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LECTURE NOTES ON CIVIL PROCEDURE

Revised October 2009

WHAT IS CIVIL PROCEDURE

1. It is the procedure governing the filing, processing and


adjudication of civil actions. It essentially is the lawyer’s law that
defines the rules of the game that lawyers and judges play.

2. It is considered as procedural law as it prescribes the


method of enforcing rights and obtaining redress for their invasion,
as opposed to substantive law which creates, defines, and
regulates rights and duties that give rise to a cause of action.

2.1 The rules of procedure promulgated by authority of


law bear the force and effect of law.1

3. It is embraced in Rules 1 to 71 of the Rules of Court and


after its revision, is now commonly known as the 1997 Rules of
Civil Procedure. It is divided into the following topics: General
Provisions (Rule 1), Ordinary Civil Actions (Rules 2-5), Procedure in
Regional Trial Courts (Rules 6-39), Appeals (Rules 40-43),
Procedure in the Court of Appeals and Supreme Court (Rule 44-
56), Provisional Remedies (Rules 57-61), and Special Civil Actions
(Rules 62-71).

4. Included within its scope are the 1991 Rules on Summary


Procedure, Local Government Code provisions on the Katarungang
Pambarangay and related issuances of the Supreme Court.

PRELIMINARIES

1. Any discussion of procedural rules should always be


preceded by a discussion of jurisdiction as its presence is what
gives rise to the application of the rules for the purpose of resolving
the action that is brought before a court. Simply defined it refers to
the power and authority of a court or tribunal to hear, try and
decide a case. It has also been defined as the authority by which
courts and judicial officers take cognizance of and decide cases.

1.1 Absent jurisdiction, the only thing a court can do as


provided by the rules is to dismiss the action.

1.2 If a court acts without jurisdiction, all its acts are null
and void. Further, any decision it may render is not a
decision in contemplation of law and cannot be
executory.2
1.3 The validity of a judgment or order of a court or quasi-
judicial tribunal which has become final and executory
may be attacked when the records show that it lacked
jurisdiction to render the judgment - a void judgment
may be assailed or impugned at any time either
directly or collaterally by means of a petition filed in
1
Conlu v. Court of Appeals, 106 Phil 940
2
Abbain vs. Chua, 22 SCRA 748, Estoesta vs. Court of Appeals, 179 SCRA 203, Dava vs. People,
202 SCRA 62

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the same or separate case, or by resisting such
judgment in any action or proceeding wherein it is
invoked. In fact, even the testimony in a case where
the proceedings had been nullified for lack of
jurisdiction is inadmissible as evidence. 3

2. The absence of jurisdiction as a general rule may be


questioned at any stage of the proceedings, even on appeal.
2.1 However, a party may be barred from raising it on the
ground of laches or estoppel when he has actually
invoked the jurisdiction of the court by participating in
the proceedings, then belatedly questions lack of
jurisdiction after judgment has gone against him.
Participation in all stages before the trial court which
included invoking its authority in asking for
affirmative relief, effectively bars the party by estoppel
from challenging the court’s jurisdiction. 4

2.2 The court actually does not have jurisdiction, but the
law for reasons of equity, steps in to gag the negligent
party and prevents him from raising its voice about
lack of jurisdiction. It does so not because the Court
has acquired jurisdiction but because of fault or
negligence of a party now estops him from raising the
question of lack of jurisdiction. 5

2.3 Note likewise the rules covering actions for annulment


of judgment based on extrinsic fraud or lack of
jurisdiction. If based on the latter, it can only be
initiated before it is barred by laches or estoppel.6

2.4 It is incumbent upon the petitioner to file a motion to


dismiss at the earliest opportune time to raise the
issue of the court’s lack of jurisdiction. Its failure to
seasonably raise the question of jurisdiction leads to
the inevitable conclusion that it is now barred by
laches.7

REQUISITES FOR A VALID EXERCISE OF JURISDICTION

1. It must have jurisdiction over the persons of the parties. It is


acquired over the plaintiff upon his filing of a complaint.

1.1 On the other hand, it is acquired over the defendant


by his voluntary appearance before the court or the
employment of the coercive power of legal process.

2. It must also have jurisdiction over the subject matter in


controversy. Jurisdiction over the subject matter of the complaint
is to be determined by the allegations in the complaint and the law
in force at the time of the commencement of the action. This is the
3
Dynamic Signmaker Outdoor Advertising Services, Inc. vs. Potongan, 461 SCRA 328
4
Heirs of the late Panfilo V. Pajarillo v. Court of Appeals, 537 SCRA 96
5
Tijam v. Sibonghanoy, 23 SCRA 29, Soliven v. FastForms, Phil. Inc., 440 SCRA 389
6
Sections, 2 and 3, Rule 49, 1997 Rules of Civil Procedure
7
United Overseas Bank v. Ros, 529 SCRA 334

2
power of a court to hear and determine cases of a general class to
which the proceedings in question belong.8

2.1 Determined by allegations in the complaint.


Jurisdiction must be determined at the
commencement of the action. Since an action is
commenced by the filing of a complaint, it is also the
means by which the plaintiff invokes the jurisdiction of
the court. Hence, it is from it that a determination of
the existence of jurisdiction is had.

2.2 The determination is to be confined solely to the four


corners of the complaint. Specifically, what
characterizes an action is not the caption of the
pleading, which is just a legal conclusion on the part
of the pleader, but the allegations in the body of the
complaint.9

2.3 In case of conflict between the allegations and the


reliefs, the allegations in the body shall prevail. The
prayer is a conclusion of the pleader as cause of
action. The Court is not bound as it may grant a relief,
lesser or greater in amount, or totally different from
that prayed for.10

2.4 Even if the plaintiff alleges an amount that puts the


case within the jurisdiction of the RTC, the court’s
jurisdiction is not affected if it later finds that the
plaintiff is entitled to an amount within the
jurisdiction of an MTC.11 Conversely, if a court has no
jurisdiction, the defect will not be cured by a finding
during the trial that the amount actually due is within
the jurisdiction of the court.12

2.5 Neither can it be determined from the allegations in


the answer of the defendant. If the rule were
otherwise, no action can prosper as all the defendant
has to do is to allege that the jurisdiction is vested in
another court.

2.6 The only recognized exception is the defense of


agricultural tenancy.13 The court in this case must
conduct a preliminary hearing on the defense to
determine if there is indeed a tenancy relationship, as
its existence shall mean that the court has no
jurisdiction as the same is vested exclusively with the
DARAB.14

8
Heirs of Valeriano S. Concha, Sr. v. Lumocso, 540 SCRA 1
9
De Jesus v. Bristol Laboratories, 55 SCRA 349, Solid Homes v. Court of Appeals, 271 SCRA
157
10
Bulao v. Court of Appeals, 218 SCRA 321
11
Ratilla v. Tapucar, 75 SCRA 64
12
Mercado v. Ubay, 187 SCRA 719
13
Section 3, Rule 70, 1997 Rules of Civil Procedure
14
Concepcion v. CFI of Bulacan, 119 SCRA 222

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2.7 Determined by the law in force at the time of the
commencement of the action. Jurisdiction as used in
the Constitution and statutes means jurisdiction over
the subject matter15 unless qualified to mean another
kind of jurisdiction. This jurisdiction refers to the
jurisdiction of a court over a general class of cases or
the power to try and decide the class of litigation to
which the particular case belongs. 16 Jurisdiction is
conferred by law, where there is none; no agreement of
the parties can provide one.17

2.8 Example: If an action for payment of a sum of money


is filed after the effectivity of RA 7961 on April 15,
1994, expanding the jurisdiction of the MTC and
implemented by Adm. Circular 9-94 18 interest,
damages of whatever kind- as long as incidental,
attorney’s fees, litigation expenses and costs (DIAL-C)
are not to be considered in fixing the jurisdictional
amount, but must be specifically alleged and filing fees
paid thereon. Hence, in an action for the payment of a
sum of money previous to the said date, a
determination of jurisdiction would have to include the
amounts claimed by way of DIAL-C. Another is Section
5.2, RA 879919 that vests jurisdiction over intra-
corporate disputes in the RTC that sits as a
commercial court.

2.9 When a court has already obtained and is exercising


jurisdiction over a controversy, its jurisdiction to
proceed to the final determination of the cause is not
affected by new legislation placing jurisdiction over
such proceedings in another tribunal unless the
statute expressly provides, or is construed to the effect
that it is intended to operate on actions pending before
its enactment.20

3. Jurisdiction over the res assumes importance only in those


actions where the court cannot acquire jurisdiction over the person
of the defendant because he is not a resident and cannot be found
here or served with summons.

3.1 These are quasi in rem actions.21 The action is directed


against a defendant personally, although its object is
to subject his interest in the property to the obligation
or the lien.22

PROBLEM AREAS AFFECTING JURISDICTION

1. Actions which are incapable of pecuniary estimation


15
Reyes v. Diaz, 73 Phil 484
16
Caluag v. Pecson, 82 Phil 8
17
Department of Health v. NLRC, 251 SCRA 700
18
June 14, 1994
19
Securities Regulation Code of 2000
20
Palana v. People, 534 SCRA 296
21
Perkins v. Dizon, 69 Phil 186
22
Biaco v. PCRB, 515 SCRA 106

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1.1 Generally, it is one where the basic issue is something
other than the right to recover money, where the
money claim is incidental to or is a consequence of the
principal relief being sought.

1.2 It is a claim, the subject of which cannot be estimated


in terms of money.

1.3 Examples: Action for specific performance – although


damages are being sought but if damages are part of
an alternative prayer, jurisdiction should be based on
the amount. Other examples: Action for appointment
of receivers, expropriation, interpleader, support, and
rescission.

1.4 In determining which court has jurisdiction, the


applicable test is the Nature of the Action Test which
involves a determination as to whether or not the
action is capable of pecuniary estimation. If not
capable, jurisdiction is with the RTC. If capable-
jurisdiction is determined by the amount
claimed/value of the real or personal property but this
test must yield to the Primary or Ultimate Objective
Test where notwithstanding the fact that the action
appears to be incapable of pecuniary estimation, if the
primary objective is to recover real property,
jurisdiction will be determined by the assessed value
of the real property.

1.5 Examples: An action for specific performance with a


prayer for the issuance of a deed of sale over a parcel
of land is a real action as the object is the recovery of
the land itself23 or an action to quiet title in which both
parties are claiming ownership of the subject parcels
of land is also a real action. 24 Hence, they cannot be
considered as being incapable of pecuniary estimation.

2. DETERMINATION OF AMOUNTS OF THE CLAIM TO


DETERMINE JURISDICTION AND PAYMENT OF DOCKET FEES.

2.1 Filing and docketing of the complaint are not separate


but are complementary. 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.25

2.2 The problem arises as filing is not synonymous with


docketing as the complaint may be filed but not

23
Gochan v. Gochan, 372 SCRA 256
24
Ferrer v. Lucas, CA G.R. No. SP 52294, July 9, 1999
25
Proton Pilipinas Corporation v. Banque Nationale de Paris, 460 SCRA 260.

5
necessarily docketed if the appropriate fees are not
paid.

2.3 The purpose of docket fees is to take care of court


expenses in the handling of cases in terms of costs of
supplies, use of equipment, salaries and benefits.26

2.4 Examples in determining appropriate docket fees: (a)


Foreclosure of chattel to collect PHP 100,000.00
but actual value of chattel is PHP 500,000.00, the
docket fee is based on what is sought to be collected
and jurisdiction is determined by the amount claimed
by the plaintiff (b) An action to collect a sum of money
that is within jurisdiction of the MTC but with
accessory prayer for damages beyond MTC
jurisdiction, the damages, interest, attorneys’ fees,
litigation expenses are to be excluded in determining
jurisdiction but docket fees are still to be collected 27
but if action is for damages over 400K jurisdiction is
with the RTC because it is the main cause of action or
one of the causes of action.

2.5 If the docket fees are incorrect - the trial court should
allow the plaintiff to pay within a reasonable period of
time before the expiration of the applicable prescriptive
or reglamentary period otherwise the defendant must
move to dismiss the complaint on the ground of lack of
jurisdiction, if he does not, he may be considered to be
in estoppel.28

2.6 The court had jurisdiction over the amended complaint


as it had acquired jurisdiction over the case when the
original complaint was filed and the corresponding
docket fee was paid thereon. While the payment of the
prescribed docket fee is a jurisdictional requirement,
even its nonpayment 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.29

2.7 When the docket fees for the main action are paid but
those for related damages alleged but not specified are
not paid, the court is not prevented from proceeding
with the complaint, the trial court may expunge the
claims or allow on motion, a reasonable time for
amendment of the complaint or accept payment of the
requisite legal fees.30

2.8 In a complaint for recovery of possession of real


property which did not allege the assessed value
thereof, the trial court commits a serious error in
26
Serrano v. Delica, 465 SCRA 82
27
A.M. 09-94, June 14, 1994
28
NSC v. Court of Appeals, G.R. 123215, February 2, 1999
29
Pagcor v. Lopez, 474 SCRA 76, Polido v. Court of Appeals, 527 SCRA 248
30
Tacay v RTC of Tagum, Davao del Sur, 180 SCRA 433

6
denying a motion to dismiss on the ground of lack of
jurisdiction. All proceedings in said court are null and
void.31

2.9 If the claims are not specified and subsequently arise


or there is an insufficiency in the payment of docket
fees, the required additional fee shall constitute a lien
on the judgment and the clerk of court must enforce
and collect the difference in docket fees from the
judgment that may be rendered by the court in the
case, awarding a claim no specified in the pleading or
if specified is left to its determination.32

DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION


EXERCISED BY THE COURTS

1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION


OR KIND OF CASES THAT ARE TRIED – it is General, meaning it
is exercised over all kinds of cases or Limited, meaning it exercised
over and extends only to a particular or specified cases

2. AS TO THE NATURE OF THE CAUSE OR THE ACTION – it is


Criminal when the object of the action is to impose punishment for
a crime or Civil, if otherwise.

3. AS TO THE TIMING OF ITS EXERCISE- it is Original,


meaning it is exercised by courts in the first instance or Appellate,
meaning it is exercised by a superior court to review and decide a
cause or action previously decided by a lower court.

4. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION


– it is Exclusive, meaning it is confined to a particular court or
Concurrent, meaning two or more courts have jurisdiction at the
same time and place.

4.1 In this instance, the court which has first validly


acquired jurisdiction takes it to the exclusion of the
others. This is also known as the Exclusionary
Principle. This is taken together with the Doctrine of
Judicial Stability of Non-Interference which holds that
court of co-equal or coordinate jurisdiction shall have
no authority to pass upon or scrutinize the exercise by
another court of its jurisdiction.

4.2 Note though the Doctrine of Hierarchy of Courts which


requires litigants to initially seek proper relief from the
lower courts in those cases where the Supreme Court
has concurrent jurisdiction with the Court of Appeals
and the Regional Trial Court to issue the extraordinary
writs of certiorari, prohibition or mandamus. The
Supreme Court is a court of last resort and its
jurisdiction to issue extra-ordinary writs should be
exercised only when absolutely necessary, or where
31
Quinagoran vs. CA, GR No. 155179, August 24, 2007
32
Pascual v. Court of Appeals, 300 SCRAPascual v. Court of Appeals, 300 SCRA 214

7
serious and important reasons therefor exist.33 Neither
does concurrence of jurisdiction grant any party
seeking any of the extra-ordinary writs the absolute
freedom to file the petition with the court of his
choice.34

5. AS TO SITUS – it is Territorial, meaning it is exercised within


the limits of the place where the court is located or Extra-
Territorial meaning it is exercised beyond the confines of the
territory where the court is located.

WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED

Jurisdiction once acquired continues until the case is terminated.


It is not affected by subsequent legislation placing jurisdiction in
another tribunal.35 The exceptions are: when the law expressly
provides for retroactivity,36 when the change in jurisdiction is
curative in nature, or when there is a perfected appeal. This is
also known as the Doctrine of Adherence to Jurisdiction.

DOCTRINE OF PRIMARY JURISDICTION

1. That which vests in an administrative tribunal the


jurisdiction to determine a controversy requiring the exercise of
sound administrative discretion – stated otherwise – if jurisdiction
is vested upon an administrative body, no resort to courts can be
made until the administrative body shall have acted on the matter.

2. In exercising its primary jurisdiction, a court has the


inherent jurisdiction to determine issues incidental to its exercise.
This is known as the Doctrine of Ancillary Jurisdiction.

LEVELS OF SUBJECT MATTER JURISDICTION

1. JURISDICTION OF THE SUPREME COURT

The jurisdiction of the Supreme Court in civil cases of which


it cannot be deprived and which cannot be diminished by Congress
is to review, revise, reverse, modify, or affirm on appeal or certiorari
as the law or the Rules of Court may provide, final judgments and
orders of lower courts in:

a) all cases in which the constitutionality or validity of any


treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question;

b) all cases involving the legality of any tax, impost,


assessment, or toll, or any penalty imposed in relation
thereto;
c) all cases in which the jurisdiction of any lower court is in
issue; and
33
Pearson v. IAC, 295 SCRA 27
34
Ouano vs. PGTT International Investment Corporation, 384 SCRA 587
35
Mercado v. Ubay, 187 SCRA 719
36
Latchme Motoomull v. Dela Paz, 187 SCRA 743

8
d) all cases in which only an error or question of law is
involved.

The foregoing Constitutional definition is of appellate


jurisdiction. Congress, however, is not prohibited from increasing
or adding to this Constitutionally-defined jurisdiction. And so
Congress has given the Supreme Court original jurisdiction over
cases affecting ambassadors, other public ministers, and consuls
and petitions for the issuance of writs of certiorari, prohibition and
mandamus against the Court of Appeals. Congress has also vested
the Supreme Court with jurisdiction, concurrent with the RTCs,
over petitions for the issuance of the writs of certiorari, prohibition,
habeas corpus, and in actions brought to prevent and restrain
violations of law concerning monopolies and combinations in
restraint of trade.

The appellate jurisdiction in civil cases of the Supreme Court


as defined in the Constitution had been revised and expanded a
little bit more by law to include all cases involving petitions for
naturalization or denaturalization, all decisions of the Auditor
General, if the appellant is a private person or entity, and final
judgments or orders of the Commission on Elections.

2. JURISDICTION OF THE COURT OF APPEALS

The Court of Appeals has both original and appellate


jurisdiction. Its original jurisdiction, which is exclusive, is over
actions for annulment of RTC judgments. Its original jurisdiction,
which is concurrent with the Supreme Court and the RTCs, is to
issue writs of mandamus, prohibition, certiorari, habeas corpus and
quo warranto, and auxiliary writs or processes, whether or not in
aid of its appellate jurisdiction.

The appellate jurisdiction of the Court of Appeals, which is


exclusive, is over final judgments or resolutions of RTCs and quasi-
judicial agencies, such as the Securities and Exchange
Commission, Sandiganbayan and the National Labor Relations
Commission.

3. JURISDICTION OF REGIONAL TRIAL COURTS

The RTCs are our second-level trial courts. As the Supreme


Court and the Court of Appeals, RTCs have both original and
appellate jurisdiction in civil cases.

Their original jurisdiction is concurrent with the Supreme


Court and the Court of Appeals in the issuance of writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus
and injunctions but, as issued by RTCs, these writs may be
enforced only within their respective regions, and over actions
affecting ambassadors and other public ministers and consuls.

The original jurisdiction of RTCs, which is exclusive, is broad


and covers the following cases:

9
a) All civil actions in which the subject of the litigation is
incapable of pecuniary estimation;

b) All civil actions which involve the title to, or possession


of, real property, or any interest therein, where the
assessed value of the property involved exceeds Two
hundred thousand pesos (P200,000.00) or for civil
actions in Metro Manila, where such value exceeds
Four hundred thousand pesos (P400,000.00) except
actions for forcible entry into and unlawful detainer of
lands or buildings, original jurisdiction over which is
conferred upon the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial
Courts;

c) All actions in admiralty and maritime jurisdiction


where the demand or claim exceeds Two hundred
thousand pesos (P200,000.00) or in Metro Manila,
where such demand or claim exceeds Four hundred
thousand pesos (P400,000.00);

d) All matters of probate, both testate and intestate,


where the gross value of the estate exceeds Two
hundred thousand pesos (P200,000.00) or, in probate,
both testate and intestate, where the gross value of the
estate exceeds Two hundred thousand pesos
(P200,000.00) or, in probate matters in Metro Manila,
where such gross value exceeds Four hundred
thousand pesos (P400,000.00);

e) All actions involving the contact of marriage and


marital relations;

f) All cases not within the exclusive jurisdiction of any


court, tribunal, person or body exercising jurisdiction
of any court, tribunal, person or body exercising
judicial or quasi-judicial functions;

g) All civil actions and special proceedings falling within


the exclusive jurisdiction of a Juvenile and Domestic
Relations Court and of the Court of Agrarian Relations
as then provided by law; and

h) All other cases in which the demand, exclusive of


interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs or the value of the
property in controversy exceeds Two hundred
thousand pesos (P200,000.00) or, in such other cases
in Metro Manila, where the demand, exclusive of the
above-mentioned items exceeds For hundred thousand
pesos (P400,000.00).

The appellate jurisdiction of the RTCs is over all cases


decided by Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in their respective territorial
jurisdiction.

10
The term “damages of whatever kind” has been specially
defined by the Supreme Court for purposes of determining the
jurisdictional amount in respect to the jurisdiction of the RTC. This
term is understood to apply only to cases when the damages are
merely incidental to or a consequence of the main cause of action,
and that therefore where the claim for damages is the main cause
of action or one of the causes of action, the amount of the claim
shall be considered in determining the jurisdiction of the court.

The Supreme Court has however designated certain


branches of the RTCs to handle exclusively certain cases as
corporate and intellectual property cases.

4. JURISDICTION OF METROPOLITAN TRIAL COURTS,


MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL
COURTS

The MTCs are the first-level trial courts in this country. They
have therefore no appellate jurisdiction and all their jurisdiction is
exclusive and encompasses the following cases:

a) all civil actions and probate proceedings, testate and


intestate, including the grant of provisional remedies in
proper cases, where the value of the personal property,
estate, or amount of the demand does not exceed two
hundred thousand pesos (P200,000.00) or, in Metro Manila
where such personal property, estate, or amount of the
demand does not exceed Four hundred thousand pesos
(P400,000.00), exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs, the
amount of which must be specifically alleged: Provided, That
where there are several claims or causes of actions between
the same or different parties, embodied in the same
complaint, the amount of the demand shall be the totality of
the claims in all the causes of action irrespective of whether
the causes of action arose out of the same or different
transactions;

b) cases of forcible entry and unlawful detainer: Provided, That


when, in such cases, the defendant raises the question of
ownership in his pleadings and the question of possession
cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine
the issue of possession; and

c) all civil actions which involve title to, or possession of, real
property or any interest therein where the assessed value of
the property or interest therein does not exceed Two
hundred thousand pesos (P200, 000.00) or, in civil actions
in Metro Manila, where such assessed value does not exceed
Four hundred thousand pesos (P400, 000.00) exclusive of
interest, damages of whatever kind, attorney’s fees, litigation
expenses and costs.

11
The MTCs may however be assigned by the Supreme Court to hear
and determine certain cadastral cases and petitions for habeas
corpus.

RULE I GENERAL PROVISIONS

1. The Rules shall be known and cited as the Rules of Court. 37

2. They apply in all courts, except as otherwise provided by the


Supreme Court38 in civil, criminal and special proceedings. 39

2.1 For purposes of the subject matter, only Rules 1 to 71


or the 1997 Rules of Civil Procedure shall be discussed
herein.

2.2 A Civil Action is one by which a party sues another for


the enforcement or protection of a right or the
prevention or redress of a wrong. Examples: To enforce
payment of a loan or to eject an intruder on one’s
property.

2.3 Civil Actions may be considered as:

(a) Ordinary or Special, while both are governed by the


rules for ordinary civil actions, there are specific
rules prescribed for a special civil action.

(b) In Personam, which is an action brought against a


person based on personal liability to the person
bringing the action. The purpose of the action is to
impose through the judgment of a court, some
responsibility or liability directly upon the person of
the defendant.40 In this kind of action, no one other
than the defendant is held liable, not the whole
world.

(c) In Rem, is an action that is directed against the


thing itself rather than the person, it is directed
against the thing, property or status of a person
and seeks judgments with respect thereto against
the whole world.41 An example would be an action
for registration of land as the judgment thereon is
binding upon the whole world.

(d) Quasi in Rem, is an action that names a person as


a defendant but its object is to subject the person’s
interest in property to a corresponding lien or
obligation.42 It deals with the status, ownership or
liability of a particular property but which are
intended to operate on these questions only as

37
Section 1, Rule 1, 1997 Rules of Civil Procedure
38
Supra, Section 2, Rule 1
39
Supra, Section 3, Rule 1
40
Domagas v. Jensen, 448 SCRA 663
41
Ching v Court of Appeals, 181 SCRA 9
42
Ramos v. Ramos, 399 SCRA 43

12
between the particular parties to the proceedings
and do not cut off the rights and interests of all
possible claimants. Examples are actions for
partition, attachment or foreclosure of mortgages.

2.4 Note the distinctions between actions in personam, on


one hand, and actions in rem or quasi in rem on the
other, is essential as far as jurisdiction. In an action
in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and
decide the case. 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.43

3. Civil Actions can also be distinguished as:

3.1 Real Actions are those which affect title to, or


possession of real property or any interest therein. 44
All others are personal actions.45

3.2 In a real action, it is founded upon the privity of real


estate. That means that realty or any interest therein
is the subject matter of the action. What is essential is
that as far as the real property is concerned, the
issues are title to, ownership, possession, partition,
foreclosure of mortgage or condemnation. Hence, an
action for damages suffered by real property is a
personal action as it does not involve any of the listed
issues.

3.3 An action to annul a contract of loan and its accessory


real estate mortgage is a personal action. In a personal
action, the plaintiff seeks recovery of personal
property, the enforcement of a contract or recovery of
damages. A real action is an action affecting title to
real property or for recovery of possession, or for
partition or condemnation of, or foreclosure of
mortgage on real property. The rule on real actions
only mentions an action for foreclosure of real estate
mortgage; it does not include an action for cancellation
or annulment of a real estate mortgage.46

3.4 The distinction between a real action and a personal


action is important for the purpose of determining the
venue of the action.
43
Biaco v. Philippine Countryside Rural Bank, GR No. 161417, February 8, 2007
44
Supra, Section 1, Rule 4
45
Supra, Section 2, Rule 4
46
Chua vs. Total Office Products and Services, Inc., 471 SCRA 500

13
3.5 An action in personam is not necessarily a personal
action. Nor is a real action necessarily an action in
rem. An in personam or an in rem action is a
classification of actions according to the object of the
action. A personal and real action is a classification
according to foundation. It is in rem when directed
against the whole world. For instance, an action to
recover, title or possession of real property is a real
action, but it is an action in personam. It is not
brought against the whole world but against the
person upon whom the claim is made.47

4. Distinguishing civil actions from other kinds of actions:

4.1 Criminal Action is one by which the state prosecutes a


person for an act or omission punishable by law.

4.2 A Special Proceeding is a remedy by which a party


seeks to establish a status, right or a particular fact.
In addition, a civil action is adversarial, while a special
proceeding may not be so as it may involve only 1
party. The object of a civil action is the formal demand
of a right by one against the other, while in a special
proceeding; it is the declaration of a status, right or a
particular fact.

5. They do not apply to election cases, land registration,


cadastral, naturalization and insolvency, and other cases not
herein provided, except by analogy or in suppletory character and
whenever practicable and convenient.48

6. The rules have retroactive application in the sense that they


shall be held to apply to actions pending or undetermined at the
time of their effectuality.49

6.1 The exceptions to retroactive application are: (a) the


statute itself or by implication provides that pending
actions are excepted (b) it will impair vested rights (c)
to the mind of the court, it will work injustice (d) it
would involve intricate problems of due process or
impair the court’s independence

WHEN AN ACTION IS COMMENCED

1. An action is commenced upon the filing of the original


complaint in court. Filing refers to the act of presenting the
complaint to the clerk of court and the payment of the requisite
docket and filing fees. Filing is deemed done only upon payment
regardless of the actual date of the filing.50

47
Republic v Court of Appeals, 315 SCRA 600
48
Supra,,Section 4, Rule 1
49
Nypes v. Court of Appeals, 478 SCRA 115
50
Magaspi v. Ramolete, 115 SCRA 193

14
1.1 An exception is when the plaintiff is authorized to
litigate as a pauper litigant as he is exempt from the
payment of filing fees.

2. If an additional defendant is impleaded in a later pleading, it


is commenced as far as the additional defendant on the date of the
filing of the later pleading, irrespective of whether the motion for its
admission, if necessary is denied by the court.51

3. Note that the commencement of the action interrupts the


period of prescription as to the parties to the action. 52

HOW SHOULD THE RULES BE CONSTRUED

1. The rules shall be construed liberally in order to promote


their objective of securing a just speedy and inexpensive
disposition of every action or proceeding.53

1.1 Liberal construction is the controlling principle to


effect substantial justice. Litigation should as much as
possible, be decided on their merits, and not on
technicalities.

1.2 Rules must not be applied to rigidly so as not to


override substantial justice.54 Rules of procedure must
be used to facilitate not to frustrate the ends of
justice.55

1.3 It does not mean, however, that procedural rules are to


be ignored or disdained at will to suit the convenience
of a party.56

2. Liberal construction of the rules should be made by the


courts in cases:

a) a rigid application will result in manifest failure or


miscarriage of justice, especially if a party successfully
shows that the alleged defect in the questioned final
and executory judgment is not apparent on its face or
from the recitals contained therein

b) where the interest of substantial justice will be served

c) where the resolution of the motion is addressed solely


to the sound and judicious discretion of the court

d) where justice to the adverse party is not


commensurate with the degree of this thoughtlessness
in not complying with the procedure prescribed. 57

51
Supra, Section 5, Rule 1
52
Cabrera v Tiano,8 SCRA 542
53
Supra,Section 6, Rule 1
54
De La Cruz v. Court of Appeals, GR No. 139442, December 6, 2006
55
Canton v City of Cebu, GR No. 152898, February 12, 2007
56
Vda De Toledo v Toleda, 417 SCRA 260
57
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755

15
3. A party litigant should be given the fullest opportunity to
establish the merits of his complaint or his defense. He ought not
to lose life, liberty or honor or property on technicalities.

