party
claimant who filed a frivolous or plainly spurious claim, in the same or
a separate action.
When the writ of attachment is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for
damages as a result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages
adjudged by the court shall be paid by the National Treasurer out of the
funds to be appropriated for the purpose. (14a)
15. Satisfaction of judgment out of property attached, return of
sheriff. If judgment be recovered by the attaching party and
execution issue thereon, the sheriff may cause the judgment to be
satisfied out of the property attached, if it be sufficient for that
purpose in the following manner:

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(a) By paying to the judgment obligee the proceeds of all sales


of perishable or other property sold in pursuance of the order of
the court, or so much as shall be necessary to satisfy the judgment;
(b) If any balance remains due, by selling so much of the
property, real or personal, as may be necessary to satisfy the balance,
if enough for that purpose remain in the sheriff's hands, or in those the
clerk of the court;
(c) By collecting from all persons having in their possession
credits belonging to the judgment obligor, or owing debts to the
latter at the time of the attachment of such credits or debts, the
amount of such credits and debts as determined by the court in the
action, and stated in the judgment, and paying the proceeds of such
collection over to the judgment obligee.
The sheriff shall forthwith make a return in writing to the court of
his proceedings under this section and furnish the parties with copies
thereof. (15a)
16. Balance due collected upon an execution; excess delivered to
judgment obligor. If after realizing upon all the property attached,
including the proceeds of any debts or credits collected, and applying
the proceeds to the satisfaction of the judgment less the expenses of
proceedings upon the judgment any balance shall remain due, the
sheriff must proceed to collect such balance as upon ordinary
execution. Whenever the judgment shall have been paid, the sheriff,
upon reasonable demand, must return to the judgment obligor the
attached property remaining in his hands, and any proceeds of
the sale of the property attached not applied to the judgment.
(16a)
17. Recovery upon the counter-bond. When the judgment has
become executory, the surety or sureties on any counter-bond
given pursuant to the provisions of this Rule to secure the payment of
the judgment shall become charged on such counter-bond and
bound to pay the judgment obligee upon demand the amount due
under the judgment, which amount may be recovered from such surety
or sureties after notice and summary hearing in the same action. (17a)
18. Disposition of money deposited. Where the party against
whom attachment had been issued has deposited money instead of
giving counter-bond, it shall be applied under the direction of the
court to the satisfaction of any judgment rendered in favor of the
attaching party, and after satisfying the judgment the balance shall be
refunded to the depositor or his assignee. If the judgment is in favor of
the party against whom attachment was issued, the whole sum
deposited must be refunded to him or his assignee. (18a)
19. Disposition of attached property where judgment is for party
against whom attachment was issued. If judgment be rendered
against the attaching party, all the proceeds of sales and money
collected or received by the sheriff, under the order of attachment, and
all property attached remaining in any such officer's hands, shall be
delivered to the party against whom attachment was issued, and
the order of attachment discharged. (19a)
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

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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. (20a)
Grounds
PCL INDUSTRIES vs. CA

1(d), Rule 57. This particular provision was adequately explained in


Liberty Insurance Corporation v. Court of Appeals, as follows

To sustain an attachment on this ground, it must be shown that the


debtor in contracting the debt or incurring the obligation intended
to defraud the creditor. The fraud must relate to the execution of the
agreement and must have been the reason which induced the other
party into giving consent which he would not have otherwise given. To
constitute a ground for attachment in 1 (d), Rule 57 of the Rules
of Court, fraud should be committed upon contracting the
obligation sued upon. A debt is fraudulently contracted if at the time
of contracting it the debtor has a preconceived plan or intention not to
pay, as it is in this case. Fraud is a state of mind and need not be
proved by direct evidence but may be inferred from the circumstances
attendant in each case.

The absence of factual allegations as to how the fraud alleged by


petitioner was committed must be shown. Such fraudulent intent
not to honor the admitted obligation cannot be inferred from the
debtor's inability to pay or to comply with the obligations.

CAB: The affidavit does not contain statements of other factual


circumstances to show that petitioner, at the time of contracting the
obligation, had a preconceived plan or intention not to pay. Verily, in
this case, the mere fact that petitioner failed to pay its purchases upon
falling due and despite several demands made by private respondent,
is not enough to warrant the issuance of the harsh provisional remedy
of preliminary attachment.

MAGALING vs. ONG

A writ of preliminary attachment is a provisional remedy by virtue of


which a plaintiff or other proper party may, at the commencement of
the action or at any time thereafter, have the property of the adverse
party taken into the custody of the court as security for the satisfaction
of the judgment that may be recovered. The chief purpose of the

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remedy of attachment is to secure a contingent lien on defendant's


property until plaintiff can, by appropriate proceedings, obtain a
judgment and have such property applied to its satisfaction, or to make
some provision for unsecured debts in cases where the means of
satisfaction thereof are liable to be removed beyond the jurisdiction, or
improperly disposed of or concealed, or otherwise placed beyond the
reach of creditors.
Once the writ of preliminary attachment is issued, the same rule
provides for TWO WAYS BY WHICH IT CAN BE DISSOLVED OR
DISCHARGED

First, the writ of preliminary attachment may be discharged upon a


security given, i.e., a counter-bond, viz.:

12. Discharge of attachment upon giving counter-bound.

Second, said provisional remedy must be shown to have been


irregularly or improperly issued, to wit:

13. Discharge of attachment on other grounds.

CAB: there is no question that no counter bond was given by the


Spouses Magaling for the discharge or dissolution of the writ of
preliminary attachment, as their position is that the provisional
remedy was irregularly or improperly issued. They sought the
discharge or dissolution of the writ based on 13, Rule 57 of the
Rules of Court. Under said provision, when the attachment is
challenged for having been ILLEGALLY OR IMPROPERLY issued,
there must be a hearing, with the burden of proof to sustain the
writ being on the attaching creditor. That hearing embraces not
only the right to present evidence but also a reasonable opportunity to
know the claims of the opposing parties and meet them. It means a fair
and open hearing. Herein, there is no showing that a hearing was
conducted prior to the issuance of the 19 February 1999 Order of the
RTC discharging or dissolving the writ of preliminary attachment. That
Ong was able to file an opposition to the motion of the Spouses
Magaling to discharge the preliminary attachment is of no moment.
The written opposition filed is not equivalent to a hearing. The absence
of a hearing before the RTC bars the discharge of the writ of
preliminary attachment for the simple reason that the discharge or
dissolution of said writ, whether under Sec. 12 or Sec. 13 of Rule 57 of
the Rules of Court, as amended, shall be granted only "after due notice
and hearing".

PROFESSIONAL VIDEO vs. TESDA

CIVIL

A non-corporate government entity performs a function proprietary in


nature does not necessarily result in its being suable. If said nongovernmental function is undertaken as an incident to its governmental
function, there is no waiver thereby of the sovereign immunity from suit
extended to such government entity.

TESDA's funds are public in character, hence exempt from


attachment or garnishment.

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PROVI, in this case, never entrusted any money or property to TESDA.


While the Contract Agreement is supported by a Certificate as to
Availability of Funds (Certificate) issued by the Chief of TESDA's
Accounting Division, this Certificate does not automatically confer
ownership over the funds to PROVI. Absent any actual
disbursement, these funds form part of TESDA's public funds, and
TESDA's failure to pay PROVI the amount stated in the Certificate
cannot be construed as an act of fraudulent misapplication or
embezzlement.

METRO INC. vs. LARAS GIFTS


Even assuming that TESDA entered into a proprietary contract with
PROVI and thereby gave its implied consent to be sued, TESDA's
funds are still public in nature and, thus, cannot be the valid subject of
a writ of garnishment or attachment. Under Section 33 of the TESDA
Act, the TESDA budget for the implementation of the Act shall be
included in the annual General Appropriation Act; hence, TESDA
funds, being sourced from the Treasury, are moneys belonging to the
government, or any of its departments, in the hands of public officials.

'The State may not be sued without its consent.' A corollary, both
dictated by logic and sound sense, from such a basic concept, is that
public funds cannot be the object of garnishment proceedings even if
the consent to be sued had been previously granted and the state
liability adjudged.

To sustain an attachment on this ground, it must be shown that the


debtor in contracting the debt or incurring the obligation intended to
defraud the creditor. The fraud must relate to the execution of the
agreement and must have been the reason which induced the other
party into giving consent which he would not have otherwise given. To
constitute a ground for attachment in 1(d), Rule 57 of the Rules of
Court, fraud should be committed upon contracting the obligation
sued upon. A debt is fraudulently contracted if at the time of
contracting it the debtor has a preconceived plan or intention not
to pay, as it is in this case.

Ex Parte Issuance

As pointed out by TESDA in its Memorandum, the garnished funds


constitute TESDA's lifeblood in government parlance, its MOOE
whose withholding via a writ of attachment, even on a temporary basis,
would paralyze TESDA's functions and services. As well, these funds
also include TESDA's Personal Services funds from which salaries of
TESDA personnel are sourced. Again and for obvious reasons, the
release of these funds cannot be delayed.

Jurisprudence teaches us that the rule on the issuance of a writ of


attachment must be construed strictly in favor of the defendant.
Attachment, a harsh remedy, must be issued only on concrete and
specific grounds and not on general averments merely quoting
the words of the pertinent rules. Thus, the applicant's affidavit
must contain statements clearly showing that the ground relied
upon for the attachment exists.

CAB: 1(b), Rule 57 of the Rules of Court, that PROVI relied upon,
applies only where money or property has been embezzled or
converted by a public officer, an officer of a corporation, or some other
person who took advantage of his fiduciary position or who willfully
violated his duty.

DAVAO LIGHT vs. COURT OF APPEALS

The events that follow the filing of the complaint as a matter of routine
are well known. After the complaint is filed, summons issues to the
defendant, the summons is then transmitted to the sheriff, and finally,
service of the summons is effected on the defendant in any of the ways
authorized by the Rules of Court. There is thus ordinarily some
appreciable interval of time between the day of the filing of the
complaint and the day of service of summons of the defendant. During
this period, different acts may be done by the plaintiff or by the
Court, which are unquestionable validity and propriety. Among these,
for example, are the appointment of a guardian ad litem, the grant
of authority to the plaintiff to prosecute the suit as a pauper
litigant, the amendment of the complaint by the plaintiff as a
matter of right without leave of court, authorization by the Court
of service of summons by publication, the dismissal of the action
by the plaintiff on mere notice.
This, too, is true with regard to the provisional remedies of
preliminary attachment, preliminary injunction, receivership or
replevin. They may be validly and properly applied for and
granted even before the defendant is summoned or is heard from.
A preliminary attachment may be defined, paraphrasing the Rules of
Court, as the provisional remedy in virtue of which a plaintiff or other
party may, at the commencement of the action or at any time

CIVIL

thereafter, have the property of the adverse party taken into the
custody of the court as security for the satisfaction of any
judgment that may be recovered. It is a remedy which is purely
statutory in respect of which the law requires a strict construction of the
provisions granting it. Withal no principle, statutory or jurisprudential,
prohibits its issuance by any court before acquisition of jurisdiction over
the person of the defendant.
Rule 57 in fact speaks of the grant of the remedy "at the
commencement of the action or at any time thereafter." The phase, "at
the commencement of the action," obviously refers to the date of the
filing of the complaint which, as above pointed out, is the date that
marks "the commencement of the action;" and the reference plainly
is to a time before summons is served on the defendant, or even
before summons issues. What the rule is saying quite clearly is that
after an action is properly commenced by the filing of the complaint
and the payment of all requisite docket and other fees the plaintiff
may apply for and obtain a writ of preliminary attachment upon
fulfillment of the pertinent requisites laid down by law, and that he
may do so at any time, either before or after service of summons
on the defendant.
A hearing on a motion or application for preliminary attachment is not
generally necessary unless otherwise directed by the Trial Court
in its discretion, "nothing in the Rules of Court makes notice and
hearing indispensable and mandatory requisites for the issuance of a
writ of attachment." The ONLY PRE-REQUISITE is that the Court be
satisfied, upon consideration of (a) the affidavit of the applicant or
of some other person who personally knows the facts, that a
sufficient cause of action exists, (b) that the case is one of those
mentioned in 1), (c) that there is no other sufficient security for
the claim sought to be enforced by the action, and that the
amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the
sum for which the order (of attachment) is granted above all legal
counterclaims." If the court be so satisfied, the "order of attachment
shall be granted," and the writ shall issue upon the applicant's
posting of "a bond executed to the adverse party in an amount to
be fixed by the judge, not exceeding the plaintiffs claim, conditioned
that the latter will pay all the costs which may be adjudged to the
adverse party and all damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the applicant was not
entitled thereto."
In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, the
Court emphasized the postulate that no hearing is required on an
application for preliminary attachment, with notice to the defendant, for
the reason that this "would defeat the objective of the remedy . . .
(since the) time which such a hearing would take, could be enough to
enable the defendant to abscond or dispose of his property before a
writ of attachment issues."
******

With respect to the other provisional remedies, i.e., preliminary


injunction (Rule 58), receivership (Rule 59), replevin or delivery of
personal property (Rule 60), the rule is the same: they may also
issue ex parte.

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It goes without saying that whatever be the acts done by the Court
prior to the acquisition of jurisdiction over the person of
defendant, as above indicated issuance of summons, order of
attachment and writ of attachment (and/or appointments of
guardian ad litem, or grant of authority to the plaintiff to prosecute the
suit as a pauper litigant, or amendment of the complaint by the plaintiff
as a matter of right without leave of court and however valid and
proper they might otherwise be, these do not and cannot bind and
affect the defendant until and unless jurisdiction over his person
is eventually obtained by the court, either by service on him of
summons or other coercive process or his voluntary submission
to the court's authority. Hence, when the sheriff or other proper
officer commences IMPLEMENTATION OF THE WRIT OF
ATTACHMENT, it is essential that he serve on the defendant not
only a copy of the applicant's affidavit and attachment bond, and
of the order of attachment, as explicity required by 5 of Rule 57,
but also the summons addressed to said defendant as well as a
copy of the complaint and order for appointment of guardian ad
litem, if any, as also explicity directed by 3, Rule 14 of the Rules
of Court. Service of all such documents is indispensable not only for
the acquisition of jurisdiction over the person of the defendant, but also
upon considerations of fairness, to apprise the defendant of the
complaint against him, of the issuance of a writ of preliminary
attachment and the grounds therefor and thus accord him the
opportunity to prevent attachment of his property by the posting of a
counterbond in an amount equal to the plaintiff's claim in the
complaint pursuant to 5 (or 12), Rule 57, or dissolving it by
causing dismissal of the complaint itself on any of the grounds
set forth in Rule 16, or demonstrating the insufficiency of the
applicant's affidavit or bond in accordance with Section 13, Rule 57.

The Court reiterates and reaffirms the proposition that writs of


attachment may properly issue ex parte provided that the Court is
satisfied that the relevant requisites therefor have been fulfilled
by the applicant, although it may, in its discretion, require prior
hearing on the application with notice to the defendant; but that
levy on property pursuant to the writ thus issued may not be
validly effected unless preceded, or contemporaneously
accompanied, by service on the defendant of summons, a copy of
the complaint (and of the appointment of guardian ad litem, if
any), the application for attachment (if not incorporated in but
submitted separately from the complaint), the order of
attachment, and the plaintiff's attachment bond.
Provisional/Ancillary

SILANGAN TEXTILE vs. JUDGE


Attachment is an ancillary remedy. It is not sought for its own sake but
rather to enable the attaching party to realize upon relief sought and
expected to be granted in the main or principal action. Being an
ancillary or auxiliary remedy, it is available during the pendency
of the action which may be resorted to by a litigant to preserve
and protect certain rights and interests therein pending rendition,
and for purposes of the ultimate effects, of a final judgment in the
case. They are provisional because they constitute temporary
measures availed of during the pendency of the action and they are
ancillary because they are mere incidents in and are dependent upon
the result of the main action.

CIVIL

A writ of preliminary attachment is a species of provisional remedy. As


such, it is a collateral proceeding, permitted only in connection
with a regular action, and as one of its incidents; one of which is
provided for present need, or for the occasion; that is, one
adapted to meet a particular exigency. On the basis of the
preceding discussion and the fact that we find the dismissal of Civil
Case No. 00-00420 to be in order, the writ of preliminary attachment
issued by the trial court in the said case must perforce be lifted.

Discharge of an Attachment

DAVAO LIGHT vs. COURT OF APPEALS

That separate opinion stressed that there are two (2) ways of
discharging an attachment: first, by the posting of a counterbond;
and second, by a showing of its improper or irregular issuance.
1.0. The submission of a counterbond is an efficacious mode of lifting
an attachment already enforced against property, or even of preventing
its enforcement altogether.
1.1. When property has already been seized under attachment, the
attachment may be discharged upon counterbond in accordance with
12 of Rule 57.
12. Discharge of attachment upon giving counterbond. At any time after an
order of attachment has been granted, the party whose property has been
attached or the person appearing in his behalf, may, upon reasonable notice to
the applicant, apply to the judge who granted the order, or to the judge of the
court in which the action is pending, for an order discharging the attachment
wholly or in part on the security given . . . in an amount equal to the value of the
property attached as determined by the judge to secure the payment of any
judgment that the attaching creditor may recover in the action. . . .

1.2. But even before actual levy on property, seizure under


attachment may be prevented also upon counterbond. The
defendant need not wait until his property is seized before seeking the
discharge of the attachment by a counterbond. This is made possible
by Section 5 of Rule 57.
Sec. 5. Manner of attaching property. The officer executing the order shall
without delay attach, to await judgment and execution in the action, all the
properties of the party against whom the order is issued in the province, not
exempt from execution, or so much thereof as may be sufficient to satisfy the
applicant's demand, unless the former makes a deposit with the clerk or judge of
the court from which the order issued, or gives a counter-bond executed to the
applicant, in an amount sufficient to satisfy such demand besides costs, or in an
amount equal to the value of the property which is about to be attached, to
secure payment to the applicant of any judgment which he may recover in the
action. . .

2.0. Aside from the filing of a counterbond, a preliminary attachment


may also be lifted or discharged on the ground that it has been
irregularly or improperly issued, in accordance with 13 of Rule 57.
Like the first, this second mode of lifting an attachment may be
resorted to even before any property has been levied on. Indeed, it

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may be availed of after property has been released from a levy on


attachment, as is made clear by said 13, viz.:
13. Discharge of attachment for improper or irregular issuance. The party
whose property has been attached may also, at any time either BEFORE or
AFTER the release of the attached property, or before any attachment shall have
been actually levied, upon reasonable notice to the attaching creditor, apply to
the judge who granted the order, or to the judge of the court in which the action is
pending, for an order to discharge the attachment on the ground that the same
was improperly or irregularly issued. If the motion be made on affidavits on the
part of the party whose property has been attached, but not otherwise, the
attaching creditor may oppose the same by counter-affidavits or other evidence
in addition to that on which the attachment was made. . . .

This is so because "(a)s pointed out in Calderon v. I.A.C., 155 SCRA


531 (1987), The attachment debtor cannot be deemed to have
waived any defect in the issuance of the attachment writ by
simply availing himself of one way of discharging the attachment
writ, instead of the other. Moreover, the filing of a counterbond is a
speedier way of discharging the attachment writ maliciously sought out
by the attaching creditor instead of the other way, which, in most
instances . . . would require presentation of evidence in a fullblown trial
on the merits, and cannot easily be settled in a pending incident of the
case."
It may not be amiss to here reiterate other related principles dealt with
in Mindanao Savings & Loans Asso. Inc. v. C.A., supra., 28 to wit:
(a) When an attachment MAY NOT BE DISSOLVED by a showing of its irregular
or improper issuance (GROUNDS: property embezzled and fraud in
contracting of debt)
. . . (W)hen the preliminary attachment is issued upon a ground which is at the
same time the applicant's cause of action; e.g., "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." (Sec. 1 [b], Rule 57), or "an action
against a party who has been guilty of fraud m contracting the debt or incurring
the obligation upon which the action is brought" (Sec. 1 [d], Rule 57), the
defendant is not allowed to file a motion to dissolve the attachment under Section
13 of Rule 57 by offering to show the falsity of the factual averments in the
plaintiff's application and affidavits on which the writ was based and
consequently that the writ based thereon had been improperly or irregularly
issued (SEE Benitez v. I.A.C., 154 SCRA 41) the reason being that the
hearing on such a motion for dissolution of the writ would be tantamount to
a trial of the merits of the action. In other words, the merits of the action
would be ventilated at a mere hearing of a motion, instead of at the regular
trial. Therefore, when the writ of attachment is of this nature, the only way it
can be dissolved is by a counterbond (G.B. Inc. v. Sanchez, 98 Phil. 886).

(b) Effect of the dissolution of a preliminary attachment on the plaintiffs


attachment bond:
. . . The dissolution of the preliminary attachment upon security given, or a
showing of its irregular or improper issuance, does not of course operate
to discharge the sureties on plaintiff's own attachment bond. The reason is
simple. That bond is "executed to the adverse party, . . . conditioned that the . . .
(applicant) will pay all the costs which may be adjudged to the adverse party and
all damages which he may sustain by reason of the attachment, if the court shall
finally adjudge that the applicant was not entitled thereto" (SEC. 4, Rule 57).
Hence, until that determination is made, as to the applicant's entitlement to the
attachment, his bond must stand and cannot be with-drawn.

SECURITY PACIFIC ASSURANCE vs. HON. JUDGE

CIVIL

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be made liable when the law clearly does not require such requisites to
be fulfilled.
Suretyship is a contractual relation resulting from an agreement
whereby one person, the surety, engages to be answerable for the
debt, default or miscarriage of another, known as the principal. The
surety's obligation is not an original and direct one for the performance
of his own act, but merely accessory or collateral to the obligation
contracted by the principal. Nevertheless, although the contract of a
surety is in essence secondary only to a valid principal obligation, his
liability to the creditor or promise of the principal is said to be direct,
primary and absolute; in other words, he is directly and equally bound
with the principal. The surety therefore becomes liable for the debt or
duty of another although he possesses no direct or personal interest
over the obligations nor does he receive any benefit therefrom.

INSULAR SAVINGS vs. COURT OF APPEALS

The records show that the principal claim of respondent, as plaintiff a


quo, is in the amount of P25,200,000.00, representing the three (3)
unfunded checks drawn against, and presented for clearing to,
respondent bank. Jurisprudence teaches that a writ of attachment
cannot be issued for moral and exemplary damages, and other
unliquidated or contingent claim.

In view of the nature and purpose of a surety agreement, petitioner,


thus, is barred from disclaiming liability.

The necessary steps in the discharge of an attachment upon giving


counter-bond have been taken. To require a specific order for the
discharge of the attachment when this Court, in our decision in G.R.
No. 106214, had already declared that the petitioner is solidarily bound
with Villaluz would be mere surplusage. Thus:
During the pendency of this petition, a counter-attachment bond was
filed by petitioner Villaluz before this Court to discharge the attachment
earlier issued by the trial court. Said bond amounting to P2.5 million
was furnished by Security Pacific Assurance, Corp. which agreed to
bind itself "jointly and severally" with petitioner for "any judgment" that
may be recovered by private respondent against the former.
We are not unmindful of our ruling in the case of Belisle Investment
and Finance Co., Inc. v. State Investment House, Inc., where we held:
[T]he Court of Appeals correctly ruled that the mere posting of a
counterbond does not automatically discharge the writ of
attachment. It is only after hearing and after the judge has
ordered the discharge of the attachment if a cash deposit is made
or a counterbond is executed to the attaching creditor is filed,
that the writ of attachment is properly discharged under Section
12, Rule 57 of the Rules of Court.
The ruling in Belisle, at first glance, would suggest an error in the
assailed ruling of the Court of Appeals because there was no specific
resolution discharging the attachment and approving the counter-bond.
As above-explained, however, consideration of our decision in G.R.
No. 106214 in its entirety will readily show that this Court has virtually
discharged the attachment after all the parties therein have been heard
on the matter.