3.1 Rules of procedure should be viewed as mere tools


designed to facilitate the attainment of justice. An
example is the matter of the attachment of copies to
petitions58 or failure to indicate material dates in the
petition.59

4. Note that in doing so, substantial justice and equity


considerations must not be sacrificed.

4.1 Periods for filing are as a matter of practice, strictly


construed.

4.2 Neither can liberality of the rules be invoked if it will


result in the wanton disregard of the rules or cause
needless delay in the administration of justice.60

5. Concommitant 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. 61

6. The rules and procedure laid down for the trial court and the
adjudication of cases are matters of public policy.

6.1 They are matters of public order or interest which can


in no wise be changed or regulated by agreements
between or stipulations by parties to an action for
their singular convenience.62

6.2 They are required to be followed except only for the


most persuasive of reasons as when transcendental
matters of life, liberty or state security is involved.
Litigation is not a game of technicalities. It is equally
true, however, that every case must be presented in
accordance with the prescribed procedure to ensure
an orderly and speedy administration of justice.63

7. The Supreme Court has the power to suspend or set aside its
rules in the higher interest of justice. 64 Specifically, the reasons
that will warrant the suspension are: (a) the existence of special or
compelling reasons (b) the merits of the case (c) a cause not
entirely attributable to the fault or negligence of the party favored
by the suspension (d) a lack of showing that the review is frivolous
or dilatory, and (e) the other party will not be prejudiced thereby. 65

58
Alberto v Court of Appeals, 334 SCRA 756
59
Fulgencio v NLRC, 411 SCRA 69
60
El Reyno Homes v Ong, 397 SCRA 563
61
Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
62
Republic v Hernandez, 253 SCRA 509
63
Mindanao Savings Loan Association v. De Flores, 469 SCRA 416
64
Fortica v Corona, GR No. 131457, April 24, 1998
65
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007

16
RULE 2 CAUSE OF ACTION

CAUSE OF ACTION DEFINED

1. The basis of an ordinary civil action is a cause of action.66

2. A cause of action is the act or omission by which a party


violates a right of another.67

THE REQUISITES OF A CAUSE OF ACTION

1. The requisites for a cause of action are: (a) a right in favor of


the plaintiff by whatever means and under whatever law it arises
or is created (b) an obligation on the part of the defendant to
respect and not to violate such right (c) an act or omission on the
part of the defendant constituting a violation of the plaintiff’s
right.68

DISTINGUISHING IT FROM AN ACTION AND A RIGHT OF ACTION

1. An action is the suit filed in court for the enforcement or


protection of a right, or the prevention or redress of a wrong, while
a cause of action is the basis for the filing of the action.

2. The right of action is the right to commence and maintain an


action, it is a remedial right that depends on substantive law, while
a cause of action is a formal statement of the operative facts that
give rise to such remedial right which is a matter of statement and
is governed by procedural law. The right of action which is
procedural in character is the consequence of the violation of the
right of the plaintiff. Hence, there is no right of action where there
is no cause of action.

2.1 The distinction is best used to explain the principle


that the existence of a cause of action may only be
ascertained from the allegations of the complaint. 69

HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION

Same Objective Test – if a party has only one objective in filing two
cases, there exists identity of causes of action and reliefs based on
the same objective standard.70

1. A party may not institute more than one suit for a single
cause of action.71

2. The practice of splitting a cause of action is discouraged


because it breeds multiplicity of actions, clogs the dockets of the
courts and operates to cause unnecessary expense to the parties.

66
Supra, Section 1, Rule 2
67
Supra, Section 2, Rule 2, PNOC v. Court of Appeals, GR No. 165433, February 6, 2007
68
Navao v CA, 251 SCRA 545
69
Equitable Bank v CA, 425 SCRA 544
70
Clark Development Corporation v Mondragon Leisure Resorts, 517 SCRA 203
71
Supra, Section 3, Rule 2

17
3. If a party institutes more than one suit, the filing of one or a
judgment upon the merits in anyone is available as a ground for
the dismissal of the others.72 This is also known as Splitting a
Cause of Action.

3.1 The remedy of the defendant is to file a motion to


dismiss. If the action is pending when the second
action is filed, the dismissal is based on litis pendentia
or if a final judgment has been rendered in the first
action when the second is filed, the dismissal is based
on res judicata.

3.2 Note though that the rule does not confine itself to a
dismissal of the second action. As to which action is to
be dismissed would depend on judicial discretion and
attendant circumstances.

4. The rule on splitting a cause of action applies not only to


complaints but also to counter-claims and cross-claims. 73

5. The singleness of a cause of action is determined as follows:

5.1 In an action Ex Delicto or one arising from the fault or


negligence of a defendant, the singleness of a cause of
action lies in the singleness of the delict or wrong
violating the right of a person. If however, one injury
results from several wrongful acts, only one cause of
action arises. Example: A party who is injured could
not maintain an action for damages based on a breach
of the contract of carriage against the owner of the
vehicle in which he was riding and another action for
quasi-delict against the driver/owner of the offending
vehicle. The recovery under one remedy necessarily
should bar recovery under another. This, in essence, is
the rationale for the proscription in our law against
double recovery for the same act or omission which,
obviously stems from the fundamental rule against
unjust enrichment.74

5.2 In an action Ex Contractu or one arising out of or is


founded on a contract, the rules are as follows:

(a) In a single or indivisible contract, only one cause


of action arises from a single or several
breaches. Example: In a contract of sale of
personal property by installments, the remedies
of the unpaid seller is alternative, they are: (1)
elect fulfillment (2) cancel the sale, should the
vendee’s failure to pay cover two or more
installments, and (3) foreclose the mortgage on
the thing sold if one has been constituted should

72
Supra, Section 4, Rule 2
73
Mariscal v. Court of Appeals, 311 SCRA 51
74
Joseph v Bautista, 170 SCRA 540

18
the vendee fail to pay two or more installments.
75

(b) If the contract provides for several obligations,


each obligation not performed gives rise to a
single cause of action. But if upon filing of the
complaint several obligations have already
matured, all of them shall be integrated into a
single cause of action. Example: Contract for
delivery of goods in part or over a period.

(c) If the contract is divisible in its performance,


and the future performance is not yet due, but
the obligor has already manifested his refusal to
comply, the contract is entire and the breach is
total. Thus, there can only be one action. 76 This
is known as the Doctrine of Anticipatory Breach.

IF A PARTY HAS SEVERAL CAUSES OF ACTION

1. He can join his causes of action77 as he may in one pleading


assert, in the alternative or otherwise, as many causes of action as
he may have against the opposing party. It is the assertion of as
many causes of action as a party may have against another in one
pleading alone.

2. It has also been defined as the process of uniting two or


more demands or rights of action in one action.78

3. Joinder is subject to the following conditions:

3.1 Party joining the causes of action shall comply with


the rule on joinder of parties, which provides that : All
persons in whom or against whom any right to relief is
respect to or arising out of the same transaction is
alleged to exist, whether jointly, severally or in the
alternative, may except as otherwise provided in these
rules, join as plaintiffs or be joined as defendants in
one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants
may arise in the action. 79 Note that the common
question of law or fact is relevant only when there are
multiple plaintiffs or defendants.

3.2 Joinder does not allow the inclusion of special civil


actions or actions governed by special rules. Example:
An action for a sum of money cannot be joined with an
action for iIlegal detainer

3.3 Where causes of action are between same parties but


pertain to different venues or jurisdictions, joinder
75
Articles 1484,1486, NCC
76
Blossom & Co v Manila Gas Corporation, 55 Phil 226
77
Supra, Section 5, Rule 2
78
1 C.J.S., Actions 61
79
Supra, Section 6, Rule 3

19
may be allowed in the RTC provided one of the causes
of action falls within its jurisdiction and venue lies
therein.

3.4 When the claims in all causes of action are principally


for recovery of money, the aggregate amount shall be
the test of jurisdiction.

EFFECT OF MISJOINDER

1. Upon motion of a party or on the initiative of the court, a


misjoined cause of action may be severed and proceeded with
separately.80

2. Misjoinder is not ground for a motion to dismiss.

RULE 3 PARTIES TO CIVIL ACTIONS

WHO MAY BE PARTIES TO A CIVIL ACTION

1. Only natural or juridical persons or entitles authorized by


law may be parties in a civil action. 81 They are called: Plaintiff – he
is one who has interest in the subject of the action and obtaining
the relied demanded. He may be the claimant in the original
complaint, the counter-claimant in the counter claim, or cross-
claimant in a cross-claim or the third party plaintiff and the
Defendant – he is one who has an interest in the controversy
adverse to the plaintiff. He may be the original defending party, the
defendant in a counter-claim, or cross-defendant in a cross-claim.

1.1 For ready reference, a counter-claim is any claim


which a defending party may have against an opposing
party.82A cross-claim is a claim by one party against a
co-party arising out of the transaction or occurrence
that is the subject matter either of the original action
or of a counter-claim therein. 83A third party claim is a
claim that a defending party may, with leave of court,
file against a person not party to an action for
contribution, indemnity, subrogation or any other
relief, in respect to his opponent’s claim.84

2. Juridical persons include:

2.1 The state or any of its political subdivisions, while


considered as juridical entities, they can sue but as a
general rule, they cannot be sued without its consent.
It is deemed to have given consent when: (a) it enters
into a private contract (b) it enters into a business
operation unless it is an incident of its primary
government function (c) it sues a private party, unless

80
Supra, Section 6, Rule 2
81
Supra,,Section 1, Rule 3
82
Supra, Section 6, Rule 6
83
Supra, Section 8, Rule 6
84
Supra, Section 11, Rule 6

20
the suit is to resist a claim (d) when there is a failure
to abide with what the law or contract provides.

A suit is considered as against the state when: (a) it is


against the Republic of the Philippines (b) it is against
a government agency or office without juridical
personality (c) it is against the officers or agents of the
government and involves a financial liability.

2.2 Corporations, institutions and entities for public


interest or purpose, created by law, like government
agencies and water districts.

2.3 Corporations, partnerships, and associations for


private interest or purpose to which the law grants
juridical personality, separate and distinct from that of
a shareholder, partner or member.

2.4 A partnership having capital of P 3,000.00 that fails to


comply with registration requirements. 85

2.5 A dissolved corporation within a 3 year period after


dissolution to settle its affairs.86

2.6 A foreign corporation cannot be a plaintiff in suit when


it is transacting business in the Philippines without a
license.

3. Entities authorized by law are (a) recognized labor


organizations (b) estate of a deceased person 87 (c) Roman Catholic
Church88

4. Entities without legal personality referring to 2 or more


persons not organized as an entity with juridical personality enter
into a transaction, they may be sued under the name by which
they are generally or commonly known but in their answer to the
complaint, their names and addresses must be revealed.89

4.1 It can also cover a corporation by estoppel 90 or


partnership by estoppel91

5. A sole proprietorship may not be a party as it is neither a


natural, juridical or entity allowed or authorized by law. If one sues
as such, the action may be dismissed on the ground of lack of
capacity to sue. It does not possess a juridical personality separate
and distinct from the personality of the owner of the enterprise. 92 It
cannot sue or file or defend an action in court.93
85
Article 1772 in relation to Article 1768, NCC
86
Section 122, BP 68
87
Nazareno v. Court of Appeals, 343 SCRA 637
88
Versoza v. Fernandez, 49 Phil 627
89
Supra, Section 15, Rule 3
90
Section 21, BP 68
91
Article 1825, NCC
92
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA
763
93
Juasing Hardware v Mendoza, 115 SCRA 783

21
WHEN PARTIES IMPLEADED ARE NOT AUTHORIZED TO BE
PARTIES

1. Where the plaintiff is not a natural or juridical person, or an


entity authorized by law, a motion to dismiss may be filed on the
ground that the plaintiff has no legal capacity to sue. Do not
confuse it with one who has capacity to sue but he is not the real
party in interest as the ground for dismissal then is failure to state
a cause of action.94

2. Where it is the defendant who is not any of the above, the


complaint may be dismissed on the ground that the “pleading
asserting the claim states no cause of action” or ‘failure to state a
cause of action’, because there cannot be a cause of action against
one who cannot be a party to a civil action.

PARTIES IN INTEREST

1. A real party in interest is the party who stands to be


benefited or injured by the judgment or party entitled to the avails
of the suit. Unless otherwise authorized by law of the rules, like in
a class suit, all actions must be prosecuted or defended in the
name of the real party in interest.95

1.1 A real party in interest-plaintiff is one who has a legal


right, while a real party in interest-defendant is one
who has a correlative obligation, whose act or omission
violates the legal rights of the former. 96 Hence, the
determination of who is a real party in interest goes
back to the elements of a cause of action. Evidently,
the owner of the right violated stands to be the real
party in interest as plaintiff and the person
responsible for the violation is the real party in interest
defendant.97

1.2 To be a real party in interest, the interest must be real,


which is a present substantial interest as
distinguished from a mere expectancy or a future,
contingent, subordinate or consequential interest. It is
an interest that is material and direct, as
distinguished from a mere incidental interest in the
question.98

1.3 Illustrations: (a) In a case where a lawful possessor is


disturbed in his possession, it is the possessor, not
necessarily the owner, who can bring an action to
recover the possession.99 (b) The parties to a contract
are the real parties in interest in an action upon it
based on the doctrine of relativity of contracts under

94
Balagtas v. Court of Appeals, 317 SCRA 69
95
Supra, Section 2, Rule 3
96
Gan Hock v. Court of Appeals, 197 SCRA 223
97
Lee v. Romillo, 161 SCRA 589
98
Samaniego v. Aguila, 334 SCRA 438
99
Philippine Trust Company v. Court of Appeals, 320 SCRA 719

22
Article 1311, NCC, unless it conveys a benefit to a
person not a party thereto (c) Actions under Articles
1313 and 1381, NCC when the contracts are entered
into in fraud of creditors. (d) Suits by corporations
must be in its name, not that of the stockholders or
members.

2. When a suit is not brought in the name of the real party in


interest, it may be dismissed on the ground that the complaint
states no cause of action.100 Note that the dismissal is not due to
lack of or no legal capacity to sue nor lack of legal personality, as
the latter is not ground for dismissal for under the 1997 Rules of
Civil Procedure.

2.1 It states no cause of action because it is not being


prosecuted in the name of the real party in interest.

2.2 Lack of Legal Capacity to Sue means that the plaintiff


is not in exercise of his civil rights, does not have the
necessary qualification to appear or does not have the
character or representation he claims. Example:
Trustee or Minor, as distinguished from Lack of Legal
Personality means that the plaintiff is not the real
party in interest. Dismissal is based on the fact that
the complaint states no cause of action

3. Legal standing means a personal and substantial interest in


the case such that the party has sustained or will sustain direct
injury as a result of the act being challenged. The term interest is
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. Moreover, the interest must
be personal and not one based on a desire to vindicate the
constitutional right of some third or unrelated party.

3.1 However, the concept of ‘standing’ because of its


constitutional underpinnings is very different from
questions relating to whether or not a particular party
is a real party-in-interest. Although both are directed
towards ensuring that only certain parties can
maintain an action, the concept of standing requires
an analysis of broader policy concerns. The question
as to who the real party-in-interest is involves only a
question on whether a person would be benefited or
injured by the judgment or whether or not he is
entitled to the avails of the suit.101

3.2 Locus standi is defined as a right of appearance in a


court of justice on a given question. In private suits,
standing is governed by the “real-parties-in interest”
rule found in Section 2, Rule 3 of the Rules of Court
which provides that every action must be prosecuted
or defended in the name of the real party-in-interest. 102
100
Tankiko v Cesar, 302 SCRA 559
101
Kilosbayan, Inc. vs. Morato, 246 SCRA 540
102
Baltazar vs. Ombudsman, G.R. No. 136433, December 6, 2006

23
In other cases, locus standi is a party’s personal and
substantial interest in a case such that he has
sustained or will sustain a direct injury as a result of
the governmental act being challenged. It calls for
more than generalized grievance. The term “interest”
means a material interest, an interest in issue affected
by the decree, as distinguished from a mere interest in
the question involved or a mere incidental interest. 103
Unless a person’s constitutional rights are adversely
affected by the statute or ordinance, he has no legal
standing.

4. Be that as it may, we have on several occasions relaxed the


application of these rules on legal standing:

“In not a few cases, the Court has liberalized the locus standi
requirement when a petition raises an issue of transcendental
significance or paramount importance to the people. Recently,
after holding that the IBP had no locus standi to bring the suit, the
Court in IBP v. Zamora nevertheless entertained the Petition
therein. It noted that “the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents.” 104

4.1 Objections to a taxpayer’s suit for lack of sufficient


personality, standing or interest are procedural
matters. Considering the importance to the public of a
suit assailing the constitutionality of a tax law, and in
keeping with the Court’s duty, specially explicated in
the 1987 Constitution, to determine whether or not
the other branches of the Government have kept
themselves within the limits of the Constitution and
the laws and that they have not abused the discretion
given to them, the Supreme Court may brush aside
technicalities of procedure and take cognizance of the
suit.105

4.2 There being no doctrinal definition of transcendental


importance, the following determinants formulated by
former Supreme Court Justice Florentino P. Feliciano
are instructive: (1) the character of the funds or other
assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory
prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of
any other party with a more direct and specific interest
in raising the questions being raised.106

CLASSIFICATION OF REAL PARTIES IN INTEREST

103
Velarde v Social Justice Society, 392 Phil 618, IBP v Zamora, 338 SCRA 81
104
Velarde v. Social Justice Society, supra at note 22, citations omitted.
105
Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August
1989, 176 SCRA 240, 251, citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
v. Tan, G.R. No. 81311, 30 June 1988, 163 SCRA 371, 378.
106
Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at note 30, citing
Kilosbayan, Incorporated v. Guingona, Jr., 232 SCRA 110 (1994)

24
1. Indispensable Party is a party without whom no final
determination can be had of an action. 107 They 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. Example: owners of property over which reconveyance is
asserted are indispensable parties without whom no relief is
available and without whom the court can render no valid
judgment.108

1.1 Without the presence of indispensable parties to the


suit, the judgment of the court cannot attain real
finality.109 Strangers to a case are not bound by the
judgment rendered by the court.110

1.2 The essential tests of an indispensable party: (a) May


relief be afforded the plaintiff without the presence of
the other party? (b) May the case be decided on the
merits without impairing the substantial rights of the
other party?111

2. Necessary Party is a party who is not indispensable but who


ought to be joined as a party if complete relief is to be accorded as
to those already parties or for a complete determination or
settlement of the claim subject of the action.112 A necessary party’s
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.

2.1 Example: If the plaintiff only sues a one of his joint


debtors, the joint debtor who is not sued is merely a
necessary party. As a consequence, the plaintiff only
recovers the share of the debt due from the joint
debtor defendant.

2.2 A necessary party is to be impleaded as a party for


complete determination of an action, while an
indispensable party is impleaded for a final
determination of an action.

3. Pro-Forma Party or nominal party is one who is joined as a


plaintiff or defendant not because such party has any real interest
in the subject matter or because relief is demanded, but merely
because the technical rules of pleadings require the presence of
such party on the record.113

PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN


INTEREST

107
Supra, Section 7, Rule 3
108
Valenzuela v Court of Appeals, 363 SCRA 779
109
Domingo v Scheer, 421 SCRA 468
110
Lucman v Malawi, GR No. 159794, December 19, 2006
111
PNB v. Militar, 467 SCRA 377
112
Supra, Section 8, Rule 3
113
Samaniego v. Aguila, 334 SCRA 438

25
The following may sue in behalf of a real party in interest

1. Representatives - actions are allowed to be prosecuted /


defended by a representative or by one acting in a fiduciary
capacity but the beneficiary shall be included in the title and shall
be deemed to be the real party in interest.114 Examples of
representatives are: (a) trustee of an express trust (b) a guardian,
executor or administrator, or (c) a party authorized by law or the
Rules.

1.2 An agent acting in his own name and for the benefit of
an unknown principal may sue or be sued without
joining the principal except when the contract involves
things belonging to the principal. This refers to an
agency with an undisclosed principal.115

2. Husband and Wife - as a general rule shall sue or be sued


jointly, except as provided by law.116 Non joinder of party’s
husband is not fatal. It is a mere formal defect. 117

2.1 They are required to sue and be sued jointly as they


are joint administrators of the Absolute Community or
the Conjugal Partnership.118

2.2 The exceptions provided by law are when the property


relations of husband and wife are governed by the
rules on separation of property 119 or one is disposing
of exclusive property.120

2.3 Note that the legal provision against the disposition of


conjugal property by one spouse without the consent
of the other has been established for the benefit, not of
third persons, but only for the spouse for whom the
law desires to save the conjugal partnership from
damages that might be caused. No other party can
avail of the remedy other than the aggrieved spouse. 121

3. Minors or Incompetents may sue or be sued with the


assistance of father, mother, guardian or, if he has none, a
guardian ad litem.122

3.1 A guardian ad litem is a special guardian appointed by


the court in which a particular litigation is pending to
represent or assist a minor or an incompetent person
involved in or has interest in the property subject of
litigation. His status as such exists only in that
particular litigation in which the appointment occurs.

114
Supra, Section 3, Rule 3
115
Article 1883, NCC
116
Supra, Section 4, Rule 3
117
Miranda v Besa, 435 SCRA 532
118
Articles 96 and 124, Family Code
119
Article 145, Family Code
120
Article 111, Family Code
121
Villaranda v Villaranda, 423 SCRA 571
122
Supra, Section 5, Rule 3

26
3.2 Note that the appointment of a guardian ad litem may
occur in the following: for minor heirs when
substituting for a deceased party123, incompetency or
incapacity of a party124, service of summons on a
minor or incompetent125, and when the best interest of
the child require it.126

JOINDER OF PARTIES

Joinder of Parties refers to the act of uniting several parties in a


single suit either as plaintiffs or defendants.

1. The rule on joinder of parties states that: All persons in


whom or against whom any right to relief in respect to or arising
out of the same transaction is alleged to exist, whether jointly,
severally or in the alternative, may except as otherwise provided in
these rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action. 127

2. Joinder of Parties, as a rule, is permissive when there is a


question of law or fact common to all the plaintiffs or defendants.
This means that the right to relief or to resist the action arises out
of the same transaction or event or series of transactions or events.
Example: action by passengers of a common carrier for injuries
sustained in an accident, there is no community of interest, the
extent of the interest is limited to the extent of damages being
claimed by each.

3. It becomes compulsory when the parties to be joined are


indispensable parties.128

4. The exception to compulsory joinder of parties is when the


subject of the action is proper for a class suit. The subject matter
of the controversy is proper for a class suit when it is one of
common or general interest to many persons so numerous that it
is impractical to join all as parties. 129 All the parties who are
interested in the action as plaintiffs or defendants are all
indispensable parties but not all need to be joined.

5. The three requisites of a class suit are:

5.1 The subject matter of the controversy is one of


common or general interest to many persons. There
must be an indivisible right affecting many individuals
whose particular interest is of indeterminable extent
and is incapable of separation. This requires that the
benefit to one is a benefit to all. Example: A suit filed
by minors represented by their parents, in behalf of
themselves and others equally concerned with the
123
Supra, Section 16, Rule 3
124
Supra, Section 18, Rule 3
125
Supra, Section 10, Rule 14
126
Article 222, Family Code
127
Supra, Section 6, Rule 3
128
Supra, Section 7, Rule 3
129
Supra, Section 12, Rule 3

27
preservation of the country’s resources, their
generation as well as generations yet unborn to compel
the DENR Secretary to cancel all timber license
agreements and to cease and desist from receiving,
accepting, processing, renewing or approving new
timber license agreements130. The interest must be
common and not independent of each member of the
class and should not conflict with each other. For this
reason, owners of subdivision lots in a subdivision
cannot sue as a class because their interest is only in
their respective lots.131

5.2 The parties affected are so numerous that it is


impracticable to join all as parties

5.3 The parties bringing or defending the class suit are


found by the court to be sufficiently numerous and
representative as to fully protect the interest of all.

5.4 To comply with the 2nd and 3rd requisite, the Complaint
most allege: (1) existence of a subject matter which is
of common or general interest to many persons, and
(2) existence of a class and the number of persons
belonging to that class

6. Improper for a class suit is when a claimant is interested


only in collecting his claims and has no concern in protecting the
interests of the others132 or each of the plaintiffs has a separate
claim or injuries not shared in common by the others. Hence, each
must prove his own damages.133

7. It can be brought by the plaintiffs as a class or may be filed


against the defendants as a class

7.1 Any party in interest shall have the right to intervene


to protect his individual interest.

7.2 The general rule is that the party bringing the suit in
his own name and that of others similarly situated has
the right to control the suit, but, it shall not be
dismissed or compromised without the approval of the
court.134

EFFECTS OF FAILURE TO JOIN AN INDISPENSABLE PARTY OR A


NECESSARY PARTY

1. If there is a failure to join an indispensable party, the court


must order the plaintiff to amend his complaint for the purpose of
impleading the indispensable party.

130
Oposa v Factoran, 224 SCRA 792
131
Tuason v. Register of Deeds, 157 SCRA 613
132
Cadalin v POEA Administrator, 238 SCRA 721
133
Newsweek Inc. v. IAC, 142 SCRA 171
134
Supra, Section 2, Rule 17

28
1.1 If the plaintiff fails, refuses or the party cannot be
sued because he is a non-resident defendant in a
personal action, the complaint must be dismissed. 135

2. If there is a failure to join a necessary party, the pleader in


the pleading in which a claim is asserted without joining a
necessary party shall (a) set forth the name of the necessary party,
if known and (b) state the reason for omission.

2.1 If the court finds the reason for the omission is not
meritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person is
obtained.

2.2 If pleader fails to comply with order for inclusion


without justifiable cause, it shall be deemed a waiver
of the claim against the party, but the non-inclusion
does not prevent the court from proceeding with the
action, and the judgment therein shall be without
prejudice to rights of such necessary party.136

3. Misjoinder of parties is not a ground for dismissal. Parties


may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action and on such
terms that are just. Any claim against a misjoined party may be
severed and proceeded against separately.137

3.1 A party is misjoined when he is made a party to the


action although he should not be impleaded. A party is
not joined when he is supposed to be joined but is not
impleaded.

3.2 While misjoinder or non-joinder is not a ground for


dismissal, the failure to obey the order of the court to
drop or add a party is a ground for dismissal.138

IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT


OR CANNOT BE OBTAINED

1. The non-consenting party may be made a defendant and the


reason therefor shall be stated in the complaint. 139He will be
known as the unwilling co-plaintiff.

WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

1. If the plaintiff is uncertain against whom of several persons


he is entitled to relief, he may join any or all of them as defendants
in the alternative, although a right to relief against one may be
inconsistent with a right of relief against the other. 140

2. An example is in an action where the owner of goods is not


sure whether they were lost in transit or while it was on deposit in
135
NDC v Court of Appeals, 211 SCRA 422
136
Supra, Section 9, Rule 3
137
Supra, Section 11, Rule 3
138
Supra, Section 3, Rule 17
139
Supra, Section 10, Rule 3
140
Supra, Section 13, Rule 3

29
the warehouse of the arrastre operator. He may sue the shipper or
the operator of the warehouse in the alternative although the right
against the shipper is based on admiralty while that against the
operator is based on contract. Another is an action for damages
arising from loss of goods due to a collision.

IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN

1. He may be sued as the unknown owner, heir, devisee or by


such other designation as the case may require, when the identity
or name is discovered, the pleading must be amended
accordingly.141 An example is an action to recover real property
from several unknown heirs of a common ancestor.

EFFECT OF DEATH OF A PARTY

1. When a party dies and his claim is not extinguished, it shall


be the duty of counsel of the deceased party to inform the court
within 30 days after such death of the: (a) fact of death (b) name
and address of the legal representative of the deceased party. 142. If
counsel fails to comply, he may be subject to disciplinary action.

1.1 Once notice is given, the court shall order the legal
representative to appear and be substituted within 30
days from notice.

1.2 Examples of actions that survive are those arising


from delict,143 tortuous conduct,144recovery of real or
personal property145 recovery of money arising from a
contract, express or implied

1.3 Examples of actions that do not survive are personal


actions of support, annulment and legal separation.
The court in this instance will just dismiss. No
substitution is required. The remedy is to file a claim
before the probate court under Rule 86.

2. The purpose of substitution is the protection of the right of


every party to due process. 146The non compliance renders the
proceedings infirmed because the court acquires no jurisdiction
over the person of the legal representative of the deceased. 147

2.1 If no substitution occurs despite knowledge or notice


of the death of a party the proceedings undertaken
shall be considered null and void as it amounts to a
lack of jurisdiction as the need for substitution is
based on the right of a party to due process.

2.2 Note though that in an ejectment case, the non


substitution of the deceased by his legal
representatives because of the failure of counsel to
141
Supra, Section 14, Rule 3
142
Supra, Section 16, Rule 3
143
Aguas v Llamas, 5 SCRA 959
144
Melgar v. Buenviaje, 179 SCRA 196
145
Board of Liquidators v Kalaw, 20 SCRA 987
146
Torres v Court of Appeals, 278 SCRA 79
147
Brioso v Mariano, 396 SCRA 549

30
inform the court does not deprive it of jurisdiction. The
judgment may be enforced not only against the
defendants but also against the members of their
family, their relatives, or privies who derived their right
of possession from the deceased defendant.148

3. Note that heirs may be allowed to be substituted for the


deceased without requiring the appointment of an executor or
administrator and the court can appoint a guardian ad litem for
minor heirs. When the defendant does not have any heirs, the
court shall require the opposing party to procure the appointment
of an executor or administrator. This can also occur when no legal
representative is named or if one is named, he fails to appear
within the specified period. The expenses if any, can be recovered
as costs.

3.1 Heirs may designate one or some of them as their


representative before the trial court.149

4. There is no requirement for summons as it is the order of


substitution and its service that effects the substitution of the
deceased by his representative.