The contract of surety is only between petitioner Villaluz and petitioner


corporation. The petitioner corporation cannot escape liability by
stating that a court approval is needed before it can be made liable.
This defense can only be availed by petitioner corporation against
petitioner Villaluz but not against third persons who are not parties to
the contract of surety. The petitioners hold themselves out as jointly
and severally liable without any conditions in the counter-attachment
bond. The petitioner corporation cannot impose requisites before it can

As things stood, therefore, respondent's principal claim against


petitioner immediately prior to the filing of the motion to discharge
attachment has effectively been pruned down to P12,600,000.00. The
trial court was fully aware of this reality. Accordingly, it should have
allowed a total discharge of the attachment on a counter-bond
based on the reduced claim of respondent. If a portion of the
claim is already secured, we see no justifiable reason why such
portion should still be subject of counter-bond. It may be that a
counter-bond is intended to secure the payment of any judgment
that the attaching party may recover in the main action. Simple
common sense, if not consideration of fair play, however, dictates that
a part of a possible judgment that has veritably been preemptively
satisfied or secured need not be covered by the counter-bond.

SOFIA TORRES vs. NICANOR SALSATIN

In the case at bar, the CA correctly found that there was grave abuse
of discretion amounting to lack of or in excess of jurisdiction on the part
of the trial court in approving the bond posted by petitioners despite the
fact that not all the requisites for its approval were complied with. In
accepting a surety bond, it is necessary that all the requisites for
its approval are met; otherwise, the bond should be rejected.

Every bond should be accompanied by a clearance from the


Supreme Court showing that the company concerned is qualified
to transact business which is valid only for thirty (30) days from
the date of its issuance. However, it is apparent that the Certification
issued by the Office of the Court Administrator (OCA) at the time the
bond was issued would clearly show that the bonds offered by Western
Guaranty Corporation may be accepted only in the RTCs of the cities
of Makati, Pasay, and Pasig. Therefore, the surety bond issued by the
bonding company should not have been accepted by the RTC of
Dasmarias, Branch 90, since the certification secured by the bonding
company from the OCA at the time of the issuance of the bond certified
that it may only be accepted in the above-mentioned cities. Thus, the
trial court acted with grave abuse of discretion amounting to lack of or

CIVIL

in excess of jurisdiction when it issued the writ of attachment founded


on the said bond.

RULE 58: PRELIMINARY INJUNCTION

1. Preliminary injunction defined; classes. A preliminary injunction


is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts. It may also require
the performance of a particular act or acts, in which case it shall be
known as a preliminary mandatory injunction. (1a)
2. Who may grant preliminary injunction. A preliminary injunction
may be granted by the court where the action or proceeding is
pending. If the action or proceeding is pending in the Court of Appeals
or in the Supreme Court, it may be issued by said court or any member
thereof. (2a)
3. Grounds for issuance of preliminary injunction. A preliminary
injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the
whole or part of such relief consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the
performance of an act or acts either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the
act or acts complained of during the litigation would probably work
injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening,
or is attempting to do, or is procuring or suffering to be done some act
or acts probably in violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render the judgment
ineffectual. (3a)
4. Verified application and bond for preliminary injunction or
temporary restraining order. A preliminary injunction or temporary
restraining order may be granted only when:
(a) The application in the action or proceeding is verified, and
shows facts entitling the applicant to the relief demanded; and
(b) Unless exempted by the court the applicant files with the
court where the action or proceeding is pending, a bond executed
to the party or person enjoined, in an amount to be fixed by the court,
to the effect that the applicant will pay to such party or person all
damages which he may sustain by reason of the injunction or
temporary restraining order if the court should finally decide that the
applicant was not entitled thereto. Upon approval of the requisite bond,
a writ of preliminary injunction shall be issued. (4a)
(c) When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court, shall
be raffled only after notice to and in the presence of the adverse
party or the person to be enjoined. In any event, such notice shall
be preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint or initiatory pleading
and the applicant's affidavit and bond, upon the adverse party in the
Philippines.
However, where the summons could not be served personally
or by substituted service despite diligent efforts, or the adverse

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party is a resident of the Philippines temporarily absent therefrom or


is a nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
(d) The application for a temporary restraining order shall
thereafter be acted upon only after all parties are heard in a
summary hearing which shall be conducted within twenty-four
(24) hours after the sheriff's return of service and/or the records are
received by the branch selected by raffle and to which the records shall
be transmitted immediately.
5. Preliminary injunction not granted without notice; exception. No
preliminary injunction shall be granted without hearing and prior
notice to the party or person sought to be enjoined. If it shall
appear from facts shown by affidavits or by the verified application that
great or irreparable injury would result to the applicant before the
matter can be heard on notice, the court to which the application for
preliminary injunction was made, may issue a temporary restraining
order to be effective only for a period of twenty (20) days from
service on the party or person sought to be enjoined, except as herein
provided. Within the said twenty-day period, the court must order
said party or person to show cause, at a specified time and place,
why the injunction should not be granted, determine within the
same period whether or not the preliminary injunction shall be granted,
and accordingly issue the corresponding order. (Bar Matter No. 803, 17
February 1998)
However, and subject to the provisions of the preceding sections, if the
matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of a multiplesala court or the presiding judge of a single sala court may issue EX
PARTE a temporary restraining order effective for only seventytwo (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.
In the event that the application for preliminary injunction is
denied or not resolved within the said period, the temporary
restraining order is deemed, AUTOMATICALLY VACATED. The
effectivity of a temporary restraining order is not extendible without
need of any judicial declaration to that effect and no court shall
have authority to extend or renew the same on the same ground for
which it was issued.
However, if issued by the Court of Appeals or a member thereof, the
temporary restraining order shall be effective for sixty (60) days from
service on the party or person sought to be enjoined. A restraining,
order issued by the Supreme Court or a member thereof shall be
effective until further orders. (5a)
6. Grounds for objection to, or for motion of dissolution of, injunction
or restraining order. The APPLICATION FOR INJUNCTION or
restraining order may be denied, upon a showing of its
insufficiency. The INJUNCTION OR RESTRAINING ORDER may
also be denied, or, if granted, may be dissolved, on other grounds
upon affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits. It may further be denied, or
if granted, may be dissolved, if it appears after hearing that although
the applicant is entitled to the injunction or restraining order, the
issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the
applicant can be fully compensated for such damages as he may
suffer, and the former files a bond in an amount fixed by the court
conditioned that he will pay all damages which the applicant may suffer
by the denial or the dissolution of the injunction or restraining order. If it

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appears that the extent of the preliminary injunction or restraining order


granted is too great, it may be modified. (6a)
7. Service of copies of bonds; effect of disapproval of same. The
party filing a bond in accordance with the provisions of this Rule shall
forthwith serve a copy of such bond on the other party, who may
except to the sufficiency of the bond, or of the surety or sureties
thereon. If the applicant's bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved after
justification is not filed forthwith the injunction shall be dissolved.
If the bond of the adverse party is found to be insufficient in
amount, or the surety or sureties thereon fail to justify a bond sufficient
in amount with sufficient sureties approved after justification is not filed
forthwith, the injunction shall be granted or restored, as the case
may be. (8a)
8. Judgment to include damages against party and sureties. At the
trial, the amount of damages to be awarded to either party, upon the
bond of the adverse party, shall be claimed, ascertained, and
awarded under the same procedure prescribed in section 20 of Rule
57. (9a)
9. When final injunction granted. If after the trial of the action it
appears that the applicant is entitled to have the act or acts
complained of permanently enjoined the court shall grant a final
injunction perpetually restraining the party or person enjoined
from the commission or continuance of the act or acts of confirming the
preliminary mandatory injunction. (10a)
Clear Legal Right

FILIPINO METALS vs. SECRETARY OF TRADE


We have ruled that when the petitioner assailing a statute has
made out a case of unconstitutionality strong enough to
overcome, in the mind of the judge, the presumption of validity, in
addition to a showing of a clear legal right to the remedy sought,
the court should issue a writ of preliminary injunction.
After a careful consideration of the submission by the parties, we are
convinced that petitioners herein have established a strong case for
the unconstitutionality of Rep. Act No. 8800 sufficient for the grant of a
preliminary injunction. Note, however, that a writ of preliminary
injunction is issued merely to preserve the STATUS QUO ANTE. Its
sole objective is to preserve the status quo until the merits of the
case can be heard fully. It is generally availed of to prevent actual
or threatened acts, until the merits of the case can be disposed
of.

Only two requisites are necessary for a preliminary injunction to


issue: (1) the existence of a right to be protected and (2) the facts,
against which the injunction is to be directed violate said right. While a
clear showing of the right is necessary, its EXISTENCE need not
be conclusively established. In fact, the evidence required to justify
the issuance of a writ of preliminary injunction need not be
conclusive or complete. The evidence need only give the court an
idea of the justification for the preliminary injunction, pending the
decision of the case on the merits. Thus, to be entitled to the writ,
petitioners are only required to show that they have an ostensible
right to the final relief prayed for in their complaint.

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CAB: Petitioners have demonstrated a clear right threatened by the


questioned safeguard measures. Being in a business heavily
dependent on importation of steel, they would be severely damaged
once safeguard measures are applied against steel imports.
Petitioners have shown, to the satisfaction of the trial court and this
Court that any increase in tariffs or quantitative restriction on imports
will force them to close down their respective businesses and lay off
their employees.

LEVI STRAUSS vs. CLINTON APPARELLE

1. REMEDIAL LAW; PROVISIONAL REMEDIES; PRELIMINARY


INJUNCTION; DEFINED. Section 1, Rule 58 of the Rules of Court
defines a preliminary injunction as an order granted at any stage of an
action prior to the judgment or final order requiring a party or a court,
agency or a person to refrain from a particular act or acts. Injunction is
accepted as the strong arm of equity or a transcendent remedy to be
used cautiously as it affects the respective rights of the parties, and
only upon full conviction on the part of the court of its extreme
necessity. An extraordinary remedy, injunction is designed to
preserve or maintain the status quo of things and is generally
availed of to prevent actual or threatened acts until the merits of
the case can be heard. It may be resorted to only by a litigant for
the preservation or protection of his rights or interests and for no
other purpose during the pendency of the principal action. It is
resorted to only when there is a pressing necessity to avoid injurious
consequences, which cannot be remedied under any standard
compensation. The resolution of an application for a writ of preliminary
injunction rests upon the existence of an emergency or of a special
recourse before the main case can be heard in due course of
proceedings.
2. NOT A REMEDY TO PROTECT OR ENFORCE CONTINGENT,
ABSTRACT OR FUTURE RIGHTS. Injunction is not a remedy to
protect or enforce contingent, abstract, or future rights; it will not
issue to protect a right not in esse and which may never arise, or
to restrain an act which does not give rise to a cause of action.
There must exist an ACTUAL RIGHT. There must be a patent showing
by the complaint that there exists a right to be protected and that the
acts against which the writ is to be directed are violative of said right.
3. KINDS. There are generally two kinds of preliminary injunction:
(1) a PROHIBITORY INJUNCTION which commands a party to refrain
from doing a particular act; and (2) a MANDATORY INJUNCTION
which commands the performance of some positive act to correct a
wrong in the past.
4. THE EXERCISE OF DISCRETION BY THE TRIAL COURT IN
INJUNCTIVE MATTERS IS GENERALLY NOT INTERFERED WITH
SAVE IN CASES OF MANIFEST ABUSE. While the matter of the
issuance of a writ of preliminary injunction is addressed to the sound
discretion of the trial court, this discretion must be exercised based
upon the grounds and in the manner provided by law. The exercise of
discretion by the trial court in injunctive matters is generally not
interfered with save in cases of manifest abuse. And to determine
whether there was abuse of discretion, a scrutiny must be made of the
bases, if any, considered by the trial court in granting injunctive relief.
5. COMMERCIAL LAW; INTELLECTUAL PROPERTY LAW;
TRADEMARKS; TRADEMARK DILUTION, DEFINED; WHEN
ELIGIBLE FOR PROTECTION FROM DILUTION; CASE AT BAR.
Trademark dilution is the lessening of the capacity of a famous mark to
identify and distinguish goods or services, regardless of the presence
or absence of: (1) competition between the owner of the famous mark
and other parties; or (2) likelihood of confusion, mistake or deception.
Subject to the principles of equity, the owner of a famous mark is

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entitled to an injunction "against another person's commercial use in


commerce of a mark or trade name, if such use begins after the mark
has become famous and causes dilution of the distinctive quality of the
mark." This is intended to protect famous marks from subsequent uses
that blur distinctiveness of the mark or tarnish or disparage it. Based
on the foregoing, to be eligible for protection from dilution, there
has to be a finding that: (1) the trademark sought to be protected
is famous and distinctive; (2) the use by respondent of "Paddocks
and Design" began after the petitioners' mark became famous;
and (3) such subsequent use defames petitioners' mark. In the
case at bar, petitioners have yet to establish whether "Dockers and
Design" has acquired a strong degree of distinctiveness and whether
the other two elements are present for their cause to fall within the
ambit of the invoked protection. The Trends MBL Survey Report which
petitioners presented in a bid to establish that there was confusing
similarity between two marks is not sufficient proof of any dilution that
the trial court must enjoin.
6. REMEDIAL LAW; PROVISIONAL REMEDIES; PRELIMINARY
INJUNCTION; IN GRANTING THE INJUNCTIVE RELIEF, THE TRIAL
COURT MUST STATE ITS OWN FINDINGS OF FACT AND CITE THE
PARTICULAR LAW JUSTIFYING THE GRANT. The Court also finds
that the trial court's order granting the writ did not adequately detail the
reasons for the grant, contrary to our ruling in University of the
Philippines v. Hon. Catungal Jr., wherein we held that: "The trial court
must state its own findings of fact and cite particular law to justify grant
of preliminary injunction. Utmost care in this regard is demanded." The
trial court in granting the injunctive relief tersely ratiocinated that "the
plaintiffs appear to be entitled to the relief prayed for and this Court is
of the considered belief and humble view that, without necessarily
delving on the merits, the paramount interest of justice will be better
served if the status quo shall be maintained." Clearly, this statement
falls short of the requirement laid down by the above-quoted case.
Similarly, in Developers Group of Companies, Inc. v. Court of Appeals,
we held that it was "not enough" for the trial court, in its order granting
the writ, to simply say that it appeared "after hearing that plaintiff is
entitled to the relief prayed for."
7. A WRIT OF INJUNCTION SHOULD NEVER BE ISSUED WHEN AN
ACTION FOR DAMAGES WOULD ADEQUATELY COMPENSATE
THE INJURIES CAUSED. [W]e agree with the Court of Appeals in
its holding that the damages the petitioners had suffered or continue to
suffer may be compensated in terms of monetary consideration. As
held in GSIS v. Florendo: "a writ of injunction should never have
been issued when an action for damages would adequately
compensate the injuries caused. The very foundation of the
jurisdiction to issue the writ of injunction rests in the probability
of irreparable injury, inadequacy of pecuniary estimation and the
prevention of the multiplicity of suits, and where facts are not
shown to bring the case within these conditions, the relief of
injunction should be refused."
8. COURTS SHOULD AVOID ISSUING A WRIT OF PRELIMINARY
INJUNCTION THAT WOULD IN EFFECT DISPOSE OF THE MAIN
CASE WITHOUT TRIAL. The prevailing rule is that courts should
avoid issuing a writ of preliminary injunction that would in effect
dispose of the main case without trial. There would be a prejudgment
of the main case and a reversal of the rule on the burden of proof since
it would assume the proposition which petitioners are inceptively bound
to prove.
DUVAZ CORPORATION vs. EXPORT & INDUSTRY BANK

CAB: A complaint for reformation of instrument with prayer for a


temporary restraining order and/or writ of preliminary injunction to
enjoin EIB, as defendant in the suit, from commencing any foreclosure
proceedings on the mortgaged properties of the petitioner as plaintiff.

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D O C T R I N E S | 90

The REQUISITES FOR PRELIMINARY INJUNCTIVE RELIEF are:


(a) the invasion of right sought to be protected is material and
substantial;
(b) the right of the plaintiff is clear and unmistakable; and
(c) there is an urgent and paramount necessity for the writ to
prevent serious damage.

A writ of preliminary injunction may be issued only upon clear showing


of an actual existing right to be protected during the pendency of the
principal action. The TWIN REQUIREMENTS of a valid injunction
are the existence of a right and its actual or threatened violation.
Thus, to be entitled to an injunctive writ, the right to be protected and
the violation against that right must be shown.

An injunctive remedy may only be resorted to when there is a pressing


necessity to avoid injurious consequences which cannot be
remedied under any standard compensation. The possibility of
irreparable damage without proof of an actual existing right would
not justify injunctive relief in his favor. In the absence of a clear
legal right, the issuance of the injunctive writ constitutes grave
abuse of discretion.
CAB: The reason therefor is that the right sought to be protected by
the petitioner in this case through the writ of preliminary injunction is
merely contingent and not in esse. The existing written contract
between petitioner and respondent was admittedly one of loan
restructuring; there is no mention whatsoever or even a slightest
reference in that written contract to a supposed agreement of dacion
en pago. It is still necessary for petitioner to establish in the main case
its rights on the alleged dacion en pago before those rights become in
esse or actual and existing. Only then can the injunctive writ be
properly issued. It cannot be the other way around.

EQUITABLE PCIB vs. HON. APURILLO

First, it was well established that YKS had a clear and unmistakable
right over the mortgaged properties. Evidently, as owner of the subject
properties that stand to be foreclosed, YKS is entitled to the
possession and protection thereof when the threat to its foreclosure
was apparent even before the respective rights of the parties are
determined and the issues threshed out in the main action before the
RTC are resolved.
Second, there clearly exists an urgent and paramount necessity to
prevent serious injury on the part of YKS. As aptly concluded by the
RTC in the Resolution denying petitioner's motion for reconsideration:
With regards to the first, it will be recalled that in 1997, plaintiff was
granted a credit line of Php53,000,000.00. This line was secured by a
Real Estate Mortgage on two properties owned by the plaintiff located
in Tacloban City covered by TCT Nos. 22460 and 22461. Out of this
credit line, plaintiff availed of Php10,400,000.00. The question that

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came to the mind of the Court is that, it is not righteous, just and
equitable for the defendant to foreclose and sell the two properties for
the availment of Php10,400,000.00 out of this line for
Php53,000,000.00.

This Court also noted the variance in the amounts being demanded by
the defendant from the plaintiff. The Promissory Note speaks of the
sum of Php140,967,120.36. Its Credit Memo speaks of
Php103,240,277.90. That is a discrepancy of Php37,726,842.36. The
Demand Letter speaks of Php162,295,233.54. It shall mean a
discrepancy of Php59,054,955.64. These discrepancies are too
substantial for this Court to ignore.

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D O C T R I N E S | 91

effect, the trial court accepted respondents' premise about an unlawful


reorganization and prejudged the constitutionality of the questioned
issuances (EO 430, RMO 57-97 and RTAO 28-97 and 1-98 to 35-98).
The trial court's ruling was a reversal of the rule on the burden of proof
since it assumed the proposition which the respondents here were
bound to prove. Moreover, the trial court's grant of the writ of
preliminary injunction in favor of respondents despite the lack of a clear
and unmistakable right on their part constitutes grave abuse of
discretion amounting to lack of jurisdiction.

UNIVERSITY OF THE EAST vs. ANG WONG

It is, therefore, clear that only after a trial on the merits can the true
amount be determined and the foreclosure proceedings will have to
wait until the presentation of the evidence on the merits.
To be sure, to allow the foreclosure proceedings to continue even
before determination of the issues that were brought to the RTC would
place YKS in an oppressively unjust situation where it would be tied up
in litigation for the recovery of its properties should the RTC later
conclude that YKS is entitled to the reliefs prayed for in the main
action.
A writ of preliminary injunction is generally based solely on initial
and incomplete evidence. The evidence submitted during the
hearing on an application for a writ of preliminary injunction is
not conclusive or complete for only a "sampling" is needed to
give the trial court an idea of the justification for the preliminary
injunction pending the decision of the case on the merits.

Injunction should maintain status quo

The lease contracts all expired on December 31, 1999. Respondent


sought to renew the same for another two years, from December 31,
1999 to December 31, 2001. The Manila RTC issued a writ of
preliminary injunction to maintain the status quo pending the
determination of whether the lease contracts should be renewed or
not. Therefore, on December 31, 2001, the date which marked the end
of the two-year extension being sought, the writ lost its usefulness.

In fact, there is no evidence that petitioner ever agreed to the two-year


extension being sought by respondent. Taken together with the trial
court's finding that respondent herein was not paying her rentals, it
appears that respondent was holding on to the leased spaces within
the UE campuses only by virtue of the trial court's writ of preliminary
injunction and not because of any express or implied meeting of the
minds on the renewal of the lease. It taxes our sense of fairness to
know that respondent was apparently using the judicial process to
circumvent her obligation to pay the rentals due from her. Her
ejectment and the collection of all arrearages from her are therefore in
order, if these have not been effected yet.

RUALO vs. PITARGUE

Injunction not proper


1. REMEDIAL LAW; CIVIL PROCEDURE; PROVISIONAL REMEDIES;
PRELIMINARY INJUNCTION; HAS THE SOLE OBJECTIVE OF
PRESERVING THE STATUS QUO UNTIL THE TRIAL COURT HEARS
FULLY THE MERITS OF THE CASE. A preliminary injunction is
merely a provisional remedy, an adjunct to the main case subject to the
latter's outcome. Its sole objective is to preserve the status quo until
the trial court hears fully the merits of the case. The STATUS QUO is
the last actual, peaceable and uncontested situation which
precedes a controversy. The status quo should be that existing at
the time of the filing of the case. A preliminary injunction should not
establish new relations between the parties, but merely maintain or reestablish the pre-existing relationship between them.
2. A TRIAL COURT'S GRANT OF A WRIT OF PRELIMINARY
INJUNCTION IN FAVOR OF A PARTY DESPITE THE LACK OF A
CLEAR AND UNMISTAKABLE RIGHT ON HIS PART CONSTITUTES
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION; CASE AT BAR. Courts should avoid issuing a writ
of preliminary injunction which would in effect dispose of the main case
without trial. In issuing the writ of preliminary injunction, the trial court
did not maintain the status quo but restored the situation before the
status quo, that is, the situation before the issuance of the RTAOs. In

TAYAG vs. LACSON

The petitioner has failed to establish his clear and legal right ---

First. The trial court cannot enjoin the respondents, at the instance of
the petitioner, from selling, disposing of and encumbering their
property. As the registered owners of the property, the respondents
have the right to enjoy and dispose of their property without any other
limitations than those established by law, in accordance with Article
428 of the Civil Code.

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The respondents cannot be enjoined from selling or encumbering their


property simply and merely because they had executed Deeds of
Assignment in favor of the petitioner, obliging themselves to assign and
transfer their rights or interests as agricultural farmers/laborers/subtenants over the landholding, and granting the petitioner the exclusive
right to buy the property subject to the occurrence of certain conditions.
The respondents were not parties to the said deeds. There is no
evidence that the respondents agreed, expressly or impliedly, to the
said deeds or to the terms and conditions set forth therein. Indeed,
they assailed the validity of the said deeds on their claim that the same
were contrary to the letter and spirit of P.D. No. 27 and Rep. Act No.
6657. The petitioner even admitted when he testified that he did not
know any of the respondents, and that he had not met any of them
before he filed his complaint in the RTC.