5. The effect of death is to terminate the attorney-client


relationship. A deceased client has no personality and cannot be
represented by an attorney.150Neither does he become counsel for
the heirs of the deceased unless his services are engaged by the
heirs.151

DEATH/SEPARATION OF A PUBLIC OFFICER

1. If sued in his public capacity and he dies, resigns or


otherwise ceases to hold office. The action may be maintained and
continued by or against his successor, if within 30 days after
successor assumes the office or such time as granted by the court
– it is satisfactorily shown by a party that there is a substantial
need for continuing and maintaining it and that the successor
adopts or continues or threatens to continue the action of his
predecessor.152

2. Before substitution and there is no express assent, the


public officer shall be given reasonable notice of the application
and be accorded an opportunity to be heard.

3. The requisites for a valid substitution of a public officer who


has sued or been sued in his official capacity are: (a) satisfactory
proof by any party that there is a substantial need for continuing
or maintaining the action (b) the successor adopts or continues or
threatens to adopt or continue the acts of his predecessor (c) the
substitution is effected within 30 days after the successor assumes

148
Florendo v. Coloma, 129 SCRA 304
149
San Juan v. Cruz, G.R. No. 167321, July 31, 2006
150
Lavina v. Court of Appeals, 171 SCRA 691
151
Lawas v Court of Appeals, 146 SCRA 173
152
Supra, Section 17, Rule 3

31
office or within the time granted by the court, and (d) notice of the
application to the other party.153

4. The failure to make the substitution is ground for the


dismissal of the action.

EFFECT OF DEATH OF THE DEFENDANT ON A CONTRACTUAL


MONEY CLAIM

1. If the action is for the recovery of money that arises from a


contract, express or implied, and the defendant dies before entry of
a final judgment the rule is – it will not be dismissed but shall be
allowed to continue until entry of judgment, a favorable judgment
obtained shall be enforced in the manner provided by the rules for
prosecuting claims against the estate of a deceased person.154

2. Hence, in case of the death of the obligor the rules are: (a) If
he dies before the action is filed, a money claim must be filed in
the testate or intestate proceedings (b) if he dies during the
pendency of an action, the action continues until entry of
judgment, and the judgment claim is then filed with the testate or
intestate proceedings. It must be noted that a money claim
judgment need not be proven because it is conclusive. Note
further, that if property has been levied upon before death, it can
disposed of in the manner provided by the rules on execution of
judgments because it has already been segregated from the estate.
If there is a deficiency, a money claim can be filed subsequently.

2. If the claim does not arise from a contract, like claims for
recovery, enforcement of a lien or torts, the rules are: (a) if he dies
before the action is filed, it may be filed against the executor or
administrator (b) if already filed, it continues to final judgment and
may be executed on as against the executor or administrator. 155

3. In a case for ejectment where the defendant died before the


case could be decided and without being able to testify on his
counterclaim for damages. The trial court dismissed the ejectment
suit and ordered the plaintiff to pay the wife of the defendant moral
damages and attorney’s fees. The plaintiff contends on appeal that
the counterclaim should have been dismissed pursuant to Rule 3,
Section 21 (old rule). Held: The argument is misplaced, defendant
was the plaintiff in his counterclaim, the rule is not applicable as it
pertains to a defendant who dies before final judgment. In this
case, it is the plaintiff who died and all that is required is a timely
motion for substitution. No recovery though can be allowed as no
evidence was adduced.156

4. If a claim involves a conjugal debt that was not brought and


one of the spouses die before filing, the claim must be brought in
the testate or intestate proceedings of the deceased spouse.157

153
Rodriguez vs. Jardin, G.R. No. 141834, July 30, 2007
154
Supra, Section 20, Rule 3
155
Supra, Section 7, Rule 39
156
UST v Court of Appeals, GR No. 124250, October 18, 2004
157
Alipio v Court of Appeals, GR No. 134100, September 29, 2000

32
5. If it is the plaintiff who dies, the rules are: (a) if action is
purely personal to him, the action is abated (b) if action is not
purely personal, it continues but counsel must give notice of
death.

EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION

1. The court, upon motion with notice, may allow the action to
be continued by or against the incompetent or incapacitated
person assisted by his guardian or guardian ad litem. 158

EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION

1. The action may be continued by or against the original party,


unless the court upon motion directs the person to whom interest
is transferred to be substituted in the action or joined with the
original party.159

2. The rule refers to a transfer pendente lite. The transferee


pendente lite shall stand exactly in the shoes of the transferor.
Consequently, any judgment will be binding upon him.

3. A transferee pendent elite does not have to be included or


impleaded by name in order to be bound by the judgment because
the action or suit may be continued for or against the original
party or the transferor and still binding on the transferee. 160

4. In a case on appeal where the transferee pendente lite did


not appeal, he nevertheless was benefited by the appeal of the
transferor pendent lite.161

INDIGENT/PAUPER LITIGANT

1. An indigent or pauper litigant is one who litigates on a claim


that he has no money, or property sufficient and available for food,
shelter and basic necessities for himself and his family.162

2. An indigent or pauper litigant must file an ex-parte


application for authority to litigate as an indigent that is too be
resolved by the court after hearing.

2.1 Attached to the motion is an affidavit attesting to the


fact that he does not earn a gross income of PHP
4,000.00 in Metro-Manila, or PHP 3,000.00 elsewhere
and has no real property with a fair market value of
PHP 50,000.00.

2.2 Said affidavit must be supported by another affidavit


of a disinterested person. Note that recently, an
indigent litigant has been defined as one (a) whose
gross income and that of their immediate family does

158
Supra, Section 3 and 18, Rule 3
159
Supra, Section 19, Rule 3
160
State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
161
Jocson v Court of Appeals, GR 88297, March 22, 1990
162
Supra, Section 21

33
not exceed an amount double the monthly minimum
wage of an employee and (b) who does not own real
property with a fair market value as stated in the
current tax declaration of more than PHP 300,000.00.

2.3 If there is any falsity in the affidavit or that of the


disinterested person, it shall constitute sufficient
ground to dismiss the action or strike out the
pleading, without prejudice to whatever criminal
liability is incurred.163

3. The effect of being allowed to litigate as an indigent or


pauper litigant are: (a) exemption from the payment of docket fees
and other lawful fees (b) exemption from TSN fees which the Court
may order to be furnished but, the amounts due shall be a lien on
a favorable judgment unless the Court orders otherwise.

4. The allowance to litigate as an indigent or pauper litigant


can be contested at any time before judgment is rendered by any
adverse party. If found to be meritorious, the proper fees are
assessed and are to be collected. If it is not paid, execution shall
issue on the payment thereof without prejudice to other sanctions.

5. On appeal, a motion to litigate as an indigent or pauper


litigant is allowed.

WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR

1. In any action involving the validity of any treaty, law,


ordinance, executive order, presidential decree, rule or regulation,
the court, in its discretion, may require the appearance of the
Solicitor General, who may be heard in person or through a
representative duly designated by him.164
RULE 4 – VENUE OF ACTIONS

VENUE DEFINED AND DISTINGUISHED

1. Venue is the place where the action is to be commenced and


tried. It has also been defined as the proper location for the trial of
a case.

2. Distinguishing it from jurisdiction: (a) venue is the place


where action is commenced and tried, jurisdiction is the authority
of a court to hear and decide the action (b) venue may be waived,
jurisdiction over the subject matter cannot be waived, but that
over the person can be waived (c) venue may be the subject of a
written agreement, jurisdiction cannot be subject of a written
agreement165 (d) a court cannot motu-propio dismiss on improper
venue, while if it has no jurisdiction, a court can motu-propio
dismiss the action.

163
Section 19, Rule 141, Rules of Court
164
Supra, Section 22, Rule 3
165
NOcum v Tan, 470 SCRA 639

34
3. Venue establishes a relation between the plaintiff and
defendant, while jurisdiction establishes a relation between the
court and subject matter.

4. Improper venue is not jurisdictional. To illustrate: If a case


for illegal detainer is filed in the MTC-Manila but should have been
filed in the MTC-Baguio as the property is located in Baguio, the
dismissal is due to improper venue as every MTC has jurisdiction
over illegal detainer cases. Territorial jurisdiction applies only in
criminal cases where venue is also jurisdictional.

RULES ON VENUE

1. If it is a Real Action or one that affects title to or possession


of real property, or an interest therein, it shall be commenced and
tried in the proper court which has jurisdiction over the area
wherein the real property involved or a portion thereof is situated.
Forcible Entry and Detainer actions are to be commenced and tried
in the Municipal Trial Court which has jurisdiction over the area
wherein the real property involved, or any portion thereof, is
situated.166

1.1 Is the complaint for cancellation of a real estate


mortgage with damages, a real or personal action? It is
a real action; the controlling factor in determining
venue of such a case is the primary objective for which
it is filed. An action for cancellation of a real estate
mortgage is necessarily an action affecting title to real
properties since the primary objective is to recover the
properties that the bank had foreclosed on.167

2. If it is a Personal Action or one that is brought for the


recovery of personal property, for the enforcement of a contract or
recovery of damages for its breach of for the recovery of damages
due to injury to person or property or such all other actions shall
be commenced or tried where the plaintiff or any of the principal
plaintiffs reside or any of the defendants reside, or if a non-
resident defendant, where he may be found at the election of the
plaintiff168

2.1 Reside means the place of abode, whether permanent


or temporary, as distinguished from domicile or the
fixed permanent residence, where if one is absent he
intends to return.

2.2 In personal actions, it is the residence of the


proprietor, not the business address of the sole
proprietorship that is considered to determine venue
as a sole proprietorship has no legal personality.169

2.3 R engaged the services of L as geodetic surveyor to


subdivide two parcels of land located in Batangas. As
166
Supra, Section 1, Rule 4
167
Go v UCPB, GR No. 156187, November 11, 2004
168
Supra, Section 2, Rule 4
169
Mangila v Court of Appeals, 387 SCRA 162

35
payment for L’s services, R agreed to given him one lot.
After the survey, R delivered to L possession of one lot
as payment for his services. However, R failed to
deliver to L the tile of the lot. L, who resides in Quezon
City, filed with the RTC of Quezon City an action
against R for specific performance to compel R to
deliver to him the title to the lot. R moved to dismiss
on the ground of improper venue, contending that
since his is a real action, the complaint must be filed
in the RTC of Batangas where the lot is situated. Is R
correct? No, R is not correct. This action for specific
performance is a personal action. The venue therefore,
was properly laid in Quezon City where the plaintiff
resides. It is not a real action because plaintiff L is not
seeking the recovery of the lot as he is already in
possession thereof. He is merely asking the delivery of
the title to him, which is a personal action.170

3. If the defendant is a non-resident or one who does not reside


and is not found in the Philippines and the action affects the
personal status of the plaintiff, or any property of said defendant
located in the Philippines, the action may be commenced and tried
in the court of the place where the plaintiff resides, or where the
property or any portion thereof is situated or found. 171

3.1 Actions affecting the personal status of the plaintiff


refers to personal actions of annulment of marriage,
nullity of marriage, legal separation, declaration of
presumptive death

3.2 The provision refers to a Quasi in Rem action in which


an individual is named as a defendant, and the
purpose of the action is to subject his interest therein
to an obligation or lien burdening the property.

3.3 A non-resident alien who cannot be found can sue and


be sued as by filing his complaint, he submits to the
jurisdiction of the Court, even if he has never been
able to enter the Philippines.172

THE RULES ON VENUE ARE NOT APPLICABLE

1. In cases where a specific rule or law provides otherwise as


below illustrated:

1.1 Quo Warranto proceedings may be instituted in the


Supreme Court, Court of Appeals or the Regional Trial
Court exercising territorial jurisdiction over the area
where the respondent/s resides. If the Solicitor
General commences the action, he may do so in the

170
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
171
Supra, Section 3, Rule 4
172
Dilweg v Philipps, 12 SCRA 243

36
Supreme Court, Court of Appeals or the Regional Trial
Court of Manila.173

1.2 The criminal or civil action for damages due to libel


can only be instituted either in Regional Trial Court of
the place where he holds office or in the place where
the alleged libelous article was printed and first
published; and if the offended parties are private
individuals, the venue shall be in the Regional Trial
Court of the place where the libelous article was
printed and first published or where any of the
offended parties actually resides at the time of the
commission of the offense.174

1.3 Intracorporate Controversies are to be filed in the


Regional Trial Court where the principal office of the
corporation is located.175

2. Where the parties have validly agreed in writing before the


filing of the action as to exclusive venue. 176

2.1 Any agreement as to venue must be in writing and for


exclusivity, the intent must be clear, otherwise, it will
be interpreted to allow for an additional venue.

2.2 The freedom of the parties to stipulate on the venue is


however subject to the usual rules on contract
interpretation. Where the provision appears to be one-
sided as to amount to a contract of adhesion, the
consent of the parties thereto may well be vitiated and
the venue stipulation will not be given effect. 177

2.3 The rule on venue is party oriented. It looks to the


convenience of the parties. Thus the rule on venue as
to real actions presumes that the place where the
subject real property is located is convenient to the
parties. Hence, the rule as to venue can yield to an
agreement as to exclusive venue. Section 4, Rule 4
applies to both real and personal actions as long as
the requisites are met.

2.4 Venue as stipulated in the promissory note shall


govern notwithstanding the absence of a stipulation as
to venue in an accompanying surety agreement as the
latter can only be enforced in conjunction with the
former.178

HOW VENUE IS QUESTIONED

173
Supra, Section 7, Rule 66
174
Article 360, Revised Penal Code
175
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
176
Supra, Section 4, Rule 4
177
Sweet Lines v Teves, 83 SCRA 361
178
Philippine Bank of Communications v Lim, 455 SCRA 714

37
1. Venue may be questioned in (a) in a motion to dismiss 179, or
(b) in an answer by way of an affirmative defense 180. If it is not
questioned, it is deemed waived.

RULE 5 - UNIFORM PROCEDURE IN TRIAL COURTS

1. The procedure in Municipal Trial Court shall be the same as


in the Regional Trial Court, except when (a) a provision applies
only, expressly or impliedly, to a particular court, or (b) In civil
cases covered by the Rules on Summary Procedure

2. An example of a provision that applies only to a Municipal


Trial Court is that which refers to an appeal taken from an order of
the lower court dismissing the case without trial on the merits. 181

PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6- KINDS OF PLEADINGS

PLEADING DEFINED

1. It is a written statement of the respective claims and


defenses of the parties submitted to the court for appropriate
judgment.182

1.1 Pleadings are necessary to secure the jurisdiction of


the court so that the subject matter can be presented
for its consideration in the manner sanctioned by the
rules of procedure.

1.2 They are intended to secure a method by which the


issues may be properly laid before the court.183

1.3 They are designed to present, define and narrow the


issues, to limit proof to be submitted in the trial, to
advise the court and the adverse property of the issues
and what are relied upon as causes of action or
defenses.

2. The pleadings that are allowed are: (a) Claims of a party are
asserted in the complaint, counterclaim, cross-claim, 3 rd party
complaint (4th…..), or complaint in intervention (b) Defenses of a
party are alleged in the answer to the pleading asserting a claim
against him (c) Reply to the answer184

2.1 Under the Rules on Summary Procedure, the only


pleadings allowed are the complaint, compulsory
counterclaim, cross claim pleaded in the answer, and
the answers thereto.

179
Supra, Section 1 (c) ,Rule 16
180
Supra, Section 6, Rule 16
181
Supra, Section 8, Rule 40
182
Supra, Section 1, Rule 6
183
Santiago v. De Los Santos, 61 SCRA 146
184
Supra, Section 2, Rule 6

38
CONSTRUCTION OF PLEADINGS

1. All pleadings are to be liberally construed so as to do


substantial justice.185

2. While such is the rule, a party is strictly bound by the


allegations, statements or admissions made in his pleadings and
cannot be permitted to take a contradictory position. 186

2.1 In case there are ambiguities in pleadings, the same


must be construed most strongly against the pleader
and that no presumptions in his favor are to be
indulged in. This rule proceeds from the theory that it
is the pleader who selects the language used and if his
pleading is open to different constructions, such
ambiguities are at his peril.

SPECIFIC KINDS OF PLEADINGS

1. Complaint- which is the pleading alleging the plaintiff’s


cause of action or causes of action.

1.1 The names/residences of the plaintiffs and defendants


must be stated in the complaint187

2. Answer- which is a pleading in which a defending party sets


forth his defenses188.

2.1 Its essential purpose is to secure joinder of the issues


and not to lay down evidentiary matter.189

2.2 The following are the kinds of defenses 190 that may be
interposed in an answer are:

(a) Negative Defense which is a specific denial of a


material fact or facts alleged in the pleading of a
claimant essential to his cause/s of action. A
specific denial is made by191: (1) Specifically
denying the material averment in the pleading of
the adverse party and setting forth the
substance of the matter upon which he relies for
such denial (2) Deny only a part of the
averment by specifying that so much of it is true
and deny the remainder (3) Allegation of lack of
knowledge or information sufficient to form a
belief as to the truth of the material averment in
the pleading of the adverse party.

185
Concrete Aggregates Corporation v. Court of Appeals, 266 SCRA 88
186
Santiago v. De Los Santos, 61 SCRA 146
187
Supra, Section 3, Rule 6
188
Supra, Section 4, Rule 6
189
Naga Development Corporation v Court of Appeals, 41 SCRA 105
190
Supra, Section 5, Rule 6
191
Supra, Section 10, Rule 8

39
(b) Affirmative Defense which is an allegation of new
matter, which although hypothetically admitting
the material allegations in the pleading would
nevertheless bar or prevent recovery. They
include fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, or any
other matter by way of confession and
avoidance.

2.3 The purpose of requiring the defendant to make a


specific denial is to make him disclose the matters
alleged in the complaint which he succinctly intends to
disprove at the trial, together with the matter which he
relied upon to support the denial.192

2.4 Note that the rule that a defending party who sets up
an affirmative defense hypothetically admits the
allegations does not apply if the defense set up is any
of the grounds for extinguishment of the obligation.
The effect is that the defending party is deemed to
have admitted the validity of the obligation, and if the
motion to dismiss is denied, what is left to be proven is
the fact of payment or non-payment.

2.5 Any of the grounds for a motion to dismiss may be


pleaded as an affirmative defense. He may then move
for a preliminary hearing as if a timely motion to
dismiss has been filed.193

3. Counterclaim- which is any claim which a defending party


may have against an opposing party.194

3.1 Counterclaims may be compulsory or permissive. They


are distinguished as follows:
a) In a compulsory counterclaim, it arises out of or
is connected with the transaction or occurrence
constituting the subject matter of the opposing
party’s claim, while in a permissive
counterclaim, it does not arise out of or is
connected with the transaction or occurrence
constituting the subject matter of the opposing
party’s claim
b) A compulsory counterclaim is barred if not set
up in the answer, while a permissive
counterclaim is not barred even if not set up
c) The plaintiff is not required to answer a
compulsory counterclaim and he cannot be in
default, while a permissive counterclaim must
be answered after payment of docket fees,
otherwise a party may be held in default
d) A compulsory counterclaim is not an initiatory
pleading so as to require a certification as to
192
Aquintey v. Tibong, GR No. 166704, December 20, 2006
193
Supra, Section 6, Rule 16
194
Supra, Section 6, Rule 6

40
non-forum shopping, while a permissive
counterclaim is an initiatory pleading.

3.2 The requisites of a compulsory counterclaim are:


a) It arises out of or is necessarily connected w/the
transaction or occurrence that in the subject
matter of the party’s claim
b) It does not require for adjudication the presence
of 3rd parties over whom the court cannot
acquire transaction
c) It must be cognizable by the regular courts of
justice
d) It must be within the jurisdiction of the court
both as to amount and the nature thereof,
except that in an original action before the RTC,
counterclaim is considered compulsory
regardless of amount
e) It must already be existing at the time defending
party files his answer195

3.3 The requisites of a permissive counterclaim are:


a) It does not require for adjudication the presence
of 3rd parties over whom the court cannot
acquire jurisdiction
b) It must be cognizable by the regular courts of
justice
c) It must be within the jurisdiction of the court
both as to amount and the nature thereof,
except that in an original action before the RTC,
counterclaim is considered compulsory
regardless of amount

3.4 To determine whether a counterclaim is compulsory or


not, the Court has devised the following tests: (a) are
the issues of fact or law raised by the claim and
counterclaim largely the same? (b) Would res judicata
bar a subsequent suit on defendant’s claim absent a
compulsory counterclaim? (c) Will substantially the
same evidence support or refute plaintiff’s claim as
well as defendant’s counterclaim? And (d) is there any
logical relation between the claim and counterclaim. If
the answers are all in the alternative, it is a
compulsory counterclaim.196 Item (d) is also known as
the “compelling test of compulsoriness” as conducting
separate trials of the respective claims of the parties
would entail a substantial duplication of effort and
time by the parties and the court.197

3.5 Illustrations of compulsoriness are: (a) expenses for


cultivation even if inconsistent with the defense of
ownership in an action to recover real estate 198 (b)
expenses for the preservation of property in action for
195
Supra, Section 7, Rule 6, Section 8, Rule 11
196
Reyes De Leon v. Del Rosario, 435 SCRA 232
197
Quintanilla v. Court of Appeals, 279 SCRA 397
198
Camara v. Aguilar, 94 Phil 527

41
annulment of title on the ground of fraud 199(c)
damages for usurpation of the produce in action to
quiet title200 (d) cost of improvements in an action for
recovery of ownership or possession201

3.6 A compulsory counterclaim that is not yet in existence


at the time of the filing of an answer may be presented
or set-up by a supplemental pleading before
judgment.202

3.7 A compulsory counterclaim may implead persons not


parties to the original complaint as their presence is
required for granting complete relief in the
determination of a counter-claim or cross claim, the
court shall order them brought in as defendants, if
jurisdiction over them can be obtained. 203 Summons
must thus be served upon them as they must answer
the counterclaim as they cannot rely on the rule that
the defendant in the counterclaim is deemed to have
adopted the allegations of the complaint in his
answer.204

4. A cross claim is a claim by one party against a co-party


arising out of a transaction/occurrence that is the subject matter
either of the original action or the counter-claim. It may include a
claim that a party against whom it is asserted is or may be liable to
the cross claimant for all or part of a claim asserted in the action
against the cross-claimant. 205

4.1 Note that counterclaims may be asserted against an


original counter-claimant and that cross-claims may
also be filed against an original cross-claimant. 206

5. A reply is a pleading, the office or function of which is to


deny or allege facts in denial or avoidance of new matters alleged
by way of defense in the answer and thereby join or make an issue
as to such matters.

5.1 If a reply is not filed, all new matters are deemed


controverted. If plaintiff wishes to interpose any claims
arising out of the new matters so alleged, such claims
shall be set forth in an amended/supplemental
complaint.

5.2 If the defense is based on an actionable document, it


must be replied to, otherwise it is admitted.

6. A 3rd Party Complaint is a claim that a defending party may,


with leave of court, file against a person, not a party, called 3 rd
199
Maclan v. Garcia, 97 Phil 119
200
Doliente v. Blanco, 87 Phil 67
201
Baclayan v. Court of Appeals, 182 SCRA 761
202
Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
203
Supra, Section 12, Rule 6
204
Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
205
Supra, Section 8, Rule 6
206
Supra, Section 9, Rule 6

42
party defendant for contribution, indemnity, subrogation or any
other relief in respect of his opponent’s claim.207

6.1 Examples: (a) Contribution - A sues X for collection of


money based on a promissory note signed jointly and
severally with Y. X may file a complaint against Y for
contribution (b) Indemnity- S, as surety, is sued for
recovery of the obligation of M. S may file a complaint
against M for whatever amount he may be adjudged to
pay as surety (c) Subrogation- X, as lessor, sues Y, as
lessee for repairs. Y may file a complaint against his
sub-lessee who filed to comply with the obligation to
repair (d) Other Relief- X bought land from Y. Later X
is sued by A for recovery of the land. X may file a
complaint against Y for his warranty against eviction.

6.2 An answer to a 3rd party complaint may include (a)


defenses, counterclaims or cross-claims, including
such defenses that the 3rd Party Plaintiff may have
against the original plaintiff’s claim, and (b) In proper
cases, he may assert a counter-claim against the
original plaintiff in respect to his claim against the 3 rd
party plaintiff.208 An example is: a reinsurer (3rd party
defendant) may set up in his answer the defense
alleged by defendant insurer that loss is caused by
plaintiff insured. However the 3rd party defendant
cannot file a counterclaim against the original plaintiff
as there is no privity of contract between them.

WHEN NEW PARTIES CAN BE BROUGHT

1. If the presence of others besides the parties is required for


the granting of full relief in the determination of a counter-claim or
cross- claim the court shall order them to be brought in as
defendants, if jurisdiction over them can be obtained209.

RULE 7 – PARTS OF A PLEADING

PARTS OF A PLEADING

1. The parts of a pleading are Caption, Body, Signature,


Address, Verification and Certification against Forum Shopping.

SPECIFICS OF THE PARTS OF A PLEADING

1. The Caption sets forth the (a) Name of the court (b) Title of
the action, this includes an indication of the name of the parties,
who are required to be named in the original complaint/petition. In
subsequent pleadings, the name of the first party on each side is
sufficient with an appropriate indication when there are other
parties. (c) Docket Number , if one has already been assigned.210
207
Supra, Section 11, Rule 6
208
Supra, Section 13, Rule 6
209
Supra, Section 12, Rule 6
210
Supra, Section 1, Rule 7

43
1.1 In an appeal, the rules 211 requires all names to be
indicated in the Notice of Appeal and Record on Appeal

1.2 In case of a variance between the caption and


allegations, the latter will prevail. The court may grant
a relief warranted by the allegations and proof even if
no such relief is prayed for.212

2. The Body sets forth its designation, the allegations or a


party’s claims / defenses, the relief prayed for, and the date of the
pleading.

2.1 The allegations in the body shall be divided unto


paragraphs so numbered to be readily identified. Each
shall contain Statement of a single set of
circumstances so far as it can be done with
convenience. A paragraph may be referred to by its
number in all succeeding pleadings.

2.2 Headings must be used when 2 or more causes of


action are joined, the statement of the first shall be
prefaced by: First Cause of Action etc. When: 2 or
more paragraphs are addressed to one or several
causes of action in the complaint, they shall be
prefaced by: Answer to the First Cause of Action and
so on. If it addresses several causes of action, the
paragraphs shall be prefaced accordingly.

2.3 Relief should be specified but it may add a general


prayer for such further or other relief as may be
deemed just and equitable. The relief does not
constitute a part of the statement of the cause of
action. It does not serve to limit or narrow the issues
presented.213It is the material allegations, not the legal
conclusions that determine the relief that a party is
entitled to.214A court may grant a relief not prayed for
as long as warranted by the allegations and the
presented proof.

2.4 Every pleading is required to be dated.

3. Signature and Address - every pleading must be signed by


the party or counsel representing him, stating in either case his
address which should not be a post office box.

3.1 Note the word “or” because a party may litigate /


defend Pro Se or for himself without aid or counsel.
This applies even if a party is already represented by
counsel.

211
Supra, Sections 5 and 6, Rule 41
212
Lorbes v. Court of Appeals, 351 SCRA 716
213
UBS v. Court of Appeals, 332 SCRA 534
214
Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241

44
3.2 Only the signature of either party operates to validly
convert a pleading from one that is unsigned to one
that is signed.215

3.3 Significance of Counsel’s Signature – it is a Certificate


by him that: (a) He has read the pleading (b)To the
best of his information, knowledge and belief there is
good ground to support it (c) It is not interposed for
delay

3.4 If the pleading is unsigned it produces no legal effect.


However, the court in its discretion can allow the
deficiency to be remedied if it shall appear that it was
due to inadvertence and not intended for delay.216

3.5 An address is required for service of pleadings or


judgments

3.6 Disciplinary action may be imposed on counsel in


relation to the rule when (a) He deliberately files an
unsigned pleading (b) Signs a pleading in violation
of the Rule (c) Alleges scandalous or indecent matter
(d) Fails to promptly report to the court a change in his
address

4. A Verification is an affidavit that the affiant has read the


pleading and that the allegations therein are true and correct of his
personal knowledge and/or is based on authentic records..

4.1 The verification requirement is intended to secure an


assurance that the allegations in the pleading are true
and correct and not the product of the imagination or
a matter of speculation and that it is being filed in
good faith.217

4.2 If a pleading that is required to be verified is not


verified or contains a verification that does not comply
with what is required by the rules, it shall be treated
as an unsigned pleading.

4.3 The court may order the correction of the pleading or


act on an unverified pleading if the attending
circumstances are such that strict compliance would
not fully serve substantial justice, which after all, is
the basic aim of the rules of procedure.218

4.4 A pleading need not be verified, except when otherwise


specifically required by law or the rules219.

4.5 A Verification is required under rules governing (a)


cases covered by the Rules on Summary Procedure (b)
215
Republic v. Kenrick Development Corporation, 351 SCRA 716
216
Supra, Section 3, Rule 7
217
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
218
Robert Development Corporation v. Quitain, 315 SCRA 150
219
Supra, Section 4, Rule 7

45
Petition for relief from judgment / order 220 (c) Petition
for review221 (d) Appeal by certiorari 222 (e)Petition for
annulment of judgment 223 (f) Injunction224 (g)
Receivership225 (h) Support226 (i) 69) Certiorari,
Prohibition or Mandamus227 (j) Quo Warranto228 (k)
Expropriation229 (l) Forcible Entry / Detainer 230 (m)
Indirect Contempt 231(n) Petition for a writ of habeas
corpus, writ of amparo, writ of habeas data (o) Petition
for cancellation or correction of entries in the Civil
Registry (p) Petition for the constitution of a family
home (q) Petition for Declaration of Absolute Nullity of
Marriage, Annulment of a Voidable Marriage, Legal
Separation (r) Petition for Guardianship (s)
Applications for TRO or Injunction.

5. Certification against Forum Shopping is executed by the


plaintiff or principal party who shall certify under oath in the
Complaint or Initiatory Pleading asserting a claim or relief or in
sworn certification annexed thereto and simultaneously filed
therewith : (a) That he has not therefore commenced any action or
filed any claim involving the same issues in any court, tribunal or
quasi judicial agency and to the best of his knowledge, no such
other claim or action is pending therein (b) If there is such other
pending action or claim, a complete statement of the present
status thereof (c) That if he should thereafter learn that the same
or similar action has been filed or is pending, he shall report that
fact within 5 days therefrom to the court wherein his complaint /
initiatory pleading has been filed.232

5.1 The lack of a certification is not curable by


amendment, but such shall be cause for dismissal of
the complaint. The dismissal shall be without
prejudice unless otherwise provided, upon motion and
after hearing.233

5.2 The non-compliance with any of the undertakings or


the submission of a false certificate shall constitute
indirect contempt without prejudice to corresponding
administrative and criminal actions. Provided, that if
the acts of the party or counsel clearly constitute will
and deliberate forum shopping, it shall then be ground
for summary dismissal with prejudice, and shall
constitute direct contempt as well as cause for
administrative sanctions.
220
Supra, Section 3, Rule 38
221
Supra, Section 1, Rule 42
222
Supra, Section 1, Rule 45
223
Supra, Section 4, Rule 47
224
Supra, Section 1, Rule 58
225
Supra, Section 1, Rule 59
226
Supra, Section 1, Rule 61
227
Supra, Sections 1,2,3, Rule 65
228
Supra, Section 1, Rule 66
229
Supra, Section 1, Rule 67
230
Supra, Section 3, Rule 70
231
Supra, Section 3, Rule 71
232
Supra, Section 5, Rule 7
233
Castillo v Court of Appeals, 426 SCRA 369

46
5.3 Forum Shopping exists when as a result of an adverse
opinion in one forum, a party seeks a favorable
opinion, other than by appeal or certiorari, in another,
or when he institutes two or more actions or
proceedings grounded on the same cause, on the
gamble that one or the other court would make a
favorable disposition. The most important factor in
determining the existence of forum shopping is the
vexation caused the courts and parties-litigants by a
party who asks different courts to rule on the same or
substantially the same reliefs.234

5.4 It also occurs when a party attempts to have his action


tried in a particular court or jurisdiction where he feels
he will receive the most favorable judgment.

5.5 It has been said to exist also where the elements of


litis pendentia are present or where a final judgment
in one case will amount to res judicata in another.
Hence, the following requisites concur: (a) identity of
parties, or at least such parties represent the same
interests in both actions (b) identity of rights asserted
and relief prayed for, the relief being founded on the
same facts, and (c) identity of the two preceding
particulars is such that any judgment rendered in the
other action will, regardless, of which party is
successful, amount to res judicata in the action under
consideration. 235

5.6 The purpose of the certification against forum


shopping is to prohibit and penalize the evils of forum
shopping.236 Forum Shopping is a deplorable practice
because it results in unnecessarily clogging of the
already heavily burdened docket of the courts.237

5.7 The execution of the certification is required to be


accomplished by the petitioner himself as it is the
petitioner himself who has actual knowledge of
whether or not he has initiated similar actions or
proceedings in different courts or agencies.

5.8 If there are several plaintiffs, the general rule is that


all of them must sign but it must be noted that there
is jurisprudence to the effect that: (a) the execution by
one of the petitioners or plaintiffs in a case constitutes
substantial compliance where all the petitioners, being
relatives and co-owners of the properties in dispute,
share a common interest in the subject matter of the
case.238 (b) the case is filed as a collective raising only

234
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
235
TADI v Solilapsi, 394 SCRA 269
236
BA Savings Bank v Sia, 336 SCRA 484
237
Ruiz v Drilon, 209 SCRA 695
238
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722

47
one cause of action or defense 239 (c) the signing by 1
spouse substantially complies as they have a common
interest in the property240 or is signed by husband
alone is substantial compliance as subject of case is
recovery of conjugal property241 (d) 2 of the parties did
not sign as they were abroad. It was considered
reasonable cause to exempt them from compliance
with the requirement that they personally execute the
certificate242

5.9 If the plaintiff or petitioner is a juridical person, it can


only execute the certification through properly
delegated individuals.243 Note though that there are
corporate officers who may sign the certification
without need of a board resolution, namely: (a)
Chairperson of the Board (b) President (c) General
Manager or Acting General Manager (d) Personnel
Officer, and (e) Employment Specialist in a labor
case.244 The submission in the motion for
reconsideration of the authority to sign the verification
and certification constitutes substantial compliance
with procedural requirements.245

5.10 Counsel has been allowed to sign the certification in


the following instances: (a) Where the counsel is the
Solicitor General has been deemed to be substantial
compliance246 (b) Certification by acting regional
counsel of NPC was accepted because it was his basic
function to prepare pleadings and to represent NPC –
Mindanao – as such he was in the best position to
know and certify if a similar action was pleading or
had been filed247 (c) Certification was signed by
counsel. The procedural lapse may be overlooked in
the interest of substantial justice. 248 (d) Certification
was executed by an in house counsel is sufficient
compliance with the Rules249 (e) With respect to a
corporation, the certification against forum shopping
may be signed for and its behalf by a specifically
authorized lawyer who has personal knowledge of the
facts required to be disclosed in such document.250

5.11 The Supreme Court has gone to the extent of invoking


the power to suspend the rules by disregarding the

239
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners
Association, 411 SCRA 504
240
Dar v Alonso Legasto, 339 SCRA 306
241
Docena v Lapesura, 355 SCRA 658
242
Hamilton v Levy, 344 SCRA 821
243
National Steel Corporation v. Court of Appeals, 388 SCRA 85
244
Cagayan Valley Drug Corporation vs. Commissioner of Internal Revenue, 545 SCRA 10
245
Asean Pacific Planners vs. City of Urdaneta, 566 SCRA 219
246
Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
247
Robern Development Corporation v Quitain, 315 SCRA 150
248
Sy Chin v Court of Appeals, 345 SCRA 673
249
Mercury Drug Corporation v Libunao, 434 SCRA 404
250
Athena Computers, Inc. v Reyes, 532 SCRA 343 (September 5, 2007)

48
absence of the certification in the interest of
substantial justice.251

5.12 As a general rule, the certification cannot be filed at a


later date. However, in some instances the Supreme
Court has allowed the late filing when special or
compelling reasons justify the same, such a the
substantive merit of the case.252

5.13 Problem: The rule in Section 1, Rule 17 is that the


plaintiff may dismiss his complaint by filing a notice of
dismissal at any time before service of the answer or of
a motion for summary judgment. As a general rule,
such dismissal is without prejudice. Suppose P filed a
complaint against D, and before service of the answer
or of motion for summary judgment, P caused the
dismissal of his complaint by filing a notice of
dismissal. Months later, P filed the same complaint
against D. In the certification on non-forum shopping
appended to the second complaint, P failed to mention
about the prior filing and dismissal of the first case. Is
P’s failure to mention about the prior filing and
dismissal of the first case fatal?

No. An omission in the certification on non-forum


shopping about any event or case which would not
constitute res judicata or litis pendentia is not fatal. In
the problem presented, the dismissal of the first case
would not constitute res judicat253a precisely because
such dismissal is without prejudice to the refilling of
the case.254

5.14 Also, a case pending before the Ombudsman cannot be


considered for purposes of determining forum
shopping as the power of the Ombudsman is only
investigative in character and its resolution cannot
constitute a valid and final judgment because its duty
is to file the appropriate case before the
Sandiganbayan.

DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION

1. The distinctions are:

a) A verification is a sworn statement that the allegations


are true and correct based on personal knowledge
and/or authentic records, while a certification states
that no action or claim involving the same issues have
been filed or is pending

251
De Guia v. De Guia, 356 SCRA 287
252
Loyola v. Court of Appeals, 245 SCRA 477, Roadway Express v. Court of Appeals, 264 SCRA
696, Sy v. Landbank, 336 SCRA 419, Shipside Incorporated v. Court of Appeals,352 SCRA 334,
Ateneo De Naga v. Manalo, 458 SCRA 325
253
Sevilleja v. Laggui, 362 SCRA 715
254
Roxas v. Court of Appeals,363 SCRA 207

49
b) A verification is required in complaints, initiatory
pleadings and some responsive pleadings, while a
certification is required only in complaints and
initiatory pleadings

c) A defect in a verification is curable by amendment or


an order to verify, while that in a certification cannot
be cured by amendment

d) A defect in the verification does not immediately give


rise to a ground for dismissal, while a defect in a
certification gives rise to a ground for dismissal

e) A verification may be signed by counsel, while a


certification must be signed by a party.

RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADINGS

HOW ALLEGATIONS ARE MADE IN A PLEADING

1. In general, a pleading must contain in a methodical and


logical form a plain concise and direct statement of the ultimate
facts on which the party pleading relies for his claim or defense 255

1.1 Ultimate facts are 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 insufficient.

1.2 Examples of ultimate facts: (a) That an obligation has


been constituted, that party must comply, that there is
no compliance (b) That party is the owner of property,
that he has a right to its use/possession, that he has
been dispossessed

1.3 A pleading must only aver ultimate facts as no


conclusions are supposed to be averred. Conclusions
are for the court to make.

2. Mere evidentiary facts or those that are necessary for the


determination of the ultimate facts are to be omitted. Evidentiary
facts are the premises upon which conclusions of ultimate facts
are based.

2.1 Examples of evidentiary facts are: (a) That the


obligation as covered by a promissory note was
executed before specified persons or that defendant
has several letters indicating intention to/or not to pay
(b) How property was acquired

2.2 They are not supposed to be averred as evidentiary


matters must be presented to the court during the trial
of the case, not in the pleadings.

255
Supra, Section 1, Rule 8

50
3. Laws may be pleaded only if the pleading is an
Answer.

PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES

1. A party may set forth two or more statements of a claim or a


defense alternatively or hypothetically, either in one cause of action
or defense or in separate causes of actions or defenses. If two or
more statements are made in the alternative and if one of them if
made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative
statements.256

2. The provision recognizes the possibility that the liability of


the defendant may possibly be based on two causes of action or
that the defendant may possibly have alternative defenses, even if
they may conflict with each other.

2.1 Examples of alternative causes of actions: (a)


allegations for breach of contract of carriage and tort,
or (b) allegations for breach of contract and fraud,
while examples of alternative defenses are: (a) defense
of failure to repurchase by plaintiff and that property
was inherited, or (b) debt has been paid or that it has
prescribed, or (c) fraud attended the execution of the
contract, but even assuming that the contract is valid,
the action has prescribed.

3. The object of the provision is to relieve a party from making a


definite election in cases where his claim or defense might fall
within two different substantive classes. Hence, a party may state
as many claims/defenses as he has regardless of inconsistency.

3.1 It does not require that all the alternative causes of


action/defenses be sufficient for the
plaintiff/defendant to be entitled to relief. It is enough
that one of them if made independently would be
sufficient to support a cause of action or defend
against it. Hence, the pleading is not made insufficient
by the insufficiency of one or more of the alternative
statements.

3.2 Overruling of one does not bar other defenses.


However, if not set up, determination of one shall bar
the determination of the other.

HOW TO PLEAD CONDITIONS PRECEDENT

1. A condition precedent as determined by common usage are


matters which must be complied with before a cause of action of
action arises.

2. Hence, a general averment of the performance or occurrence


of all conditions precedent is required.257
256
Supra, Section 2, Rule 8
257
Supra, Section 3, Rule 8

51
3. Examples of conditions precedent are: (a) tender of payment
is required before consignation 258 (b) exhaustion of administrative
remedies before resort to judicial action (c) that earnest efforts at a
compromise have been exerted, the suit being one between
members of the same family (d) that prior resort to conciliation has
been undertaken to no avail

4. The failure to comply is an independent ground for a motion


to dismiss.259

PLEADING CAPACITY TO SUE AND TO BE SUED

1. The following must be averred: (1) capacity to sue or be sued


(2) authority of a party to sue or be sued in a representative
capacity (3) legal existence of an organized association of persons
that is made a party.260

1.1 Note the cross reference to Sections 1 and 3, Rule 3


referring to who may be parties and representative
parties, and to Section 1(d), Rule 16 referring to a
motion to dismiss on the ground of lack of legal
capacity to sue, meaning that a party is not in
possession of his civil rights, does not have the
qualification to appear, or does not have the character
or representation claimed.

2. A party desiring to raise the issue of lack of legal capacity


shall do so by specific denial, which shall include such supporting
particulars as peculiarly within the pleader’s knowledge.

HOW TO AVER FRAUD, MISTAKE, AND CONDITION OF MIND

1. Fraud and mistake must be stated with particularity. It is


not enough for the pleading to just allege fraud.

1.1 It must state the time, place and specific acts


constituting the fraud.

2. Condition of mind, such as malice, intent, knowledge may be


averred generally.261

2.1 Based on human experience, it is difficult to state the


particulars of a condition of the mind.

HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A


DOMESTIC/FOREIGN COURT, JUDICIAL/QUASI-JUDICIAL
OFFICER TRIBUNAL BOARD

258
Article 1256, NCC
259
Supra, Section 1(j), Rule 16
260
Supra, Section 4, Rule 8
261
Supra, Section 5, Rule 8

52
1. It is sufficient that a general allegation of the existence of the
judgment is made, without setting forth matter showing
jurisdiction to render it.262

1.1 Jurisdiction in this case is presumed.

IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE


DOCUMENT

1. Where the action or defense is based on an actionable


document or the written document upon which the plaintiff or
defendant relies for his claim or defense, it is pleaded by (a) setting
forth the substance of such document in the pleading and
attaching the original/copy as an annex or (b) setting it forth
verbatim in the pleading.263

2. It is contested by specifically denying it under oath and


setting forth what he claims to be the fact.

2.1 A mere denial is insufficient as the same must be


under oath or verified.

2.2 The requirement does not apply if: (a) adverse party is
not/does not appear to be a party to the actionable
document. Example: Heirs are sued on a document
executed by a person they will inherit from (b) when
compliance with an order for an inspection of the
original document is refused.264 (c) when the document
is not an actionable document but is merely evidence
of the claim or existence of the actionable document .
Example: demand letters (d) when the party who has
the benefit of an implied admission waives the benefit.
Example: he presents evidence as to genuineness and
due execution

3. The effect of not specifically denying an actionable document


under oath lead to the admission of its genuineness and due
execution. It thus means that the party executed the document or
was executed by someone authorized by him, it was in the
words/figures set forth in the pleading, and that the formal
requirements of law have been observed. Thus, there is no need to
present it formally in evidence because it is an admitted fact.

3.1 A party though is not barred from interposing other


defenses as long as it is not inconsistent with the
implied admission. Examples of inconsistent defenses
are: forgery, lack of authority to execute the document
that it was signed in another capacity, it was not
delivered or the words/figures as pleaded are not the
same as when the document was signed. On the other
hand, consistent defenses are: fraud, payment, want
or illegality of consideration, usury, prescription,
release or waiver or estoppel.
262
Supra, Section 6, Rule 8
263
Supra, Section 7, Rule 8
264
Supra, Section 8, Rule 8

53
HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED

1. It is sufficient to aver that document was issued or the act is


done in compliance with law.265 Example: Issuance of Certification
to file action by Lupon Tagapayapa chair.

HOW ARE SPECIFIC DENIALS MADE

1. A specific denial is made266 by: (a) Specifically denying the


material averment in the pleading of the adverse party and setting
forth the substance of the matter upon which he relies for such
denial, this is known as an absolute denial (b)Deny only a part of
the averment by specifying that so much of it is true and deny the
remainder, this is known as partial denial (c) Allegation of lack
of knowledge or information sufficient to form a belief as to the
truth of the material averment in the pleading of the adverse party,
this is known as denial by disavowal of knowledge.

A negative pregnant denial is a denial pregnant with an admission


of the substantial facts alleged in the pleading. 267

1.1 If the denial is a mere repetition of the allegations in


the complaint it is considered a negative pregnant
denial which is conceded to actually be an admission.
Example: A complaint alleges: “Plaintiff extended a
loan to Defendant in the amount of P500, 000.00 on
July 27, 2006 in Baguio City.” The defendant in his
answer alleges: “Defendant specifically denies that
Plaintiff extended a loan to Defendant in the amount of
P500, 000.00 on July 27, 2006.” The answer is a mere
repetition of the allegations made in the complaint.
The answer is vague as to what it really denies. Is it
the existence of a loan that is denied? Is it the
amount? The date? The place?

1.2 When the complaint alleges that: “the sum of PHP


10,000.00 is a reasonable sum to be allowed plaintiff
as and for attorney’s fees. If the defendant’s denial is a
mere repetition, then it is an admission that any sum
less than PHP 10,000.00 is reasonable.

1.3 If allegations are not denied in the prescribed manner,


a party is deemed to have made a general denial which
is tantamount to an admission. 268

1.4 A denial by disavowal of knowledge will amount to an


admission, if to the knowledge of the court; it is so
plainly and necessarily within the defendant’s
knowledge that the averment of ignorance must be
untrue.
265
Supra, Section 9, Rule 8
266
Supra, Section 10, Rule 8
267
Caneland Sugar Corporation v. Alon, 533 SCRA 28, (September 12, 2007)
268
Supra, Section 11, Rule 8

54
1.5 Exceptions to the rule that matters are admitted by
the failure to make a specific denial are: (a) the
amount of unliquidated damages 269 (b) conclusions
which are not required to be denied as only ultimate
facts must be alleged, and (c) non-material allegations
as only those that are material have to be denied.

1.6 Note that when the allegations pertain to (a)


allegations of usury in a complaint to recover usurious
interest, or (b) genuineness and due execution of an
actionable document, the specific denial is required to
be made under oath otherwise they are admitted.

STRIKING OUT OF A PLEADING OR MATTER CONTAINED


THEREIN

1. If the pleading or any matter therein is sham, false,


redundant, immaterial, impetinent or scandalous, the court can
order the pleading or matter contained therein to be stricken
therefrom (a) upon motion made by a party before responding to a
pleading (b) if no responsive pleading is allowed / permitted by the
Rules, upon motion by a party within 20 days after service of the
pleading, or (c) upon the Court’s own initiative270

RULE 9 – EFFECTS OF FAILURE TO PLEAD

1. The general effect of the failure to plead is that the


defenses / objections not so pleaded in an Answer or a Motion to
Dismiss are deemed waived.

1.1 However, if it appears from the pleadings or evidence


on record that (a) the Court has no jurisdiction over
the subject matter (b) there is another action pending
between the same parties for the same cause, or (c) the
action is barred by prior judgment or statute of
limitations, the court shall dismiss the claim.271 These
defenses are not barred if not set up

2. A compulsory counterclaim or a cross-claim not set up shall


also be barred.272 Note that this is in consonance with the
requirement of the Rules that a compulsory counterclaim or cross
claim existing at the time of the filing of the answer must be
contained therein273 but if it arises after the filing of an answer, it
may be set up in a supplemental pleading before judgment 274 or if
failure is due to oversight, inadvertence, excusable neglect or when
justice requires, it may be set up by amendment with leave of court
before judgment.275

269
Supra, Section 11, Rule 8
270
Supra, Section 12, Rule 8
271
Supra, Section 1, Rule 9
272
Supra, Section 2, Rule 9
273
Supra, Section 8, Rule 11
274
Supra, Section 9, Rule 11
275
Supra, Section 10, Rule 11

55
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO
ANSWER WITHIN THE TIME ALLOWED

1. If there is failure to plead within the time allowed, the


defendant may be declared in default upon compliance with the
following: (a) the plaintiff must file a motion to declare the
defendant in default (b) serve notice of his motion to defendant,
which must include a notice of hearing (c) at the hearing, show
proof of failure on the part of the defendant to file his answer
within the reglementary period.276

1.1 A court cannot motu propio declare a defendant in


default.

2. Default is a procedural concept that occurs when the


defending party fails to file his answer within the reglementary
period.

2.1 It does not occur from the failure of the defendant to


attend the pre-trial, where absence is a cause for the
court to order presentation of evidence ex-parte or at
the trial, where absence will be construed as a waiver
to assail the evidence against him or is a waiver of the
right to adduce evidence.

2.2 Note the exceptions to the concept that default is


triggered by the failure of the defending party to file
the required answer, as a default judgment has been
held to lie if (a) a party refuses to obey an order
requiring him to comply with the various modes of
discovery277, or (b) if a party or managing agent of a
party willfully fails to appear before the officer who is
to take his deposition.278

3. It is an error to declare a defendant in default where an


answer has already been filed.279

4. Note that the rule is different if covered by the Rules on


Summary Procedure, where a motion to declare defendant in
default is prohibited.280

4.1 Instead, the court can motu proprio or upon a motion


render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed
for.281

5. A declaration in default is not an admission of the truth or


the validity of the plaintiff’s claims.282

276
Supra, Section 3, Rule 9
277
Supra, Section 3 (c), Rule 29
278
Supra, Section 5, Rule 29
279
Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451
280
Section 19 (h), 1991 Rules of Summary Procedure
281
Section 6, II, 1991 Rules of Summary Procedure
282
Monarch Insurance v. Court of Appeals, 333 SCRA 7

56
ONCE DECLARED IN DEFAULT

1. The court has two options, it: (a) can proceed to render
judgment granting the claimant such relief as his pleading may
warrant, unless, (b) the Court in its discretion requires the
claimant to submit the evidence. Such reception may be delegated
to the Clerk of Court, who must be a member of the Bar.

2. The extent of the relief that may be awarded shall not exceed
the amount or be different in kind from that prayed for nor award
unliquidated damages.283

2.1 Hence, even if there is proof to indicate a greater relief,


the court will refrain from awarding it.

3. The defaulted defendant is nevertheless entitled to notice of


subsequent proceedings but he cannot take part in the trial.284

4. Effect of Partial Default, where a pleading asserting a claim


states a common cause of action against several defending parties,
some of whom answer while others do not, the court shall try the
cause against all upon the answers thus filed and render judgment
upon the evidence presented.285

4.1 It is not within the authority of the court to divide a


case by first hearing the case ex parte as against the
defaulted defendants and render a judgment against
them, then proceed to hear the case as against the
non-defaulted defendants.286

WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT

1. The available remedies of a defendant who is declared in


default are as follows:

1.1 Motion to Set Aside Order of Default under oath, filed


at any time after notice of declaration in default and
before judgment. Defendant must show by an Affidavit
of Merit stating that failure to file an answer was due
to FAME and that he has a meritorious defense

1.2 Motion for New Trial on the ground of FAME if the trial
court has rendered judgment but it has not yet
become final

1.3 Appeal the judgment by default, not the order as it is


interlocutory, and cannot be appealed, within 15 days
from notice of judgment.

Note that if in the meantime, a motion to set aside


order of defendant has been denied, it can be assigned

283
Supra, Section 3 (d), Rule 9, Vlason v. Court of Appeals, 310 SCRA 26
284
Supra, Section 3 (a), Rule 9
285
Supra, Section 3 (c), Rule 9
286
Heirs of Mamerto Manguiat, et al. v. Court of Appeals, G.R. No. 150768, August 20, 2008

57
as an error in the appeal. The non- filing of a motion to
set aside or for a new trial does not bar an appeal.

On appeal, the judgment may be assailed on the


ground that the judgment is excessive or is different in
kind from that prayed for or that the plaintiff failed to
prove his material allegations or that the decision is
contrary to law. However, he is prohibited from
seeking a reversal or modification on the basis of
evidence submitted before the appellate court, as to
allow it would mean that he is retaining the right to
adduce evidence, which he lost in the trial court. 287

1.4 Petition for Relief from Judgment based on FAME,


provided no appeal has been taken within 60 days
from notice and 6 months from entry of judgment.288

1.5 Action to Annul Judgment based on extrinsic or


collateral fraud , which is such that a party is induced
or prevented from presenting his case or having a full
and fair trial, within 4 years from discovery of the
fraud.

1.6 Certiorari, if improperly declared in default or motion


to set aside was denied and is tainted with grave abuse
of discretion, which is filed within 60 days from notice
or judgment order resolution or 60 days from notice of
the denial of a motion for reconsideration.289

2. If despite a declaration in default, the court subsequently


acts on motions for extension or a motion for a bill of particulars,
the effect is that the order of default is deemed lifted. The trial
court is not considered to have acted with grave abuse of
discretion.290

CASES WHERE NO DEFAULT LIES

1. In the following cases, default does not lie: (a) annulment


of marriage (b) declaration of nullity of marriage (c) legal separation
(d) expropriation, and (e) forcible entry, illegal detainer and the
other actions covered by the Rules on Summary Procedure.

1.1 Regarding items (a) to (c), the court shall order the
prosecuting attorney to investigate whether or not
collusion exists, and if there is no collusion, to
intervene for the state in order to see that the evidence
so presented is not fabricated.291

287
Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, G.R. No. 148019, July 28,
2004
288
Supra, Rule 38
289
Supra, Rule 65
290
Republic of the Philippines vs. Sandiganbayan, G.R. No. 148154, December 17, 2007
291
Supra, Section 3,(e), Rule 9

58
RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGS

WHAT ARE AMENDMENTS

1. Amendments consist of: (a ) Adding or striking out an


allegation or the name of any party (b) Corrections of mistakes in
the name of a party or mistaken or inadequate allegation or
description in any other respect.

1.1 The purpose for allowing amendments is so that the


actual merits of the controversy may speedily be
determined without regard to technicalities and in the
most expeditious and inexpensive manner. 292

2. The kinds of amendments are:

2.1 Formal Amendments which are defects in the


designation of the parties, other clerical or
typographical errors that may summarily be corrected
provided no prejudice is caused the adverse party and
are allowed at any stage, at the Court’s own initiative
or on motion.293

2.2 All other amendments are considered Substantial


Amendments

WHEN AMENDMENTS CAN BE MADE

1. Formal and Substantial amendments can be made once as a


matter of right before a responsive pleading is served, or in case of
a Reply, at any time within 10 days after it is served. 294

1.1 Prior to the filing of an answer, the plaintiff has the


absolute right to amend the complaint whether a new
cause of action or change in theory is introduced. 295

1.2 Note that the filing of a motion to dismiss does not bar
an amendment as it is not a responsive pleading and
does not preclude the right to the plaintiff to amend
his complaint.296

1.3 In fact, even if the motion to dismiss has been granted,


the plaintiff can still amend his complaint before the
dismissal becomes final as long as no answer has of
yet been served and the order dismissing the
complaint has not yet become final. 297

2. After the filing of a responsive pleading, Substantial


amendments require leave of court, but leave may be refused if it

292
Supra, Section 1, Rule 10
293
Supra, Section 4, Rule 10
294
Supra, Section 2, Rule 10
295
Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
296
Remington Industrial Sales v. Court of Appeals, 382 SCRA 499
297
Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416

59
appears to the court that the motion was on made with intent to
delay. Orders related to leave shall be made upon motion filed in
court, with notice to the adverse party and opportunity to be
heard.298

2.1 That the amendments should not substantially alter


the cause of action or defense is no longer the rule as
the Rules now allow the pleading of alternative causes
of action/defenses299 and that all such causes or
defenses must be pleaded in accordance with the rule
on waiver.300

2.2 The Trial Court may refuse leave or amendments


when: (a) A responsive pleading has been filed and the
motion for leave to amend is made with intent to delay
(b) The purpose is to confer jurisdiction as the court
must first acquire jurisdiction before it can act. 301 Note
the instance when the amendment is made as a matter
of right (c) The purpose is to cure the defect of a non-
existent cause of action. Example: An amendment of
the complaint to correct its having been filed
prematurely or when the obligation was not yet due.

2.3 If no leave is obtained, the pleading has no standing


and may be stricken from the records

2.4 Problem: Complaint is filed against several defendants.


Some defendants answer, the others have not yet filed
their answers. Amendments will be allowed as a
matter of right against those who have not filed
answers, and with leave of court, as against those who
have filed their answers.302

3. Substantial amendments can also be made when it is


necessary to conform to the evidence. This occurs when issues are
tried with the express or implied consent of parties. If such, they
are treated in all respects as if they have been raised in the
pleadings303, thus paving the way for an amendment of the
pleadings to conform to the evidence. This is made upon motion of
any party, even after judgment though the failure to amend does
not affect the result of the trial. Example: Increased claim for the
payment of damages or made to authorize presentation of
evidence. This occurs when evidence is objected to at the trial on
the ground that it is not within the issues made by the pleadings,
the court may allow the pleadings amended and shall do so with
liberality to authorize presentation of evidence.304

3.1 Thus, the failure of a complaint to state a cause of


action may be cured by (a) Presentation of evidence to

298
Supra, Section 3, Rule 10
299
Supra, Section 2, Rule 8
300
Supra, Section 1, Rule 9
301
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
302
Siasoco v Court of Appeals, 303 SCRA 186
303
Bernardo v Court of Appeals, 263 SCRA 660
304
Supra, Section 5, Rule 10

60
prove that cause of action followed by an amendment
to conform to evidence, or (b) Evidence is objected to
and the trial court sustains the objection, this is then
followed by an amendment with leave of court to
authorize presentation of evidence. Same remedies
may be resorted to when a party fails to raise a
defense in his pleading.

THE EFFECTS OF AN AMENDED PLEADING

1. It supersedes the pleading that it amends

2. Admissions in the superseded pleading may be received in


evidence against the pleader because it is not expunged from the
records and admissions in the superseded pleading are in the
nature of judicial admissions made by a party in the course of the
proceedings which do not require proof and ordinarily cannot be
contradicted except by showing that it was made through palpable
mistake or that no such admission was made.305

3. Claims or defenses alleged in the superseded pleading but


not incorporated in the amended pleading shall be deemed
waived.306

HOW IS AN AMENDED PLEADING FILED

1. A new copy of the entire pleading incorporating the


amendments which shall be indicated by appropriate marks shall
be filed.307

1.1 Note that the date of filing of amended pleadings does


not retroact to the date of the filing of the original
pleading. Hence, the statute of limitations runs until
the filing of the amendment, but, an amendment that
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 that expired after service of the
original complaint. Example: The statement of a cause
of action is imperfect and is corrected by an amended
complaint, the plea of prescription relates to the time
of filing but the rule will not apply if a new defendant
is impleaded in the amended complaint and prior to its
filing prescription has set in.