There is no showing in the petitioner's complaint that the respondents


had agreed to sell their property, and that the legal impediments to the
agreement no longer existed. The petitioner and the defendantstenants had yet to submit the Deeds of Assignment to the Department
of Agrarian Reform which, in turn, had to act on and approve or
disapprove the same. In fact, as alleged by the petitioner in his
complaint, he was yet to meet with the defendants-tenants to discuss
the implementation of the deeds of assignment. Unless and until the
Department of Agrarian Reform approved the said deeds, if at all, the
petitioner had no right to enforce the same in a court of law by asking
the trial court to fix a period within which to pay the balance of the
purchase price and praying for injunctive relief.
Irreparable Injury

GG SPORTSWEAR vs. BDO

The test for issuing a TRO or an injunction is whether the facts show a
need for equity to intervene in order to protect perceived rights in
equity. In general, a higher court will not set aside the trial courts grant
or denial of an application for preliminary injunction unless it gravely
abused its discretion as when it lacks jurisdiction over the action,
ignores relevant considerations that stick out of the parties pleadings,
sees the facts with a blurred lens, ignores what is relevant, draws
illogical conclusions, or simply acts in random fashion.

First. The mortgaged properties were due for foreclosure. Admittedly,


petitioner G.G. Sportswear had defaulted on the loans secured by the
subject mortgages. Petitioners had, therefore, no right to complain
about losing their properties to foreclosure.

Second. The issue of which party owns the loan receivables and,
consequently, had the right to foreclose the mortgages is essentially an
issue between BDO and PIO. This issue is the concern of petitioners
G.G. Sportswear and Gidwani but only to the extent that they are
entitled to ensure that the proceeds of the foreclosure sale were paid
to the right party.

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D O C T R I N E S | 92

As it happens, however, this is not even a genuine issue. Respondent


PIO, which had been impleaded in the case, did not contest BDOs
ownership of the loan receivables and its right to foreclose the
mortgages. It would, therefore, make no sense to insist that PIO be the
one to foreclose when it denounces such right. Besides, the real estate
mortgages presented for foreclosure remained in BDOs name. No
document has been presented superseding it.

For the above reasons, it cannot be said that petitioners G.G.


Sportswear and Gidwani have established a right to the main
relief they want, namely, the arrest of the foreclosure sale of their
mortgaged properties after they had admitted not paying their
loans. As for their claim that BDO had bloated G.G. Sportswears
outstanding obligation, the remedy if this turns out to be true is to direct
BDO to return the excess proceeds with damages as the
circumstances may warrant.

What is more, the provisional remedy of preliminary injunction may


only be resorted to when there is a pressing necessity to avoid
injurious consequences which cannot be remedied under any standard
of compensation. Here, since there is a valid cause to foreclose on the
mortgages, petitioners G.G. Sportswear and Gidwani cannot claim that
the irreparable damage they wanted to prevent by their application for
preliminary injunction in the loss of their properties to auction sale.
Their real injury, if it turns out that the right to foreclose belongs to PIO
rather than to BDO, is payment of the proceeds of the auction sale to
the wrong party rather than to their creditor. But this kind of injury is
purely monetary and is compensable by an appropriate judgment
against BDO. It is not in any sense an irreparable injury.

Summary Hearing Necessary/Procedure

BORJA vs. SALCEDO

Administrative Circular No. 20-95 provides:

1. Where an application for temporary restraining order (TRO) or writ of


preliminary injunction is included in a complaint or any initiatory
pleading filed with the trial court, such complaint or initiatory pleading
shall be raffled only after notice to the adverse party and in the
presence of such party or counsel.

2. The application for a TRO shall be acted upon only after all parties
are heard in a summary hearing conducted within twenty-four (24)

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hours after the records are transmitted to the branch selected by raffle.
The records shall be transmitted immediately after raffle.

3. If the matter is of extreme urgency, such that unless a TRO is


issued, grave injustice and irreparable injury will arise, the Executive
Judge shall issue the TRO effective only for seventy-two (72) hours
from issuance but shall immediately summon the parties for
conference and immediately raffle the case in their presence.
Thereafter, before the expiry of the seventy-two (72) hours, the
Presiding Judge to whom the case is assigned shall conduct a
summary hearing to determine whether the TRO can be extended for
another period until a hearing in the pending application for preliminary
injunction can be conducted. In no case shall the total period of the
TRO exceed twenty (20) days, including the original seventy-two (72)
hours, for the TRO issued by the Executive Judge.

4. With the exception of the provisions which necessarily involve


multiple-sala stations, these rules shall apply to single-sala stations
especially with regard to immediate notice to all parties of all
applications for TRO.

CAB: It is not disputed that respondent judge issued a TRO without


conducting the required summary hearing. There is no showing that it
falls under the exceptional circumstances enumerated by the aforequoted administrative circular where a TRO may be issued by the
Executive Judge before assignment by raffle to a judge without first
conducting a summary hearing.
There are differences in the requisites for the issuance of a temporary
restraining order and in the life of a TRO when it is issued by an
Executive Judge and when it is issued by a Presiding Judge of a
court
If the temporary restraining order was issued by respondent in his
capacity as Executive Judge, the TRO was good for 72 hours
only. Within that period he was required to summon the parties to a
conference before issuing the TRO and then assign the case by
raffle. Thus, par. 3 of Administrative Circular No. 20-95 provides:
If the matter is of extreme urgency, such that unless a TRO is
issued, grave injustice and irreparable injury will arise, the Executive
Judge shall issue the TRO effective only for seventy-two (72) hours
from issuance but shall immediately summon the parties for
conference and immediately raffle the case in their
presence. Thereafter, before the expiry of the seventy-two (72) hours,
the Presiding Judge to whom the case is assigned shall conduct a
summary hearing to determine whether the TRO can be extended for
another period until a hearing in the pending application for preliminary
injunction can be conducted. In no case shall the total period of the
TRO exceed (20) days, including the original seventy-two (72) hours,
for the TRO issued by the Executive Judge.
On the other hand, if the TRO was issued after the Case had been
raffled to the Branch and respondent judge issued it in his capacity as

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D O C T R I N E S | 93

Acting Judge, then he should have complied with the following


provision of Administrative Circular No. 20-95, par. 2:
The application for a TRO shall be acted upon only after all
parties are heard in a summary hearing conducted within twentyfour (24) hours after the records are transmitted to the branch
selected by raffle. The records shall be transmitted immediately
after raffle.

CAB: Judge issued the questioned TRO in her capacity as Presiding


Judge. She should have known that a summary hearing was
indispensable (i.e., mandatory). The rule holds that before a temporary
restraining order may be issued, all parties must be heard in a
summary hearing first, after the records are transmitted to the branch
selected by raffle. The only instance when a TRO may be issued ex
parte is when the matter is of such extreme urgency that grave
injustice and irreparable injury will arise unless it is issued
immediately. Under such circumstance, the Executive Judge shall
issue the TRO effective for 72 hours only. The Executive Judge shall
then summon the parties to a conference during which the case should
be raffled in their presence. Before the lapse of the 72 hours,
the Presiding Judge to whom the case was raffled shall then conduct a
summary hearing to determine whether the TRO can be extended for
another period until the application for preliminary injunction can be
heard, which period shall in no case exceed 20 days including the
original 72 hours.

Limited Life TRO; Application for PI is denied within the 20-day


period

NEA vs. VILLANUEVA

As to the issue of whether the temporary restraining order issued by


the RTC remained valid even if it was beyond the 20-day period
provided under the Rules of Court, it is settled that under Section 5,
Rule 58 21 of the Rules of Court, a judge may issue a temporary
restraining order within a limited life of twenty (20) days from date of
issue. If before the expiration of the twenty (20)-day period the
application for preliminary injunction is denied, the temporary
restraining order would be deemed automatically vacated. If no action
is taken by the judge on the application for preliminary injunction within
the said twenty (20) days, the temporary restraining order would
automatically expire on the 20th day by the sheer force of law, no
judicial declaration to that effect being necessary and the courts having
no discretion to extend the same. 22 The rule against the nonextendibility of the twenty (20)-day limited period of effectivity of a
temporary restraining order is absolute if issued by a regional trial
court. 23 Hence, the RTC committed error when it ruled that the
temporary restraining order it issued on December 2, 2003 was
effective until January 5, 2004, a period that was beyond the twenty
(20) days allowed under the Rules of Court. This does not mean,
however, that the entire TRO was invalidated. The same remained
valid and in effect, but only within the 20-day period, after which it
automatically expired.
RULE 59: RECEIVERSHIP

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1. Appointment of receiver. Upon a verified application, one or


more receivers of the property subject of the action or proceeding
may be appointed by the court where the action is pending or by the
Court of Appeals or by the Supreme Court, or a member thereof, in the
following cases:
(a) When it appears from the verified application, and such other
proof as the court may require, that the party applying for the
appointment of a receiver has an interest in the property or fund
which is the subject of the action or proceeding, and that such
property or fund is in danger of being lost, removed, or materially
injured unless a receiver be appointed to administer and preserve it;
(b) When it appears in an action by the mortgagee for the
foreclosure of a mortgage that the property is in danger of being
wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the parties
have so stipulated in the contract of mortgage;
(c) After judgment, to preserve the property during the
pendency of an appeal, or to dispose of it according to the
judgment, or to aid execution when the execution has been
returned unsatisfied or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or otherwise to carry the
judgment into effect;
(d) Whenever in other cases it appears that the appointment of a
receiver is the most convenient and feasible means of preserving,
administering, or disposing of the property in litigation.
During the pendency of an appeal, the appellate court may allow an
application for the appointment of a receiver to be filed in and decided
by the court of origin and the receiver appointed to be subject to the
control of said court. (1a)
2. Bond on appointment of receiver. Before issuing the order
appointing a receiver the court shall require the applicant to file a
bond executed to the party against whom the application is presented,
in an amount to be fixed by the court, to the effect that the applicant
will pay such party all damages he may sustain by reason of the
appointment of such receiver in case the applicant shall have
procured such appointment without sufficient cause; and the court
may, in its discretion, at any time after the appointment, require an
additional bond as further security for such damages. (3a)
3. Denial of application or discharge of receiver. The
application may be denied, or the receiver discharged, when the
adverse party files a bond executed to the applicant, in an amount
to be fixed by the court, to the effect that such party will pay the
applicant all damages he may suffer by reason of the acts, omissions,
or other matters specified in the application as ground for such
appointment. The receiver may also be discharged if it is shown that
his appointment was obtained without sufficient cause. (4a)
4. Oath and bond of receiver. Before entering upon his duties,
the receiver shall be sworn to perform them faithfully, and shall
file a bond, executed to such person and in such sum as the court
may direct, to the effect that he will faithfully discharge his duties in the
action or proceeding and obey the orders of the court. (5a)
5. Service of copies of bonds; effect of disapproval of same. The
person filing a bond in accordance with the provisions of this Rule shall
forthwith serve a copy thereof on each interested party, who may
except to its sufficiency or of the surety or sureties thereon. If either the
applicant's or the receiver's bond is found to be insufficient in amount,
or if the surety or sureties thereon fail to justify, and a bond sufficient in

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amount with sufficient sureties approved after justification is not filed


forthwith, the application shall be denied or the receiver discharged, as
the case may be. If the bond of the adverse party is found to be
insufficient in amount or the surety or sureties thereon fail to justify, and
a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the receiver shall be appointed or reappointed, as the case may be. (6a)
6. General powers of receiver. Subject to the control of the
court in which the action or proceeding is pending a receiver
shall have the power to bring and defend, in such capacity, actions in
his own name; to take and keep possession of the property in
controversy; to receive rents; to collect debts due to himself as receiver
or to the fund, property, estate, person, or corporation of which he is
the receiver; to compound for and compromise the same; to make
transfers; to pay outstanding debts; to divide the money and other
property that shall remain among the persons legally entitled to receive
the same; and generally to do such acts respecting the property as the
court may authorize. However, funds in the hands of a receiver may be
invested only by order of the court upon the written consent of all the
parties to the action. (7a)
No action may be filed by or against a receiver without leave of
the court which appointed him. (n)
7. Liability for refusal or neglect to deliver property to receiver.
A person who refuses or neglects, upon reasonable demand, to
deliver to the receiver all the property, money, books, deeds, notes,
bills, documents and papers within his power or control, subject of
or involved in the action or proceeding, or in case of disagreement, as
determined and ordered by the court, may be punished for contempt
and shall be liable to the receiver for the money or the value of
the property and other things so refused or neglected to be
surrendered, together with all damages that may have been
sustained by the party or parties entitled thereto as a consequence of
such refusal or neglect. (n)
8. Termination of receivership; compensation of receiver.
Whenever the court, motu proprio or on motion of either party,
shall determine that the necessity for a receiver no longer exists,
it shall, after due notice to all interested parties and hearing, settle
the accounts of the receiver, direct the delivery of the funds and
other property in his possession to the person adjudged to be entitled
to receive them and order the discharge of the receiver from further
duty as such. The court shall allow the receiver such reasonable
compensation as the circumstances of the case warrant, to be taxed
as costs against the defeated party, or apportioned, as justice requires.
(8a)
9. Judgment to include recovery against sureties. The amount, if
any, to be awarded to any party upon any bond filed in accordance
with the provisions of this Rule, shall be claimed, ascertained, and
granted under the same procedure prescribed in section 20 of
Rule 57. (9a)
No receivership of property in custodia legis

DOLOR vs. SUNDIAM


1. PROVISIONAL REMEDIES; RECEIVERSHIP; OBJECTIVE; WHEN
AVAILABLE IF THE PROPERTY IS ALREADY IN THE CUSTODY OF
THE LAW. The principal object of the ancillary relief of
receivership is to secure and preserve the property or thing in
controversy pending litigation in order that, as far as practicable, a
judicial tribunal, in aid of its jurisdiction, may be able to effectively
bestow to the parties litigant the rights to which they are entitled, or
exact from them the obligations to which they are subject, under the

CIVIL

law. Ordinarily, therefore, this remedy will not lie where the
property involved is already in custody of law, such as that in the
hands of an executor or administrator. In these cases, the practical
and equitable purposes to be accomplished under a receivership are
then virtually available. The fact remains, however that relief by way of
receivership is essentially equitable in nature, and consequently, must
be controlled by, and administered on, equitable principles, in the
absence of statutory principles specifically defining or laying out the
dimension of its coverage, scope or application. Thus, the Corpus Juris
Secundum, in a brief resume of the decisions of several learned
American tribunals, says: "Ordinarily, a receiver cannot be put on
property which is already in custody of the law under process from
another court of competent jurisdiction; and there cannot be more than
one receiver over the same property . . . . A court of equity has
power to appoint a receiver of property which is already in the
hands of an executor or administrator, but such power should be
exercised u with caution, and a receiver should not be appointed
to take assets out of the hands of legally appointed
representatives except in cases of manifest danger of loss or
destruction of, or material injury to, assets. . . . " . . . Also, a
receiver will be appointed when the executor or administrator has
been guilty of misconduct, waste, or misuse of assets, and there
is real danger of loss, and conversely, a receiver will not be
appointed to take assets from the custody of an executor or
administrator unless there is manifest danger of loss or
destruction of, or material injury to, the assets and a receivership is
clearly necessary to protect and preserve the property."
2. APPOINTMENT OF RECEIVER; WHEN REASONABLE A piece
of property which originally is a part of the estate of a deceased person
is sold by an heir of the deceased having a valid claim thereto, and
said piece of property is, by mistake, subsequently inventoried or
considered part of the deceased's estate subject to settlement,
and, thereafter, with the authority and approval of the probate
court, is sold once more to another person, a receiver of the
property so sold may, during the pendency of a motion to set aside
the second sale, be appointed by the court when in its sound
judgment the grant of such temporary relief is reasonably necessary
to secure and protect the rights of its real owner against any
danger of loss or material injury to him arising from the use and
enjoyment thereof by another who manifestly cannot acquire any
right of dominion thereon because the approving surrogate court
had already lost jurisdiction to authorize the further sale of such
property to another person. Under the particular facts of the instant
dispute, we find no compelling reason for disturbing the respondent
court's order granting the petition of Lumampao for the appointment of
a receiver over the parcels of land in question.

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conveyance of the lot by the respondent would be subject to the


outcome of the litigation since the fact that the properties are
under custodia legis is made known to all and sundry by
operation of law. Hence, there is no need for a receiver to look
after the disputed properties.
On the issue of lis pendens, petitioners argue that the mere fact that a
notice of lis pendens was annotated on the titles of the disputed
properties does not preclude the appointment of a receiver. It is true
that the notice alone will not preclude the transfer of the
property pendente lite, for the title to be issued to the transferee
will merely carry the annotation that the lot is under litigation.
Hence, the notice of lis pendens, by itself, may not be the "most
convenient and feasible means of preserving or administering the
property in litigation." However, the situation is different in the case at
bar. A counterbond will also be posted by the respondent to
answer for all damages petitioners may suffer by reason of any
transfer of the disputed properties in the future. As a matter of
fact, petitioners can also ask for the issuance of an injunctive writ
to foreclose any transfer, mortgage, or encumbrance on the
disputed properties. These considerations, plus the finding that the
appointment of the receiver was without sufficient cause, have
demonstrated the vulnerability of petitioners postulation.
RULE 60: REPLEVIN

1. Application. A party praying for the recovery of possession of


personal property may, at the commencement of the action or at any
time before answer, apply for an order for the delivery of such
property to him, in the manner hereinafter provided. (1a)
2. Affidavit and bond. The applicant must show by his own
affidavit or that of some other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed,
particularly describing it, or is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse
party, alleging the cause of detention thereof according to the best of
his knowledge, information, and belief ;
(c) That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is exempt from such
seizure or custody; and
(d) The actual market value of the property.

VIVARES vs. JOSE REYES


WHETHER OR NOT THE ANNOTATION OF A NOTICE OF LIS
PENDENS PRECLUDES THE APPOINTMENT OF A RECEIVER
WHEN THERE IS A NEED TO SAFEGUARD THE PROPERTIES IN
LITIGATION.
Third, since a notice of lis pendens has been annotated on the titles of
the disputed properties, the rights of petitioners are amply safeguarded
and preserved since "there can be no risk of losing the property or any
part of it as a result of any conveyance of the land or any encumbrance
that may be made thereon posterior to the filing of the notice of lis
pendens."11 Once the annotation is made, any subsequent

The applicant must also give a bond, executed to the adverse party
in double the value of the property as stated in the affidavit
aforementioned, for the return of the property to the adverse party if
such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action. (2a)
3. Order. Upon the filing of such affidavit and approval of the bond,
the court shall issue an order and the corresponding writ of
replevin, describing the personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to take such property into
his custody. (3a)
4. Duty of the sheriff. Upon receiving such order, the sheriff must
serve a copy thereof on the adverse party, together with a copy of

CIVIL

the application, affidavit and bond, and must forthwith take the
property, if it be in the possession of the adverse party, or his agent,
and retain it in his custody. If the property or any part thereof be
concealed in a building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the building or
enclosure to be broken open and take the property into his possession.
After the sheriff has take possession of the property as herein
provided, he must keep it in a secure place and shall be responsible
for its delivery to the party entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the same. (4a)
5. Return of property. If the adverse party objects to the
sufficiency of the applicant's bond, or of the surety or sureties
thereon, he cannot immediately require the return of the property,
but if he does not so object, he may, at any time before the delivery of
the property to the applicant, require the return thereof, by filing
with the court where the action is pending a bond executed to the
applicant, in double the value of the property as stated in the
applicant's affidavit for the delivery thereof to the applicant, if such
delivery be adjudged, and for the payment of such sum, to him as may
be recovered against the adverse party, and by serving a copy of such
bond on the applicant. (5a)
6. Disposition of property by sheriff. If within five (5) days after
the taking of the property by the sheriff, the adverse party does
not object to the sufficiency of the bond, or of the surety or sureties
thereon; or if the adverse party so objects and the court affirms its
approval of the applicant's bond or approves a new bond, or if the
adverse party requires the return of the property but his bond is
objected to and found insufficient and he does not forthwith file an
approved bond, the property shall be delivered to the applicant. If
for any reason the property is not delivered to the applicant, the
sheriff must return it to the adverse party. (6a)
7. Proceedings where property claimed by third person. If the
property taken is claimed by any person other than the party against
whom the writ of replevin had been issued or his agent, and such
person makes an affidavit of his title thereto, or right to the possession
thereof, stating the grounds therefor, and serves such affidavit upon
the sheriff while the latter has possession of the property and a copy
thereof upon the applicant, the sheriff shall not be bound to keep the
property under replevin or deliver it to the applicant unless the
applicant or his agent, on demand of said sheriff, shall file a bond
approved by the court to indemnify the third-party claimant in a sum
not less than the value of the property under replevin as provided in
section 2 hereof. In case of disagreement as to such value, the court
shall determine the same. No claim for damages for the taking or
keeping, of the property may be enforced against the bond unless the
action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or keeping of
such property, to any such third-party claimant if such bond shall be
filed. Nothing herein contained shall prevent such claimant or any third
person from vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate
action.
When the writ of replevin is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for
damages as a result of the replevin, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages
adjudged by the court shall be paid by the National Treasurer out of the
funds to be appropriated for the purpose. (7a)
8. Return of papers. The sheriff must file the order, with his
proceedings indorsed, thereon, with the court within ten (10) days after
taking the property mentioned therein. (8a)

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9. Judgment. After trial of the issues the court shall determine who
has the right of possession to and the value of the property and shall
render judgment in the alternative for the delivery thereof to the party
entitled to the same, or for its value in case delivery cannot be made,
and also for such damages as either party may prove, with costs. (9a)
10. Judgment to include recovery against sureties. The amount, if
any, to be awarded to any party upon any bond filed in accordance
with the provisions of this Rule, shall be claimed, ascertained, and
granted under the same procedure as prescribed in section 20 of Rule
57. (10a)
Applicant must be owner of property

SERVICEWIDE SPECIALIST vs. COURT OF APPEALS

ISSUE: Whether or not a case for replevin may be pursued against


the defendant, Alberto Villafranca, without impleading the absconding
debtor-mortgagor?

1. REMEDIAL LAW; CIVIL PROCEDURE; PROVISIONAL REMEDIES;


REPLEVIN; MAY BE MAINTAINED AGAINST THE POSSESSOR OF
THE PROPERTY. Rule 60 of the Revised Rules of Court requires
that an applicant for replevin must show that he "is the owner of the
property claimed, particularly describing it, or is entitled to the
possession thereof." Where the right of the plaintiff to the possession
of the specified property is so conceded or evident, the action need
only be maintained against him who so possesses the property. In rem
action est per quam rem nostram quae ab alio possidetur petimus, et
semper adversus eum est qui rem possidet.
2. DEFENDANT NOT BEING A PRIVY TO THE CHATTEL
MORTGAGE IS INCONSEQUENTIAL WHEN THE MORTGAGOR
AUTHORIZES THE MORTGAGEE TO TAKE POSSESSION OF
PROPERTY ON DEFAULT. The Court said in the case of BA
Finance (which is of similar import with the present case): "There can
be no question that persons having a special right of property in the
goods the recovery of which is sought, such as a chattel mortgagee,
may maintain an action for replevin therefor. Where the mortgage
authorizes the mortgagee to take possession of the property on
default, he may maintain an action to recover possession of the
mortgaged chattels from the mortgagor or from any person in whose
hands he may find them." Thus, in default of the mortgagor, the
mortgagee is thereby constituted as attorney-in-fact of the mortgagor,
enabling such mortgagee to act for and in behalf of the owner. That the
defendant is not privy to the chattel mortgage should be
inconsequential. By the fact that the object of replevin is traced to his
possession, one properly can be a defendant in an action for replevin.
It is here assumed that the plaintiff's right to possess the thing is not or
cannot be disputed. SAHIDc
3. IF INDEPENDENT CLAIM OF OWNERSHIP OR RIGHT OF
POSSESSION WAS USED AS A DEFENSE, OTHER PERSONS
INVOLVED FOR COMPLETE DETERMINATION THEREOF SHOULD
BE IMPLEADED. In case the right of possession on the part of the
plaintiff, or his authority to claim such possession or that of his
principal, is put to great doubt (a contending party may contest the
legal bases for plaintiff's cause of action or an adverse and

CIVIL

independent claim of ownership or right of possession may be raised


by that party), it could become essential to have other persons
involved and impleaded for a complete determination and resolution of
the controversy.
4. APPEAL; PETITION FOR REVIEW ON CERTIORARI; LIMITED TO
QUESTIONS OF LAW. In the case under scrutiny, it is not disputed
that there is an adverse and independent claim of ownership by the
respondent as evinced by the existence of a pending case before
the Court of Appeals involving subject motor vehicle between the
same parties herein. Its resolution is a factual matter, the province
of which properly lies in the lower Court and not in the Supreme
Court, in the guise of a petition for review on certiorari. For it is basic
that under Rule 45, this Court only entertains questions of law, and
rare are the exceptions and the present case does not appear to be
one of them.
5. PROVISIONAL REMEDIES; REPLEVIN; CLEAR RIGHT OF
POSSESSION MUST BE ESTABLISHED. In a suit for replevin, a
clear right of possession must be established. A foreclosure
under a chattel mortgage may properly be commenced only once
there is default on the part of the mortgagor of his obligation
secured by the mortgage. The replevin in this case has been
resorted to in order to pave the way for the foreclosure of what is
covered by the chattel mortgage. The conditions essential for such
foreclosure would be to show, firstly, the existence of the chattel
mortgage and, secondly, the default of the mortgagor. These
requirements must be shown because the validity of the plaintiff's
exercise of the right of foreclosure is inevitably dependent thereon.
6. MORTGAGEE'S RIGHT OF POSSESSION IS CONDITIONED
UPON THE ACTUAL FACT OF DEFAULT. Since the mortgagee's
right of possession is conditioned upon the actual fact of default which
itself may be controverted, the inclusion of other parties, like the debtor
or the mortgagor himself, may be required in order to allow a full and
conclusive determination of the case. When the mortgagee seeks a
replevin in order to effect the eventual foreclosure of the
mortgage, it is not only the existence of, but also mortgagor's
default on, the chattel mortgage that, among other things, can
properly uphold the right to replevy the property. The burden to
establish a valid justification for such action lies with the plaintiff.
7. ADVERSE POSSESSOR WHO IS NOT THE MORTGAGOR
CANNOT BE DEPRIVED OF HIS POSSESSION. An adverse
possessor, who is not the mortgagor, cannot just be deprived of his
possession, let alone be bound by the terms of the chattel
mortgage contract, simply because the mortgagee brings up an
action for replevin.
8. INDISPENSABLE PARTY, ELUCIDATED. An indispensable party
is one whose interest will be affected by the court's action in the
litigation, and without whom no final determination of the case can be
had. The party's interest in the subject matter of the suit and in the
relief sought are so inextricably intertwined with the other parties that
his legal presence as a party to the proceeding is an absolute
necessity. In his absence, there cannot be a resolution of the
dispute of the parties before the Court which is effective,
complete, or equitable. Conversely, a party is not indispensable to
the suit if his interest in the controversy or subject matter is
distinct and divisible from the interest of the other parties and will
not necessarily be prejudiced by a judgment which does
complete justice to the parties in Court. He is not indispensable if
his presence would merely complete relief between him and those
already parties to the action or will simply avoid multiple litigation.
Without the presence of indispensable parties to a suit or proceeding,
a judgment of a Court cannot attain real finality.
9. FORECLOSURE OF CHATTEL MORTGAGE; MORTGAGOR IS AN
INDISPENSABLE PARTY. That petitioner could not locate the

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mortgagor, Leticia Laus, is no excuse for resorting to a procedural


short-cut. It could have properly availed of substituted service of
summons under the Revised Rules of Court. If it deemed such a mode
to be unavailing, it could have proceeded in accordance with Section
14 of the same Rule. Indeed, petitioner had other proper remedies, it
could have resorted to but failed to avail of. For instance, it could have
properly impleaded the mortgagor. Such failure is fatal to petitioner's
cause.

No replevin of property in custodia legis

VDA. DE DANAO vs. GINETE


In the present case, contrary to the elementary rules on replevin,
respondent improperly ordered the seizure of a vehicle under custodia
legis in another court, a higher one at that. Section 2 of Rule 60 of the
Rules of Court clearly requires that certain facts must be alleged in the
application for replevin, as follows:
SEC. 2. Affidavit and bond. -- The applicant must show by his own
affidavit or that of some other person who personally knows the facts:
xxxxxxxxx
(c) That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is exempt from such seizure
or custody;
Under the foregoing provision, the plaintiff must show, by
affidavit, that the subject property has not been (1) distrained, (2) taken
for a tax assessment or a fine pursuant to law, (3) seized under a writ
of execution or preliminary attachment, or (4) placed under custodia
legis.
The records reveal that Fermin Asilum, the plaintiff in the replevin
case, concealed from the MTC the fact that he was involved in a
pending suit (Criminal Case No. 7427 at the RTC of Masbate,
Masbate, Branch 44), and that the property he wanted to recover
had been seized by authorities earlier in relation to that criminal
case. This circumstance was, however, disclosed by the
defendants in their Answer. Notwithstanding the disclosure,
respondent issued the Writ of Seizure -- a manifest and gross
error on his part.
Since they are duty-bound to administer the law and apply it to
the facts, judges are expected to know elementary principles of law
and to be diligent in ascertaining the facts.[7] Basic is the rule that
property already placed under legal custody may not be a proper
subject of replevin.[8] This principle applies especially when a court of
coordinate or, as in this case, of superior jurisdiction has already
established its authority over the property. A contrary ruling would be
tantamount to subverting a doctrine steadfastly adhered to, the main
purposes of which are to assure stability and consistency in judicial
actuations and to avoid confusion that may otherwise ensue if courts
are permitted to interfere with one anothers lawful orders.[9]

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D O C T R I N E S | 98

Respondent should have taken into account the information


given by herein complainant that the property was already
under custodia legis by the RTC of Masbate. As correctly observed by
the OCA, the fact that the subject property was under legal custody
was easily verifiable.

upon the adverse party but was instead merely handed to a person
who is neither an agent of the adverse party nor a person authorized to
receive court processes on his behalf, the service thereof is erroneous
and is, therefore, invalid, running afoul of the statutory and
constitutional requirements. The service is likewise invalid if the writ of
replevin was served without the required documents. Under these
circumstances, no right to seize and to detain the property shall pass,
the act of the sheriff being both unlawful and unconstitutional.

Distinguished from Labor Case

CAB: Petitioner avers that the writ of replevin was served upon the
security guard where the rock-crushing plant to be seized was located.
The signature of the receiving party indicates that the writ was received
on April 29, 2003 by a certain Joseph Rejumo, the guard on duty in a
plant in Sariaya, Quezon, where the property to be seized was located,
and witnessed by Claudio Palatino, respondent's caretaker. The
sheriff's return, however, peremptorily states that both the writ of
replevin and the summons were served upon Rivera. On May 8, 2003,
or nine (9) days after the writ was served on the security guard,
petitioner filed an answer to the complaint accompanied by a prayer for
the approval of her redelivery bond. The RTC, however, denied the
redelivery bond for having been filed beyond the five-day
mandatory period prescribed in Sections 5 and 6 of Rule 60. But
since the writ was invalidly served, petitioner is correct in
contending that there is no reckoning point from which the
mandatory five-day period shall commence to run.

SMART COMMUNICATIONS vs. ASTORGA

the RTC rightfully assumed jurisdiction over the suit and acted
well within its discretion in denying Astorgas motion to dismiss.
SMARTs demand for payment of the market value of the car or, in
the alternative, the surrender of the car, is not a labor, but a civil,
dispute. It involves the relationship of debtor and creditor rather than
employee-employer relations.
Replevin is a possessory action, the gist of which is the right of possession in the
plaintiff. The primary relief sought therein is the return of the property in specie
wrongfully detained by another person. It is an ordinary statutory proceeding to
adjudicate rights to the title or possession of personal property. The question of
whether or not a party has the right of possession over the property involved and
if so, whether or not the adverse party has wrongfully taken and detained said
property as to require its return to plaintiff, is outside the pale of competence of a
labor tribunal and beyond the field of specialization of Labor Arbiters.
The labor dispute involved is not intertwined with the issue in the Replevin Cas e.
The respective issues raised in each forum can be resolved independently on the
other. In fact in 18 November 1986, the NLRC in the case before it had issued an
Injunctive Writ enjoining the petitioners from blocking the free ingress and egress
to the Vessel and ordering the petitioners to disembark and vacate. That aspect
of the controversy is properly settled under the Labor Code. So also with
petitioners right to picket. But the determination of the question of who has the
better right to take possession of the Vessel and whether petitioners can deprive
the Charterer, as the legal possessor of the Vessel, of that right to possess in
addressed to the competence of Civil Courts.

Petitioner's proper remedy should have been to file a motion to


quash the writ of replevin or a motion to vacate the order of
seizure. Nevertheless, petitioner's filing of an application for a
redelivery bond, while not necessary, did not thereby waive her
right to question the improper service . It now becomes imperative
for the trial court to restore the parties to their former positions by
returning the seized property to petitioner and by discharging the
replevin bond filed by respondent. The trial, with respect to the main
action, shall continue. Respondent may, however, file a new
application for replevin should he choose to do so.
RULE 61: SUPPORT PENDENTE LITE

1. Application. At the commencement of the proper action or


proceeding, or at any time prior to the judgment or final order, a
verified application for support pendente lite may be filed by any
party stating the grounds for the claim and the financial conditions of
both parties, and accompanied by affidavits, depositions or other
authentic documents in support thereof. (1a)

Improperly served

RIVERA vs. VARGAS

The process regarding the execution of the writ of replevin in Section 4


of Rule 60 is unambiguous: the sheriff, upon receipt of the writ of
replevin and prior to the taking of the property, must serve a copy
thereof to the adverse party (petitioner, in this case) together with the
application, the affidavit of merit, and the replevin bond. The reasons
are simple, i.e., to provide proper notice to the adverse party that his
property is being seized in accordance with the court's order upon
application by the other party, and ultimately to allow the adverse party
to take the proper remedy consequent thereto.
Service of the writ upon the adverse party is mandatory in line with the
constitutional guaranty on procedural due process and as safeguard
against unreasonable searches and seizures. If the writ was not served

2. Comment. A copy of the application and all supporting


documents shall be served upon the adverse party, who shall have five
(5) days to comment thereon unless a different period is fixed by the
court upon his motion. The comment shall be verified and shall be
accompanied by affidavits, depositions or other authentic documents in
support thereof. (2a, 3a)
3. Hearing. After the comment is filed, or after the expiration of the
period for its filing, the application shall be set for hearing not more
than three (3) days thereafter. The facts in issue shall be proved in
the same manner as is provided for evidence on motions. (4a)
4. Order. The court shall determine provisionally the pertinent
facts, and shall render such orders as justice and equity may require,
having the regard to the probable outcome of the case and such other
circumstances as may aid in the proper resolution of the question
involved. If the application is granted, the court shall fix the amount of

CIVIL

money to be provisionally paid or such other forms of support as


should be provided, taking into account the necessities of the
applicant and the resources or means of the adverse party, and
the terms of payment or mode for providing the support. If the
application is denied, the principal case shall be tried and decided
as early as possible. (5a)
5. Enforcement of order. If the adverse party fails to comply with
an order granting support pendente lite, the court shall, motu proprio or
upon motion; issue an order of execution against him, without
prejudice to his liability for contempt. (6a)
When the person ordered to give support pendente lite refuses or fails
to do so, any third person who furnished that support to the applicant
may, after due notice and hearing in the same case obtain a writ of
execution to enforce his right of reimbursement against the
person ordered to provide such support. (h)
6. Support in criminal cases. In criminal actions where the civil
liability includes support for the offspring as a consequence of
the crime and the civil aspect thereof has not been waived,
reserved and instituted prior to its filing, the accused may be ordered
to provide support pendente lite to the child born to the offended
party allegedly because of the crime. The application therefor may
be filed successively by the offended party, her parents, grandparents
or guardian and the State in the corresponding criminal case during its
pendency, in accordance with the procedure established under this
Rule. (n)
7. Restitution. When the judgment or final order of the court finds
that the person who has been providing support pendente lite is
not liable therefor, it shall order the recipient thereof to return to
the former the amounts already paid with legal interest from the
dates of actual payment, without prejudice to the right of the recipient
to obtain reimbursement in a separate action from the person
legally obliged to give the support. Should the recipient fail to
reimburse said amounts, the person who provided the same may
likewise seek reimbursement thereof in a separate action from the
person legally obliged to give such support. (n)
Judgment for supper is never final

LAM vs. CHUA

The Pasay RTC and the Court of Appeals are both correct insofar as
they ruled that the amount of support is by no means permanent. In
Advincula vs. Advincula,12 we held that another action for support
could be filed again by the same plaintiff notwithstanding the fact that
the previous case for support filed against the same defendant was
dismissed. We further held in said case that:
. . . Judgment for support does not become final. The right to
support is of such nature that its allowance is essentially
provisional; for during the entire period that a needy party is entitled
to support, his or her alimony may be modified or altered, in
accordance with his increased or decreased needs, and with the
means of the giver. It cannot be regarded as subject to final
determination.13
Thus, there is no merit to the claim of Jose that the compromise
agreement between him and Adriana, as approved by the Makati RTC
and embodied in its decision dated February 28, 1994 in the case for
voluntary dissolution of conjugal partnership of gains, is a bar to any

PROCEDURE:

CASE

D O C T R I N E S | 99

further award of support in favor of their child John Paul. The


provision for a common fund for the benefit of their child John Paul, as
embodied in the compromise agreement between herein parties which
had been approved by the Makati RTC, cannot be considered final
and res judicata since any judgment for support is always subject
to modification, depending upon the needs of the child and the
capabilities of the parents to give support.

Future support cannot be subject of compromise

DE ASIS vs. COURT OF APPEALS

1.
SUPPORT; RIGHT TO RECEIVE SUPPORT; CANNOT BE
RENOUNCED, TRANSMITTED AND/OR SUBJECT OF A
COMPROMISE; REASON. The right to receive support can neither
be renounced nor transmitted to a third person. Furthermore, future
support cannot be the subject of a compromise. The raison d' etre
behind the proscription against renunciation, transmission and/or
compromise of the right to support is stated, thus: "The right to support
being founded upon the need of the recipient to maintain his existence,
he is not entitled to renounce or transfer the right for this would mean
sanctioning the voluntary giving up of life itself. The right to life cannot
be renounced; hence, support, which is the means to attain the former,
cannot be renounced. . . . To allow renunciation or transmission or
compensation of the family right of a person to support is virtually to
allow either suicide or the conversion of the recipient to a public
burden. This is contrary to public policy.
2. CAB. The manifestation sent in by respondent's mother in the
first case, which acknowledged that it would be useless to pursue its
complaint for support, amounted to renunciation as it severed the
vinculum that gives the minor, Glen Camil, the right to claim support
from his putative parent, the petitioner. Furthermore, the agreement
entered into between the petitioner and respondent's mother for the
dismissal of the complaint for maintenance and support conditioned
upon the dismissal of the counterclaim is in the nature of a
compromise which cannot be countenanced. It violates the prohibition
against any compromise of the right to support.
3.
PATERNITY AND FILIATION; DECLARATION OF THE
EXISTENCE OR ABSENCE THEREOF CANNOT BE LEFT TO THE
WILL OF THE PARTIES. It is true that in order to claim support,
filiation and/or paternity must first be shown between the claimant and
the parent. However, paternity and filiation or the lack of the same is a
relationship that must be judicially established and it is for the court to
declare its existence or absence. It cannot be left to the will or
agreement of the parties. "The civil status of a son having been denied,
and this civil status, from which the right to support is derived being in
issue, it is apparent that no effect can be given to such a claim until an
authoritative declaration has been made as to the existence of the
cause." Although in the case under scrutiny, the admission may be
binding upon the respondent, such an admission is at most evidentiary
and does not conclusively establish the lack of filiation.
4. DOCTRINE OF RES JUDICATA; NOT APPLICABLE IN CASE AT
BAR; RULING IN ADVINCULA CASE (10 SCRA 189), CITED.
Neither are we persuaded by petitioner's theory that the dismissal with

CIVIL PROCEDURE:

prejudice of Civil Case Q-88-935 has the effect of res judicata on the
subsequent case for support. The case of Advincula vs. Advincula
comes to the fore. In disposing such case, this Court ruled, thus: It
appears that the former dismissal was predicated upon a compromise.
Acknowledgment, affecting as it does the civil status of persons and
future support, cannot be the subject of compromise. (pars. 1 & 4, Art.
2035, Civil Code) Hence, the first dismissal cannot have force and
effect and cannot bar the filing of another action, asking for the same
relief against the same defendant." (italics supplied) Conformably,
notwithstanding the dismissal of Civil Case Q-88 935 and the lower
court's pronouncement that such dismissal was with prejudice, the
second action for support may still prosper.

SPECIAL CIVIL ACTIONS

RULE 62: INTERPLEADER


1. When interpleader proper. Whenever conflicting claims upon the
same subject matter are or may be made against a person who claims
no interest whatever in the subject matter, or an interest which in whole
or in part is not disputed by the claimants, he may bring an action
against the conflicting claimants to compel them to interplead and
litigate their several claims among themselves. (1a, R63)
2. Order. Upon the filing of the complaint, the court shall issue an
order requiring the conflicting claimants to interplead with one another.
If the interests of justice so require, the court may direct in such order
that the subject matter be paid or delivered to the court. (2a, R63)
3. Summons. Summons shall be served upon the conflicting
claimants, together with a copy of the complaint and order. (3, R63)
4. Motion to dismiss. Within the time for filing an answer, each
claimant may file a motion to dismiss on the ground of impropriety of
the interpleader action or on other appropriate grounds specified in
Rule 16. The period to file the answer shall be tolled and if the motion
is denied, the movant may file his answer within the remaining period,
but which shall not be less than five (5) days in any event, reckoned
from notice of denial. (n)
5. Answer and other pleadings. Each claimant shall file his answer
setting forth his claim within fifteen (15) days from service of the
summons upon him, serving a copy thereof upon each of the other
conflicting claimants who may file their reply thereto as provided by
these Rules. If any claimant fails to plead within the time herein fixed,
the court may, on motion, declare him in default and thereafter render
judgment barring him from any claim in respect to the subject matter.

CASE

D O C T R I N E S | 100

Lessees recourse to interpleader

OCAMPO vs. TIRONA

The good faith of Tirona is put in question in her preference for Maria
Lourdes Breton-Mendiola. As a stakeholder, Tirona should have used
reasonable diligence in hailing the contending claimants to court.
Tirona need not have awaited actual institution of a suit by Ocampo
against her before filing a bill of interpleader.37 An action for
interpleader is proper when the lessee does not know the person to
whom to pay rentals due to conflicting claims on the property.38

The action of interpleader is a remedy whereby a person who has


property whether personal or real, in his possession, or an obligation to
render wholly or partially, without claiming any right in both, or claims
an interest which in whole or in part is not disputed by the conflicting
claimants, comes to court and asks that the persons who claim the
said property or who consider themselves entitled to demand
compliance with the obligation, be required to litigate among
themselves, in order to determine finally who is entitled to one or the
other thing. The remedy is afforded not to protect a person against a
double liability but to protect him against a double vexation in respect
of one liability. When the court orders that the claimants litigate among
themselves, there arises in reality a new action and the former are
styled interpleaders, and in such a case the pleading which initiates the
action is called a complaint of interpleader and not a cross-complaint.

RULE 63: DECLARATORY RELIEF AND SIMILAR REMEDIES

1. Who may file petition. Any person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof bring
an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his
rights or duties, thereunder. (Bar Matter No. 803, 17 February 1998)

The parties in an interpleader action may file counterclaims, crossclaims, third-party complaints and responsive pleadings thereto, as
provided by these Rules. (4a, R63)

An action for the reformation of an instrument, to quiet title to real


property or remove clouds therefrom, or to consolidate ownership
under Article 1607 of the Civil Code, may be brought under this Rule.
(1a, R64)

6. Determination. After the pleadings of the conflicting claimants


have been filed, and pre-trial has been conducted in accordance with
the Rules, the court shall proceed to determine their respective rights
and adjudicate their several claims. (5a, R63)

2. Parties. All persons who have or claim any interest which would
be affected by the declaration shall be made parties; and no
declaration shall, except as otherwise provided in these Rules,
prejudice the rights of persons not parties to the action. (2a, R64)

7. Docket and other lawful fees, costs and litigation expenses as


liens. The docket and other lawful fees paid by the party who filed a
complaint under this Rule, as well as the costs and litigation expenses,
shall constitute a lien or change upon the subject matter of the action,
unless the court shall order otherwise. (6a, R63)

3. Notice on Solicitor General. In any action which involves the


validity of a statute, executive order or regulation, or any other
governmental regulation, the Solicitor General shall be notified by the
party assailing the same and shall be entitled to be heard upon such
question. (3a, R64)

CIVIL PROCEDURE:

4. Local government ordinances. In any action involving the validity


of a local government ordinance, the corresponding prosecutor or
attorney of the local governmental unit involved shall be similarly
notified and entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified and entitled
to be heard. (4a, R64)
5. Court action discretionary. Except in actions falling under the
second paragraph of section 1 of this Rule, the court, motu proprio or
upon motion, may refuse to exercise the power to declare rights and to
construe instruments in any case where a decision would not terminate
the uncertainty or controversy which gave rise to the action, or in any
case where the declaration or construction is not necessary and proper
under the circumstances. (5a, R64)
6. Conversion into ordinary action. If before the final termination of
the case, a breach or violation of an instrument or a statute, executive
order or regulation, ordinance, or any other governmental regulation
should take place, the action may thereupon be converted into an
ordinary action, and the parties shall be allowed to file such pleadings
as may be necessary or proper. (6a, R64)
Requisites for declaratory relief

CASE

D O C T R I N E S | 101

Who may file

SJS vs. LINA

It also argues that a partys legal standing is a procedural technicality


which may be set aside where the issues raised are of paramount
public interest. In the instant case, the importance of the issue can
never be minimized or discounted. The appearance of incumbent city
or municipal mayors and provincial governors, who are actors, in
movies and television programs enhances their income but reduces
considerably the time that they should devote to their constituents. This
is in violation of Section 90 of R.A. No. 7160 and Section 7 of R.A. No.
6713 or the Code of Conduct and Ethical Standards for Public Officials
and Employees. Their appearance further gives them undue
advantage in future elections over their opponents who are not actors.

JUMAMIL vs. CAF

The petition for declaratory relief challenged the constitutionality of the


subject resolutions. There is an unbending rule that courts will not
assume jurisdiction over a constitutional question unless the following
requisites are satisfied: (1) there must be an actual case calling for the
exercise of judicial review; (2) the question before the Court must be
ripe for adjudication; (3) the person challenging the validity of the act
must have standing to do so; (4) the question of constitutionality must
have been raised at the earliest opportunity, and (5) the issue of
constitutionality must be the very lis mota of the case.21

Legal standing or locus standi is a partys personal and substantial


interest in a case such that he has sustained or will sustain direct injury
as a result of the governmental act being challenged. It calls for more
than just a generalized grievance. The term "interest" means a
material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a
mere incidental interest.22 Unless a persons constitutional rights are
adversely affected by the statute or ordinance, he has no legal
standing.