WHAT IS A SUPPLEMENTAL PLEADING

1. A supplemental pleading setting forth transactions,


occurrences or events which have happened since the date of the
pleading sought to be supplemented Example: Setting up
counterclaims after an answer has been filed.308

305
Supra, Section 4, Rule 129
306
Supra, Section 8, Rule 10
307
Supra, Section 7, Rule 10
308
Supra, Section 9, Rule 11 and Section 2, Rule 9

61
2. A supplemental pleading is always upon motion, and on
such terms as are just and upon reasonable notice and the adverse
party is given 10 days from notice of order admitting the
supplemental pleading to plead thereto.309

3. A supplemental pleading is meant to supply deficiencies in


aid of an original pleading, not to entirely substitute the latter. 310
Thus, when the cause of action stated in the supplemental
complaint is different from the cause of action mentioned in the
original complaint, the court should not admit the supplemental
complaint.311

DISTINCTIONS BETWEEN AN AMENDED PLEADING AND A


SUPPLEMENTAL PLEADING

The distinctions are:

a) An amended pleading is filed either as a matter of right or


with leave, a supplemental pleading is always with leave

b) An amended pleading alleges matters occurring before the


filing of the original pleading, while a supplemental pleading
alleges matters occurring after the filing of the original
pleading

c) An amended pleading supersedes the original pleading, while


a supplemental pleading allows the original pleading to
stand.

RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED

RESPONSIVE PLEADING DEFINED

1. A responsive pleading is one which seeks affirmative relief


and/or set up defenses.312

2. However, a motion to dismiss is not considered a responsive


pleading.

ANSWER TO THE COMPLAINT

1. Within 15 days after service of summons unless a different


period is fixed by the Court.313

1.1 The same period applies to third party complaints.314

2. If covered by the Rules on Summary Procedure, it is 10 days

3. If the complaint is amended: (a) as a matter of right, within


15 days from being served with a copy (b) if with leave of court,

309
Supra, Section 6, Rule 10
310
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
311
APT v Court of Appeals, 324 SCRA 533
312
Marcos-Araneta vs. Court of Appeals, 563 SCRA 41
313
Supra, Section 1, Rule 11
314
Supra, Section 5, Rule 11

62
within 10 days from notice of order admitting the same. If no new
answer is filed, a previously filed answer may serve as the answer.
The same period holds for answers to amended counter-claims,
cross claims, third party complaints and complaints in
intervention.315

4. If defendant is a foreign private juridical entity, within 15


days if service of summons is made on the resident agent or within
30 days from receipt of summons by the entity at its home office if
received by the government office designated by law.316

5. If it is a complaint – in - intervention, within 15 days from


notice of the order admitting the complaint in intervention

6. If it is a supplemental complaint, within 10 days from notice


of the order admitting the supplemental complaint. The answer to
the complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed.317

7. If it involves a complaint served on a non-resident defendant


who is not in the Philippines through any of the modes of extra-
territorial service, including by publication, within a reasonable
time which shall not be less than 60 days after notice as the court
may specify in its order granting leave to effect extra-territorial
service of summons

8. If it involves corporate election contests or inspection of


corporate books and records disputes, within 10 days from service
of summons and the complaint.318

ANSWER TO A CROSS CLAIM OR COUNTER CLAIM

1. The answer to a cross claim or a counter-claim shall be filed


within 10 days from service.319

2. Note that compulsory counterclaims need not be answered


unless it raises issues not covered by the complaint.

2.1 It is required that a compulsory counterclaim or a


cross claim existing at the filing of defendant’s answer
must be included therein but, if it matures / or is
acquired after serving of answer, it may with the
court’s permission be presented as such in a
supplemental pleading. If already existing and not set
up through oversight, inadvertence, or excusable
neglect, it may, by leave of court be set up as such by
amendment before judgment.320

REPLY

315
Supra, Section 3, Rule 11
316
Supra, Section 2, Rule 11, Section 128, Corporation Code
317
Supra, Section 7, Rule 11
318
Section 5, Rule 6 and Section 4, Rules 7, A.M. 01-2-04, SC
319
Supra, Section 4, Rule 11
320
Supra, Sections 8,9, and 10, Rule 11

63
1. It must be filed within 10 days from service of the pleading
responded to.321

2. Note though that the filing of a reply is optional as if one is


not filed, all new matters are deemed controverted. 322

3. The exceptions are pleaded actionable documents and


allegations as to usury.

MAY THE TIME TO PLEAD BE EXTENDED

1. Upon motion and on terms as may be just, the Court it may


extend or allow it to be filed after the time fixed by the Rules. 323
The court may also, upon like terms, allow an answer or other
pleading to be filed after the time fixed by these Rules.

2. In cases covered by the Rules on Summary Procedure, the


period cannot be extended nor shortened.

3. In quo warranto cases, the period may be shortened. 324


4. A lawyer shall not, after obtaining extensions of time to file
pleadings, memoranda, or briefs, let the period lapse without
submitting the same or offering an explanation for failure to do
so.325

WHEN A COMPLAINT SHOULD BE FILED

1. A complaint is not a responsive pleading. It is to be filed


upon accrual of the cause of action or any time thereafter but
before it is barred by prescription.

RULE 12 – BILL OF PARTICULARS

BILL OF PARTICULARS DEFINED

1. It is a definitive statement of any matter which is not covered


with sufficient definiteness or particularity to enable him to
properly prepare his responsive pleading.326

2. The purpose of which is to make more particular or definite


the ultimate facts in a pleading and is not intended to supply
evidentiary matters.

3. It is to be resorted to when the complaint is deficient in


details with respect to the factual basis of each and every item
claimed, but such deficiency is not such as to amount to a failure
to state a cause of action as the remedy then is to file a motion to
dismiss.327

321
Supra, Section 6, Rule 11
322
Supra, Section 10, Rule 6
323
Supra, Section 11, Rule 11
324
Supra, Section 8, Rule 66
325
Rabanal v Tugade, 383 SCRA 484
326
Supra, Section 1, Rule 12
327
Sabangan v Manila Railroad Company, 28 SCRA 772

64
WHEN SHOULD IT BE FILED

1. Before filing or responding to a pleading or before filing an


answer.

2. If pleading is a reply, within 10 days from service thereof

ACTION OF THE COURT

1. Upon filing of the motion that points out the defects


complained of, the paragraphs wherein they are contained, and the
details desired.

1.1 It is a litigated motion, thus requires a notice of


hearing.

2. The clerk of court must immediately bring it to the attention


of the court, which may deny or grant the motion outright or allow
the parties an opportunity to be heard.328

2.2 If granted, whether in whole or in part, the compliance


therewith must be effected within 10 days from notice
of order, unless a different period is fixed by the Court.

3. In compliance, the bill of particulars may be filed either in a


separate or in an amended pleading, serving a copy on the adverse
party.329

3.1 Once filed, it becomes part of the pleading for which it


is intended.330

EFFECT OF NON - COMPLIANCE WITH ORDER

1. In case of failure to obey or insufficient compliance, the


Court may order the pleading or portions thereof to which the
order was directed to be stricken out or make such order as it
deems just.331 Hence, it may also dismiss for failure of the plaintiff
to obey order of the Court.332

2. The striking out of a complaint by the lower court upon


motion of the defendant for failure of the plaintiff to comply with
an order requiring him to submit a bill of particulars as a ground
for dismissal is equivalent to an adjudication on the merits unless
otherwise provided by the court.333

WHEN MUST A RESPONSE / ANSWER BE FILED

1. After service of a bill / definitive pleading or notice of denial


of the motion for a bill of particulars, the moving party has the

328
Supra, Section 2, Rule 12
329
Supra, Section 3, Rule 12
330
Supra, Section 6, Rule 12
331
Supra, Section 4, Rule 6
332
Supra, Section 3, Rule 17
333
Vda. De Quillosa v Salazar, 14 SCRA 656

65
remaining period that he was entitled to at the time of the filing of
the motion, which shall not be less then 5 days in any event. 334

RULE 13 – FILING / SERVICE OF PLEADINGS JUDGMENTS /


OTHER PAPERS

1. The Rule applies to all pleadings / papers as well as service


thereof, except those for which a different mode of service is
prescribed.335

FILING / SERVICE DEFINED

1. Filing is the act of presenting the pleading or other paper to


the clerk of court.

2. Service is the act of providing a party with a copy of the


pleading / paper.

2.1 If a party is represented by counsel, service is made


upon counsel or one of them unless service is ordered
to be made upon the party by the Court. If there is one
counsel for several parties, he is entitled to only one
copy served by the opposite side. 336

2.2 Service may also be made on a party with counsel: (a)


if counsel cannot be located or changed his given
address (b) when his deposition is to be taken, or is
required to answer a written interrogatory or when a
request for admission is made, and (c) if party is
ordered to show cause why he should be punished for
contempt

MODES OF FILING

1. The modes of filing are (a) Presenting the original copies


of pleadings, appearances, motions, notices, orders, judgments
and all other papers to the clerk of court, or (b) By registered
mail.337

1.1 The clerk of court shall if filing be personal, endorse on


the pleading, the date and the hour of filing.

1.2 If it by mail, the date appearing on the post office


stamp / registry receipt shall be date of the filing /
deposit of court. The envelope shall be attached to the
record. It bears stressing that it is the date of mailing,
not the date of receipt of the mail matter, which shall
be considered as the date of filing. 338 This has been the
practice since mail is considered an agent of the
Government.339This is also known as the Mailbox Rule.

334
Supra, Section 5, Rule 12
335
Supra, Section 1, Rule 13
336
Supra, Section 2, Rule 13
337
Supra, Section 3, Rule 13
338
Ansel v Aledo, 420 SCRA 645
339
Supra, Mintu v Court of Appeals, 53 SCRA 114

66
2. The papers that are to be filed or served upon affected
parties are judgments, resolutions, order, pleadings subsequent to
the complaint, written motions, notices, appearances, remand,
offer of judgment or similar papers.340

WHAT ARE THE MODES OF SERVICE

1. The general rule is that pleadings, motions, notices, orders,


judgments and other papers shall be served personally or by
mail.341

2. If personally served, it may done: (a) by delivering personally


a copy to party or his counsel, or (b) leaving it in his office with a
clerk or person having charge thereof, or (3) if no person is found
in the office or he has no office, by leaving a copy between the
hours of 8am to 6pm at party’s / counsel’s residence, if known,
with a person of sufficient age and discretion residing therein. 342

3. If by mail, by depositing a copy in the post office in a sealed


envelope, plainly addressed to the party or counsel, if known, at
his address / office, otherwise, at his residence, if known, postage
prepaid and with instructions to the postmaster to return the mail
to sender after 10 days if undelivered.

3.1 If no registry service is available in the locality of the


addressee or sender, service may be by ordinary
mail.343

4. If mailed by private carrier, the date of actual receipt by the


court of such pleading and not date of delivery to the carrier is
deemed the date of filing of that pleading.344

5. It is required that judgments, final orders or resolutions


shall be served personally or by registered mail.

5.1 If a party is summoned by publication, and he has


failed to appear, judgments, final orders / resolutions
shall also be served upon him by publication at the
expense of the prevailing party.345

6. If service cannot be made personally or by mail, substituted


service may be availed of as long as the office and place of
residence of the party or his counsel is also unknown, service may
be made by delivering a copy to the clerk of court, with proof of
failure of both personal service and service by mail. The service is
complete at the time of such delivery.346

WHEN SERVICE IS COMPLETE

340
Supra, Section 4, Rule 13
341
Supra, Section 5, Rule 13
342
Supra, Section 6, Rule 13
343
Supra, Section 7, Rule 13
344
Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
345
Supra, Section 9, Rule 13
346
Supra, Section 8, Rule 13

67
1. Service will be deemed complete: (a) Upon actual delivery if
undertaken personally (b) Upon expiration of 10 days after mailing,
unless the Court orders otherwise if undertaken by ordinary mail
(c) Upon actual receipt by addressee or after 5 days from the date
he received the 1st notice of the postmaster, whichever date is
earlier, if undertaken by registered mail 347 (d) At the time of
delivery to the clerk of court, if undertaken by substituted service

WHAT IS THE RULE ON PRIORITY OF SERVICE

1. Whenever practicable, service and filing of pleadings and


other papers shall be done personally except, with papers
emanating from the court. A resort to other modes must be
accompanied by an explanation why service or filing was not done
personally. If not, it may be cause to consider the paper as not
filed. 348

1.1 Where the address of the respondent’s counsel is 83


kilometers away from the address of petitioner’s
counsel, such distance makes personal service
impracticable, and a written explanation why service
was not done personally might have been superfluous.
Liberal construction has been allowed in cases where
the injustice to the adverse party is not commensurate
with the degree of thoughtlessness in not complying
with the procedure prescribed.349

WHAT CONSTITUTES PROOF OF FILING

1. Proof of filing is shown by: (a) existence of the pleading or


other paper in the records of the case (b) If not in the record, but
is claimed to be: (1) filed personally by the written / stamped
acknowledgment of its filing by the Clerk of Court on a copy, and
(2) filed by registered mail by the registry receipt and the affidavit
of the person who did the mailing containing a full statement of: (a)
Date and place of depositing in the post office in a sealed envelope
addressed to the Court, with postage prepaid, and (b) Instructions
are given to the postmaster to return the mail to sender after 10
days, if undelivered.350

WHAT CONSTITUTES PROOF OF SERVICE

1. Proof of service is shown by: (a) Written admission of the


party served or official return of the server, or affidavit of the party
serving, containing a full statement of the date, place, manner of
service if served personally (b) An affidavit of the person mailing of
facts showing compliance with Section 7 of the Rule if served by
ordinary mail (c) An affidavit and registry receipt issued by the
mailing office. The registry return card shall be filed immediately
upon its receipt by the sender, or in lieu thereof, the unclaimed

347
Supra, Section 10, Rule 13
348
Supra, Section 11, Rule 13
349
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
350
Supra, Section 12, Rule 13

68
letter together of the sworn / certified copy of the notice given by
the postmaster to the addressee.351

2. If service is by registered mail, proof of service consists of the


affidavit of the person mailing and the registry receipt, both of
which must be appended to the motion. Absent one or the other, or
both, there is no proof of service.352

3. Late filing of the affidavit of service may be considered as


substantial compliance with the Rules.353

4. Failure of a party to comply with the required proof of service


may be excused where the motion is not a contentious motion and
therefore, no right of the adverse party would be affected by the
admission thereof.354
NOTICE OF LIS PENDENS

1. Is an announcement to the world that a particular property


(real) is in litigation, serving as a warning that one who acquires
the property or an interest therein does at his own risk which is
filed with the Office of the Register of Deeds of the place where the
property is located.

1. It shall contain (a) the names of the parties (b) object of the
action or defense (c) description of the property.355

2. It is only from the time of the filing of the notice for record
shall a purchaser or encumbrancer of the property affected
thereby, be deemed to have constructive notice of the pendency of
the action and only of its pendency against parties designated by
their real names

3. It is available only in an action affecting title or right of


possession of real property. Specifically in actions (a) to recover
possession of real estate (b)to quiet title (c) to remove a cloud
(d) for partition (e) other proceeding of any kind in court directly
affecting title to the land or the use or occupation thereof or
buildings thereon.356

4. There is no such action called “annotation of lis pendens” A


notice is ordinarily recorded without the court’s intervention. The
annotation of a notice is not proper if the action is in personam.
For it to be proper, the action must be one affecting real
property.357

WHO MAY AVAIL OF IT

1. The plaintiff or the defendant – when affirmative relief is


claimed in the answer
351
Supra, Section 13, Rule 13
352
Cruz v Court of Appeals, 388 SCRA 72
353
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
354
PEA v Caoibes, Jr., 312 SCRA 767
355
Supra, Section 14, Rule 13
356
Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals,
334 SCRA 756
357
AFP Mutual Benefit Assocation v Court of Appeals, 327 SCRA 203

69
WHEN MAY IT BE CANCELLED

1. Upon order of the court when: It is shown that it has for the
purpose of molesting the adverse party or it is not necessary to
protect the rights of the party who caused it to be recorded. 358

RULE 14 – SUMMONS

SUMMONS DEFINED

1. It is a writ issued sealed and signed by the clerk of court


upon filing of a complaint and payment of requisite legal fees 359
issued to and directed to the defendant containing the following:
(a) name of the court and of the parties (b) a direction that the
defendant answer within the time fixed by the Rules, and (c) notice
that unless defendant answers, plaintiff will take judgment by
default and may be granted the relief prayed for.

1.1 To be attached thereto is a copy of the complaint and


the order for the appointment of a guardian ad litem, if
any.360

2. It shall also contain a reminder to the defendant to observe


restraint in filing a motion to dismiss and instead allege the
grounds thereof as defenses in the answer.361

WHO SERVES SUMMONS

1. The sheriff, his deputy, or other proper Court Officer, or for


justifiable reasons by any suitable person authorized by the court
issuing the summons.362

2. An Officer having management of a jail or institution, if a


defendant is a prisoner therein is deputized as a special sheriff for
service of summons.363

SIGNIFICANCE OF SUMMONS

1. The significance of summons is that it is the primary means


by which a Court is able to acquire jurisdiction over the person of
the defendant and to give notice that an action has been
commenced against him. It is the writ by which a defendant is
notified of the action brought against him.364

2. Jurisdiction cannot be acquired over the person of the


defendant even if he knows of the case against him unless he is
validly served with summons365 or the defendant voluntarily
appears in the action.
358
Lim v Vera Cruz, 356 SCRA 386
359
Supra, Section 1, Rule 14
360
Supra, Section 2, Rule 14
361
A.M. No. 03-1-09-SC
362
Supra, Section 3, Rule 14
363
Supra, Section 9, Rule 14
364
Cano-Gutierrez v. Gutierrez, 341 SCRA 670
365
UCPB v Ongpin, 368 SCRA 464

70
3. Voluntary appearance shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance. 366

3.1 The rule abandons previous rulings of the Supreme


Court that a motion to dismiss on the ground of lack
of jurisdiction over the person be based solely on that
ground, otherwise, it is a voluntary appearance. This
is so because of the omnibus motion rule367 that all
objections then available be included otherwise they
are waived, as the only exceptions are (a) the Court
has no jurisdiction over the subject matter; (b) there is
another action pending between the same parties for
the same cause; (c) or, the action is barred by prior
judgment or statute of limitations. 368 These defenses
are not barred if not set up.

WHAT ARE THE MODES OF SERVICE

1. Service in person on the defendant by handling a copy


thereof to the defendant in person, or if he refuses to receive and
sign for it, by tendering it to him369

2. Substituted service by leaving a copy of the summons at


defendant’s residence with some person of suitable age and
discretion, then residing therein or leaving it at defendant’s office
or regular place of business with some competent person in charge
thereof.370

2.1 The rule presupposes that a relation of confidence


exists between the parties with whom the copy is left
and the defendant, and, therefore, assumes that such
person will deliver the process to the defendant or in
some way give him notice thereof.

2.2 But, it may only be resorted to, if for justifiable causes,


the defendant cannot be served personally within a
reasonable time. The impossibility of service in person
must be indicated in the return; otherwise, substituted
service is void. 371

2.3 Within a reasonable time has been interpreted to


contemplate a period of time longer than that
demarcated by the word “prompt” and presupposes a
prior attempt at personal service that failed. 372 In a
later case373 it was defined as so much time as
necessary under the circumstances for a reasonably
366
Supra, Section 20, Rules 14
367
Supra, Section 8, Rule 15
368
Supra, Section 1, Rule 9
369
Supra, Section 6, Rule 14
370
Supra, Section 7, Rule 14
371
Hamilton v Rey, GR 139283, November 15, 2000
372
Laus v Court of Appeals, 219 SCRA 688
373
Manotoc v Court of Appeals, GR No. 130974, August 16, 2006

71
prudent and diligent man to do, conveniently, what
the contract or duty requires to be done. One month
from issuance of summons can be considered as
reasonable. Several attempts (at least 3) at personal
service must be made, preferably on separate dates. In
addition the sheriff must cite why efforts were
unsuccessful.

2.4 Service of summons on the defendant shall be by


personal service first and only when the defendant
cannot promptly be served in person will substituted
service be availed of.374

3. Service by publication with leave of court, obtained by the


filing of a motion in writing, supported by an affidavit of the
plaintiff or some person in his behalf, setting forth the ground that
allows resort to it.375

3.1 The grounds that allow service of summons by


publication are: (a) Identity of the defendant is
unknown or whereabouts of the defendant is unknown
and cannot be ascertained by diligent inquiry 376 (b)
Defendant does not reside and is not found in
the Philippines but the suit can be maintained against
him because it is in rem or quasi in rem 377 (c)
Defendant is a Philippine resident but is temporarily
out of the country.378 Note the cross reference with
Section 15 and the fact that substituted service may
also be availed of.

4. Extra-Territorial Service is allowed in suits against a non-


resident defendant not found in the Philippines can be made by:

4.1 (a) Personal service (b) Publication in a newspaper of


general circulation in such places and for such time as
the court may order, in which case a copy of the
summons and order of the court shall be sent by
registered mail to the last known address (c) Or any
other manner the court may deem sufficient. 379 Resort
to registered mail has been deemed appropriate.380

4.2 Extra-Territorial Service can be availed of when: (a)


Action affects the personal status of the plaintiff
(b) 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 (c) When
the relief demanded, in whole or in part consists of
excluding the defendant from any interest in property

374
Samartino v Raon, 383 SCRA 664
375
Supra, Section 17, Rule 14
376
Supra, Section 14, Rule 14
377
Supra, Section 15, Rule 14
378
Supra, Section 16, Rule 14
379
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
380
Cariaga v Malaya, 143 SCRA 441

72
located in the Philippines (d) When the defendant’s
property has been attached in the Philippines.381

4.3 Resort to extra-territorial service requires leave of


court.

UPON WHOM MAY SERVICE OF SUMMONS BE MADE

1. Service of summons is to be made upon the defendant.

1.1 If the defendant is: (a) Entity without juridical


personality it is to be served upon any one of them or
upon person in charge of the office or place of
business maintained in such name BUT such shall not
bind individually any person whose connection with
the entity has, upon due notice, been severed before
the action was brought382 (b) A minor, insane or
otherwise incompetent it is to be served upon him
personally and his guardian / or guardian ad litem. In
addition, in case of a minor, service may also be made
on his father or mother383 (c) Republic of the
Philippines it is to be served on the Solicitor General
384
(d) Province, City, Municipality or similar public
corporation it is to be served on the executive head, or
on such other officers as the law or court may direct 385
(e) Domestic Private Juridical Entity is to be served on
the president, managing partner, general manager,
corporate secretary, treasurer or in house counsel. 386
Note the abandonment of doctrine of substantial
compliance.387 Basic is the rule that strict compliance
with the mode of service is necessary to confer
jurisdiction of the court over a corporation. 388 (f)
Foreign Private Juridical Entity is to be served upon its
resident agent. If there be no resident agent, the
Government official designated by law such as the
SEC, Insurance Commissioner, Superintendent of
Banks. If none, any of its officers or agents in the
Philippines. Note the required sequence of service. In
addition, if a lawyer enters an appearance without
proof of having been engaged by the foreign
corporation, no voluntary appearance can be
inferred.389

AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO

1. Within 5 days after completion, a copy of the return must be


served, personally or by registered mail, to plaintiff’s counsel, and
381
Supra, Section 15, Rule 14
382
Supra, Section 8, Rule 14
383
Supra, Section 10, Rule 14
384
Supra, Section 13, Rule 14
385
Supra, Section 13, Rule 14
386
Supra, Section 11, Rule 14
387
Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312
SCRA 65
388
Santiago Sr. vs. Bank of the Philippine Islands, 566 SCRA 435
389
Litton Mills v Court of Appeals, 256 SCRA 696

73
he shall return the summons to the clerk of court who issued it
together with proof of service.390

2. Proof of service is the writing executed by the server setting


forth (1) the manner, place and date of service; (2) the paper/s
which have been served with the process and name of the person
who received the same. It is required to be sworn to if made by a
person other than the sheriff or his deputy.391

2.1 If summons is by publication, proof of service consists


of: (a) Affidavit of printer, foreman, principal clerk
editor, business manager or advertising manager, copy
of the publication attached, and (b) 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 at / to his last
known address.392

RULE 15 – MOTIONS

DEFINED

1. A motion is an application for relief other than a pleading. 393

REQUISITES OF A VALID MOTION

1. Shall be in writing except when made in open court or in the


course of the hearing or trial. 394 Example: a motion for continuance
made in presence of adverse party.

2. It must state the relief sought to be obtained and the


grounds on which it is based, and if required by the rules or
necessary to prove facts alleged therein, it shall be supported by
affidavits or other papers.395

3. It shall be set for hearing by the applicant except when the


motion can be acted upon by the court without prejudicing the
rights of the adverse party.396 Example: Motion for extension of
time to plead

4. It must contain a notice of hearing addressed to all parties


concerned, specifying the time, date of the hearing which must not
be later than 10 days after the filing thereof. 397

4.1 A motion without a notice of hearing is pro-forma or a


mere scrap of paper. It presents no question which the
court should decide. The rationale behind the rule is
plain: unless the movant sets the time and place of
hearing, the court will be unable to determine whether
390
Supra, Section 4, Rule 14
391
Supra, Section 18, Rule 14
392
Supra, Section 19, Rule 14
393
Supra, Section 1, Rule 15,
394
Supra, Section 2, Rule 15
395
Supra, Section 3, Rule 15
396
Supra, Section 4, Rule 15
397
Supra, Section 5, Rule 15

74
the adverse party agrees or objects to the motion, and
if he objects, to hear him on his objection. The
objective is to avoid a capricious change of mind in
order to provide due process to both parties and
ensure impartiality.398

4.2 The absence of the notice of hearing will not toll the
running of the reglementary period for appeal. 399 It is
considered a pro-forma motion.400

5. It must be served, together with the notice of hearing on the


adverse party at least 3 days before the date of hearing unless the
court for good reason sets the hearing earlier.401

5.1 The purpose of the three day notice rule is to avoid


surprise upon the opposite party and to give him time
to study and meet the arguments of the motion.402

6. There must be proof of service of every written motion set for


hearing otherwise it shall not be acted upon.403

6.1 As a general rule, proof of service is mandatory.404

6.2 A judge can act ex-parte on a motion where the rights


of the adverse party are not affected.405

WHEN SHOULD MOTIONS BE SET

All motions must be scheduled for hearing on Friday afternoons or


if it be a non-working holiday, in the afternoon of the next working
day unless the motion requires immediate action.406This day is
Motion Day.

WHAT SHOULD A MOTION CONTAIN

1. A motion attacking a pleading referring to a motion to


dismiss, or attacking an order, judgment, or proceedings referring
to a motion for reconsideration shall include all objections then
available, and all objections not so included are deemed waived
except the defenses of Lack of Jurisdiction, Litis Pendentia, Res
Judicata, Statute of Limitations.407

1.1 This is the Omnibus Motion Rule.408

398
Fajardo v Court of Appeals, 354 SCRA 736
399
Cledera v Sarmiento, 39 SCRA 553
400
Jehan Shipping Corporation v NFA, GR No. 159750, December 14, 2005
401
Supra, Section 4, Rule 15
402
Remonte v. Bonto, 16 SCRA 257
403
Supra, Section 6, Rule 15
404
Cruz v Court of Appeals, 388 SCRA 72
405
Sumadchat v Court of Appeals, 111 SCRA 488
406
Supra, Section 7, Rule 15
407
Supra, Section 1, Rule 9
408
Supra, Section 8, Rule 15

75
1.2 The purpose of the Rule is to obviate multiplicity of
motions as well as discourage dilatory pleadings. 409
Litigants should not be allowed to reiterate identical
motions speculating on the possible change of opinion
of the court or judges thereof.410

1.3 It requires the movant to raise all available exceptions


in a single opportunity to avoid multiple piecemeal
objections. But to apply the statutory norm, the
objections must be available to the party at the time
the motion was filed.411

2. If motion is one for leave to file a pleading or a motion, it


shall be accompanied by the pleading or motion sought to be
admitted.412 Example: Motion for leave to admit amended
complaint.

3. As to form, the Rules applicable to pleadings shall apply to


written motions as far as it concerns captions, designation,
signature and other matters.413

RULE 16 – MOTION TO DISMISS

WHEN AND HOW IT CAN BE FILED

1. By Motion, within the time for the filing of an answer but


before the filing of an answer.