CAB: Petitioner failed to prove the subject ordinances and agreements


to be discriminatory. Considering that he was asking this Court to
nullify the acts of the local political department of Panabo, Davao del
Norte, he should have clearly established that such ordinances
operated unfairly against those who were not notified and who were
thus not given the opportunity to make their deposits. His
unsubstantiated allegation that the public was not notified did not
suffice.

However, following rules of procedure, we find as proper the trial


courts dismissal of the petition for declaratory relief in Civil Case No.
02-104585., the petition for declaratory relief. Readily discernable is
that the same is an inappropriate remedy to enforce compliance with
Section 90 of R.A. 7160, and to prevent local chief executives SantosRecto, Lapid and Marquez from taking roles in movies and television
shows. The Court, thus, finds grants as apt the OSGs move to dismiss
the case.

Indeed, an action for declaratory relief should be filed by a person


interested under a deed, a will, a contract or other written instrument,
and whose rights are affected by a statute, an executive order, a
regulation or an ordinance. The purpose of the remedy is to interpret or
to determine the validity of the written instrument and to seek a judicial
declaration of the parties rights or duties thereunder.14 For the action to
prosper, it must be shown that (1) there is a justiciable controversy; (2)
the controversy is between persons whose interests are adverse; (3)
the party seeking the relief has a legal interest in the controversy; and
(4) the issue is ripe for judicial determination. 15 Suffice it to state that,
in the petition filed with the trial court, petitioner failed to allege
the ultimate facts which satisfy these requisites. Not only that, as
admitted by the petitioner, the provision the interpretation of
which is being sought has already been breached by the
respondents. Declaratory relief cannot thus be availed of.16

When to file

TAMBUNTING vs. SPS. SUMABAR

CIVIL PROCEDURE:

An action for declaratory relief should be filed by a person interested


under a deed, will, contract or other written instrument, and whose
rights are affected by a statute, executive order, regulation or
ordinance before breach or violation thereof.1 The purpose of the
action is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, contract, etc. for
their guidance in its enforcement or compliance and not to settle
issues arising from its alleged breach.2 It may be entertained only
before the breach or violation of the statute, deed, contract, etc.
to which it refers.3 Where the law or contract has already been
contravened prior to the filing of an action for declaratory relief, the
court can no longer assume jurisdiction over the action. 4 In other
words, a court has no more jurisdiction over an action for declaratory
relief if its subject, i.e., the statute, deed, contract, etc., has already
been infringed or transgressed before the institution of the action.
Under such circumstances, inasmuch as a cause of action has
already accrued in favor of one or the other party, there is nothing
more for the court to explain or clarify short of a judgment or final
order.

CAB: An infraction of the mortgage terms had already taken place


before the filing of Civil Case No. C-7496. Thus, the CFI lacked
jurisdiction when it took cognizance of the case in 1979. And in the
absence of jurisdiction, its decision was void and without legal effect.

EXECUTIVE SECRETARY vs. SOUTHWING HEAVING INDUSTRIES

CASE

D O C T R I N E S | 102

Declaratory Relief and Prohibition


Under 1, Rule 63, a person must file a petition for declaratory relief
before breach or violation of a deed, will, contract, other written
instrument, statute, executive order, regulation, ordinance or any other
governmental regulation.
CAB: The ruling that the Petition for Declaratory Relief and Prohibition
is improper is correct, because the Petition must be filed before the
occurrence of breach or any violation. Petitioners had already
suspended payment of amortizations. Clearly giving the HDMF a right
to foreclose the mortgage for failure to pay the debt secured by the
mortgage. Petitioners actual suspension of payments defeated the
purpose of the action to secure an authoritative declaration of
their supposed right to suspend payment, for their guidance.
PURPOSE OF THE ACTION: Secure an authoritative statement of the
rights and obligations of the parties under a statute, deed,
contract, etc. for their guidance in its enforcement or compliance and
not to settle issues arising from its alleged breach.
WHEN TO FILE THE ACTION: It may be entertained only BEFORE
the breach or violation of the statute, deed, contract to which it
refers. Where the law or contract has already been contravened prior
to the filing of an action for declaratory relief, the court can no longer
assume jurisdiction over the action.
The Dismissal of the Petition was Improper
If the petition for declaratory relief and prohibition was vague,
dismissal is not proper because the respondents may ask for
more particulars. Notably, the NHMFC never assailed the supposed
vagueness of the petition in its motion to dismiss nor did it ask for more
particulars before filing its answer.
Conversion of the Petition for Declaratory Relief and Prohibition
to Ordinary Action

The established rule that the constitutionality of a law or administrative


issuance can be challenged by one who will sustain a direct injury as a
result of its enforcement11 has been satisfied in the instant case. The
broad subject of the prohibited importation is "all types of used motor
vehicles." Respondents would definitely suffer a direct injury from the
implementation of EO 156 because their certificate of registration and
tax exemption authorize them to trade and/or import new and
used motor vehicles and spare parts, except "used cars."12 Other
types of motor vehicles imported and/or traded by respondents and not
falling within the category of used cars would thus be subjected to the
ban to the prejudice of their business. Undoubtedly, respondents have
the legal standing to assail the validity of EO 156.

BREACH: As to the propriety of declaratory relief as a vehicle for


assailing the executive issuance, suffice it to state that any breach of
the rights of respondents will not affect the case. In Commission
on Audit of the Province of Cebu v. Province of Cebu,13 the Court
entertained a suit for declaratory relief to finally settle the doubt as
to the proper interpretation of the conflicting laws involved,
notwithstanding a violation of the right of the party affected. We
find no reason to deviate from said ruling mindful of the significance of
the present case to the national economy.

MARTELINO vs. NHMFC

GENERAL RULE: 6, Rule 63 allows the course of action.


CAB: However, petitioners failed to specify the ordinary action they
desired. The Court cannot assume that they seek annulment of the
mortgages and further, the issue was not raised before the RTC.
Therefore, the CA properly refused to entertain the issue as it cannot
be raised for the first time on appeal.
Conversion of Petition for Declaratory Relief to an Action for
Prohibition
GENERAL RULE: In De La Llana, etc., et al. v. Alba, etc., et al., the
Court considered a petition erroneously entitled Petition for Declaratory
Relief and/or for Prohibition as an action for prohibition. The case
involved the constitutionality of BP Blg. 129, it was held that: that if the
petition has far-reaching implications and it raises questions that
should be resolved, it may be treated as one for prohibition.
CAB: Under the circumstances, action for prohibition is still
improper. PROHIBITION is a remedy against proceedings that are
without or in excess of jurisdiction, or with grave abuse of discretion,
there being no appeal or other plain, speedy adequate remedy in the
ordinary course of law. But here, the petition did not even impute
lack of jurisdiction or grave abuse of discretion committed by
respondents and Sheriff Castillo regarding the foreclosure
proceedings.

RULE 64: REVIEW OF JUDGMENTS AND FINAL ORDERS AND


RESOLUTIONS OF COMELEC AND COA

CIVIL PROCEDURE:

CASE

D O C T R I N E S | 103

copies of all documents attached to the original and a copy thereof


shall be served on the petitioner.
1. Scope. This Rule shall govern the review of judgments and final
orders or resolutions of the Commission on Elections and the
Commission on Audit. (n)
2. Mode of review. A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be
brought by the aggrieved party to the Supreme Court
on certiorari under Rule 65, except as hereinafter provided. (n; Bar
Matter No. 803, 17 February 1998)
3. Time to file petition. The petition shall be filed within thirty (30)
days from notice of the judgment or final order or resolution sought to
be reviewed. The filing of a motion for new trial or reconsideration of
said judgment or final order or resolution, if allowed under the
procedural rules of the Commission concerned, shall interrupt the
period herein fixed. If the motion is denied, the aggrieved party may
file the petition within the remaining period, but which shall not be less
than five (5) days in any event, reckoned from notice of denial. (n)
4. Docket and other lawful fees. Upon the filing of the petition, the
petitioner shall pay to the clerk of court the docket and other
lawful fees and deposit the amount of P500.00 for costs. (n)
5. Form and contents of petition. The petition shall be verified
and filed in eighteen (18) legible copies. The petition shall name the
aggrieved party as petitioner and shall join as respondents the
Commission concerned and the person or persons interested in
sustaining the judgment, final order or resolution a quo. The
petition shall state the facts with certainty, present clearly the issues
involved, set forth the grounds and brief arguments relied upon for
review, and pray for judgment annulling or modifying the questioned
judgment, final order or resolution. Findings of fact of the Commission
supported by substantial evidence shall be final and non-reviewable.
The petition shall be accompanied by a clearly legible duplicate
original or certified true copy of the judgment, final order or
resolution subject thereof, together with certified true copies of such
material portions of the record as are referred to therein and other
documents relevant and pertinent thereto. The requisite number of
copies of the petition shall contain plain copies of all documents
attached to the original copy of said petition.
The petition shall state the specific material dates showing that it
was filed within the period fixed herein, and shall contain a sworn
certification against forum shopping as provided in the third
paragraph of section 3, Rule 46.
The petition shall further be accompanied by proof of service of a copy
thereof on the Commission concerned and on the adverse party, and
of the timely payment of docket and other lawful fees.
The failure of petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the petition.
(n)
6. Order to comment. If the Supreme Court finds the petition
sufficient in form and substance, it shall order the respondents to file
their comments on the petition within ten (10) days from notice
thereof; otherwise, the Court may dismiss the petition outright.
The Court may also dismiss the petition if it was filed manifestly for
delay or the questions raised are too unsubstantial to warrant
further proceedings. (n)
7. Comments of respondents. The comments of the respondents
shall be filed in eighteen (18) legible copies. The original shall be
accompanied by certified true copies of such material portions of the
record as are referred to therein together with other supporting papers.
The requisite number of copies of the comments shall contain plain

No other pleading may be filed by any party unless required or


allowed by the Court. (n)
8. Effect of filing. The filing of a petition for certiorari shall not stay
the execution of the judgment or final order or resolution sought to
be reviewed, unless the Supreme Court shall direct otherwise upon
such terms as it may deem just. (n)
9. Submission for decision. Unless the Court sets the case for oral
argument, or requires the parties to submit memoranda, the case shall
be deemed submitted for decision upon the filing of the comments on
the petition, or of such other pleadings or papers as may be required or
allowed, or the expiration of the period to do so. (n)
BENGUET STATE UNIVERSITY vs. COA

Before addressing the issues raised in the present petition, it bears


noting that what was filed before this Court is a petition captioned as
a Petition for Review on Certiorari. We point out that a petition for
review on certiorari is not the proper mode by which the COAs
decisions are reviewed by this Court. Under Rule 64, Section 2 of the
1997 Rules of Civil Procedure, a judgment or final order of the COA
may be brought by an aggrieved party to this Court
on certiorari under Rule 65. Thus, it is only through a petition
for certiorari under Rule 65 that the COA's decisions may be
reviewed and nullified by us on the ground of grave abuse of
discretion or lack or excess of jurisdiction.10

RULE 65: PETITION FOR CERTIORARI

1. Petition for certiorari. When any tribunal, board or officer


exercising judicial or quasi-judicial functions has acted without or
in excess its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment
be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.
The petition shall be accompanied by a 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 as provided in the third
paragraph of section 3, Rule 46. (1a)
2. Petition for prohibition. When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, are without or in excess of its
or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law, a 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 to desist from further

CIVIL PROCEDURE:

proceedings in the action or matter specified therein, or otherwise


granting such incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a 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 as provided in the third paragraph
of section 3, Rule 46. (2a)
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. (3a)
4. When and where petition filed. The petition shall be filed not
later than sixty (60) days from notice of the judgment, order or
resolution. In case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the sixty (60)
day period shall be counted from notice of the denial of said motion.
The petition shall be filed 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
appellate jurisdiction. If it involves the acts or omissions of a quasijudicial agency, unless otherwise provided by law or these Rules, the
petition shall be filed in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for
compelling reason and in no case exceeding fifteen (15) days. (4a)
(Bar Matter No. 803, 21 July 1998; A.M. No. 00-2-03-SC)
5. Respondents and costs in certain cases. When the petition filed
relates to the acts or omissions of a judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person, the petitioner shall join,
as private respondent or respondents with such public respondent or
respondents, the person or persons interested in sustaining the
proceedings in the court; and it shall be the duty of such private
respondents to appear and defend, both in his or their own behalf and
in behalf of the public respondent or respondents affected by the
proceedings, and the costs awarded in such proceedings in favor of
the petitioner shall be against the private respondents only, and not
against the judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person impleaded as public respondent or
respondents.
Unless otherwise specifically directed by the court where the petition is
pending, the public respondents shall not appear in or file an answer or
comment to the petition or any pleading therein. If the case is elevated
to a higher court by either party, the public respondents shall be
included therein as nominal parties. However, unless otherwise
specifically directed by the court, they shall not appear or participate in
the proceedings therein. (5a)
6. Order to comment. If the petition is sufficient in form and
substance to justify such process, the court shall issue an order
requiring the respondent or respondents to comment on the petition

CASE

D O C T R I N E S | 104

within ten (10) days from receipt of a copy thereof. Such order shall be
served on the respondents in such manner as the court may direct
together with a copy of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the Court
of Appeals, the provisions of section 2, Rule 56, shall be observed.
Before giving due course thereto, the court may require the
respondents to file their comment to, and not a motion to dismiss, the
petition. Thereafter, the court may require the filing of a reply and such
other responsive or other pleadings as it may deem necessary and
proper. (6a)
7. Expediting proceedings; injunctive relief. The court in which the
petition is filed may issue orders expediting the proceedings, and it
may also grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights of the
parties pending such proceedings. The petition shall not interrupt
the course of the principal case unless a temporary restraining
order or a writ of preliminary injunction has been issued against the
public respondent from further proceeding in the case. (7a)
8. Proceedings after comment is filed. After the comment or other
pleadings required by the court are filed, or the time for the filing
thereof has expired, the court may hear the case or require the parties
to submit memoranda. If after such hearing or submission of
memoranda or the expiration of the period for the filing thereof the
court finds that the allegations of the petition are true, it shall render
judgment for the relief prayed for or to which the petitioner is entitled.
The court, however, may dismiss the petition if it finds the same
to be patently without merit, prosecuted manifestly for delay, or
that the questions raised therein are too unsubstantial to require
consideration. (8a)
9. Service and enforcement of order or judgment. A certified copy
of the judgment rendered in accordance with the last preceding section
shall be served upon the court, quasi-judicial agency, tribunal,
corporation, board, officer or person concerned in such manner
as the court may direct, and disobedience thereto shall be
punished as contempt. An execution may issue for any damages or
costs awarded in accordance with section 1 of Rule 39. (9a)
Grave abuse of discretion

PHIL. RABBIT BUS vs. GOIMCO

What petitioner should have filed is a petition for review


on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, not a petition for certiorari under Rule 65 of the same Rules.
Certiorari is not a substitute for a lost appeal.6

The extraordinary writ of certiorari issues only for the correction of


errors of jurisdiction or grave abuse of discretion amounting to
lack or excess of jurisdiction. GRAVE ABUSE OF DISCRETION is
such capricious and whimsical exercise of judgment which is
equivalent to an excess or lack of jurisdiction, meaning that the abuse
of discretion must be so patent and so gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law, as where the power is

CIVIL PROCEDURE:

exercised in an arbitrary and despotic manner by reason of passion or


hostility.

PREFERRED HOME SPECIALTIES vs. COURT OF APPEALS

The finding of a quasi-judicial officer may be nullified by a writ of


certiorari if such finding resulted from an application of an erroneous
legal standard. In resolving the issue of whether the Secretary of
Justice acted contrary to the 2000 Rules of Criminal Procedure, or
without or in excess of his authority, the Court has to delve into and
review the evidence on record. The Court can and has to consider the
evidence submitted to the Investigating Prosecutor for the sole
purpose of determining whether such officer exceeded his jurisdiction
or acted illegally or arbitrarily. Indeed, in Prendergast v. Retirement
Board of Firemens Annuity and Benefit Fund of Chicago, the appellate
court of Illinois declared:

The law is well settled that on a common law writ of certiorari, the only
province of the trial court is to consider the record and ascertain
whether the board had jurisdiction, whether it exceeded its jurisdiction,
whether it proceeded according to law and acted on evidence, and
whether there is anything on record which fairly tends to sustain the
action of the board; and where the inferior tribunal is not arbitrary in its
finding and there is evidence in the record of its proceedings which
fairly tends to support the finding, a reviewing court is not justified in
substituting its judgment for the discretion and judgment of the inferior
tribunal.

In Mendoza-Arce v. Office of the Ombudsman (Visayas), this Court


held that the acts of a QUASI-JUDICIAL OFFICER may be assailed
by the aggrieved party via a petition for certiorari and enjoined
(a) when necessary to afford adequate protection to the
constitutional rights of the accused;

CASE

D O C T R I N E S | 105

against the respondent only if there is a finding of probable cause


to hold the latter for trial. The Investigating Prosecutor acts
without or in excess of authority under the Rule if he files an
Information against the respondent despite absence of evidence
showing probable cause therefor. If the Secretary of Justice finds no
probable cause and reverses the Resolution of the Investigating
Prosecutor based on the evidence on record, and orders the latter to
file an Information against the respondent therein despite the absence
of probable cause, the Secretary of Justice acts contrary to law,
without or in excess of authority. Such ruling may be nullified in a
petition for certiorari under Rule 65.

Plain, speedy and adequate remedy

CERVANTES V. COURT OF APPEALS

As
held
in Flores
v.
Sangguniang
Panlalawigan
of
Pampanga, the "plain" and "adequate remedy" referred to in the
foregoing Rule is a MOTION FOR RECONSIDERATION of the
assailed Order or Resolution, the filing of which is an indispensable
condition to the filing of a special civil action for certiorari, subject to
certain EXCEPTIONS, to wit:
(a) where the order is a patent nullity, as where the court a
quo has no jurisdiction;
(b) where the questions raised in the certiorari 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;
(c) where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the
Government or of the petitioner or the subject matter of the action is
perishable;
(d) where, under the circumstances, a motion for reconsideration
would be useless;

(b) when necessary for the orderly administration of justice;


(c) when the acts of the officer are without or in excess of
authority;
(d) where the charges are manifestly false and motivated by the
lust for vengeance; and
(e) when there is clearly no prima facie case against the accused.

(e) where petitioner was deprived of due process and there is


extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack
of due process;
(h) where the proceedings was ex parte or in which the petitioner
had no opportunity to object; and

The Court declared that, if the officer conducting a preliminary


investigation acts without or in excess of his authority and resolves to
file the Information despite the absence of probable cause, such act
may be nullified by a writ of certiorari. Indeed, under Rule 112, 4, the
Information shall be prepared by the Investigating Prosecutor

(i) where the issue raised is one purely of law or public interest is
involved.

CIVIL PROCEDURE:

A writ of certiorari is a prerogative writ, never demandable as a


matter of right, never issued except in the exercise of judicial
discretion. Hence, he who seeks a writ of certiorari must apply for it
only in the manner and strictly in accordance with the provisions of the
law and the Rules. Petitioner may not arrogate to himself the
determination of whether a motion for reconsideration is necessary or
not. To dispense with the requirement of filing a motion for
reconsideration, petitioner must show a concrete, compelling, and valid
reason for doing so, which petitioner failed to do. Thus, the Court of
Appeals correctly dismissed the petition.

DAVAO MERCHANT vs. COURT OF APPEALS

While the special civil action of certiorari may be availed of in the


alternative situation where an appeal would not constitute a plain,
speedy, and adequate remedy, this is on the theoretical
assumption that the right to appeal is still available in the case. If,
however, the remedy by appeal had already been lost and the loss
was occasioned by petitioners own neglect or error in the choice
of remedies, certiorari cannot lie as a substitute or a tool to shield
the petitioner from the adverse consequences of such neglect or error.

Service of petition

NEW EVER MARKETING vs. COURT OF APPEALS

1, Rule 65 in relation to 3, Rule 46 of the Rules of Court, clearly


states that in a petition filed originally in the Court of Appeals, the
petitioner is required to serve copies of the petition, together with
the annexes thereto, on the lower court or tribunal concerned, in
this case, the NLRC, and on the adverse parties, the herein
respondents, before the filing of said petition. The clear import of the
provisions does not reasonably admit of any other interpretation.

Who are the parties

FLORES vs. JOVEN

Anent the issue whether or not the petitioner has the personality or the
right to file herein petition for certiorari We rule in the affirmative. A
perusal of the petition filed in this case shows that petitioner herself

CASE

D O C T R I N E S | 106

caused the preparation and filing of the present petition and filed the
same through the private prosecutor. It is beyond question that
petitioner has the right or personality to file the petition, through her
private prosecutors, questioning the dismissal of the criminal case
against respondent Navarro. For obvious reasons, the public
prosecutors who filed the motion to dismiss which was granted by the
trial court would not initiate the action.

In People v. Guido, [57 Phil. 52 (1932)] this Court ruled that the word
PARTY must be understood to mean not only the government
and the accused, but also other persons who may be affected by
the judgment rendered in the criminal proceeding. Thus, the party
injured by the crime has been held to have the right to appeal from a
resolution of the court which is derogatory to his right to demand civil
liability arising from the offense. The right of the offended party to
file a special civil action of prohibition and certiorari from an
[interlocutory] order rendered in a criminal case was likewise
recognized in the cases of Paredes v. Gopengco [29 SCRA 688
(1969)] and People v. Calo, Jr., [186 SCRA 620 (1990)] which held that
OFFENDED PARTIES in criminal cases have sufficient interest
and personality as person(s) aggrieved to file the special civil
action of prohibition and certiorari under Sections 1 and 2 of Rule
65 in line with the underlying spirit of the liberal construction of the
Rules of Court in order to promote their object. . . ."

While it is only the Office of the Solicitor General that may bring
or defend actions on behalf of the Republic of the Philippines, or
represent the People or the State in criminal proceedings pending
in the Supreme Court or the Court of Appeals, the private
offended party retains the right to bring a special civil action for
certiorari in his own name in criminal proceedings before the
courts of law.

Period to file

POBRE vs. COURT OF APPEALS

The Court cannot sustain petitioners argument. It is true that under


Rule 114, 7 of the Rules of Court, an accused charged with a capital
offense is not entitled to bail at any time during trial when the evidence
of guilt is strong. It does not mean however that since the accused is
not entitled to bail at any stage of the trial, a grant thereof can be
questioned any time and without regard to the period of filing provided
by the Rules of Court.

An order granting bail is an interlocutory order. The


word interlocutory refers to something intervening between the
commencement and the end of a suit which decides some point or
matter but is not a final decision of the whole controversy. In that

CIVIL PROCEDURE:

sense, it does not attain finality since there leaves something else to
be done by the trial court with respect to the merits of the case. If and
when the trial court issued such interlocutory order without or in excess
of jurisdiction or with grave abuse of discretion and when the assailed
interlocutory order is patently erroneous, then a special civil action
for certiorari under Rule 65 of the Rules of Court, as amended, can be
considered an appropriate remedy to assail the same.