1.1 The rule is not absolute as a motion to dismiss may


still be filed after answer on the ground of (a) lack of
jurisdiction (b) litis pendentia (c) lack of a cause of
action, and (d) discovery during trial of evidence that
would constitute ground for dismissal. 414

2. As an affirmative defense in the answer, and in the


discretion of the court, a preliminary hearing may be had as if a
motion to dismiss has been filed. If the action is dismissed, it shall
be without prejudice to the prosecution in the same / separate
action of a counter-claim pleaded in the answer.415

WHAT GROUNDS ARE AVAILABLE

A motion to dismiss may be made on any of the following


grounds:416

1. The court has no jurisdiction over the person of the defending


party

409
Dacanay v Alvendia, 30 SCRA 31
410
Miranda v Court of Appeals, 71 SCRA 295
411
PH Credit Corporation v Court of Appeals, 370 SCRA 155
412
Supra, Section 9, Rule 15
413
Supra, Section 10, Rule 15
414
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
415
Supra, Section 6, Rule 16
416
Supra, Section 1, Rule 16

76
2. The court has no jurisdiction over the subject matter of the
claims

3. Venue is improperly laid

3.1 An objection to improper venue must be made before a


responsive pleading is filed, otherwise it is deemed
waived.417

4. Plaintiff has no legal capacity to sue

4.1 This means that he is not in exercise of his civil rights,


or does not have the necessary qualification to appear
or does not have the character / representation he
claims as opposed to the lack of personality to sue
which means that he is not the real party in interest,
and the basis for dismissal then is no cause of action
or failure to state a cause of action.418

5. There is another action pending between the same parties for


the same cause

5.1 This is known as litis pendentia

5.2 The requisites for its application are: (a) Identity of the
parties, or at least such as representing the same
interests in both actions (b) Identity of rights asserted
and reliefs prayed for, the relief being founded on the
same facts. Identity in both cases, is such that
judgment in the pending case would, regardless of
which party is successful amount to res judicata in the
other.419

5.3 As between the first and second or latter actions, apply


the “priority in time rule”, but the rule must yield to
the “more appropriate action rule. Example: An action
for declaratory relief to interpret a lease contract was
filed before an ejectment case, where the Supreme
Court held that the ejectment case is the more
appropriate action.420

5.4 There is a 3rd test: Interest of Justice Rule which is a


determination of which court would be in a better
position to serve the interest of justice considering : (a)
nature of the controversy; (b) comparative accessibility
of the court to the parties; (c) other similar factors. 421

5.5 Three relevant conditions to determine which action


should be dismissed on the ground of litis pendentia :
(a) date of filing, with preference generally given to the

417
Fernandez v ICB, 316 SCRA 326
418
Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v.
Court of Appeals, 199 SCRA 205
419
Victronics Computer v RTC, 217 SCRA 517
420
Teodoro v Mirasol, 99 Phil 150
421
Roa-Magsaysay v Magsaysay, 98 SCRA 592

77
first action filed to be retained (b) whether the action
sought to be dismissed was filed merely to preempt the
later action or to anticipate its filing and lay the basis
for its dismissal, and (c) whether the action is the
appropriate vehicle for litigating the issues between
the parties.422

5.6 Where the litigant is engaged in forum shopping, the


other party may ask for the summary dismissal of the
two cases. The well entrenched rule is that a party
cannot, by varying the form of the action or adopting a
different method of presenting his case, escape the
operation of the principle that one and the same cause
of action shall not be twice litigated.423

6. The cause of action is barred by a prior judgment or by the


statute of limitations

6.1 This is known as Res Judicata, whose requisites are:


(a) The existence of a former judgment that must be
final (b) Rendered by a court having jurisdiction over
the subject matter and the parties (c) It must be a
judgment or order on the merits (d) There must be
between 1st / 2nd action, identity of parties / subject
matter / causes of action.

6.2 The doctrine is founded on 2 grounds: (a) Public policy


and necessity which makes it in the interest of the
state that there should be an end to litigation (b)
Litigant should be spared the hardship of being vexed
twice for the same cause

6.3 Note that there can be no res judicata in support cases


as future support cannot be compromised.424

6.4 A dismissal of a complaint on the ground that the


plaintiff failed to prosecute his action because of
failure to cause service of summons by publication
within a reasonable time does not constitute res
judicata as the court cannot be said to have acquired
jurisdiction over the person of the defendant.425

6.5 A previous final judgment denying a petition for


declaration of nullity on the ground of psychological
incapacity shall bar a subsequent petition for
annulment on the ground of lack of a marriage license
as the cause of action is the same, although the
ground on which the action is predicated has been
varied. A party cannot avoid the application of res
judicata by varying the form of the action or adopting
a different method of presenting his case.426
422
UCPB vs. Beluso, G.R. No. 159912, August 17, 2007
423
PCIB vs. Court of Appeals, G.R. No. 114951, July 18, 2003
424
De Asis v Court of Appeals, 303 SCRA 176
425
Gardose vs. Tarroza, G.R. No. 130570, May 19, 1998
426
Maillon vs. Alcantara, G.R. No. 141528, October 31, 2006

78
6.6 Statute of Limitations or prescription is a statute
establishing a period of time from the accrual of a
cause of action within which a right of action must be
exercised. If the action is not brought within the
period, then it is barred.

7. The pleading asserting the claim states no cause of action.

7.1 The Test of the Sufficiency of a Cause of Action is:


Whether accepting the veracity of the facts alleged in
the complaint, the Court can render a valid judgment
upon the same in accordance with the prayer in
complaint.

7.2 No presentation of evidence is required as there is a


“hypothetical admission” of the facts alleged in the
complaint. The court can properly dismiss without a
hearing by taking into consideration the discussion in
the motion and the opposition thereto.427

7.3 Distinguishing a failure to state a cause of action/no


cause of action from lack of a cause of action 428: (a)
The former refers to insufficiency of allegations, while
the latter refers to insufficiency of factual basis (b)
The former is raised only in a in a motion to dismiss
before responding to a complaint, while the latter can
be raised at any time (c) The former allows dismissal
to be had at the early stages of the action, while the
latter allows dismissal after questions of fact have
been resolved after evidence is presented or
stipulations / admissions are had.

8. Claim or demand set forth in plaintiff’s pleading has been


paid, waived, abandoned, or otherwise extinguished

9. Claim on which the action is founded is unenforceable under


the provisions of the statute of frauds.

9.1 Statute of Frauds is statute/s that deals with the


enforcement and requirements of agreements in
particular circumstances. It is descriptive of statutes
which require certain classes of contracts to be in
writing.429

10. A condition precedent for filing the claim has not been
complied with

10.1 In certain cases, referral of a case to the Lupon is a


condition precedent for filing a complaint in court. It is

427
Nadela v. City of Cebu, 411 SCRA 315
428
Supra, Rule 33
429
Litonjua v Fernandez, 427 SCRA 478

79
not jurisdictional.430 It may be waived if not raised
seasonably in a motion to dismiss.431

RESOLUTION OF A MOTION TO DISMISS

1. It shall be heard432, at the hearing, the parties shall submit


arguments on the questions of law and evidence on the questions
of law and fact involved except those not available at that time.
Should the case eventually go to trial, the evidence during the
hearings shall automatically be part of the evidence of the party
presenting the same.

2. After the hearing, Court shall either dismiss the action, deny
the motion or order amendment of the pleading, stating clearly and
distinctly the reasons for the action taken.433

2.1 It is now mandated that the Court cannot defer


resolution of the motion based on the reason that the
ground relied upon does not appear to be indubitable
or sure

3. If the motion is denied, the movant shall file an answer


within the balance of the period prescribed by Rule 11, which he
was entitled to at the time of serving the motion, but not less than
5 days in any event, counted from notice of denial.

3.1 If ordered amended, an answer is to be filed within


period prescribed by Rule 11, counted from service of
amended pleading, unless the court provides a longer
period. Note that it is 15 days as no answer has of yet
been filed. Hence the amendment is one that is a
matter of right.434

3.2 The effect of dismissal is that subject to the right to


appeal, an order granting a motion to dismiss on the
grounds of (a) prior judgment or statute of limitations
(b) claim / demand has been paid, waived
abandoned or otherwise extinguished, or (c) is
unenforceable under the statute of frauds shall bar a
re-filing of the same.435

RULE 17 - DISMISSAL OF ACTIONS

PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT

1. A plaintiff may cause the dismissal of his complaint by:

1.1 Filing of a notice of dismissal at anytime before service


of an answer or motion for summary judgment. Once
filed, the court shall issue an order confirming the

430
Junson v martinez, 405 SCRA 390
431
Banares v Balising, 328 SCRA 36
432
Supra, Section 2, Rule 16
433
Supra, Section 3, Rule 16
434
Supra, Section 4, Rule 16
435
Supra, Section 5, Rule 16

80
dismissal, which is without prejudice, unless stated
otherwise but, such dismissal will operate as
adjudication on the merits when filed by a plaintiff
who has once dismissed in a competent court, his
action based on or including the same claim.436 This is
known as the 2 dismissal rule.

1.2 The action of the court is to confirm the dismissal.


Hence, upon filing of the notice, the complaint is
considered as dismissed.437

2. Or, by filing a motion to dismiss if an answer or a motion for


summary judgment has been served but such will not result in
dismissal without the approval of the court and upon terms and
conditions as the court deems proper.

2.1 If a counterclaim has been pleaded before service of


motion to dismiss – the dismissal is limited to the
complaint. It shall be without prejudice to the right of
the defendant to prosecute his counterclaim in a
separate action unless within 15 days from notice of
the motion he manifests a preference to have it
resolved in the same action.

2.2 Unless specified, a dismissal is without prejudice.

2.3 Note also that a class suit shall not be dismissed or


compromised without the approval of the Court.438

COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT

1. The court can motu propio or upon motion of the defendant


dismiss a complaint when: (a)If, for no justifiable reason, the
plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint (b) If, for no justifiable reason,
plaintiff fails to prosecute his action for an unreasonable length of
time (c) If, for no justifiable reason, plaintiff fails to comply with
Rules of Court or any order of the Court.

1.1 A dismissal shall have the effect of an adjudication on


the merits, unless otherwise declared by the court.

1.2 Dismissal is without prejudice to the right of the


defendant to prosecute his counterclaim in the same
or a separate action and shall have the effect of an
adjudication on the merits unless otherwise declared
by the court.439

2. The remedies of a plaintiff are: (a) Appeal the dismissal as it


is a final order, or (b) If without prejudice, refile the action as an
order dismissing without prejudice is not subject to appeal.

436
Supra, Section 1, Rule 17
437
Bar, 1989
438
Supra, Section 2, Rule 17
439
Supra, Section 3, Rule 17

81
3. At the pre-trial, the court ordered the parties to submit a
compromise agreement within a ten day period. The parties were
unable to submit the compromise agreement, thus leading to a
dismissal. There is nothing in the rules that imposes a sanction for
failure to submit a compromise agreement.440

APPLICABILITY OF THE RULE

1. The Rule also applies to dismissal by the defendant of his


counterclaims cross-claims or 3rd party claims.

1.1 Voluntary dismissal by the claimant by notice as


under Section 1 of the Rule shall be made before a
responsive pleading, motion for summary judgment is
served, or if there be none, before introduction of
evidence at the trial or hearing.441

RULE 18 – PRE-TRIAL

WHAT IS PRE-TRIAL

1. It is a procedural devise intended to clarify and limit the


basic issues between the parties. Its main objective is to simplify,
abbreviate and expedite trial, or otherwise dispense with it. 442

2. It is a conference or hearing at which the court, with the


cooperation of the parties, seeks to determine definitively what
precisely the factual issues to be tried are and how each party
intends to establish his position on each disputed factual issue.

WHEN CONDUCTED

1. After the last pleading has been served and filed. It shall be
the duty of the plaintiff to move ex-parte that the case be set for
pre-trial.443

1.1 SC Adm. Circular 3-99 dated January 15, 1999


defined promptly as 5 days.

1.2 SC Administrative Matter No. 03-1-09, SC, Section A


(1.2) Should the plaintiff fail to move ex-parte to set
case for pre-trial, the branch clerk of court should
issue a notice of pre-trial.

1.3 The same circular also requires that the presiding


judge direct the parties to mediation, if possible. If it
fails, it will schedule the pre-trial but it may also
schedule a preliminary conference before the branch
clerk of court to assist them in (a) reaching a
settlement (b) pre-marking of documents and exhibits
(c) consider other matters that will aid in the prompt
disposition of the case.
440
Ruiz, Jr v CA, 212 SCRA 660
441
Supra, Section 4, Rule 17
442
Interlining v Philippine Trust Company, 378 SCRA 521
443
Supra, Section 1, Rule 18

82
1.4 The judge is also directed to consider assisting the
parties in effecting a settlement given the evidence of
the parties.

2. The last pleading is the answer to the original complaint,


cross claim, or, third party complaint and the reply.

NATURE AND PURPOSE

1. Pre-trial is by nature mandatory and the purpose for its


conduct is to take up the following matters: 444

1.1 Possibility of amicable settlement / or submission to


alternative modes of dispute resolution. The
alternative modes are: (a) arbitration (b) mediation (c)
conciliation (d) early neutral evaluation (e) mini-trial,
or (f) any combination of the foregoing. 445

1.2 Simplification of the issues

1.3 Necessity / desirability of amendment to the pleadings

1.4 Possibility of obtaining stipulations or admissions of


fact and of documents to avoid unnecessary proof

1.5 Limitation of number of witnesses

1.6 Advisability of a preliminary reference of issues to a


commissioner

1.7 Propriety of judgment on the pleadings, summary


judgment, or dismissing the action if a valid ground
therefor be found to exist.

Hence, a motion for judgment on the pleadings or


summary judgment must be filed as in a pre-trial the
court merely determines its propriety.

1.8 Advisability of suspending the proceedings

1.9 Such other matters as may aid in the prompt


disposition of the action

UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED

1. It shall be served on counsel, or party if not represented by


counsel.

1.1 Counsel is charged with the duty to notify the party. 446

2. Notice is so important that it would be grave abuse of


discretion for the court to allow plaintiff to present his evidence ex
444
Supra, Section 2, Rule 18
445
RA 9285, Alternative Dispute Resolution Act of 2004
446
Supra, Section 3, Rule 18

83
parte for failure of the defendant to appear before the pre-trial who
did not receive through counsel a notice of pre-trial.

2.1 Accordingly, there is no legal basis to consider a party


notified of the pre-trial and to consider that there is no
longer any need to send a notice because it was
counsel who suggested the date of pre-trial.447

WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL

1. The parties and counsel are required to be present during


the pre-trial. A party may be excused if: (a) A valid cause is shown
therefore (b) A representative shall appear duly authorized in
writing to do the following: (1) enter into amicable settlement; (2)
submit to alternative modes of dispute resolution; (3) enter into
stipulations / admissions of fact / documents.448

EFFECT OF FAILURE TO APPEAR

1. If plaintiff fails to appear despite due notice, he may be


declared non-suited and the complaint is dismissed. The dismissal
shall be with prejudice, unless otherwise ordered by the court.

1.1 His remedy is to appeal order of dismissal because it is


a final resolution. If dismissed without prejudice, he
can refile the complaint

2. If defendant fails to appear despite due notice, plaintiff is


allowed to present his evidence ex-parte and the court may render
judgment on the basis thereof. 449

3. What is penalized is the failure to appear of either the


plaintiff or the defendant, and not their respective counsel. 450

4. As a rule, there can be no second pre-trial unless both


parties consent.451

WHAT MUST BE FILED BEFORE PRE-TRIAL

1. A pre-trial brief must be filed and served on the adverse


party at least 3 days before the pre-trial containing: 452

1.1 Statement of willingness to enter into an amicable


settlement, the desired terms or to submit to
alternative modes of dispute resolution

1.2 Summary of admitted facts / proposed stipulation of


facts

1.3 Issues to be tried or resolved

447
Agulto v Tecson, 476 SCRA 395
448
Supra, Section 4, Rule 18
449
Supra, Section 5, Rule 18
450
Paredes v. Verano
451
Young v Court of Appeals, 204 SCRA 584
452
Supra, Section 6, Rule 18

84
1.4 Number of witnesses / names, abstract of testimonies,
approximate number of hours that will be required for
presentation of their respective evidence

1.5 Copies of all documents intended to be presented


which statement of the purposes of their offer

1.6 Manifestation of their having availed of or their


intention to avail of discovery procedure, or need for
referral of any issues to commissioners

1.7 Applicable law / jurisprudence

1.8 Available trial dates of counsel for complete


presentation of evidence which must be within a
period 3 months from the first day of trial.453

2. Note that the failure to file a brief shall have the same effect
as failure to appear.

3. Neither can the court conduct a pre-trial without the parties


filing their pre-trial briefs.454

PRE-TRIAL ORDER

1. Proceedings shall be recorded. Upon termination, court shall


issue an order which shall recite in detail: (a) matters taken up (b)
action taken thereon (c) amendments allowed to the pleadings (d)
agreements / admissions made by the parties as to any of the
matters taken which shall be binding and conclusive upon the
parties455 (e) explicitly defining and limiting the issues to be tried.

2. 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
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 pretrial
conference bars the consideration of other questions on appeal. 456

2.1 The object of a pre-trial order is to control the


subsequent course of the action as trial shall be
limited to the issues stated in the pre-trial order, 457,
unless modified to prevent manifest injustice. 458

2.2. Notwithstanding, courts are not required to resolve all


issues raised in pleading unless necessary for the
resolution of the case.459

453
Section 6, SC Adm. Circular 3-99, January 15, 1999
454
Vera vs. Rigor, et al. G.R. No. 147377, August 10, 2007
455
Heirs of Conahap v Regana, 458 SCRA 741
456
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
457
Supra, Section 5, Rule 30
458
Supra, Section 7, Rule 18
459
IBAA vs. IAC, 167 SCRA 450

85
RULE 19 – INTERVENTION

WHO MAY INTERVENE

1. A person who has a (a) legal interest in the matter in


litigation (b) has legal interest in the success of either of the parties
(c) has an interest against both or (d) 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.460

1.1 Examples are (a)an action for payment of money,


where personal property of the defendant is attached,
a 3rd person claiming the attached property can
intervene (b) action by alleged owners of the land
sought to be foreclosed.

1.2 The interest which entitles a person to intervene in a


suit must be in the matter in litigation and of such
direct and/or immediate character that intervenor will
either gain or lose by direct legal operation and effect
of judgment. 461
2. Intervention does not lie for a transferee pendente lite.462

HOW AND WHEN CAN A PERSON INTERVENE

1. Filing of a motion for leave of court to intervene, attaching


thereto a copy of the pleading in intervention, which is then served
on the original parties at any time before rendition of judgment by
the trial court.463

1.1 The court may refuse leave when (a) It will unduly
delay or prejudice the adjudication of the rights of the
original parties. Example: Delay or laches in bringing
intervention, or (b) Intervenor’s rights may be fully
protected in a separate proceeding. Example:
Attachment of real property subject of a mortgage

2. The pleadings in intervention are (a) Complaint in


Intervention, if he asserts a claim against either or all of the
original parties, or (b) Answer in Intervention, if he unites with the
defending party in resisting the claim of the plaintiff. 464

3. If granted, a complaint in intervention is to be replied to


within 15 days from notice of the order admitting the same unless
a different period is fixed by the court.

4. No intervention is allowed in a land registration case as the


remedy is to file an opposition.

460
Supra, Section 1, Rule 19
461
Roxas v Dinglasan, 28 SCRA 430
462
Supra, Section 19, Rule 3
463
Supra, Section 2, Rule 19
464
Supra, Section 3, Rule 19

86
4.1 Neither is it allowed in cases covered by the Rules on
Summary Procedure.

5. Intervention is merely collateral or accessory or ancillary to


the principal action and not an independent proceeding. Hence,
with the final dismissal of the original action, the complaint in
intervention can no longer be acted upon.465

6. An order denying a motion for intervention is appealable. 466

RULE 20 – CALENDAR OF CASES

MAINTENANCE OF THE COURT CALENDAR

1. The clerk of court, under the direct supervision of a judge,


shall keep a calendar for (a) pre-trial (b) trial (c) trials that were
adjourned or postponed (d) those with motions set for hearing.

2. In fixing the calendar, preference is given to habeas corpus,


election cases, special civil actions and those required by law.467

ASSIGNMENT OF CASES

1. The assignment of cases shall always by raffle done in open


session of which adequate notice shall be given to afford interested
parties the opportunity to be present. 468 The purpose is to obviate
public suspicion regarding assignment of cases to predetermined
judges.469

RULE 21 – SUBPOENA

WHAT IS A SUBPOENA

1. A process directed to a person requiring him to attend and


testify at the hearing or trial of an action, or at any investigation
conducted by competent authority, or the taking of his deposition

KINDS OF SUBPOENA

1. The kinds of subpoena are: (a) Subpoena Ad Testificandum if


it directs and requires a person to attend and testify, or (b) Duces
Tecum if it requires him to bring books/documents/or other things
under his control.470

BY WHOM ISSUED

1. A subpoena is issued by (a) The court before whom the


witness is required to attend (b) The court where deposition is to be

465
Barangay Matictic v Elbinias, 148 SCRA 83
466
Foster-Gallego v Galang, 435 SCRA 275
467
Supra, Section 1, Rule 20
468
Supra, Section 2, Rule 20
469
Ang v Bello, 163 SCRA 358
470
Supra, Section 1, Rule 21

87
taken (c) Officer or body authorized by law to do so in connection
with investigations that it may conduct (d) Any justice of the
Supreme Court/Court of Appeals in any case or investigation
pending within the Philippines471

1.1 A request by a party for the issuance of a subpoena


does not require notice to other parties to the action. 472

2. In taking depositions, the clerk of court shall not issue a


subpoena duces tecum without a court order.473

3. Absent any proceeding, suit or action, commenced or


pending before a court, a subpoena may not issue.474

WHEN IS A WITNESS NOT BOUND BY A SUBPOENA

1. Witness resides more than 100 kilometers from his residence


to the place where he is to testify by the ordinary course of
travel.475 This is also called the viatory right of the witness or the
right not to be compelled to testify in a civil case if he lives more
than 100 kilometers from his residence to the place where he is to
testify by ordinary course of travel.

1.1 If the viatory right is invoked, a witness can still be


compelled to testify by the taking of his deposition in a
place within 100 kilometers from where he resides,
observing the following steps: (a) Party desiring to take
deposition shall give reasonable notice in writing to
every other party in the action stating the time, place,
name and address of the person whose deposition is to
be taken. There should be proof of service of the notice
(b) Proof of service of notice to take deposition shall be
presented to the clerk of court of the place where
deposition is to be taken (c) On the basis of such proof
of service, the clerk upon authority and under seal of
the court, shall issue the subpoena but a subpoena
duces tecum cannot be issued without an order of the
Court (d) Subpoena is to be served on witness whose
deposition is to be taken.476

2. Witness is a detention prisoner, if no permission of the court


in which his case is pending is obtained or if the witness is a
prisoner sentenced to death, reclusion perpetua or life
imprisonment and is confined in a penal institution, if authority of
the Supreme Court to bring out the prisoner has not been
obtained. The court should examine and study the application
properly to determine if it is being made for a valid purpose. 477

FORM AND CONTENTS OF SUBPOENA

471
Supra, Section 2, Rule 21
472
Adorio v Bersamin, 273 SCRA 217
473
Supra, Section 5, Rule 21
474
Collado v Bravo, 356 SCRA 411
475
Supra, Section 10, Rule 21
476
Supra, Section 5, Rule 21
477
Supra, Section 2, Rule 21

88
1. A subpoena must contain the following: (a) Name of the
court (b) Title of action/investigation and is to be directed to the
person whose attendance is required. If duces tecum, in addition,
it must contain a reasonable description of the books, documents,
things demanded which is must appear to the Court to be prima
facie relevant.478

WHAT ARE THE GROUNDS TO QUASH A SUBPOENA

1. If duces tecum, it may be quashed on the following grounds:


(a) It is unreasonable and oppressive (b) Relevancy of the books,
documents or things do not appear (c) Person in whose behalf
subpoena is issued fails to advance the reasonable costs of the
production thereof (d) The witness fees and kilometrage allowed by
the rules were not tendered when subpoena was served. Under
A.M. No. 04-2-04-SC, witness fees shall be PHP 200.00 a day
inclusive of all expenses

2. If ad testificandum, it may be quashed on the following


grounds: (a) Witness is not bound by the subpoena (b) Witness fees
and kilometrage allowed by rules were not tendered when the
subpoena was served.479

HOW IS A SUBPOENA SERVED

1. In the same manner as personal or substituted service of


summons, original is to be exhibited and delivered to person on
whom it is served – tendering the fees for one day attendance at
the kilometrage allowed by Rules except if subpoena is issued by or
on behalf of the Republic of the Philippines or an officer or agency
thereof. Tender must be made so as to allow the witness a
reasonable time for preparation or travel to the place of
attendance.480

1. If duces tecum, the cost of production of books, papers or


things must also be tendered.

2. Under A.M. No. 04-2-04-SC, the fee for service of summons


is PHP 100.00 per witness.

CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY


WITHOUT A SUBPOENA

1. Yes, when he is present in court, in which event it is as if he


were in attendance upon subpoena issued by the Court.481

WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A


SUBPOENA

478
Supra, Section 3, Rule 21
479
Supra, Section 4, Rule 21
480
Supra, Section 6, Rule 21
481
Supra, Section 7, Rule 21

89
1. The consequences of disobedience are: (a) He may be
arrested and brought before the Court where his attendance is
required, the cost of warrant and seizure shall be paid by the
witness if the Court finds disobedience to be willful and without
just excuse. 482 (b) Citation in contempt by the court from which
the subpoena is issued. It not issued by a Court, then in
accordance with the applicable rule / law.483

RULE 22 – COMPUTATION OF TIME

HOW COMPUTED

1. The day of the act / event from which the designated period
of time begins to run is excluded and date of performance
included.

2. If the last day falls on a Saturday, Sunday or legal holiday in


the place where the Court sits, the time shall not run until the
next working day.484

2.1 Should a party desire to file any pleading, even a


motion for extension of time to file a pleading, and the
last day falls on a Saturday, Sunday or a legal holiday,
he may do so on the next working day. In case the
motion for extension is granted, the due date for the
extended period shall be counted from the original due
date, not from the next working day on which the
motion for extension was filed.485

EFFECT OF INTERUPTIONS

1. Allowable period after interruption shall start to run on the


day after, notice of the cessation of the cause thereof. The day of
the act that caused cessation shall be excluded in the computation
of the period.

2. Rule on computation of time dies not apply to prescription of


offenses or causes of action. Hence, if the last day falls on a
Saturday, Sunday or legal holiday, it prescribes on the said date.

RULES 23 TO 29 – MODES OF DISCOVERY

WHAT IS DISCOVERY

1. The methods used by the parties to a civil action to obtain


information held by the other party that is relevant to the action.

PURPOSES OF DISCOVERY

1. The purposes of resort to discovery are: (a) It is a device to


narrow down / clarify the basic issues between the parties (b) It is
a device to ascertain the facts relevant to the issues.
482
Supra, Section 8, Rule 21
483
Supra, Section 9, Rule 21
484
Supra, Section 1, Rule 22
485
Dela Cruz vs. Maersk Filipinas Crewing, Inc., 551 SCRA 284, AM No. 00-2-14-SC

90
1.1 Relevancy is determined by its logical tendency to
prove or disprove a fact or to make the fact more or
less probable.

WHAT ARE THE MODES OF DISCOVERY

1. The modes of discovery (a) Deposition pending action486 (b)


Deposition before action or pending appeal 487(c) Interrogatories to
parties488 (d) Request for admission by adverse party 489 (e)
Production or inspection of documents / things 490 (f) Physical
/ mental examination of persons491

WHAT IS A DEPOSITION

1. A deposition is the taking of the testimony of any person,


whether he be a party or not, but at the instance of a party to the
action.

1.1 This testimony is taken out of court by oral


examination or written interrogatory.

WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN

1. With leave of court, after jurisdiction has been acquired /


obtained over any defendant or over property which is the subject
of the action as the issues are not yet joined and disputed facts are
not yet clear or if a person is confined in a prison with leave of
court only, on such terms that the Court may prescribe.

2. Without leave of court, after an answer has been served.492


WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM

1. Any person, whether a party or not, upon oral examination


or written interrogatory upon the initiative of any party.

SCOPE OF A DEPOSITION

1. The deponent may be examined regarding any matter, not


privileged , which is relevant to the subject of the pending action
whether it relates to a claim or a defense of any other party.

1.1 Including the existence, description, nature, custody,


condition, location of any books, documents or other
tangible things and the identity and location of
persons having knowledge of relevant facts.493

486
Supra, Rule 23
487
Supra, Rule 24
488
Supra, Rule 25
489
Supra, Rule 26
490
Supra, Rule 27
491
Supra, Rule 28
492
Supra, Section 1, Rule 23
493
Supra, Section 2, Rule 23

91
2. The taking and scope of a deposition after notice is served for
its taking by oral examination may be limited.

2.1 Upon motion seasonably filed, by a party or the person


to be examined, and for good cause shown, the court
in which the action is pending may order: (a)
Deposition not be taken (b)It be taken only at
some designated place other than that stated in the
notice (c)It be taken only on written interrogatories (d)
That certain matters shall not be inquired into
(e) That scope of the examination shall be held without
anyone present except the parties to the action, and
their officers of counsel (f)That after depositions are
sealed, they shall be opened only by order of the court
(g)That secret processes, developments or research
need not be disclosed (h)That parties shall
simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed
by the Court (i) That court may make any order which
justice requires to protect the party or witnesses from
annoyance embarrassment or oppression.494

3. During the taking of the deposition, it shall be taken subject


to the additional limitations:

3.1 During the taking of the deposition, on motion or


petition of any party or the deponent upon showing
that the examination is being conducted in bad faith
or in such manner as to unreasonably annoy,
embarrass or oppress the deponent or a party, the
court where the action is pending or the RTC of the
place where deposition is being taken may order the
officer taking the examination to cease forthwith or
limit the scope as provided in Section 16.

3.2 If terminated, it shall be resumed thereafter only upon


order of the Court in which the action is pending.
Upon demand of the objecting party/deponent, the
taking shall be suspended for the time necessary to
make a notice for an order. In granting/refusing such
order, the court may impose upon either party or upon
the witness the requirement to pay costs/expenses as
the Court may deem reasonable.495

BEFORE WHOM MAY DEPOSITIONS BE TAKEN

1. Within the Philippines: a judge, notary public, or person


authorized to administer oaths, at any time or place if so stipulated
in writing by the parties.496

2. In foreign countries: On notice before a secretary of the


embassy or legation or the diplomatic minister and his staff,
consul general, consul, vice consul or consular agent of the
494
Supra, Section 16, Rule 23
495
Supra, Section 18, Rule 23
496
Supra, Sections 10 and 14, Rule 23

92
Republic of the Philippines, or before such person or officer as may
be appointed by commission or letters rogatory.497

2.1 A Commission is an instrument issued by a court of


justice or other competent tribunal to authorize
persons to take a deposition or do any other act by
authority of such court or tribunal. A Commission is
addressed to officers designated by name or
descriptive title.

2.2 Letters Rogatory is an instrument sent in the name


and by authority of a judge or court to another,
requesting the latter to cause to be examined, upon
interrogatories filed in a case pending before the
former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed.
Letters Rogatory are addressed to a judicial authority
in a foreign country and may be applied for and issued
only after a commission has been returned
unexecuted.

WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS

1. A Person who is a relative within the 6 th degree of


consanguinity / affinity or employee or counsel of any of the
parties or relative within the same degree or employee of counsel or
is financially interested in the action.498

TAKING OF A DEPOSITION UPON AN ORAL EXAMINATION

1. The taking is initiated by the giving of reasonable notice in


writing to every other party to the action, which must state the
time / place of the taking of the deposition and the name and
address of the person to be examined, if known, If not known, a
general description sufficient to identify him or the particular class
or group to which he belongs.