However, Rule 65, 4 of the Rules of Court, as amended, prescribes a


period of 60 days within which to file a special civil action for certiorari.
The 60-day period was specifically set to avoid any unreasonable
delay that would violate the constitutional rights of parties to a speedy
disposition of their case. Such right to a speedy disposition of the
case pertains not only to a private complainant in a criminal
case,32 but to an accused as well. While the periods set by law are
technical rules of procedure, these are not designed to frustrate the
ends of justice. These are provided to effect the proper and orderly
disposition of cases and thus effectively prevent the clogging of court
dockets.
RAMATEK vs. DELOS REYES
CAB: The petition filed in the Court of Appeals was indeed filed
beyond the 60-day period if computed from the time the notice of
judgment was received and interrupted only by the filing of the motion
for reconsideration. However, if the 60-day period is reckoned from the
receipt of the notice denying the motion for reconsideration, as
provided under Circular No. 56-2000, then the petition for certiorari
was filed on time.
Petitioners received on 25 January 1999 the notice denying their
motion for reconsideration of the NLRC Resolution. Under Section 4 of
Rule 65, as amended by Circular No. 56-2000, petitioners had 60 days
or until 26 March 1999 to file the petition for certiorari with the Court of
Appeals. Since petitioners filed their petition for certiorari on 26 March
1999, we hold that they filed their petition seasonably.

Where to file

COLMENARES vs. VDA. DE GONZALES

In an appeal by certiorari under Rule 45 of the Rules of Court, we are


asked to resolve only questions of law. The question of law herein,
based on the given state of facts, is whether the CA erred in denying
due course to the petition for certiorari which was not signed by
petitioner Epifania, wife of Eduardo, and which violated the principle on
hierarchy of courts. Curiously, petitioners, deliberately or
unintentionally, failed to explain why they are justified in directly filing a
petition for certiorari with the CA, bypassing the RTCs concurrent
jurisdiction over the MTCs decision.
On that score alone, the petition is dismissible. Direct resort to a
higher court, the CA in this instance, cannot be sanctioned when

CASE

D O C T R I N E S | 107

the remedy sought by a petitioner may equally be availed in the


RTC, which has concurrent jurisdiction with the CA and this
Court, to issue a writ of certiorari against the MTC. Petitioners have
failed to make a showing that the redress desired cannot be obtained
in the RTC. In fact, petitioners made no attempt to do so at all. Thus,
the CA committed no error in denying due course to the petition.
On the other ground for the dismissal relied upon by the CA, i.e.,
Epifanias failure to co-sign the verification and certification against
non-forum shopping, we likewise sustain the appellate courts action.
Section 1, Rule 65 of the Rules of Court, in relation to Section 3, Rule
46 thereof, explicitly requires that a petition for certiorari shall be
verified and accompanied by a sworn certification of non-forum
shopping. The last paragraph of Section 3, Rule 46 unequivocally
states that a petitioners failure to comply with these requirements shall
be sufficient ground for the dismissal of the petition.
The foregoing misstep, taken together with petitioners violation of the
rule on hierarchy of courts, contrary to petitioners misleading
presentation of issues, cannot be cured by simply invoking motherhood
statements like substantial justice. Moreover, the application of 6,
Rule 1 of the Rules of Court, on the liberal construction of the rules, is
not warranted upon a scrutiny of petitioners claims.

Other requirements

POWER SITES vs. UNITED NEON


There is no specific enumeration of the documents that must be
appended to the petition for Certiorari, other than a certified true copy
of the assailed judgment, order, or resolution. In Condes v. Court of
Appeals, we held that the acceptance or rejection by the Court of
Appeals of a petition for certiorari rests in its sound discretion.
Thus:
The initial determination of what pleadings, documents or orders are
relevant and pertinent to the petition rests on the petitioner. Thereafter,
the CA will review the petition and determine whether additional
pleadings, documents or orders should have been attached thereto.
The appellate court found the present petition sufficient in form when it
proceeded to decide the case on the merits, without raising any
question as to the sufficiency of the petition. Acceptance of a petition
for certiorari, as well as granting due course thereto is addressed
to the sound discretion of the court. Where it does not appear, as in
this case, that in giving due course to the petition for certiorari, the CA
committed any error that prejudiced the substantial rights of the
parties, there is no reason to disturb its determination that the copies of
the pleadings and documents attached to the petition were sufficient to
make out a prima facie case.
EAGLE RIDGE GOLF vs. COURT OF APPEALS

CIVIL PROCEDURE:

Certiorari is an extraordinary, prerogative remedy and is never issued


as a matter of right. Accordingly, the party who seeks to avail of it must
strictly observe the rules laid down by law.
Petitions for certiorari under Rule 65 of the Rules of Court require a
"sworn certification of non-forum shopping as provided in the third
paragraph of 3, Rule 46."
The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any action
involving the same issues in the Supreme Court, the Court of
Appeals x x x, or any other tribunal or agency; if there is such other
action or proceeding, he must state the status of the same x x x.
The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the
petition.

Evidently, the Rules requires the petitioner, not his counsel, to


sign under oath the requisite certification against non-forum
shopping. Such certification is a peculiar personal representation on
the part of the principal party, an assurance to the court that there are
no other pending cases involving basically the same parties, issues,
and cause of action.

CAB: The sworn verification and certification of non-forum shopping in


the petition for certiorari of Eagle Ridge filed before the CA carried the
signature of its counsel without the requisite authority.

It is entirely a different matter for the counsel to


and the certificate of non-forum shopping.
certification in either verification or certification of
requires the act of the principal party. As earlier
Rule 46 exacts this requirement; so does the first
of Rule 7.

sign the verification


The attestation or
non-forum shopping
indicated, Sec. 3 of
paragraph of Sec. 5

It is clear that the counsel is not the proper person to sign the
certification against forum shopping. If, for any reason, the
principal party cannot sign the petition, the one signing on his
behalf must have been duly authorized.

Constitutional commission

CONCEPCION vs. COMELEC

CASE

D O C T R I N E S | 108

The requirement of personality or interest is sanctioned no less by 7,


Article IX of the Constitution which provides that a decision, order, or
ruling of a CONSTITUTIONAL COMMISSION may be brought to this
Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof. This requirement is repeated in 1, Rule 65
of the Rules of Court, which applies to petitions for certiorari under
Rule 64 of decisions, orders or rulings of the constitutional
commissions pursuant to 2, Rule 64. 1, Rule 65 essentially provides
that a person aggrieved by any act of a tribunal, board or officer
exercising judicial or quasi-judicial functions rendered without or in
excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction may file a petition for certiorari.
An AGGRIEVED PARTY under 1, Rule 65 is one who was a party to
the original proceedings that gave rise to the original action for
certiorari under Rule 65. We had occasion to clarify and explain the
"aggrieved party" requirement in Tang v. Court of Appeals where we
said:
Although 1 of Rule 65 provides that the special civil action
of certiorari may be availed of by a "person aggrieved" by the orders or
decisions of a tribunal, the term "person aggrieved" is NOT to be
construed to mean that ANY PERSON who feels injured by the
lower courts order or decision can question the said courts
disposition via certiorari. To sanction a contrary interpretation would
open the floodgates to numerous and endless litigations which would
undeniably lead to the clogging of court dockets and, more importantly,
the harassment of the party who prevailed in the lower court.
In
a
situation
wherein
the
order
or
decision
being
questioned underwent adversarial proceedings before a trial court, the
"person aggrieved" referred to under 1 of Rule 65 who can avail
of the special civil action of certiorari pertains to one who was a
party in the proceedings before the lower court. The correctness of
this interpretation can be gleaned from the fact that a special civil
action for certiorari may be dismissed motu proprio if the party
elevating the case failed to file a motion for reconsideration of the
questioned order or decision before the lower court. Obviously, only
one who was a party in the case before the lower court can file a
motion for reconsideration since a stranger to the litigation would not
have the legal standing to interfere in the orders or decisions of the
said court. In relation to this, if a non-party in the proceedings before
the lower court has no standing to file a motion for reconsideration,
logic would lead us to the conclusion that he would likewise have no
standing to question the said order or decision before the appellate
court via certiorari.
The REAL PARTY IN INTEREST who stands to benefit or suffer from
the judgment in the suit must prosecute or defend an action. We have
held that "interest" means material interest, an interest in issue
that the decision will affect, as distinguished from mere interest in
the question involved, or a mere incidental interest.
Distinguished from Rule 45

ANG BIAT HUAN SONS vs. COURT OF APPEALS

CIVIL PROCEDURE:

A petition for certiorari under Rule 65 of the Rules of Court is the


proper remedy when (1) any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction and (2) there is no appeal nor plain, speedy and
adequate remedy in the ordinary course of law for the purpose of
annulling or modifying the proceeding.14

The term "without jurisdiction" means lack of jurisdiction from the


beginning whereas "excess of jurisdiction" signifies that the tribunal,
board or officer overstepped such jurisdiction.18 On the other hand,
grave abuse of discretion is the capricious and whimsical exercise of
judgment that is equivalent to lack of jurisdiction.19 The abuse of
discretion must be grave as where the power is exercised in an
arbitrary or despotic manner due to passion or personal hostility.20 It
must be patent and gross as to amount to an evasion of positive duty
or virtual refusal to perform a duty enjoined by law.21

When seeking the corrective hand of certiorari, caprice and


arbitrariness must clearly be shown.22 Petitioner should have cited
how the CA and/or the SSS (through the SSC) abused their discretion
in the questioned resolutions. Petitioner failed in this aspect.

We set aside technicality only when it is necessary to relieve a litigant


of an injustice not commensurate with the degree of his
thoughtlessness in not complying with the Rules27 or when the
punctilious application of the Rules will deny rather than serve
justice.28 Neither situation exists here.
Finally, the Court cannot review the findings of fact by the SSC (and
affirmed by the CA) that the employment of Tinaytina with petitioner
was from January 1976 to November 1978. Similarly, we cannot
disturb public respondents conclusion of fact that petitioner
misrepresented Tinaytinas true date of employment. A petition for
certiorari under Rule 65 does not include review of the correctness of a
board or tribunals evaluation of the evidence but is confined to issues
of jurisdiction or grave abuse of discretion.29 This Court is proscribed
from examining the evidence and weighing the same in a petition for
certiorari.

DOLE vs. MACEDA

DOLE dismissed Macedas Complaint for illegal termination Maceda


appealed to CSC, but the appeal was dismissed for LoJD; MR was
denied Maceda filed PC with the CA, which granted his petitioned
DOLE

CASE

D O C T R I N E S | 109

This case pertains to the importance of complying with the prescribed


qualification standards, and the appropriate mode of assailing a
decision of the Civil Service Commission (CSC).

In determining whether the proper remedy is a special civil action for


certiorari or a petition for review, it is not so much the nature of the
question or questions that would be raised that matters. With very rare
exceptions, what is decisive is whether or not the challenged order is a
final order that disposes of the merit of the case.
The Court held in Metropolitan Manila Development Authority v.
Jancom Environmental Corp that the remedy for seeking the reversal
or modification of a judgment rendered on the merits of the case is
appeal. This is true even if the error imputed to the officer, body, or
tribunal constitutes alleged lack of jurisdiction over the subject matter
of the case or grave abuse of discretion in making its or his findings of
fact or of law. The Court cannot countenance the blurring of the
distinction between a special civil action for certiorari and a petition for
review.
Besides, it cannot be said that the CSC gravely abused its discretion in
dismissing respondent Macedas complaint. Grave abuse of discretion
exists where the public respondent acts in a manner so patent and
gross that it amounts to an evasion of a positive duty or a virtual
refusal to do what the law enjoins on him. It is not sufficient that the CA
disagreed with the findings of the CSC or considered them in error; it
had to determine that the CSCs findings had run berserk, prompted by
passion and personal hostility rather than by reason. The CA did not
make this determination.
Section 6

JIMMY ARENO vs. SKYCABLE

Disciplinary action against an erring employee is a management


prerogative which, generally, is not subject to judicial
interference. However, this policy can be justified only if the
disciplinary action is dictated by legitimate business reasons and
is not oppressive, as in this case.

A close scrutiny of 6, Rule 65 of the Rules of Court, which grants


discretionary authority to the CA in ordering parties to file responsive
and other pleadings in petitions for certiorari filed before it, will reveal
that such rule is merely directory in nature. This is so because the
word "may" employed by the rule shows that it is not mandatory but
discretionary on the part of the CA to require the filing of pleadings
which it deems necessary to assist it in resolving the controversies.28
In the same way, the admission of any responsive pleading filed by
party-litigants is a matter that rests largely on the sound discretion of
the court. At any rate, rules of procedure may be relaxed in the interest
of substantial justice and in order to afford litigants maximum
opportunity for the proper and just determination of their causes. Strict
adherence to technical adjective rules should never be unexceptionally

CIVIL

required because a contrary precept would result in a failure to decide


cases on their merits. The CA could not have erred in admitting the
comment, albeit filed late, when it viewed that the interest of justice
would be better served by the policy of liberality.

PROCEDURE:

CASE

D O C T R I N E S | 110

Committee is invalid on the ground that it is not germane to the object


and purpose of the statute it seeks to implement. Where what is
assailed is the validity or constitutionality of a rule or regulation
issued by the administrative agency in the performance of its
quasi-legislative function, the regular courts have jurisdiction to
pass upon the same. 14

RULE 65: PETITION FOR PROHIBITION

HOLY SPIRIT HOMEOWNERS vs. DEFENSOR

"Legal standing" or locus standi has been defined as a personal and


substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is
being challenged. The gist of the question of standing is whether a
party alleges "such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of
difficult constitutional questions."

Petitioner association has the legal standing to institute the instant


petition, whether or not it is the duly recognized association of
homeowners in the NGC. There is no dispute that the individual
members of petitioner association are residents of the NGC. As such
they are covered and stand to be either benefited or injured by the
enforcement of the IRR, particularly as regards the selection process
of beneficiaries and lot allocation to qualified beneficiaries. Thus,
petitioner association may assail those provisions in the IRR which it
believes to be unfavorable to the rights of its members.

Administrative agencies possess quasi-legislative or rule-making


powers and quasi-judicial or administrative adjudicatory powers.
Quasi-legislative or rule-making power is the power to make rules and
regulations which results in delegated legislation that is within the
confines of the granting statute and the doctrine of non-delegability and
separability of powers.

In questioning the validity or constitutionality of a rule or


regulation issued by an administrative agency, a party need not
exhaust administrative remedies before going to court. This
principle, however, applies only where the act of the administrative
agency concerned was performed pursuant to its quasi-judicial
function, and NOT when the assailed act pertained to its rulemaking or quasi-legislative power. 13

The assailed IRR was issued pursuant to the quasi-legislative power of


the Committee expressly authorized by R.A. No. 9207. The petition
rests mainly on the theory that the assailed IRR issued by the

Since the regular courts have jurisdiction to pass upon the validity of
the assailed IRR issued by the Committee in the exercise of its quasilegislative power, the judicial course to assail its validity must
follow the doctrine of hierarchy of courts. Although the Supreme
Court, Court of Appeals and the Regional Trial Courts have concurrent
jurisdiction to issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such concurrence does not
give the petitioner unrestricted freedom of choice of court forum.

A petition for prohibition is also not the proper remedy to assail


an IRR issued in the exercise of a quasi-legislative function.
PROHIBITION is an extraordinary writ directed against any tribunal,
corporation, board, officer or person, whether exercising judicial, quasijudicial or ministerial functions, ordering said entity or person to desist
from further proceedings when said proceedings are without or in
excess of said entitys or persons jurisdiction, or are accompanied with
grave abuse of discretion, and there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of law.
Prohibition lies against judicial or ministerial functions, but not
against legislative or quasi-legislative functions. Generally, the
purpose of a writ of prohibition is to keep a lower court within the
limits of its jurisdiction in order to maintain the administration of
justice in orderly channels. Prohibition is the proper remedy to
afford relief against usurpation of jurisdiction or power by an
inferior court, or when, in the exercise of jurisdiction in handling
matters clearly within its cognizance the inferior court
transgresses the bounds prescribed to it by the law, or where
there is no adequate remedy available in the ordinary course of
law by which such relief can be obtained. 23 Where the principal
relief sought is to invalidate an IRR, petitioners remedy is an ordinary
action for its nullification, an action which properly falls under the
jurisdiction of the Regional Trial Court. In any case, petitioners
allegation that "respondents are performing or threatening to perform
functions without or in excess of their jurisdiction" may appropriately be
enjoined by the trial court through a writ of injunction or a temporary
restraining order.

TAN vs. COURT OF APPEALS

The writ of prohibition is an extraordinary remedy to prevent the


unlawful and oppressive exercise of legal authority and to provide for a
fair and orderly administration of justice. The petitioner must allege in
his petition and establish facts to show that any other existing remedy
is not speedy or adequate. A remedy is plain, speedy and adequate if it
will promptly relieve the petitioner from the injurious effects of that
judgment and the acts of the tribunal or inferior court. Further, the writ
will not lie to correct errors of judgment but only errors of jurisdiction.

CIVIL PROCEDURE:

As long as the tribunal acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to nothing more
than mere errors of judgment which are correctible by a timely
appeal.12 In determining whether a tribunal acted in grave abuse of
discretion, mere abuse of discretion is not enough. There must be
grave abuse of discretion as where the tribunal exercised its power in
an arbitrary or despotic manner, by reason of passion or personal
hostility, and it must be so patent or gross as would amount to an
evasion, or virtual refusal to perform the duty enjoined, or to act in
contemplation of law.

ESTANDARTE vs. PEOPLE OF THE PHILIPPINES

The herein assailed RTC Order denied petitioners Motion for


Reinvestigation, and the other assailed RTC Order denied her Motion
for Reconsideration.

From the RTC, petitioner went straight to this Court via a petition for
review on certiorari under Rule 45 apparently on the basis of 2(c),
Rule 41 of the Rules of Court, which provides that in all cases where
only questions of law are raised, the appeal from a decision or final
order of the RTC shall be to the Supreme Court by a petition for
review on certiorari in accordance with Rule 45.

However, considering that herein assailed Orders are obviously


INTERLOCUTORY ORDERS, the proper recourse of petitioner
should have been by way of a petition for certiorari as prescribed
in Section 1, Rule 41 of the Rules of Court, which specifically
allows the aggrieved party to file a petition for certiorari under
Rule 65.

The herein petition for review on certiorari assails the jurisdiction of the
RTC in issuing the Orders in question denying petitioners Motion for
Reinvestigation, on the ground that the five Informations filed against
the petitioner contained charges beyond the Bill of Particulars filed by
the private complainants, thereby depriving her of due process.

The Court has treated a petition for review on certiorari under Rule 45
as a petition for certiorari under Rule 65 of the Rules of Court in cases
where the subject of the recourse was one of jurisdiction, or the act
complained of was perpetrated by a court with grave abuse of
discretion amounting to lack or excess of jurisdiction. 36
Moreover, in the exercise of its equity jurisdiction, the Court may
disregard procedural lapses so that a case may be resolved on its
merits based on records and evidence of the parties. 37 Proceeding
from the time-honored principle that rules of procedure should

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promote, not defeat substantial justice, the Court may opt to apply the
Rules liberally to resolve the substantial issues raised by the parties. 38
Accordingly, the Court shall treat the instant petition as a petition
for certiorari under Rule 65 of the Rules of Court since the primordial
issue to be resolved is whether the trial court acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in denying
petitioners Motion for Reinvestigation.
RULE 65: PETITION FOR MANDAMUS

CALIM vs. GUERRERO

Mandamus applies as a remedy only where petitioners right is


founded clearly on law and not when it is doubtful. Legal rights
may be enforced by mandamus only if those rights are well-defined,
clear and certain. A writ of mandamus can be issued only when
petitioners legal right to the performance of a particular act which is
sought to be compelled is clear and complete. A clear legal right is a
right which is indubitably granted by law or is inferable as a
matter of law.23 Mandamus, therefore, is employed to compel the
performance, when refused, of a ministerial duty, this being its
chief use and not a discretionary duty.

Mandamus will not issue to control or review the exercise of


discretion of a public officer where the law imposes upon said
public officer the right and duty to exercise his judgment in
reference to any matter in which he is required to act. It is his
judgment that is to be exercised and not that of the court.

CAB: Essentially, what petitioner attacks in the instant Petition for


Mandamus is the order of the Office of the Deputy Ombudsman for
Luzon, in admonishing the private respondents. The case partakes of
an administrative disciplinary nature. Petitioner was not able to
establish his entitlement to a writ of mandamus. Petitioner fails to
demonstrate that he has a clear legal right to compel the public
respondents to file a criminal information against the private
respondents. The Supreme Court will not interfere with the
Ombudsmans exercise of his investigatory and prosecutory powers
without good and compelling reasons to indicate otherwise. Said
exercise of powers is based upon his constitutional mandate and the
courts will not interfere in its exercise.

UY KIAO ENG vs. NIXON LEE

MANDAMUS is a command issuing from a court of law of


competent jurisdiction, in the name of the state or the sovereign,
directed to some inferior court, tribunal, or board, or to some

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corporation or person requiring the performance of a particular


duty therein specified, which duty results from the official station
of the party to whom the writ is directed or from operation of
law.14 This definition recognizes the PUBLIC CHARACTER of the
remedy, and clearly excludes the idea that it may be resorted to
for the purpose of enforcing the performance of duties in which
the public has no interest. The writ is a proper recourse for citizens
who seek to enforce a public right and to compel the performance of a
public duty, most especially when the public right involved is mandated
by the Constitution.

As a rule, Mandamus will not lie in the absence of any of the


following grounds: [a] that the court, officer, board, or person
against whom the action is taken unlawfully neglected the
performance of an act which the law specifically enjoins as a duty
resulting from office, trust, or station; or [b] that such court,
officer,
board,
or
person
has
unlawfully
excluded
petitioner/relator from the use and enjoyment of a right or office
to which he is entitled. On the part of the relator, it is essential to the
issuance of a writ of mandamus that he should have a clear legal right
to the thing demanded and it must be the imperative duty of
respondent to perform the act required.

Recognized further in this jurisdiction is the principle that MANDAMUS


CANNOT BE USED TO ENFORCE CONTRACTUAL OBLIGATIONS.
Generally, mandamus will not lie to enforce purely private contract
rights, and will not lie against an individual unless some
obligation in the nature of a public or quasi-public duty is
imposed. The writ is not appropriate to enforce a private right
against an individual. The writ of mandamus lies to enforce the
execution of an act, when, otherwise, justice would be obstructed; and,
regularly, issues only in cases relating to the public and to the
government; hence, it is called a PREROGATIVE WRIT. To preserve
its prerogative character, mandamus is not used for the redress
of private wrongs, but only in matters relating to the public.

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testator, deliver the will to the court having jurisdiction, or to the


executor named in the will.
3. Executor to present will and accept or refuse trust.A person
named as executor in a will shall within twenty (20) days after he
knows of the death of the testator, or within twenty (20) days after he
knows that he is named executor if he obtained such knowledge after
the death of the testator, present such will to the court having
jurisdiction, unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing his
acceptance of the trust or his refusal to accept it.
4. Custodian and executor subject to fine for neglect.A person who
neglects any of the duties required in the two last preceding sections
without excuse satisfactory to the court shall be fined not exceeding
two thousand pesos.
5. Person retaining will may be committed.A person having custody
of a will after the death of the testator who neglects without reasonable
cause to deliver the same, when ordered so to do, to the court having
jurisdiction, may be committed to prison and there kept until he delivers
the will.30

There being a plain, speedy and adequate remedy in the ordinary


course of law for the production of the subject will, the remedy of
mandamus cannot be availed of. Suffice it to state that respondent Lee
lacks a cause of action in his petition. Thus, the Court grants the
demurrer.