1.1 On motion of a party upon whom notice is served, the


court, for cause, may enlarge or shorten the time.499

2. Officer taking the deposition shall put the witness under


oath and shall personally, or by someone acting under his
direction and his presence record the testimony of the witness
stenographically unless the parties agree otherwise.

3. All objections as to the qualifications of the officer taking the


deposition, the manner of taking the evidence presented, conduct
of the parties or any other objection shall be noted. Any evidence
objected to shall be taken subject to the objections.

4. Parties served with notice, in lieu of participating in the


taking of the deposition, may submit written interrogatories, which

497
Supra, Sections 11, 12, and 14, Rule 23
498
Supra, Section 13, Rule 23
499
Supra, Section 15, Rule 23

93
the officer taking the deposition shall propound to the witness and
record the answers verbatim.500

5. After the taking of the deposition, and testimony is


transcribed, it is submitted to the witness for examination and
shall be read to or by him, unless such is waived by the witness
and the parties. If there are changes, in form or substance which
the witness desires to make, it shall be entered upon the
deposition by the officer with a statement as to the reason given by
the witness as why they are being made.

6. The deposition is then signed by the witness, unless the


parties by stipulation waive the signing, or the witness is ill or
cannot be found or refuses to sign.

7. If not signed, the officer shall sign it and state on the record
why it was not signed together with reasons. If there is refusal to
sign, the effect is that the deposition then may be used fully as
though signed, unless on a motion to suppress under Sec 29 (f) ,
pertaining to errors or irregularities in preparation, the Court
holds that the reason for refusal to sign require rejection of the
deposition in whole or in part.501

8. Once signed, the officer shall certify on the deposition that


the witness was duly sworn to by him and that the deposition is a
true record of the testimony of the witness. He shall then securely
seal the deposition in an envelope endorsed with the title of the
action and marked “deposition of _______” to be promptly filed with
the court where the action is pending or sent by registered mail to
the clerk thereof for filing.502

9. Notice of filing shall then promptly be given by the officer to


all parties503 and upon payment of reasonable charges; he is to
furnish copies of the deposition to any party or the deponent. 504

TAKING OF A DEPOSITION UPON WRITTEN INTERROGATORIES

1. Party desiring to take the deposition upon written


interrogatories shall serve them upon every other party with notice
stating: (a) name and address of the person who will answer them
(b) descriptive title and address of the person who will take the
deposition (c) Within 10 days, party served may serve cross-
interrogatories on the party proposing to take the deposition (d)
Within 5 days thereafter, the latter may serve re-direct
interrogatories upon the party serving cross–interrogatories (5)
within 3 days after being served of re-direct interrogatories, a party
may serve re-cross interrogatories upon party proposing to take
deposition.505

500
Supra, Section 17, Rule 23
501
Supra, Section 19, Rule 23
502
Supra, Section 20, Rule 23
503
Supra, Section 21, Rule 23
504
Supra, Section 22, Rule 23
505
Supra, Section 25, Rule 23

94
2. A copy of the notice and copies of all interrogatories shall be
delivered by the party taking the deposition to officer designated in
the notice, who shall proceed promptly in the manner provided by
Sections 17, 19 and 20 to take the testimony of the witness in
response to the interrogatories and to prepare, certify, and file /
mail the deposition attaching copies of the notice and
interrogatories.506

3. Officer must promptly give notice of filing / and may furnish


copies to parties and deponent upon payment of reasonable
charges.507

4. Note that Sections 15, 16 and 18 are applicable and that by


motion, it can be asked that the deposition be upon oral
examination.

EFFECT OF NON-APPEARANCE

1. If party giving notice fails to appear and another attends in


person or by counsel, the Court may order the party giving notice
to pay reasonable expenses incurred to attend, including
reasonable attorney’s fees. 508

2. If party giving notice does not serve subpoena and the


witness does not appear, court can order party giving notice to pay
reasonable expenses for attendance plus attorney’s fees to a party
who appears in person or by counsel509

TAKING OF DEPOSITIONS BEFORE ACTION OR PENDING


APPEAL OR DEPOSTIONS IN PERPETUAM REI MEMORIAM

1. A deposition before action is initiated by the filing of a


verified petition by a person desiring to perpetuate his testimony or
that of any person in relation to any matter cognizable in any court
in the Philippines in the Court in the place of residence of the
expected adverse party. 510

1.1 The contents of the petition which shall be entitled in


the name of the petitioner and should show: (a) That
petitioner expects to be a party to an action in a Court
in the Philippines but is presently unable to bring it or
cause it to be brought (b) The subject matter of the
expected action and his interest therein (c) The facts
that he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it (d) The
names or description of the person he expects will be
adverse parties and their addresses so far as known (e)
506
Supra, Section 26, Rule 23
507
Supra, Section 27, Rule 23
508
Supra, Section 23, Rule 23
509
Supra, Section 24, Rule 23
510
Supra, Section 1, Rule 24

95
The names and addresses of the persons to be
examined and the substance of the testimony which
he expects to elicit from each and shall then ask for an
order authorizing the petitioner to take the depositions
of the persons to be examined named in the petition
for the purpose of perpetuating their testimony.511

1.2 To Perpetuate means to preserve or make available


testimony for later use at a trial by means of
deposition.

2. After the petition is completed, the petitioner shall serve a


notice upon each person named in the petition as an expected
adverse party, together with a copy of the petition stating that: he
will apply to the Court at a time and place stated therein, for the
order described in the petition.

2.1 At least 20 days before the date of the hearing, the


Court shall cause notice thereof to be served on the
parties and prospective deponents in the manner
provided for service of summons.512

3. If the Court is satisfied that the perpetuation of testimony


may prevent a failure of justice or delay of justice, it shall make an
order designating or describing the persons whose depositions are
to be taken, specifying the subject and whether it will be upon oral
execution or written interrogatories under Rule 23. 513

3.1 For purposes of applying Rule 23, references to the


court in which the action is pending shall be deemed
to refer to the court in which petition for such
deposition is filed. 514

4. A deposition taken under the Rule or although not so taken,


it would be admissible in evidence; it may be used in any action
involving the same subject matter contained in petition
subsequently brought in accordance with Sections 4 and 5 of Rule
23.515

5. A deposition pending appeal can be had If appeal is taken


from a judgment of a Court including the CA in proper cases or
before the taking of an appeal if the time therefore has not yet
expired.

5.1 The Court in which judgment was rendered may allow


taking of depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings in
the said Court.

5.2 It is initiated by a party making a motion in said Court


for leave to take depositions – upon the said notice and
511
Supra, Section 2, Rule 24
512
Supra, Section 3, Rule 24
513
Supra, Section 4, Rule 24
514
Supra, Section 5, Rule 24
515
Supra, Section 6, Rule 24

96
service thereof as if the action was pending therein,
the motion should state: (a) name and addresses of
persons to be examined and substance of testimony to
be elicited (b) reasons for perpetuating testimony.

5.3 If Court finds that it is proper to avoid failure or delay


of justice, it may allow the depositions to be taken and
used in the same manner and under same conditions
as prescribed for depositions in pending actions. 516

EFFECT OF TAKING AND USING DEPOSITIONS

1. A party shall not be deemed to make a person his own


witness by taking his deposition.517

2. If introduced in evidence in whole/part for any purpose


other than contradicting or impeaching the deponent, such makes
the deponent the witness of the party introducing the deposition.

2.1 But it does not apply to the use of an adverse party of


a deposition as described in Par. (b) Section 4 of Rule
23.518

USE OF DEPOSITION

1. A deposition can be used at the trial, upon the hearing of a


motion or an interlocutory proceeding.

1.1 Any part of 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 or
had due notice thereof, in accordance with the
following:

a. May be used by any party for the purpose of


contradicting or impeaching the testimony of
deponent as a witness

b. Deposition of a party or anyone who at the time


of the taking was an officer, director, or
managing agent of a public/private corporation
partnership/association which is a party may be
used by an adverse party for any purpose

c. Deposition of a witness, party or not, may be


used by any party for any purpose if the court
finds that: (1) witness is dead (2)witness resides
more than 100 kilometers from the place of
trial/hearing or is out of the Philippines
unless, it appears that his absence is procured
by the party offering the deposition (3) witness is
unable to attend/testify because of age,
516
Supra, Section 7, Rule 24
517
Supra, Section 7, Rule 23
518
Supra, Section 8, Rule 23

97
sickness, infirmity or imprisonment (4) party
offering the deposition has been unable to
procure the attendance of the witness by
subpoena (5) upon application and notice,
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 witness in open court, to allow the
deposition to be used.

d. If only a part of the deposition is offered in


evidence by a party, the adverse party may
require him to introduce all of which is relevant
to the part introduced, and any party may
introduce the other parts.519

WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN


CAN IT BE USED AS EVIDENCE

1. If the deponent is a party, the opposing party can use it to


prove his claim or defense.

1.1 It may also be used to impeach or contradict the party


deponent if he testifies.

2. If the deponent is only a witness, his deposition can only be


used to impeach/contradict him if he testifies but if Paragraph (c )
of Section 4 applies, it can be used for any purpose.

RESOLUTION OF OBJECTIONS WHEN DEPOSITIONS ARE


PRESENTED

1. Subject to the provisions of Section 29, objections may be


made at the trial or hearing to receive in evidence any deposition or
part thereof for any reason which would require the exclusion of
the evidence if the witness were then present and testifying.

2. Specific objections are resolved as follows:

2.1 As to notice, they are waived unless written objection


is promptly served upon the party giving the notice

2.2 As to disqualification of the officer, it is waived unless


made before the taking of the deposition or as soon
thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.

2.3 As to competency relevancy of evidence, as to


competency of the witness or competence, relevancy or
materiality of the evidence/testimony, they are not
waived by the failure to make them before or during
the taking of the deposition unless the ground of the

519
Supra, Section 4, Rule 23

98
objection is one which might have been obviated or
removed if presented at that time

2.4 As to oral examination and other particulars – Errors


and irregularities occurring at the oral examination in
the manner of taking, the form of the questions and
answers, in the oath/affirmation, or the conduct of the
parties and errors of any kind which might be
obviated, removed or cured it promptly, prosecuted,
are waived, unless reasonable objection thereto is
made at the taking of the deposition.
2.5 As to the form of written interrogatories, the objections
are waived unless served in writing upon party
propounding them within the time allowed for the
serving of succeeding cross or other interrogatories
and within 3 days after service of the last interrogatory
authorized.

2.6 As to manner of preparation, objections as to the


manner in which the testimony is transcribed, or the
deposition is prepared, signed certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by
the officer are waived, unless a motion to suppress the
deposition or part thereof is made with reasonable
promptness after such defect is, or with due diligence,
might have been ascertained.520

HOW IS A DEPOSITION ACTUALLY USED AND ONCE A


DEPOSITION HAS BEEN USED, WHAT CAN ADVERSE/ OTHER
PARTIES DO

1. Generally, the deponent is called to testify. Hence he may be


examined/cross-examined as permitted at the trial under Sections
3 to 18, Rule 132.521

2. At the trial or hearing, any party may rebut any relevant


evidence contained in a deposition whether introduced by him or
by any other party.522 This is called rebutting a deposition.

IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING


ACTION WHEN IT WAS TAKEN

1. No, because substitution of parties does not affect the right


to use depositions previously taken, when the action is dismissed
and another action involving the same subject is afterward brought
between the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the former
action may be used in the latter as if originally taken therefor. 523

WRITTEN INTERROGATORIES

520
Supra, Section 29, Rule 23
521
Supra, Section 3, Rule 23
522
Supra, Section 9, Rule 23
523
Supra, Section 5, Rule 23

99
1. The purpose of a written interrogatory is to enable any party
desiring to elicit material facts / relevant facts from any adverse
party by the filing and service upon the latter of a written
interrogatory to be answered by the party served or if party is
public / private corporation or a partnership / association by any
officer thereof competent to testify in its behalf. 524

2. An interrogatory is allowed under the same conditions as


specified in Section 1, Rule 23 as to when it is to be had.

HOW AND WHEN ANSWERED

1. Responses, which must be signed and sworn to, must be


filed within 15 days from service, unless the Court on motion and
for good cause shown extends or shortens the time525

2. Objections, if any, may be presented to the court within 10


days after service of notice as in the case of a motion, answers
shall then be deferred until objections are resolved, which shall be
as early a time as is practicable.526

HOW MANY INTERROGATORIES

1. No party may, without leave of court, serve more than one


set of interrogatories to be answered by the same party.527

SCOPE AND USE

1. It may relate to any matters that can be inquired into under


Section 2, Rule 23 and the answers used for the same purpose
provided for by Section 4, Rule 23.528

EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES

1. Unless thereafter allowed by the court for good cause shown


and to prevent failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to give
testimony in open court or give a deposition pending appeal. 529

DISTINGUISHING DEPOSITION UPON WRITTEN


INTERROGATORIES AND WRITTEN INTERROGATORIES

1. Any person, party or not can be required to or compelled to


give a deposition upon written interrogatories, while only the
adverse party may be compelled to answer a written interrogatory.

524
Supra, Section 1, Rule 25
525
Supra, Section 2, Rule 25
526
Supra, Section 3, Rule 25
527
Supra, Section 4, Rule 25
528
Supra, Section 5, Rule 25
529
Supra, Section 6, Rule 25

100
2. A deposition upon written interrogatory is taken before an
officer, while an adverse party without appearing before an officer
shall answer them in writing and under oath.

RULE 26 – REQUESTS FOR ADMISSIONS

WHAT IS A REQUEST FOR ADMISSION

1. It is a written request for the (1) admission of the genuiness


of any material and relevant document described in and exhibited
with the request or (2) the truth of any material or relevant matter
of fact set forth in the request.

2. A party may file and serve a request for admission upon any
other party at any time after the issues have been joined. 530

EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY

1. 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 15 days after service thereof
or such period which the Court will allow on motion, the party
served files and serves upon the requesting party a sworn
statement, either denying specifically the matters is setting forth in
detail the reason why he cannot truthfully either admit / deny.

2. Objections, if any shall be submitted to the Court within the


period for complying and prior to filing of the Sworn Statement.

2.1 Compliance is then deferred until objections are


resolved which should be done as early as
practicable.531

EFFECT OF ADMISSIONS

1. It is for the purpose of the pending action only and shall not
constitute an admission by him for any purpose or used against
him in any other proceeding532

1.1 Although any admission, express or implied may be


allowed by the court to be withdrawn or amended
upon such terms as may be just.533

EFFECT OF FAILURE TO SERVE

1. Unless otherwise allowed by the Court for good cause and to


prevent failure of justice, a party who fails to serve a request for
admission of material / relevant facts at issue on the adverse
party, which are or ought to be within the latter’s personal

530
Supra, Section 1, Rule 26
531
Supra, Section 2, Rule 26
532
Supra, Section 3, Rule 26
533
Supra, Section 4, Rule 26

101
knowledge, shall not be permitted to present evidence on such
facts.534

RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS OR


THINGS

HOW AVAILED OF

1. On motion of any party showing good cause, the court where


the action is pending may order, specifying the time, place and
manner and prescribing such terms and conditions as are just,
that:

1.1 Any party to produce and permit the inspection,


copying, photographing, by or on behalf of a having
party of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
things, not privileged which constitute or contain
evidence material to any matter involved in the action
which are in his possession and control.

1.2 Or, permit entry upon designated land or other


property in his possession / control for the purpose of
inspecting, measuring, surveying or taking
photographs of the property or any designated relevant
object or operation thereon.535

2. This mode of discovery is resorted to determine the contents


or status of documents or things and/or the preservation of the
same.

3. The requisites that have to be complied with to compel the


other party to produce or allow the inspection of documents
or things are: (a) the party must file a motion showing good
cause (b) notice of the filing of the motion must be served on
all parties (c) the motion must designate the papers or things
that are to be produced and inspected (d) such papers or
things are not privileged (e) that they constitute or contain
evidence material to any matter involved in the litigation, and
(f) that they are in possession, control or custody of the other
party.536

RULE 28 – PHYSICAL / MENTAL EXAMINATION OF PERSONS

WHEN AVAILED OF

1. In an action in which the mental or physical condition of a


party is in controversy, a court in its discretion, can order him to
submit to physical / mental examination by a physician. 537

1.1 It can be ordered only upon motion for good cause


shown, with notice to the party to be examined and to
534
Supra, Section 5, Rule 26
535
Supra, Section 1, Rule 27
536
Solidbank Corporation vs. Gateway Electronics Corporation, 553 SCRA 256
537
Supra, Section 1, Rule 28

102
all other parties, specifying the time, place, manner,
condition and scope of the examination and person/s
by whom it is to be made.538

2. Once the examination is completed, the party examined may


request that a detailed written report of the examining physician
setting forth his findings / conclusions.

2.1 If requested and delivered, the party causing


examination to be made is entitled to request and
receive from examined party a like report of the same
mental / physical examination / condition previously
or thereafter made.

2.2 If request is refused, the court on motion may order


delivery by the party examined on such terms as are
just. If the physician fails / refuses to make such
report, his testimony may be excluded if his testimony
is offered at trial. 539

2.3 Note that a waiver of privilege is caused by requesting


and obtaining a report of the examination ordered or
by taking the deposition of the examiner, the party
examined waives any privilege he may have in that
action or any other involving the same controversy
regarding the testimony of every other person who has
examined or may thereafter examine him in respect of
the same mental / physical examination. 540 This refers
primarily to the privilege between doctor and patient.

RULE 29 – REFUSAL TO COMPLY WITH MODES OF


DISCOVERY

EFFECTS OF THE REFUSAL TO COMPLY

1. If he refuses to answer upon being directed to do so or


refuses to be sworn, it will constitute contempt of court. A citation
in contempt shall ensue after the following steps have been
followed or observed:

1.1 If the party/deponent refuses to answer any question


upon oral examination, the deposition may be
completed on other matters or adjourned as the
proponent may prefer.

1.2 The proponent may then apply for an order to compel


an answer in the proper court where the deposition is
being taken. This is also applicable to interrogatories.

1.3 If granted, the court can order that answer be made


and if it finds that refusal is without substantial
justification – it may impose upon deponent / counsel
advising that no answer be given or both – reasonable
538
Supra, Section 2, Rule 28
539
Supra, Section 3, Rule 28
540
Supra, Section 4, Rule 28

103
expenses and attorney’s fees in obtaining the order. If
denied and the court finds application was filed
without substantial justification proponent / counsel
advising application or both may in the same manner
be sanctioned.541

2. Other consequences that are applicable to Sec 1, Rule 29,


Rule 27 and Rule 28, the Court may issue an:

2.1 Order that the matters regarding which the questions


are asked, character / description of thing or land /
contents of a paper or physical / mental condition of a
party shall be taken to be established in accordance
with the claim of the party obtaining the order.

2.2 Order refusing to allow the disobedient party to


support / oppose designated claims / defenses – or
prohibiting him from introducing in evidence the
designated things / documents or items of testimony
or from introducing evidence of physical / mental
condition.

2.3 Order striking out pleadings or parts thereof or staying


proceedings until the order is obeyed, dismissing the
action or proceeding or any part thereof, or rendering
judgment by default against the disobedient party.

2.4 In lieu or in addition to orders, the disobedient party


can be ordered arrested except in relation to a physical
/ mental examination.542

OTHER SANCTIONS

1. Expenses on refusal to admit, if requested party serves a


sworn denial and party serving request proves genuineness /
truth, he may apply for an order directing the requested party to
pay expenses incurred in making proof plus attorney’s fees. Order
is issued except if court finds good reasons for denial or
admissions were of no substantial importance. 543

2. Failure of a party to willfully appear before the officer taking


the deposition, after being served with a proper notice, or fails to
serve answers to written interrogatories properly served, court may
on motion and notice: (a)Strike out all or any part of the pleading
of that party (b) Dismiss the action / proceeding / part thereof (c)
Enter judgment by default against that party, (d) and ,in its
discretion, order payment of reasonable expenses and attorney’s
fees544 but no expenses or fees are to be assessed against the
Republic of the Philippines. 545

541
Supra, Sections 1 and 2, Rule 29
542
Supra, Section 3, Rule 29
543
Supra, Section 4, Rule 29
544
Supra, Section 5, Rule 29
545
Supra, Section 6, Rule 29

104
RULE 30 – TRIAL

NOTICE OF TRIAL

1. Upon entry of a case in the trial calendar – the clerk shall


notify the parties of the date of the trial in such manner as to
ensure receipt of the notice at least 5 days before such date.546

MAY TRIAL BE POSTPONED / ADJOURNED

1. Courts may adjourn a trial from day to day, and to any


stated time – as the expeditious and convenient transaction of
business may require – but it shall have no power to adjourn for a
longer period than one month for each adjournment, nor more
than three months in all, except when authorized in writing by the
Court Administrator of the Supreme Court.547

IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE

1. Can only be granted upon affidavit showing the materiality /


relevancy of the evidence and that due diligence has been used to
procure it, BUT, if the adverse party admits the facts to be given in
evidence, or even if he objects or reserves the right to object to
their admissibility, the trial shall not be postponed. 548

IF DUE TO ILLNESS OF PARTY OR COUNSEL

1. May be granted, if it appears upon affidavit or sworn


certification that the presence of party / counsel at the trial is
indispensable and that character of illness is such as to render
non-appearance excusable.549

WHAT IS THE ORDER OF TRIAL

1. Subject to Section 2, Rule 31 on separate trials and unless


the court orders for special reasons, it shall be limited to the issues
stated in the pre-trial order and shall proceed as follows:

1.1 Plaintiff adduces evidence in support of his complaint

1.2 Defendant adduces evidence in support of his defense,


counterclaim, crossclaim and 3rd party complaint

1.3 Third party defendant, if any, shall adduce evidence of


his defense, counterclaim, crossclaim and 4th party
complaint.

1.4 Fourth party, and so forth, if any, shall adduce


evidence of the material facts pleaded by them.

546
Supra, Section 1, Rule 30
547
Supra, Section 2, Rule 30
548
Supra, Section 3, Rule 30
549
Supra, Section 4, Rule 30

105
1.5 Parties against whom any counterclaim/ cross-claim
has been pleaded shall adduce evidence in support of
their defense, in the order prescribed by the Court.

1.6 The parties may then respectively adduce rebutting


evidence, unless the Court, for good reasons and in
the furtherance of justice, permits them to adduce
evidence upon their original case.

1.7 Upon admission of the evidence, the case shall be


deemed submitted for decision, unless the court
directs the parties to argue or submit memoranda or
any further pleadings.

TRIAL OF ISSUES

1. The trial of issues shall be limited to the issues stated in the


pre-trial order, unless the court directs otherwise for special
reasons.

2. If several defendants or 3rd party defendants and so forth,


having separate defenses appear by different counsel, the court
shall determine the relative order of presentation of their
evidence.550

MAY THERE BE AN AGREEMENT UPON THE FACTS AND


SUBMISSION OF THE CASE FOR JUDGMENT WITHOUT
INTRODUCTION OF EVIDENCE

1. Yes, provided that the agreement be in writing.

2. If the parties agree only on some facts, trial shall be held as


to the disputed facts551

3. There cannot be a judgment based on stipulation of facts in


legal separation, annulment of marriage and declaration of nullity.

3.1 Note that in the same cases neither is there judgment


by default, judgment on the pleadings, summary
judgment, judgment upon confession, judgment upon
compromise, judgment based on stipulation of facts.

WHAT ARE TO BE MADE OF RECORD

1. All proceedings, including any statement made by the judge


with reference to the case, or to any of the parties, witnesses or
counsel shall be made of record in the stenographic notes.552

WHO IS TO RECEIVE EVIDENCE

550
Supra, Section 5, Rule 30
551
Supra, Section 6, Rule 30
552
Supra, Section 7, Rule 30

106
1. The judge is required to personally receive the evidence. But
in default / ex-parte or when parties agree in writing it may be
delegated to the clerk of court who should be member of the bar
though he has no power to resolve objections to any question or
admission of exhibits . Such shall be resolved by the court upon
submission of his report and transcripts within 10 days from
termination of the hearing.553

CAN ACTIONS BE SUSPENDED

1. Actions may be suspended as governed by the provisions of


the Civil Code554: (a) if willingness to discuss a compromise is
expressed by one or both parties (b) if it appears that one of the
parties, before the commencement of an action / proceeding,
offered to discuss a possible compromise but the other party
refused the offer.555

RULE 31 – CONSOLIDATION OR SEVERANCE

WHEN CAN CONSOLIDATION TAKE PLACE

1. When actions involving a common question of law or fact are


pending before the court, it may order joint hearing or trial of any
or all the matters in issue in the actions, it may order all actions
consolidated. Then it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs /
delay556

2. The rationale for consolidation is to have all cases, which are


intimately related, acted upon by one branch of the court to avoid
the possibility of conflicting decisions being rendered.557

MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE


PENDING IN DIFFERENT COURTS

1. Yes, involving the consolidation of civil action with criminal


action, if filed before criminal action and trial has not yet
commenced.558

PURPOSE OF ALLOWING CONSOLIDATION

1. The purpose of allowing consolidation is to avoid multiplicity


of suits, guard against oppression or abuse, prevent delay, clearing
of dockets, simplify the work of trial court, save unnecessary
expenses / costs.

2. Note though that if actions involve a common question of law


or fact because they arise from a single cause of action between
the same parties, the remedy is dismissal on litis pendentia, not
consolidation.

553
Supra, Section 9, Rule 30
554
Supra, Section 8, Rule 30
555
Civil Code, Article 2030
556
Supra, Section 1, Rule 31
557
Philippine Airlines, Inc. vs. Zamora, 564 SCRA 50
558
Section 1, Rule 111 of the Rules on Criminal Procedure

107
3. A petition for the issuance of a writ of possession cannot be
consolidated with an action to annul the foreclosure
notwithstanding the argument that the former case would become
groundless as the latter case is contesting the presumed ownership
on which the petition for a writ of possession is based. Strictly
speaking the petition for the issuance of a writ of possession is not
a judicial process, it is a non-litigious process that is summary in
nature. In contract, the action for annulment of foreclosure is an
ordinary civil action and is adversarial in character. The right of
the petitioner in the writ of possession case will be prejudiced by
the consolidation with the annulment of foreclosure case. 559

WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT


COVER

1. Covers any claim, cross-claim, counterclaim or third party


claim or any separate issue or of any number of claims, cross-
claims, counter claims, third party complaints, or issues in
furtherance of convenience or to avoid prejudice. 560

RULE 32 – TRIAL BY COMMISSIONER

WHEN RESORTED TO

1. Trial by commissioners may be resorted to upon order of the


court, which will then refer any or all issues when:

1.1 Parties agree in writing and the commissioner may


either be agreed upon or appointed by the Court

1.2 When parties do not consent, on court’s own motion or


upon application of either party, if may be directed in
the following: (a) Trial of an issue of fact requires
examination of a long account (b) The taking of an
account is necessary for the information of the court
before judgment or for carrying judgment / or order
into effect (c) A question of fact, other than upon the
pleadings arises upon motion or otherwise, in any
stage of the case, or for carrying a judgment or order
into effect.561

2. The term commissioner may include a referee, an auditor or


examiner562

3. A commissioner is designated or authorized by an order of


reference which will specify or limit his powers, direct him to report
only on or upon particular issues or do or perform particular acts,
receive or report evidence only and fix date for beginning / closing
hearings and for the filing of the report.

559
PNB vs. Gotesco, GR 183211, June 5, 2009
560
Supra, Section 2, Rule 31
561
Supra, Section 1, Rule 32
562
Supra, Section 2, Rule 32

108
3.1 He shall then have and exercise the power to: (a)
Regulate the proceeding before him (b) Do all acts and
take all measures necessary or proper for the efficient
performance of his duties upon the order (c)Issue
subpoenas (d) Swear witnesses (e) Unless otherwise
provided, rule upon the admissibility of evidence 563

3.2 The trial shall then proceed before the commissioner/s


in all respects as it would be held in court.

PROCEDURE

1. Commissioner takes oath and be sworn to a faithful and


honest performance of his duties564

2. Upon receipt of the Order of Reference, and unless otherwise


stipulated he shall forthwith set a time and place for the first
meeting of the parties and counsel within 10 days after the date of
the order of reference, and shall notify parties / counsel 565

3. If parties / counsel fail to appear, he may proceed ex-parte


or in his discretion, adjourn the proceedings, giving notice to the
absent party or counsel of the adjournment566

4. He shall avoid delay as he is duty bound to proceed with all


reasonable diligence. Either party on notice to other parties and
the commissioner may apply for a court order to expedite
proceedings / report567

5. If witness refuses to obey a subpoena or give evidence. It


shall constitute contempt of the appointing court 568

6. Upon completion of trial / hearing / proceeding – he shall


file with the court has report in writing upon the matters
submitted to him by the order of reference. When powers are not
specified or limited, he shall set forth his findings of fact and
conclusions of law in his report. He shall also attach all exhibits,
affidavits, depositions, paper and transcripts of the testimonial
evidence given569

7. Notice is then given by the clerk to the parties of the filing of


the report, they shall then be allowed 10 days within which to
signify objections to the findings in the report, is so desired.

7.1 Objections to the report based on grounds available to


the parties during the proceedings before the
commissioner, other than as to the findings /
conclusions, shall not be considered unless made
before the commissioner.570
563
Supra, Section 3, Rule 32
564
Supra, Section 4, Rule 32
565
Supra, Section 5, Rule 32
566
Supra, Section 6, Rule 32
567
Supra, Section 8, Rule 32
568
Supra, Section 7, Rule 32
569
Supra, Section 9, Rule 32
570
Supra, Section 10, Rule 32

109
8. Upon expiration of the period, the report shall be set for
hearing, after which the court shall issue an order – adopting,
modifying, or rejecting the report in whole or in part or
recommitting it with instructions or requiring the parties to
present further evidence to the commissioner571

9. If the parties stipulate that the commissioner’s findings of


facts shall be final, only questions of law shall be thereafter
considered. 572

9.1 Note that the findings of the commissioner are merely


advisory and are not absolutely binding upon the
court.573

EXPENSES / COMPENSATION

1. They shall be reasonable as warranted by the circumstances


and are to be taxed as costs against the defeated party or
apportioned as justice requires574

WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE


RULES

1. Reference to commissioners is required in the following


cases: (a) Expropriation under Rule 67 to determine just
compensation (b) Partition under Rule 69, when parties cannot
agree as to the manner of partition.