RULE 66: QUO WARRANTO

1. Action by Government against individuals. An action for the


usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic
of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or
exercises a public office, position or franchise;

CAB: The Court, without unnecessarily ascertaining whether the


obligation involved herethe production of the original holographic will
is in the nature of a public or a private duty, rules that the
remedy of mandamus cannot be availed of by respondent Lee
because there lies another plain, speedy and adequate remedy in
the ordinary course of law. Let it be noted that respondent has a
photocopy of the will and that he seeks the production of the original
for purposes of probate. The Rules of Court, however, does not
prevent him from instituting probate proceedings for the allowance of
the will whether the same is in his possession or not. Rule 76, Section
1 relevantly provides:

An adequate remedy is further provided by Rule 75, Sections 2 to 5,


for the production of the original holographic will. Thus
2. Custodian of will to deliver.The person who has custody of a will
shall, within twenty (20) days after he knows of the death of the

(b) A public officer who does or suffers an act which, by the


provision of law, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the
Philippines without being legally incorporated or without lawful
authority so to act. (1a)
2. When Solicitor General or public prosecutor must commence
action. The Solicitor General or a 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 preceding section can be established by proof, must
commence such action. (3a)
3. When Solicitor General or public prosecutor may commence action
with permission of court. The Solicitor General or a public
prosecutor may, with the permission of the court in which the
action is to be commenced, bring such an action at the request and
upon the relation of another person; but in such case the officer
bringing it may first require an indemnity for the expenses and
costs of the action in an amount approved by and to be deposited in

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the court by the person at whose request and upon whose relation the
same is brought. (4a)
4. When hearing had on application for permission to commence
action. Upon application for permission to commence such action in
accordance with the next preceding section, the court shall direct
that notice be given to the respondent so that he may be heard in
opposition thereto; and if permission is granted, the court shall issue
an order to that effect, copies of which shall be served on all interested
parties, and the petition shall then be filed within the period ordered by
the court. (5a)
5. When an individual may commence such an action. A person
claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another may bring an action therefor in
his own name. (6)
6. Parties and contents of petition against usurpation. When the
action is against a person for usurping a public office, position or
franchise, the petition shall set forth the name of the person who claim
to be entitled thereto, if any, with an averment of his right to the same
and that the respondent is unlawfully in possession thereof. All persons
who claim to be entitled to the public office, position or franchise may
be made parties, and their respective rights to such public office,
position or franchise determined, in the same action. (7a)
7. Venue. An action under the preceding six sections can be
brought only in the Supreme Court, the Court of Appeals, or in the
Regional Trial Court exercising jurisdiction over the territorial
area where the respondent or any of the respondents resides, but
when the Solicitor General commences the action, it may be
brought in a Regional Trial Court in the City of Manila, in the Court
of Appeals, or in the Supreme Court. (8a)
8. Period for pleadings and proceedings may be reduced; action
given precedence. The court may reduce the period provided by
these Rules for filing pleadings and for all other proceedings in the
action in order to secure the most expeditious determination of the
matters involved therein consistent with the rights of the parties. Such
action may be given precedence over any other civil matter pending in
the court. (9a)
9. Judgment where usurpation found. When the respondent is
found guilty of usurping into, 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. (10a)
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 respondent's 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. (15a)
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

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section unless the same be commenced within one (1) year after the
entry of the judgment establishing the petitioner's right to the office in
question. (16a)
12. Judgment for costs. In an action brought in accordance with
the provisions of this Rule, the court may render judgment for costs
against either the petitioner, the relator, or the respondent, or the
person or persons claiming to be a corporation, or may apportion the
costs, as justice requires. (17a)
Against public officers

CALLEJA vs. PANDAY

In this case, the basic issue of which court has jurisdiction over cases
previously cognizable by the SEC under Section 5, Presidential Decree
No. 902-A (P.D. No. 902-A), and the propensity of the parties to resort
to violence behoove the Court to look beyond petitioners technical
lapse of filing a petition for review on certiorari instead of filing a
petition for certiorari under Rule 65 with the proper court. Thus, the
Court shall proceed to resolve the case on its merits.

It should be noted that allegations in a complaint for quo warranto that


certain persons usurped the offices, powers and functions of duly
elected members of the board, trustees and/or officers make out a
case for an intra-corporate controversy.9 Prior to the enactment of R.A.
No. 8799, the Court, adopting Justice Jose Y. Ferias view, declared in
Unilongo v. Court of Appeals 10 that Section 1, Rule 66 of the 1997
Rules of Civil Procedure is "limited to actions of quo warranto against
persons who usurp a public office, position or franchise; public officers
who forfeit their office; and associations which act as corporations
without being legally incorporated," while "[a]ctions of quo warranto
against corporations, or against persons who usurp an office in a
corporation, fall under the jurisdiction of the Securities and Exchange
Commission and are governed by its rules. (P.D. No. 902-A as
amended)."11

However, R.A. No. 8799 was passed and Section 5.2 thereof provides
as follows:

5.2. The Commissions jurisdiction over all cases enumerated under


Section 5 of Presidential Decree No. 902-A is hereby transferred to the
Courts of general jurisdiction or the appropriate Regional Trial Court:
Provided, That the Supreme Court in the exercise of its authority may
designate the Regional Trial Court branches that shall exercise
jurisdiction over these cases.

Therefore, actions of quo warranto against persons who usurp an


office in a corporation, which were formerly cognizable by the

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Securities and Exchange Commission under PD 902-A, have been


transferred to the courts of general jurisdiction. But, this does not
change the fact that Rule 66 of the 1997 Rules of Civil Procedure
does not apply to quo warranto cases against persons who usurp
an office in a private corporation. Presently, Section 1(a) of Rule 66
reads thus:
Section 1. Action by Government against individuals. An action for
the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic
of the Philippines against

(a) A person who usurps, intrudes into, or unlawfully holds or exercises


a public office, position or franchise;

1(a) of Rule 66 of the present Rules no longer contains the phrase "or
an office in a corporation created by authority of law" which was found
in the old Rules. Clearly, the present Rule 66 only applies to actions
of quo warranto against persons who usurp a public office,
position or franchise; public officers who forfeit their office; and
associations which act as corporations without being legally
incorporated despite the passage of R.A. No. 8799. It is, therefore,
The Interim Rules of Procedure Governing Intra-Corporate
Controversies Under R.A. No. 8799 which applies to the petition for
quo warranto filed by respondents before the trial court since what is
being questioned is the authority of herein petitioners to assume the
office and act as the board of directors and officers of St. John
Hospital, Incorporated.

Thus, pursuant to A.M. No. 00-11-03-SC and A.M. No. 03-03-03-SC, it


is the Regional Trial Court designated as Special Commercial Courts
in Camarines Sur which shall have jurisdiction over the petition for
quo warranto filed by herein Respondents.

Evidently, the RTC-Br. 58 in San Jose, Camarines Sur is bereft of


jurisdiction over respondents petition for quo warranto. Based on the
allegations in the petition, the case was clearly one involving an intracorporate dispute. The trial court should have been aware that under
R.A. No. 8799 and the aforementioned administrative issuances of this
Court, RTC-Br. 58 was never designated as a Special Commercial
Court; hence, it was never vested with jurisdiction over cases
previously cognizable by the SEC.

Note that respondents petition for quo warranto was filed as late as
2005. A.M. No. 03-03-03-SC took effect as early as July 1, 2003 and it
was clearly provided therein that such petitions shall be filed in the
Office of the Clerk of Court in the official station of the designated
Special Commercial Court.

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Clear legal right

GARCES vs. COURT OF APPEALS

These factors negate Garces' claim for a well-defined, clear, certain


legal right to the Gutalac post. On the contrary, her right to the said
office is manifestly doubtful and highly questionable. As correctly ruled
by respondent court, mandamus, which petitioner filed below, will not
lie as this remedy applies only where petitioner's right is founded
clearly in law and not when it is doubtful. It will not issue to give him
something to which he is not clearly and conclusively entitled.
Considering that Concepcion continuously occupies the disputed
position and exercises the corresponding functions therefor, the
proper
remedy
should
have
been quo
warranto and
not mandamus. Quo warranto tests the title to one's office claimed by
another and has as its object the ouster of the holder from its
enjoyment, while mandamus avails to enforce clear legal duties and
not to try disputed titles.

Garces' heavy reliance with the 1964 Tulawie 28 case is misplaced for
material and different factual considerations. Unlike in this case, the
disputed office of "Assistant Provincial Agriculturist" in the case
of Tulawie is clearly vacant and petitioner Tulawie's appointment was
confirmed by the higher authorities making his claim to the disputed
position clear and certain. Tulawie's petition for mandamus, moreover,
was against the Provincial Agriculturist who never claimed title to the
contested office. In this case, there was no vacancy in the Gutalac post
and petitioner's appointment to which she could base her claim was
revoked making her claim uncertain.

The jurisdiction of the RTC was challenged by respondent


Empeynado 29 contending that this is a "case" or "matter" cognizable
by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The
COMELEC resolution cancelling the appointment of Garces as
Election Registrar of Gutalac, he argues, should be raised only
on certiorari before the Supreme Court and not before the RTC, else
the latter court becomes a reviewer of an en banc COMELEC
resolution contrary to Sec. 7, Art. IX-A.

The contention is without merit. Sec. 7, Art. IX-A of the Constitution


provides:

Each commission shall decide by a majority vote of all its members


any case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted for
decision or resolution upon the filing of the last pleading, brief, or memorandum
required by the rules of the commission or by the commission itself. Unless

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otherwise provided by this constitution or by law, any decision, order, or ruling of


each commission may be brought to the supreme court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.

This provision is inapplicable as there was no case or matter filed


before the COMELEC. On the contrary, it was the COMELEC's
resolution that triggered this controversy. The "case" or "matter"
referred to by the constitution must be something within the jurisdiction
of the COMELEC, i.e., it must pertain to an election dispute. The
settled rule is that "decision, rulings, order" of the COMELEC that may
be brought to the Supreme Court on certiorari under Sec. 7 Art. IX-A
are those that relate to COMELEC's exercise of adjudicatory or quasijudicial powers involving elective regional, provincial, and city officials.
In this case, what is being assailed is the COMELEC's choice of an
appointee to occupy the Gutalac Post which is an administrative duty
done for the operational set-up of an agency. The controversy
involves an appointive, not an elective, official. Hardly can this
matter call for the certiorari jurisdiction of the Supreme Court. To
rule otherwise would surely burden the Court with trivial administrative
questions that are best ventilated before the RTC, a court which the
law vests with the power to exercise original jurisdiction over "all cases
not within the exclusive jurisdiction over of any court, tribunal, person
or body exercising judicial or quasi-judicial functions."

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he has forfeited his right to enjoy the privilege. According to the


Rules of Procedure:

The action may be commenced for the Government by the Solicitor General or
the fiscal against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office, position or franchise; a public officer whose acts
constitute a ground for the forfeiture of his office; or against an association which
acts as a corporation without being legally incorporated or without lawful authority
to so act.
The action may also be instituted by an individual in his own name who claims
to be entitled to the public office or position usurped or unlawfully held or
exercised by another.32

The possible outcome of a Petition for Quo Warranto can be any


of the following:

If the court finds for the respondent, the judgment should simply state that the
respondent is entitled to the office. If, however, the court finds for the petitioner
and declares the respondent guilty of usurping, intruding into, or unlawfully
holding or exercising the office, judgment may be rendered as follows:

FELICIANO vs. VILLASIN

Whether the RTC committed grave abuse of discretion amounting to


lack or excess of jurisdiction in dismissing Felicianos Petition for Quo
Warranto.

The failure of Feliciano to implead herein the RTC, the tribunal that
rendered the assailed Orders, as a nominal party (public respondent)
in the instant Petition for Certiorari. One of the requisites of an
independent civil action for Certiorari is that it must be directed
against a tribunal, a board, or an officer exercising judicial or
quasi-judicial functions. Feliciano failed to comply with said
requirement and this failure is sufficient to dismiss this Petition.

10. Judgment where usurpation found.-- When the defendant is found guilty of
usurping, intruding into, or unlawfully holding or exercising an office, position,
right, privilege, or franchise, judgment shall be rendered that such defendant be
ousted and altogether excluded therefrom, and that the plaintiff or relator,
as the case may be, recover his costs. Such further judgment may be
rendered determining the respective rights in and to the office, position,
right, privilege, or franchise of all the parties to the action as justice
requires.

If it is found that the respondent or defendant is usurping or intruding into the


office, or unlawfully holding the same, the court may order:

(1) The ouster and exclusion of the defendant from office;


(2) The recovery of costs by plaintiff or relator;

Under Rule 65 of the Rules of Court, failure to comply with any of the
aforesaid requirements for filing an independent civil action
for Certiorari is sufficient ground for the dismissal of the petition. This
rule accords sufficient discretion to the court hearing the special civil
action whether or not to dismiss the petition outright for failure to
comply with said requirement.

Quo Warranto proceedings determine the right of a person to the


use or exercise of a franchise or an office and to oust the holder
from its enjoyment, if the latters claim is not well-founded, or if

(3) The determination of the respective rights in and to the office, position, right,
privilege or franchise of all the parties to the action as justice requires.

In the instance in which the Petition for Quo Warranto is filed by an


individual in his own name, he must be able to prove that he is entitled
to the controverted public office, position, or franchise; otherwise, the
holder of the same has a right to the undisturbed possession thereof.
In actions for Quo Warranto to determine title to a public office, the
complaint, to be sufficient in form, must show that the plaintiff is entitled
to the office. In Garcia v. Perez, Court ruled that the person
instituting Quo Warranto proceedings on his own behalf, under 5,

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Rule 66 of the Rules of Court, must aver and be able to show that he is
entitled to the office in dispute. Without such averment or evidence
of such right, the action may be dismissed at any stage.

The Court emphasizes that an action for Quo Warranto may be


dismissed at any stage when it becomes apparent that the plaintiff is
not entitled to the disputed pubic office, position or franchise. Hence,
the RTC is not compelled to still proceed with the trial when it is
already apparent on the face of the Petition for Quo Warranto that it is
insufficient. The RTC may already dismiss said petition at this point.

Damages

VILLANUEVA vs. ROSQUETA

This case is about the right to recover damages for alleged abuse of
right committed by a superior public officer in preventing a subordinate
from doing her assigned task and being officially recognized for it.

Rosqueta filed a petition for prohibition, quo warranto, and injunction


against petitioner Titus B. Villanueva (Villanueva), then Commissioner
of Customs, the Secretary of Finance, and Valera with the Regional
Trial Court2 (RTC) of Manila in Civil Case 01-101539. On August 27,
2001 the RTC issued a temporary restraining order (TRO), enjoining
Villanueva and the Finance Secretary3 from implementing Valeras
appointment.

The key issue presented in this case is whether or not the CA erred in
holding petitioner Villanueva liable in damages to respondent
Rosqueta for ignoring the preliminary injunction order that the RTC
issued in the quo warranto case (Civil Case 01-101539), thus denying
her of the right to do her job as Deputy Commissioner of the Bureau
and to be officially recognized as such public officer.

Under the abuse of right principle found in Article 19 of the Civil


Code,9 a person must, in the exercise of his legal right or duty, act in
good faith. He would be liable if he instead acts in bad faith, with intent
to prejudice another. Complementing this principle are Articles 20 10 and
2111 of the Civil Code which grant the latter indemnity for the injury he
suffers because of such abuse of right or duty.12

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D O C T R I N E S | 116

assume the office as Deputy Commissioner since respondent


Rosqueta held the position merely in a temporary capacity and since
she lacked the Career Executive Service eligibility required for the job.
But petitioner Villanueva cannot seek shelter in the alleged advice that
the OSG gave him. Surely, a government official of his rank must know
that a preliminary injunction order issued by a court of law had to be
obeyed, especially since the question of Valeras right to replace
respondent Rosqueta had not yet been properly resolved.

That petitioner Villanueva ignored the injunction shows bad faith and
intent to spite Rosqueta who remained in the eyes of the law the
Deputy Commissioner. His exclusion of her from the centennial
anniversary memorabilia was not an honest mistake by any reckoning.
Indeed, he withheld her salary and prevented her from assuming the
duties of the position. As the Court said in Amonoy v. Spouses
Gutierrez,13 a partys refusal to abide by a court order enjoining him
from doing an act, otherwise lawful, constitutes an abuse and an
unlawful exercise of right.

That respondent Rosqueta was later appointed Deputy Commissioner


for another division of the Bureau is immaterial. While such
appointment, when accepted, rendered the quo warranto case moot
and academic, it did not have the effect of wiping out the injuries she
suffered on account of petitioner Villanuevas treatment of her. The
damage suit is an independent action.

RULE 67: EXPROPRIATION


1. The complaint. The right of eminent domain shall be exercised
by the filing of a verified complaint which shall state with certainty the
right and purpose of expropriation, describe the real or personal
property sought to be expropriated, and join as defendants all persons
owning or claiming to own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the separate interest of each
defendant. If the title to any property sought to be expropriated
appears to be in the Republic of the Philippines, although occupied by
private individuals, or if the title is otherwise obscure or doubtful so that
the plaintiff cannot with accuracy or certainty specify who are the real
owners, averment to that effect shall be made in the complaint. (1a)
2. Entry of plaintiff upon depositing value with authorized government
depositary. Upon the filing of the complaint or at any time thereafter
and after due notice to the defendant, the plaintiff shall have the right
to take or enter upon the possession of the real property involved if he
deposits with the authorized government depositary an amount
equivalent to the assessed value of the property for purposes of
taxation to be held by such bank subject to the orders of the court.
Such deposit shall be in money, unless in lieu thereof the court
authorizes the deposit of a certificate of deposit of a government bank
of the Republic of the Philippines payable on demand to the authorized
government depositary.
If personal property is involved, its value shall be provisionally
ascertained and the amount to be deposited shall be promptly fixed by
the court.

Petitioner Villanueva claims that he merely acted on advice of the


Office of the Solicitor General (OSG) when he allowed Valera to

After such deposit is made the court shall order the sheriff or other
proper officer to forthwith place the plaintiff in possession of the

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property involved and promptly submit a report thereof to the court with
service of copies to the parties. (2a)
3. Defenses and objections. If a defendant has no objection or
defense to the action or the taking of his property, he may file and
serve a notice of appearance and a manifestation to that effect,
specifically designating or identifying the property in which he claims to
be interested, within the time stated in the summons. Thereafter, he
shall be entitled to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the
complaint, or any objection or defense to the taking of his property, he
shall serve his answer within the time stated in the summons. The
answer shall specifically designate or identify the property in which he
claims to have an interest, state the nature and extent of the interest
claimed, and adduce all his objections and defenses to the taking of
his property. No counterclaim, cross-claim or third-party complaint shall
be alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the
court, in the interest of justice, may permit amendments to the answer
to be made not later than ten (10) days from the filing thereof.
However, at the trial of the issue of just compensation whether or not a
defendant has previously appeared or answered, he may present
evidence as to the amount of the compensation to be paid for his
property, and he may share in the distribution of the award. (n)
4. Order of expropriation. If the objections to and the defenses
against the right of the plaintiff to expropriate the property are
overruled, or when no party appears to defend as required by this
Rule, the court may issue an order of expropriation declaring that the
plaintiff has a lawful right to take the property sought to be
expropriated, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the
date of the taking of the property or the filing of the complaint,
whichever came first.
A final order sustaining the right to expropriate the property may be
appealed by any party aggrieved thereby. Such appeal, however, shall
not prevent the court from determining the just compensation to be
paid.
After the rendition of such an order, the plaintiff shall not be permitted
to dismiss or discontinue the proceeding except on such terms as the
court deems just and equitable. (4a)
5. Ascertainment of compensation. Upon the rendition of the order
of expropriation, the court shall appoint not more than three (3)
competent and disinterested persons as commissioners to ascertain
and report to the court the just compensation for the property sought to
be taken. The order of appointment shall designate the time and place
of the first session of the hearing to be held by the commissioners and
specify the time within which their report shall be submitted to the
court.
Copies of the order shall be served on the parties. Objections to the
appointment of any of the commissioners shall be filed with the court
within ten (10) days from service, and shall be resolved within thirty
(30) days after all the commissioners shall have received copies of the
objections. (5a)
6. Proceedings by commissioners. Before entering upon the
performance of their duties, the commissioners shall take and
subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other
proceedings in the case. Evidence may be introduced by either party
before the commissioners who are authorized to administer oaths on
hearings before them, and the commissioners shall, unless the parties
consent to the contrary, after due notice to the parties, to attend, view
and examine the property sought to be expropriated and its
surroundings, and may measure the same, after which either party

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may, by himself or counsel, argue the case. The commissioners shall


assess the consequential damages to the property not taken and
deduct from such consequential damages the consequential benefits
to be derived by the owner from the public use or purpose of the
property taken, the operation of its franchise by the corporation or the
carrying on of the business of the corporation or person taking the
property. But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner be
deprived of the actual value of his property so taken. (6a)
7. Report by commissioners and judgment thereupon. The court
may order the commissioners to report when any particular portion of
the real estate shall have been passed upon by them, and may render
judgment upon such partial report, and direct the commissioners to
proceed with their work as to subsequent portions of the property
sought to be expropriated, and may from time to time so deal with such
property. The commissioners shall make a full and accurate report to
the court of all their proceedings, and such proceedings shall not be
effectual until the court shall have accepted their report and rendered
judgment in accordance with their recommendations. Except as
otherwise expressly ordered by the court, such report shall be filed
within sixty (60) days from the date the commissioners were notified of
their appointment, which time may be extended in the discretion of the
court. Upon the filing of such report, the clerk of the court shall serve
copies thereof on all interested parties, with notice that they are
allowed ten (10) days within which to file objections to the findings of
the report, if they so desire. (7a)
8. Action upon commissioners' report. Upon the expiration of the
period of ten (10) days referred to in the preceding section, or even
before the expiration of such period but after all the interested parties
have filed their objections to the report or their statement of agreement
therewith, the court may, after hearing, accept the report and render
judgment in accordance therewith, or, for cause shown, it may
recommit the same to the commissioners for further report of facts, or it
may set aside the report and appoint new commissioners; or it may
accept the report in part and reject it in part and it may make such
order or render such judgment as shall secure to the plaintiff the
property essential to the exercise of his right of expropriation, and to
the defendant just compensation for the property so taken. (8a)
9. Uncertain ownership; conflicting claims. If the ownership of the
property taken is uncertain, or there are conflicting claims to any part
thereof, the court may order any sum or sums awarded as
compensation for the property to be paid to the court for the benefit of
the person adjudged in the same proceeding to be entitled thereto. But
the judgment shall require the payment of the sum or sums awarded to
either the defendant or the court before the plaintiff can enter upon the
property, or retain it for the public use or purpose if entry has already
been made. (9a)
10. Rights of plaintiff after judgment and payment. Upon payment
by the plaintiff to the defendant of the compensation fixed by the
judgment, with legal interest thereon from the taking of the possession
of the property, or after tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the right to enter upon the
property expropriated and to appropriate it for the public use or
purpose defined in the judgment, or to retain it should he have taken
immediate possession thereof under the provisions of section 2 hereof.
If the defendant and his counsel absent themselves from the court, or
decline to receive the amount tendered, the same shall be ordered to
be deposited in court and such deposit shall have the same effect as
actual payment thereof to the defendant or the person ultimately
adjudged entitled thereto. (10a)
11. Entry not delayed by appeal; effect of reversal. The right of the
plaintiff to enter upon the property of the defendant and appropriate the
same for public use or purpose shall not be delayed by an appeal from
the judgment. But if the appellate court determines that plaintiff has no
right of expropriation, judgment shall be rendered ordering the
Regional Trial Court to forthwith enforce the restoration to the
defendant of the possession of the property, and to determine the

CIVIL

damages which the defendant sustained and may recover by reason of


the possession taken by the plaintiff. (11a)
12. Costs, by whom paid. The fees of the commissioners shall be
taxed as a part of the costs of the proceedings. All costs, except those
of rival claimants litigating their claims, shall be paid by the plaintiff,
unless an appeal is taken by the owner of the property and the
judgment is affirmed, in which event the costs of the appeal shall be
paid by the owner. (12a)
13. Recording judgment, and its effect. The judgment entered in
expropriation proceedings shall state definitely, by an adequate
description, the particular property or interest therein expropriated, and
the nature of the public use or purpose for which it is expropriated.
When real estate is expropriated, a certified copy of such judgment
shall be recorded in the registry of deeds of the place in which the
property is situated, and its effect shall be to vest in the plaintiff the title
to the real estate so described for such public use or purpose. (13a)
14. Power of guardian in such proceedings. The guardian or
guardian ad litem of a minor or of a person judicially declared to be
incompetent may, with the approval of the court first had, do and
perform on behalf of his ward any act, matter, or thing respecting the
expropriation for public use or purpose of property belonging to such
minor or person judicially declared to be incompetent, which such
minor or person judicially declared to be incompetent could do in such
proceedings if he were of age or competent. (14a)
The power of eminent domain as "the right of a government to take
and appropriate private property to public use, whenever the public
exigency requires it, which can be done only on condition of providing
a reasonable compensation therefor." It has also been described as
the power of the State or its instrumentalities to take private property
for public use and is inseparable from sovereignty and inherent in
government.

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D O C T R I N E S | 118

1. There are two (2) stages in every action of expropriation. The first is
concerned with the determination of the authority of the plaintiff to
exercise the power of eminent domain and the propriety of its exercise
in the context of the facts involved in the suit. It ends with an order, if
not of dismissal of the action, "of condemnation declaring that the
plaintiff has a lawful right to take the property sought to be condemned,
for the public use or purpose described in the complaint, upon the
payment of just compensation to be determined as of the date of the
filing of the complaint." An order of dismissal, if this be ordained, would
be a final one, of course, since it finally disposes of the action and
leaves nothing more to be done by the Court on the merits. So, too,
would an order of condemnation be a final one, for thereafter, as the
Rules expressly state, in the proceedings before the Trial Court, "no
objection to the exercise of the right of condemnation (or the propriety
thereof) shall be filed or heard.
The second phase of the eminent domain action is concerned with the
determination by the Court of "the just compensation for the property
sought to be taken." This is done by the Court with the assistance of
not more than three (3) commissioners. The order fixing the just
compensation on the basis of the evidence before, and findings of, the
commissioners would be final, too. It would finally dispose of the
second stage of the suit, and leave nothing more to be done by the
Court regarding the issue. Obviously, one or another of the parties may
believe the order to be erroneous in its appreciation of the evidence or
findings of fact or otherwise. Obviously, too, such a dissatisfied party
may seek reversal of the order by taking an appeal therefrom.
Respecting NPCs claim that the trial court did not acquire jurisdiction
over the other defendant, Enriquez, there being no evidence that
summons was served on her and, therefore, no appeal with respect to
the case against her arose, the trial courts Order 34 of May 9, 1996
belies said claim:

Multiple Appeals Allowed

NPC vs. AGUIRRE-PADERANGA

Rule 41, 2 provides

(a) Ordinary appeal. The appeal to the Court of Appeals in cases


decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving
a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.
While admittedly a complaint for expropriation is not a special
proceeding, the above-quoted rule requires the filing of a record on
appeal in "other cases of multiple or separate appeal."
Jurisprudential law, no doubt, recognizes the existence of multiple
appeals in a complaint for expropriation. The case of Municipality of
Bian v. Garcia vividly expounds on the matter, viz:

In the letter-appeal by defendant Estefania V. Enriquez addressed


to the Court, defendant did manifest no opposition to the right of
plaintiff to the use of her land but only wich (sic) that payment be
based on the actual market value of the property sought to be
expropriated. In comment to said letter-appeal, plaintiff stressed that
the amount deposited was purely to secure a writ of possession as
provided under PD 42. It agreed with defendant that the fair market
value or actual market value shall be the basis for the just
compensation of the property.
That the defendant Enriquez did not file an answer to the
complaint did not foreclose the possibility of an appeal arising
therefrom. For 3 of Rule 67 provides:
3. Defenses and objections. If a defendant has no objection or defense to the
action or the taking of his property, he may file and serve a notice of appearance
and a manifestation to that effect, specifically designating or identifying the
property in which he claims to be interested, within the time stated in the
summons. Thereafter, he shall be entitled to notice of all proceedings affecting
the same.
If a defendant has any objection to the filing of or the allegations in the complaint,
or any objection or defense to the taking of his property, he shall serve his
answer within the time stated in the summons. The answer shall specifically
designate or identify the property in which he claims to have an interest, state the
nature and extent of the interest claimed, and adduce all his objections and
defenses to the taking of his property. No counterclaim, cross-claim or third-party
complaint shall be alleged or allowed in the answer or any subsequent pleading.

CIVIL

A defendant waives all defenses and objections not so alleged but the court, in
the interest of justice, may permit amendments to the answer to be made not
later than ten (10) days from the filing thereof. However, at the trial of the issue of
just compensation, whether or not a defendant has previously appeared or
answered, he may present evidence as to the amount of the compensation to be
paid for his property, and he may share in the distribution of the award.

Once the compensation for Enriquez property is placed in issue at the


trial, she could, following the third paragraph of the immediately-quoted
3 of Rule 67, participate therein and if she is not in conformity with the
trial courts determination of the compensation, she can appeal
therefrom.
Multiple or separate appeals being existent in the present expropriation
case, NPC should have filed a record on appeal within 30 days from
receipt of the trial courts decision. The trial courts dismissal of its
appeal, which was affirmed by the appellate court, was thus in order.
Indeed, expropriation is not limited to the acquisition of real
property with a corresponding transfer of title or possession. The
right-of-way easement resulting in a restriction or limitation on
property rights over the land traversed by transmission lines, as
in the present case, also falls within the ambit of the term
"expropriation."
In the case at bar, the easement of right-of-way is definitely a taking
under the power of eminent domain. Considering the nature and effect
of the installation of the 230 KV Mexico-Limay transmission lines, the
limitation imposed by NPC against the use of the land for an
indefinite period deprives private respondents of its ordinary use.
Two Stages in an Action for Expropriation

NATIONAL HOUSING vs. HERIS OF GUINELONDO

Notably, the foregoing cases refer to the dismissal of an action for


eminent domain at the instance of the plaintiff during the pendency of
the case. The rule is different where the case had been decided and
the judgment had already become final and executory.
Expropriation proceedings consists of two stages: first, condemnation
of the property after it is determined that its acquisition will be for a
public purpose or public use and, second, the determination of just
compensation to be paid for the taking of private property to be made
by the court with the assistance of not more than three
commissioners.28 Thus:
There are two (2) stages in every action for expropriation. The first is
concerned with the determination of the authority of the plaintiff to
exercise the power of eminent domain and the propriety of its exercise
in the context of the facts involved in the suit. It ends with an order, if
not of dismissal of the action, "of condemnation declaring that the
plaintiff has a lawful right to take the property sought to be condemned,
for the public use or purpose described in the complaint, upon the
payment of just compensation to be determined as of the date of the
filing of the complaint." An order of dismissal, if this be ordained, would
be a final one, of course, since it finally disposes of the action and
leaves nothing more to be done by the Court on the merits. So, too,

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D O C T R I N E S | 119

would an order of condemnation be a final one, for thereafter, as the


Rules expressly state, in the proceedings before the Trial Court, "no
objection to the exercise of the right of condemnation (or the propriety
thereof) shall be filed or heard."
The second phase of the eminent domain action is concerned with the
determination by the Court of "the just compensation for the property
sought to be taken." This is done by the Court with the assistance of
not more than three (3) commissioners. The order fixing the just
compensation on the basis of the evidence before, and findings of, the
commissioners would be final, too. It would finally dispose of the
second stage of the suit, and leave nothing more to be done by the
Court regarding the issue. Obviously, one or another of the parties may
believe the order to be erroneous in its appreciation of the evidence or
findings of fact or otherwise. Obviously, too, such a dissatisfied party
may seek a reversal of the order by taking an appeal therefrom.29
The outcome of the first phase of expropriation proceedings, which is
either an order of expropriation or an order of dismissal, is final since it
finally disposes of the case. On the other hand, the second phase ends
with an order fixing the amount of just compensation. Both orders,
being final, are appealable.30 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. 31 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.32
CAB: Petitioner did not appeal the Order of the trial court dated
December 10, 1999, which declared that it has a lawful right to
expropriate the properties of respondent Heirs of Isidro Guivelondo.
Hence, the Order became final and may no longer be subject to review
or reversal in any court. A final and executory decision or order can no
longer be disturbed or reopened no matter how erroneous it may be.
Although judicial determinations are not infallible, judicial error should
be corrected through appeals, not through repeated suits on the same
claim.
Petitioner anchors its arguments on the last paragraph of the abovequoted Rule 67, 4. In essence, it contends that there are just and
equitable grounds to allow dismissal or discontinuance of the
expropriation proceedings. More specifically, petitioner alleges that the
intended public use was rendered nugatory by the unreasonable just
compensation fixed by the court, which is beyond the means of the
intended beneficiaries of the socialized housing project. The argument
is tenuous.
Applicability of Execution Pending Appeal
SPOUSES CURATA vs. PPA

Whether execution pending appeal is applicable to expropriation


proceedings NO

The Court rules that discretionary execution of judgments


pending appeal under 2(a) of Rule 39 does not apply to eminent
domain proceedings.

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D O C T R I N E S | 120

This Courts disquisition in Manila International Airport Authority v.


Court of Appeals102 ruling that MIAA is not a government-owned
and/or controlled corporation (GOCC), but an instrumentality of the
National Government and thus exempt from local taxation, and that its
real properties are owned by the Republic of the Philippinesis
instructive. Therein we found that MIAA is neither a stock or a nonstock corporation, for its capital is not divided into shares nor does it
have members. Moreover, the airport lands and buildings it administers
are owned by the Republic, which certainly takes them outside the
commerce of man and makes MIAA a mere trustee thereof. These
findings are squarely applicable to PPA, as it is similarly situated as
MIAA. First, PPA is likewise not a GOCC for not having shares of
stocks or members. Second, the docks, piers and buildings it
administers are likewise owned by the Republic and, thus, outside the
commerce of man. Third, PPA is a mere trustee of these properties.
Hence, like MIAA, PPA is clearly a government instrumentality, an
agency of the government vested with corporate powers to perform
efficiently its governmental functions.103

to expropriate petitioners property for public use." Pursuant to the


above Rule, the motion is a responsive pleading joining the issues.
What the trial court should have done was to set the case for the
reception of evidence to determine whether there is indeed a
genuine necessity for the taking of the property, instead of
summarily making a finding that the taking is for public use and
appointing commissioners to fix just compensation. This is
especially so considering that the purpose of the expropriation was
squarely challenged and put in issue by petitioner in her motion to
dismiss.

Therefore, an undeniable conclusion is that the funds of PPA partake


of government funds, and such may not be garnished absent an
allocation by its Board or by statutory grant. If the PPA funds cannot be
garnished and its properties, being government properties, cannot be
levied via a writ of execution pursuant to a final judgment, then the trial
court likewise cannot grant discretionary execution pending appeal, as
it would run afoul of the established jurisprudence that government
properties are exempt from execution. What cannot be done directly
cannot be done indirectly.

The right to take private property for public purposes necessarily


originates from "the necessity" and the taking must be limited to such
necessity. In City of Manila v. Chinese Community of Manila, we held
that the very foundation of the right to exercise eminent domain is
a genuine necessity and that necessity must be of a public
character. Moreover, the ascertainment of the necessity must
precede or accompany and not follow, the taking of the land.
In City of Manila v. Arellano Law College, we ruled that "necessity
within the rule that the particular property to be expropriated must be
necessary, does not mean an absolute but only a reasonable or
practical necessity, such as would combine the greatest benefit to
the public with the least inconvenience and expense to the
condemning party and the property owner consistent with such
benefit."

Public Use

Judicial review of the exercise of eminent domain is limited to the


following areas of concern: (a) the adequacy of the compensation, (b)
the necessity of the taking, and (c) the public use character of the
purpose of the taking.

MASIKIP vs. CITY OF PASIG

Where the taking by the State of private property is done for the benefit
of a small community which seeks to have its own sports and
recreational facility, notwithstanding that there is such a recreational
facility only a short distance away, such taking cannot be considered to
be for public use. Its expropriation is not valid. In this case, the Court
defines what constitutes a genuine necessity for public use.
3. Defenses and objections. Within the time specified in the
summons, each defendant, in lieu of an answer, shall present in a
single motion to dismiss or for other appropriate relief, all his
objections and defenses to the right of the plaintiff to take his
property for the use or purpose specified in the complaint. All
such objections and defenses not so presented are waived. A copy of
the motion shall be served on the plaintiffs attorney of record and filed
with the court with proof of service."
The motion to dismiss contemplated in the above Rule clearly
constitutes the responsive pleading which takes the place of an
answer to the complaint for expropriation. Such motion is the
pleading that puts in issue the right of the plaintiff to expropriate the
defendants property for the use specified in the complaint. All that the
law requires is that a copy of the said motion be served on plaintiffs
attorney of record. It is the court that at its convenience will set the
case for trial after the filing of the said pleading.
The Court of Appeals therefore erred in holding that the motion to
dismiss filed by petitioner hypothetically admitted the truth of the facts
alleged in the complaint, "specifically that there is a genuine necessity

Applying this standard, we hold that respondent City of Pasig has


failed to establish that there is a genuine necessity to expropriate
petitioners property. Our scrutiny of the records shows that the
Certification issued by the Caniogan Barangay Council, the basis for
the passage of Ordinance No. 42 s. 1993 authorizing the expropriation,
indicates that the intended beneficiary is the Melendres Compound
Homeowners Association, a private, non-profit organization, not
the residents of Caniogan. It can be gleaned that the members of
the said Association are desirous of having their own private
playground and recreational facility. Petitioners lot is the nearest
vacant space available. The purpose is, therefore, not clearly and
categorically public. The necessity has not been shown, especially
considering that there exists an alternative facility for sports
development and community recreation in the area, which is the
Rainforest Park, available to all residents of Pasig City, including those
of Caniogan.
Commissioners

NAPOCOR vs. PUREFOODS

The question of just compensation for an easement of right-of-way


over a parcel of land that will be traversed by NAPOCORs
transmission lines has already been answered in National Power
Corporation v. Manubay Agro-Industrial Development Corporation.46 In
that case, the Court held that because of the nature of the easement,
which will deprive the normal use of the land for an indefinite period,

CIVIL PROCEDURE:

just compensation must be based on the full market value of the


affected properties.

True, an easement of a right of way transmits no rights except the


easement itself, and respondent retains full ownership of the property.
The acquisition of such easement is, nevertheless, not gratis. As
correctly observed by the CA, considering the nature and the effect of
the installation power lines, the limitations on the use of the land for an
indefinite period would deprive respondent of normal use of the
property. For this reason, the latter is entitled to payment of a just
compensation, which must be neither more nor less than the monetary
equivalent of the land.
While Section 3(a) of R.A. No. 6395, as amended, and the
implementing rule of R.A. No. 8974 indeed state that only 10% of the
market value of the property is due to the owner of the property subject
to an easement of right-of-way, said rule is not binding on the Court.
Well-settled is the rule that the determination of "just compensation" in
eminent domain cases is a judicial function.51 In Export Processing
Zone Authority v. Dulay,52 the Court held that any valuation for just
compensation laid down in the statutes may serve only as guiding
principle or one of the factors in determining just compensation but it
may not substitute the courts own judgment as to what amount should
be awarded and how to arrive at such amount.53 The executive
department or the legislature may make the initial determinations but
when a party claims a violation of the guarantee in the Bill of Rights
that private property may not be taken for public use without just
compensation, no statute, decree, or executive order can mandate that
its own determination shall prevail over the courts findings. Much less
can the courts be precluded from looking into the "just-ness" of the
decreed compensation.54
NAPOCOR argues that the Court of Appeals should not have adopted
the commissioners report hook, line and sinker because the same was
based exclusively on relative prices of adjoining lots without showing
evidence on their proximity and of the sales of similar classification.
The duty of the court in considering the commissioners report is to
satisfy itself that just compensation will be made to the defendant by its
final judgment in the matter, and to fulfill its duty in this respect, the
court will be obliged to exercise its discretion in dealing with the report
as the particular circumstances of the case may require. Rule 67,
Section 8 of the 1997 Rules of Civil Procedure clearly shows that the
trial court has the discretion to act upon the commissioners report in
any of the following ways: (1) it may accept the same and render
judgment therewith; or (2) for cause shown, it may [a] recommit the
report to the commissioners for further report of facts; or [b] set aside
the report and appoint new commissioners; or [c] accept the report in
part and reject it in part; and it may make such order or render such
judgment as shall secure to the plaintiff the property essential to the
exercise of his right of expropriation, and to the defendant just
compensation for the property so taken.55
In the instant case, the Court finds no reversible error in the RTCs
determination of just compensation even if the same was based on the
commissioners report, there being no showing that said report was
tainted with irregularity, fraud or bias.

RULE 68: FORECLOSURE OF REAL ESTATE MORTGAGE

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1. Complaint in action for foreclosure. In an action for the


foreclosure of a mortgage or other encumbrance upon real estate, the
complaint shall set forth the date and due execution of the mortgage;
its assignments, if any; the names and residences of the mortgagor
and the mortgagee; a description of the mortgaged property; a
statement of the 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, all of whom shall be made defendants in the
action. (1a)
2. Judgment on foreclosure for payment or sale. If upon the trial in
such action the court shall find the facts set forth in the complaint to be
true, it shall ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and other charges as
approved by the court, and costs, and shall render judgment for the
sum so found due and order that the same be paid to the court or to
the judgment obligee within a period of not less than ninety (90) days
nor more than one hundred twenty (120) days from the entry of
judgment, and that in default of such payment the property shall be
sold at public auction to satisfy the judgment. (2a)
3. Sale of mortgaged property; effect. When the defendant, after
being directed to do so as provided in the next preceding section, fails
to pay the amount of the judgment within the period specified therein,
the court, upon motion, shall order the property to be sold in the
manner and under the provisions of Rule 39 and other regulations
governing sales of real estate under execution. Such sale shall not
affect the rights of persons holding prior encumbrances upon the
property or a part thereof, and when confirmed by an order of the
court, also upon motion, it shall operate to divest the rights in the
property of all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be allowed by
law.
Upon the finality of the order of confirmation or upon the expiration of
the period of redemption when allowed by law, the purchaser at the
auction sale or last redemptioner, if any, shall be entitled to the
possession of the property unless a third party is actually holding the
same adversely to the judgment obligor. The said purchaser or last
redemptioner may secure a writ of possession, upon motion, from the
court which ordered the foreclosure. (3a)
4. Disposition of proceeds of sale. The amount realized from the
foreclosure sale of the mortgaged property shall, after deducting the
costs of the sale, be paid to the person foreclosing the mortgage, and
when there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior encumbrancers in
the order of their priority, to be ascertained by the court, or if there be
no such encumbrancers or there be a balance or residue after
payment to them, then to the mortgagor or his duly authorized agent,
or to the person entitled to it. (4a)
5. How sale to proceed in case the debt is not all due. If the debt
for which the mortgage or encumbrance was held is not all due as
provided in the judgment as soon as a sufficient portion of the property
has been sold to pay the total amount and the costs due, the sale shall
terminate; and afterwards as often as more becomes due for principal
or interest and other valid charges, the court may, on motion, order
more to be sold. But if the property cannot be sold in portions without
prejudice to the parties, the whole shall be ordered to be sold in the
first instance, and the entire debt and costs shall be paid, if the
proceeds of the sale be sufficient therefor, there being a rebate of
interest where such rebate is proper. (5a)
6. Deficiency judgment. If upon the sale of any real property as
provided in the next preceding section there be a balance due to the
plaintiff after applying the proceeds of the sale, the court, upon motion,
shall render judgment against the defendant for any such balance for
which, by the record of the case, he may be personally liable to the
plaintiff, upon which execution may issue immediately if the balance is

CIVIL PROCEDURE:

all due at the time of the rendition of the judgment; otherwise; the
plaintiff shall be entitled to execution at such time as the balance
remaining becomes due under the terms of the original contract, which
time shall be stated in the judgment. (6a)
7. Registration. A certified copy of the final order of the court
confirming the sale shall be registered in the registry of deeds. If no
right of redemption exists, the certificate of title in the name of the
mortgagor shall be cancelled, and a new one issued in the name of the
purchaser.
Where a right of redemption exists, the certificate of title in the name of
the mortgagor shall not be cancelled, but the certificate of sale and the
order confirming the sale shall be registered and a brief memorandum
thereof made by the registrar of deeds upon the certificate of title. In
the event the property is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief memorandum thereof
shall be made by the registrar of deeds on said certificate of title.
If the property is not redeemed, the final deed of sale executed by the
sheriff in favor of the purchaser at the foreclosure sale shall be
registered with the registry of deeds; whereupon the certificate of title
in the name of the mortgagor shall be cancelled and a new one issued
in the name of the purchaser. (n)
8. Applicability of other provisions. The provisions of sections 31,
32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of
real estate mortgages under this Rule insofar as the former are not
inconsistent with or may serve to supplement the provisions of the
latter. (8a)
BPI FAMILY vs. COSCUSUELLA
In a mortgage credit transaction, the credit gives rise to a personal
action for collection of the money. The mortgage is the guarantee
which gives rise to a mortgage foreclosure suit to collect from the very
property that secured the debt.49
The action of the creditor is anchored on one and the same cause: the
nonpayment by the debtor of the debt to the creditor-mortgagee.
Though the debt may be covered by a promissory note or several
promissory notes and is covered by a real estate mortgage, the
latter is subsidiary to the former and both refer to one and the
same obligation.
A mortgage creditor may institute two alternative remedies against the
mortgage debtor, either a personal action for the collection of debt, or a
real action to foreclose the mortgage, but not both. Each remedy is
complete by itself.

In the absence of express statutory provisions, a mortgage creditor


may institute against the mortgage debtor either a personal action for
debt or a real action to foreclose the mortgage. In other words, he may
pursue either of the two remedies, but not both. By such election, his
cause of action can by no means be impaired, for each of the two
remedies is complete in itself. Thus, an election to bring a personal
action will leave open to him all the properties of the debtor for
attachment and execution, even including the mortgaged property
itself. And, if he waives such personal action and pursues his remedy
against the mortgaged property, an unsatisfied judgment thereon
would still give him the right to sue for a deficiency judgment, in which
case, all the properties of the defendant, other than the mortgaged
property, are again open to him for the satisfaction of the deficiency. In
either case, his remedy is complete, his cause of action undiminished,

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and any advantages attendant to the pursuit of one or the other


remedy are purely accidental and are all under his right of election.

MONZON vs. SPOUSES RELOVA

4, Rule 68 of the Rules of Court, which is the basis of respondents


alleged cause of action entitling them to the residue of the amount paid
in the foreclosure sale, provides as follows:
4. Disposition of proceeds of sale.The amount realized from the
foreclosure sale of the mortgaged property shall, after deducting the
costs of the sale, be paid to the person foreclosing the mortgage,
and when there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior encumbrancers in
the order of their priority, to be ascertained by the court, or if there be
no such encumbrancers or there be a balance or residue after
payment to them, then to the mortgagor or his duly authorized agent,
or to the person entitled to it.
However, Rule 68 governs the JUDICIAL FORECLOSURE of
mortgages. EXTRA-JUDICIAL FORECLOSURE OF MORTGAGES,
which was what transpired in the case at bar, is governed by Act No.
31