RULE 33 – DEMURRER TO THE EVIDENCE

WHO FILES AND WHEN FILED

1. The defendant is the party who may move for the dismissal
of the action after presentation by the plaintiff of evidence on the
ground that upon the facts and the law, plaintiff has shown no
right to relief.575

EFFECTS OF FILING AND RESOLUTION

1. If granted, the action is dismissed, but if appealed and


reversed, he loses his right to prevent evidence and judgment is
rendered in favor of the plaintiff576

571
Supra, Section 11, Rule 32
572
Supra, Section 12, Rule 32
573
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
574
Supra, Section 13, Rule 32
575
Supra, Section 1, Rule 33
576
Quebral v Court of Appeals, 252 SCRA 353

110
1.1 An order dismissing a case for insufficiency of evidence
is a judgment on the merits, it is imperative that it be
a reasoned decision and distinctly stating therein the
facts and the law on which it is based.577

2. If denied, defendant may present his evidence as it does not


constitute a waiver of right to do so.

2.1 The court should set a date for reception of the


evidence of the defendant. It should not proceed to
grant the plaintiff relief.578

2.2 The order of denial is an interlocutory order and is


therefore not appealable.

2.3 It may however be questioned by certiorari in case of


grave abuse of discretion.579

3. It is an error on the part of the appellate court to order a


remand, if dismissal is elevated to it on appeal, it must decide on
the evidence adduced by the plaintiff.580

DISTINGUISHED FROM A MOTION TO DISMISS

1. A motion to dismiss is usually filed before service and filing


of an answer, while a demurrer is made after the plaintiff rests his
case.

2. A motion to dismiss is based on several grounds, while a


demurrer is based only on the failure of the plaintiff to show a
right to relief.

3. A denial of the motion to dismiss will require the subsequent


filing of an answer, while the denial of a demurrer requires the
subsequent presentation of evidence.

DISTINGUISHED FROM CRIMINAL CASES

1. In both civil and criminal actions, the basis for both is the
insufficiency of evidence.

2. In a civil action, dismissal by demurrer is by motion only,


while in a criminal action, dismissal by demurrer is upon the
court’s initiative or motion giving the prosecution an opportunity to
be heard.

3. In a civil action, leave is not required prior to filing, while in


a criminal action, leave may / may not be obtained. If obtained,
there is no waiver of right to present evidence. If denied and if
there is no leave, it is a waiver

577
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
578
Northwest Airlines v. Court of Appeals, 284 SCRA 408
579
Katigbak v. Sandiganbayan, 405 SCRA 558
580
Radiowealth Finance Company v Del Rosario, 335 SCRA 288

111
4. In a civil action, if granted, plaintiff’s remedy is appeal, while
in a criminal action, if granted, there is no appeal as such will
constitute double jeopardy.

RULE 34 – JUDGMENT ON THE PLEADINGS

JUDGMENT ON THE PLEADINGS

1. Can be had if the answer fails to tender an issue or


otherwise admits the material allegations of the complaint 581

1.1 There is no motu propio rendition of judgment as it is


always by motion.

2. An answer fails to tender an issue when it fails to comply


with the requirements of specific denial or is deemed to have
admitted the allegations in the complaint.582

2.1 An answer admits the material allegations when it


expressly confesses the truthfulness thereof or where
it omits to deal with them all.

3. Note that when an answer raises factual issues involving


damages, it is not proper to render judgment on the pleadings as
presentation of evidence is required.

WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS

1. Only the plaintiff in original complaint, or of the counter-


claim, or of the cross claim, or of the third party complaint may so
move for judgment on the pleadings.

2. When a party moves for a judgment on the pleadings, and


the same is granted by the trial court, he hereby waives
presentation of evidence.583

WHEN NOT ALLOWED

1. Judgment on the pleadings is not allowed in cases of: (a)


Declaration of nullity of marriage (b) Annulment of marriage (c)
Legal separation.

1.1 In these cases, the plaintiff is required to prove the


material facts regardless of whether the answer
tenders an issue or not.

RULE 35 – SUMMARY JUDGMENT

WHAT IS SUMMARY JUDGMENT

1. Is a devise for weeding out sham claims or defenses at an


early stage of the litigation thereby avoiding the expense / loss of
time involved in a trial.
581
Supra, Section 1, Rule 34
582
Supra, Sections 8,9 and 11, Rule 8
583
Alfarero v. Sevilla, 411 SCRA 387

112
1.1 Its 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 trial.

1.2 This is also known as Accelerated Judgment584

WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN

1. Either plaintiff or defendant may move for a summary


judgment:

2. If plaintiff or a claimant in the original complaint /


counterclaim / cross-claim, he may file the motion at any time
after the pleading in answer to his claim has been filed on the
ground that although there is an apparent issue, the same is sham
or false.585 .

2.1 Example: Answer admits obligation but states that the


amount is wrong or less than that claimed. If plaintiff
has proof that there is written acknowledgment that as
of a date or period prior to that of the filing, the
defendant was aware of the true amount, there can be
summary judgment.

3. If movant is the defending party, he may file the motion at


any time before or after he files his answer on the ground that
plaintiff’s claim against him is sham or false 586

3.1 An issue is sham or false if it is not genuine. Genuine


means that the issue of fact is one that calls for the
presentation of evidence.587

4. In either case, the motion must be filed along with


supporting affidavits, depositions or admissions.

5. The procedure for the filing and resolution of a motion for


summary judgment is as follows:

5.1 Plaintiff/Defendant serves on the defendant/plaintiff


a copy of the motion at least 10 days before the date of
hearing specified in the motion.

5.2 The defendant/plaintiff may serve opposing affidavits,


depositions or admissions at least 3 days before the
date of the hearing.

5.3 Court hears the motion.

584
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
585
Supra, Section 1, Rule 35
586
Supra, Section 2, Rule 35
587
Excelsa Industries v Court of Appeals, 247 SCRA 560

113
6. If after hearing, it finds that the motion filed by plaintiff
justified, thus there is no genuine issue as to any material fact, it
will render summary judgment for the plaintiff.

6.1 If not, it will deny, set the case for pre-trial, then trial.

6.2 If filed by the defendant and is justified, the complaint


is dismissed, otherwise the case proceeds with the
filing of answer or pre-trial is set and conducted.

FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS

1. They shall be made on personal knowledge, setting forth


such facts as would be admissible in evidence and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein.

1.1 Certified copies of all papers / parts thereof shall be


attached and served therewith.588

2. If affidavits have been determined to the satisfaction of the


court that they are presented in bad faith or solely for the purpose
of delay, the Court may forthwith order the offending party to pay
reasonable expenses which may have been incurred by the other
party, including attorney’s fees. It may also find / adjudge, after
hearing, that attending party / counsel are guilty of contempt. 589

EFFECT OF THE RENDITION OF SUMMARY JUDGMENT

1. The aggrieved party may appeal the summary judgment as


such is final judgment as defined by Section 1, Rule 41.

2. If denied, it is not appealable as order of denial of motion is


interlocutory.

2.1 Certiorari may lie if the rendering of a summary


judgment is clear, plain and patent but the court
refuses or declines to render it.

WHEN CAN THERE BE A PARTIAL SUMMARY JUDGMENT

1. There can be a partial summary judgment when the Court


finds that a judgment cannot be rendered upon the whole case or
for all the reliefs because there are controverted facts which
require trial.

1.1 A partial summary judgment is not appealable and


shall be taken together with the judgment that a trial
court will render after trial. Thus, it cannot be
executed.590

DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS

588
Supra, Section 5, Rule 35
589
Supra, Section 6, Rule 35
590
Supra, Section 4, Rule 35

114
1. Summary judgment is distinguished from a judgment on the
pleadings as follows:

a) A Judgment on the Pleadings is available when there is


no genuine issue as answer fails to tender an issue or
otherwise admits material allegations, while Summary
Judgment is available when there is an apparent issue
but is a sham, fictitious or false

b) A Judgment on the Pleadings is based exclusively on the


pleadings (complaint / answer), while Summary
Judgment is based not only on pleadings but also on
affidavits, depositions and admissions, showing that
except as to damages there is no genuine issue

c) A Judgment on the Pleadings can be filed only after an


answer has been filed, while in Summary Judgment,
there may or may not be an answer

d) A Judgment on the Pleadings can only be had by the


plaintiff, while in Summary Judgment, either plaintiff or
defendant may move for it

e) A motion for Judgment on the Pleadings is required to be


served on adverse party at least 3 days prior to the
hearing, while a motion for Summary Judgment requires
service at least 10 days prior to the hearing

2. Judgment on the Pleadings is a judgment on facts as


pleaded, Summary Judgment is a judgment as summarily proven
by affidavits, depositions, admissions. If an answer tenders an
issue, there can be no Judgment on the Pleadings but there can be
Summary Judgment, if issue/s is later shown to be false, sham or
fictitious.

RULE 36 – JUDGMENTS, FINAL ORDERS, AND ENTRY


THEREOF

WHAT IS A JUDGMENT

1. A judgment is a final ruling by a court of competent


jurisdiction regarding the rights or other matters submitted to it in
an action or proceeding.591

2. It is the court’s official and final consideration and


determination of the rights and obligations of the parties. 592

REQUISITES OF A JUDGMENT/FINAL ORDER

1. The requisites of a judgment or final order are: (a) It must be


in writing (b) It must be personally and directly prepared by the
judge (c) It must state clearly and distinctly the facts and the

591
Macahilig v. Magalit, 344 SCRA 838
592
46 Am Jur 2d, Judgments

115
law on which it is based (d) It must be signed by the judge (e) It
must be filed with the clerk of court.593

1.1 Note that a judge who has been reassigned can pen a
decision as long he is still an incumbent judge.594

1.2 A decision penned by the judge after his retirement


cannot be validly promulgated and cannot acquire
binding effect. In the like manner, a decision penned
during his incumbency cannot be promulgated after
his retirement. When a judge retires, all his authority
to decide a case and write, sign and promulgate the
decision has also retired with him.595

1.3 It is not necessary that the judge who pens the


decision is the one who heard and tried the case.596

2. A decision that does not state clearly and distinctly the facts
and law on which it is based leaves the parties in the dark as to
how it was reached and is especially prejudicial to the losing party
who is unable to pinpoint errors for review upon an appeal. A
decision without anything to support it is a patent nullity.597A void
judgment has no legal and binding effect, force or efficacy for any
purpose.598

2.1 There is no need though for a statement of all the facts


and evidence presented. What is required is that the
factual and legal basis be distinctly and clearly set
forth.599

2.2 The rule is also applicable to the denials of a petition


for review or of a motion for reconsideration600 and the
resolution of a motion to dismiss.601

2.3. Resolutions of the Supreme Court denying petitions for


review of the Court of Appeals are not decisions within
the purview of the Constitution602, neither are minute
resolutions.603 When such is issued, it is understood
that the challenged decision or order, together with the
findings of fact and legal conclusions are deemed
sustained.604

3. A Memorandum Decision is one which adopts by references


findings of facts and conclusions of law contained in the decision
of an inferior tribunal. Note that this does not violate the rule as to
593
Supra, Section 1, Rule 36
594
ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
595
Nazareno v Court of Appeals, 378 SCRA 28
596
Serna v Court of Appeals, 308 SCRA 527, Citibank NA v Sabeniano, GR 156132, October 12,
2006
597
Miguel v JCT Group Inc, 453 SCRA 529
598
Guevarra v Sandiganbayan, 454 SCRA 372
599
Chan v Court of Appeals, 457 SCRA 502
600
Section 14, Article VIII, Constitution
601
Barrazona v RTC of Baguio, GR No. 154282, April 7, 2006
602
Novino v Court of Appeals, 8 SCRA 279
603
Commercial Union Assurance,Ltd. V Lepanto Consolidated Mining Company, 86 SCRA 79
604
Complaint of Rogelio Arrienda v Justices Puno, et al, 460 SCRA 1

116
statement of the facts and law. This kind of a decision can only be
rendered by an appellate court.

4. A Sin Perjuicio Judgment is one which is without a


statement of facts and is to be supplemented later by the final
judgment. Such a judgment is void. It contains only the dispositive
portion and reserves the making of findings in a subsequent
judgment. This shall have no effect.605

5. A conditional judgment is one the effectivity of which


depends on the occurrence or non-occurrence of an event. Such a
judgment is void because of the absence of a disposition and
cannot be executed.606

5.1 Where the judgment is for a sum of money to be determined


by another, it is an incomplete judgment which cannot be
executed.607

PARTS OF A JUDGMENT

1. A judgment has two parts: (a) body of the decision or the


ratio decidendi, and (b) the dispositive portion or the fallo. It is the
latter that is subject to execution as it should settle and declare
the rights and obligations of the party, finally, definitively, and
authoritatively.608

1.1 In case of conflict, the fallo prevails, but if the


inevitable conclusion from the body is so clear that
there is a mistake in the dispositive portion, the body
will prevail.609

1.2 An ambiguity in the judgment is best addressed by a


motion for a clarificatory judgment

WHEN IS JUDGMENT RENDERED

1. Ordinarily after trial, except in judgment on the pleadings,


summary judgment, judgment by compromise, judgment based on
stipulation of facts, judgment upon confession, order of dismissal
in instances when it considered as an adjudication on the merits,
judgment in cases covered by the Rules of Summary Procedure.

1.1 The periods for a court to render judgment is within 24


months from date of submission for decision for the
Supreme Court, within 12 months for lower collegiate
courts, within 3 months for all other lower courts. 610

1.2 Extensions may be obtained from the Supreme Court


on account of a heavy caseload or other reasonable

605
Dizon v Lopez, AM-RTJ-96-1388, 278 SCRA 483
606
Pascua v Simeon, 161 SCRA 1, Cu Unjieng v Mabalacat Sugar Company, 70 Phil 384
607
DBP v. Tanada, 56 SCRA 470
608
LRTA v Court of Appeals, 444 SCRA 125
609
Poland Industrial Limited v. NDC, 467 SCRA 500
610
Article VIII, Section 15, Constitution

117
excuse. Without any extension, a delay in disposition
is tantamount to gross inefficiency.611

2. It is the filing of the judgment or final order with the clerk of


court that constitutes rendition of judgment, not the date of the
writing of the decision or judgment, nor the signing thereof or even
promulgation thereof.612

DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES


FINAL

1. If no appeal or motion for reconsideration or new trial is


brought within the time provided, the judgment / final order shall
forthwith be entered by the clerk in the Book of Entries of
Judgment.

1.1 The date of finality shall be deemed the date of entry


and shall contain the dispositive portion and signed by
the clerk which a certificate that such judgment / final
order has become final and executory.613

1.2 Note that date of entry retroacts to date of finality.


Hence, both occur simultaneously by operation of law.

2. Judgments that are final and executory can be corrected if


they pertain to: (a) clerical errors (b) nunc pro tunc, meaning then
for now, entries or those intended to show what the judicial action
was but was then omitted from the records614 (c) whenever
circumstances transpire after finality rendering its execution
unjust615 and (d) in cases of special and exceptional nature as
when facts and circumstances transpire which render execution
impossible or unjust, when necessary to harmonize the disposition
with prevailing circumstances.616

3. Correction or amendment is also allowed if the purpose is to


clarify an ambiguity caused by an omission or mistake, judgment /
final order.

4. A compromise after finality of a judgment is allowed. The


basis of the allowance is the principle of novation, which is a mode
of extinguishing an obligation.617

5. Petition for extraordinary relief- GR 167651, San Pablo vs.


marina May 10, 2005

FOR WHOM JUDGMENTS MAY BE RENDERED

1. They may be given for or against one or more several


plaintiffs or for or against one or more several defendants.

611
Arap v Mustafa, A.M. No. SCC-017, March 12, 2002
612
Castro v Malazo, 99 SCRA 164
613
Supra, Section 2, Rule 36
614
Briones v Vasquez, 450 SCRA 482
615
Siy v NLRC, GR No. 158971, January 25, 2006
616
Industrial Timber Corporation vs. Ababon, GR No. 164518, January 25, 2006
617
Magbanua v. Uy, 458 SCRA 185

118
2. Courts, when justice demands can require parties on each
side to file adversary proceedings as between themselves to
determine their ultimate rights / obligations. 618

3. In an action against several defendants, the courts if proper


may render judgment against one or more, leaving the action to
proceed against the others. 619 This is a several judgment. Example:
Judgment against a surety for its admitted liability.

4. Separate judgments may be rendered when more than one


claim for relief is presented, the court at any stage – upon
determination of the issues material to a particular claim and all
counter claims arising therefrom – may render a separate
judgment disposing of the claim and proceeding with the others
but, it may stay execution or enforcement until rendition of
subsequent judgment/s and may prescribe such conditions to
secure benefit thereof to the party in whose favor the judgment is
rendered.620 An example is when causes of action have been joined

5. Judgment against entity without juridical personality it shall


set forth the individual names / proper names if known of persons
composing it.621

RULE 37 – NEW TRIAL OR RECONSIDERATION

WHEN FILED

1. A motion for new trial or reconsideration may be filed within


the period for taking an appeal.622

GROUNDS FOR A MOTION FOR NEW TRIAL

1. Fraud, Accident, Mistake, Excusable Negligence which


ordinary prudence could not have guarded against and by reason
of which the aggrieved party was probably impaired in his rights.

1.1 Fraud should be extrinsic or collateral, which refers to


such acts that prevent a party from having a trial /
presenting his case in court. It refers to all kinds of
deceptions, whether through insidious machination,
manipulation or concealment or misrepresentation
that leads another party to error. 623 Examples are:
false promise to compromise or connivance of lawyer
with adverse party. This does not include intrinsic

618
Supra, Section 3, Rule 36
619
Supra, Section 4, Rule 36
620
Supra, Section 5, Rule 36
621
Supra, Section 6, Rule 36
622
Supra, Section 1, Rule 37
623
Maestrado v Court of Appeals, 327 SCRA 678

119
fraud or acts of a party at trial that prevents fair
determination. Examples are: perjury, falsification.

1.2 Accident is a fortuitous event, circumstance, or


happening; an event happening without any human
agency or if happening wholly or partly through huma
n agency, is an event which under the circumstances
is unusual or unexpected by the person to whom it
happens.624 Examples are sickness of a party, lack of
notice, when the same is sent to another address.

1.3 Mistake refers to some unintentional act, omission, or


error arising from ignorance, surprise, imposition, or
misplaced confidence. It pertains generally to mistake
of fact, not of law.625Examples are failure to answer /
act because he believed it unnecessary because of a
compromise or other document.

1.4 Excusable Negligence626 is an excusable omission to do


something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct
of human affiants, would do; or the reasonable doing
of something which a prudent or reasonable man
would not do. The failure here is really that of the
party or counsel, such as a non submission on time
because of distance traveled.

2. Newly Discovered Evidence, which the aggrieved party could


not with reasonable diligence, have discovered or produced at the
trial and which would probably alter the result.

2.1 Hence, the requisites are: (a)Evidence is discovered


after trial (b)Such could not have been discovered and
produced at the trial with reasonable diligence (c)
Evidence is material, not cumulative,
corroborative, or impeaching, and is of such weight
that, if admitted, could probably change the
judgment.627

GROUNDS FOR MOTION FOR RECONSIDERATION

1. The grounds for a motion for reconsideration are: (a)


Award of excessive damages (b) Insufficiency of evidence
to justify the decision or final order (c) Decision / final order is
contrary to law

HOW FILED / CONTENTS

1. It shall be made in writing stating the ground/s, written


notice of which shall be served by the movant on the adverse party.

624
Jarco Marketing v Court of Appeals, 321 SCRA 375
625
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
626
Mckee v Intermediate Appellate Court, 211 SCRA 517
627
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273

120
2. If the Motion for New Trial is based on Fraud, Accident,
Mistake or Excusable Negligence, it should be supported by
affidavits of merit, which may be rebutted by affidavits.

2.1 The requirement of an affidavit is essential because


obviously a new trial would be a waste of the court’s
time if the complaint turns out to be groundless or the
defense ineffective.628

3. If based on newly discovered evidence it should be supported


by affidavits of the witnesses by whom such evidence is expected to
be given or by duly authenticated documents which are proposed
to be introduced as evidence.

4. If it is a motion for reconsideration, it should point out


specifically the finding / conclusions which are not supported by
the evidence / contrary to law, making express reference to
testimonial / documentary evidence or provisions alleged to be
contrary to such findings or conclusions.

4.1 If not, the motion is considered a pro-forma motion. It


does not toll the reglementary period of appeal.629

4.2 Note also that such a motion without notice of hearing


and proof of service has the same effect630

IF A MOTION FOR NEW TRIAL IS FILED, WHAT ENSUES

1. Court may either deny or set aside the judgment or final


order and grant a new trial631

1.1 If denied, another motion may be filed, if it is based on


a ground not existing nor available, when the first
motion has filed.632

1.2 Note that a motion for new trial is an omnibus motion,


thus it should include all grounds then available as
those not included are deemed waived.

2. IF granted, the effects are (a) original order / judgment is


vacated (b) the action shall stand trial de novo (c) recorded
evidence, insofar as material or competent to establish the issues,
shall be used at the new trial without need to for it to retaken. 633

IF MOTION FOR RECONSIDERATION IS FILED – WHAT ENSUES

1. Court may deny or amend its judgment / final order if it


finds that excessive damages are awarded, or that it is contrary to
the evidence or the law634
628
Yap v Tanada, 163 SCRA 464
629
Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39
SCRA 552
630
Firme v Reyes, 92 SCRA 713
631
Supra, Section 3, Rule 37
632
Supra, Section 5, Rule 37
633
Supra, Section 6, Rule 37
634
Supra, Section 3, Rule 37

121
2. If denied, no second motion for reconsideration is allowed of
the judgment or final order.

2.1 The filing of a second motion for reconsideration is a


prohibited pleading. Thus it does not toll the running
of the reglementary period of appeal.635

3. Note though that if the subject is not a judgment / final


order or is an interlocutory order which does not dispose of a case
completely but leaves something more to be done upon its merits,
a 2nd motion for reconsideration may be allowed.

OTHER MATTERS PERTAINING TO SUBJECT MOTIONS

1. The periods for resolving the motions are: (a) MTC / RTC
within 30 days from the time it is submitted for resolution 636 (b)
Court of Appeals within 60 days after if declares it submitted for
resolution (c) Supreme Cour- no period is prescribed

2. The denial of both motions is not appealable, it is the


judgment or final order that is appealable.637

3. A motion for reconsideration is a pre-condition to an appeal


in cases of (a) habeas corpus in relation to custody of minors (b)
annulment of marriage (c) declaration of nullity of marriage, (d)
legal separation.

RULE 38 – RELIEF FROM JUDGMENT, ORDERS OR OTHER


PROCEEDINGS

GROUNDS UPON WHICH IT IS TO BE BASED

1. Judgment / final order is entered, or proceeding is thereafter


taken against him through fraud, accident, mistake or excusable
negligence.

1.1 These grounds likewise support the petition when


there is a failure to take an appeal.

2. The object to the petition is that the judgment, order, or


proceeding be set aside or that the appeal be given due course.

2.1 The petition must be verified.638

3. The other ways by which a final and executory judgment


may be set aside is by Petition for Certiorari under Rule 65 and by
Annulment of Judgment under Rule 47.639

4. The petition is premised on equity. It should therefore be


granted only in exceptional cases.
635
Hongria v Hongria-Juarde, 425 SCRA 504
636
Supra, Section 4, Rule 37
637
Barnes v Reyes, 411 SCRA 538
638
Supra, Sections 1 and 2, Rule 38
639
Arcelona v Court of Appeals, 280 SCRA 20

122
4.1 Petitioner must be able to prove fraud, accident,
mistake or excusable negligence and the existence of a
good and substantial cause of action or defense, as the
case may be.640

5. It cannot be availed of if there is another remedy in law 641and


is available only against a final and executory judgment.642

6. Note though that if the case is covered by the Rules on


Summary Procedure, a petition for relief is a prohibited pleading. 643

WHEN AND WHERE FILED

1. It is to be filed within 60 days after he learns of the judgment


final order / proceeding but not more than 6 month after such
judgment / final order was entered or such proceeding taken.644

1.1 A few days after expiration of the 60 day period is not


entirely fatal as long as it is still filed within the 6
months period.645

1.2 But if it is a judgment by compromise, the 6 months


period runs from date of rendition, because a
judgment upon a compromise is immediately
executory and considered to have been entered on the
date it was approved by the trial court.646

1.3 The 6 months period is reckoned from entry of


judgment or final order, not from its rendition. 647 The
phrase “from learning” means from notice of judgment
or final order648

2. It is to be filed in the same case and in the same court where


the judgment / final order was entered or where proceeding is
taken.

2.1 A petition for relief from judgment is not an available


remedy in the Supreme Court nor in the Court of
Appeals. This is the rule notwithstanding the
statement that a party in any court may file a petition.
The phrase applies only to a Municipal Trial Court or a
Regional Trial Court.649

PROCEDURE

640
Torno v Intermediate Appellate Court, 166 SCRA 742
641
Alquesa v Cavada, Jr. 3 SCRA 428
642
Valencia v Court of Appeals, 352 SCRA 72
643
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
644
Supra, Section 3, Rule 38
645
Mago v Court of Appeals, 303 SCRA 600
646
Manipor v Ricafort, 407 SCRA 298
647
Bayog v Natino, 258 SCRA 378
648
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
649
Pucson Jr. vs. MRM Philippines, Inc. G.R. No. 182718, September 26, 2008

123
1. Filing of verified petition accompanied by affidavits showing
the ground and the facts showing the petitioner’s good and
substantial cause of action or defense, as the case may be.

2. Order issued requiring adverse party to answer within 15


days from receipt650

2.1 If warranted a writ of preliminary Injunction may be


issued as may be necessary for the preservation of the
rights of the parties, upon the filing by the petitioner of
a bond to indemnify the respondent for all damages
and costs incurred if the petition is dismissed or the
petitioner fails on the trial on the merits.

2.2 However, such injunction shall not operate to


discharge or extinguish any lien which the adverse
party may have acquired upon property of the
petitioner.651

3. Adverse party answers, but if he does not, he cannot be


declared in default.

4. Court hears and may grant relief if the allegations are true or
deny if not true.

4.1 If granted, the assailed final order / judgment /


proceeding is set aside and proceedings taken as if a
timely motion for new trial has been granted. 652 There
are in effect two hearings: the first is as to the merits
of the petition, the second is as the merits of the
principal case.

4.2 If denied, the order is not appealable653 but may be


subject of certiorari under Rule 65.

5. Court hears the case as if a timely motion for new trial or


reconsideration has granted.

5.1 If the subject is denial of an appeal, the lower court


shall be required to give due course to the appeal and
elevate the records as if a timely and proper appeal
has been made.654

6. Judgment is rendered and is appealable

DISTINGUISHED FROM A MOTION FOR NEW TRIAL

1. They are distinguished as follows:

650
Supra, Section 4, Rule 38
651
Supra, Section 5, Rule 38
652
Supra, Section 6, Rule 38
653
Supra, Section 1(b), Rule 41
654
Supra, Section 7, Rule 38

124
a) a motion for new trial is filed before judgment becomes final,
while a petition for relies if filed after a judgment becomes
final

b) a motion for new trial applies to judgments / final orders,


while a petition for relief includes proceedings

c) the grounds for a motion for new trial includes newly


discovered evidence, while a petition for relief is limited to
FAME

d) a motion for new trial is filed within the period for perfecting
an appeal, while a petition for relief is filed within 60 days
from knowledge but within 6 months from entry of judgment

e) a motion for new trial if denied allows an appeal, while a


petition for relief from judgment does not allow an appeal

f) a motion for new trial is a legal remedy, while a petition for


relief is a remedy in equity

g) a motion for new trial requires no verification, while a


petition for relief needs to be verified.

RULE 39 – EXECUTION, SATISFACTION AND EFFECT OF


JUDGMENTS

EXECUTION DEFINED

1. It is the remedy afforded for the satisfaction of a


judgment.655It is the fruit and end of a suit.656

TWO KINDS OF EXECUTION

1. Compulsory Execution is one which issues as a matter of


right, on motion, upon a judgment or order that disposes of the
action or proceeding upon expiration of the period to appeal, if no
appeal is taken or is perfected.

1.1 It also issues when appeal is duly perfected and finally


resolved.

1.2 It may be applied for in the court of origin, on motion


of judgment obligee – submitting certified true copies
of the judgment / final orders / orders sought to be
enforced and entry thereof, with notice to the adverse
party. There is no need for return of records.

1.3. It may also be applied for in the appellate court, on


motion in the same case, when the interest of justice
so requires, direct the court of origin to issue the writ
of execution in the event of the refusal of the court of
origin to issue the writ. 657
655
Cagayan De Oro Coliseum v Court of Appeals, 320 SCRA 731
656
Ayo v Violago Isnani, 380 SCRA 543
657
Supra, Section 1, Rule 39

125
1.4. A motion is required as there may be questions /
disputes as to finality or amounts to be stated in the
writ.

2. Discretionary Execution is one that is issued, on motion, of


the prevailing party for good reasons. This is also known as
execution pending appeal or exceptional execution 658

2.1 It is 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 the motion. 659 The court, may,
in its discretion, order execution of judgment / final
order even before the expiration of the period to
appeal.

2.2 If the trial court has lost jurisdiction, it is to be filed


with the appellate court. A court loses jurisdiction
when there is perfected appeal and the period to
appeal has expired. When a record on appeal is
required, it loses jurisdiction over the subject of the
appeal upon perfection of the appeal and expiration of
the period to appeal.

2.3 The requisites of execution pending appeal are: (a) A


motion by the prevailing party with notice to the
adverse party (b) There must be good reason for
execution pending appeal (c) The good reason must
be stated in a special order. They must constitute
superior circumstances demanding urgency which will
outweigh the injury or damage should the losing party
secure a reversal of the judgment on appeal.660

2.4 Examples of good reasons are: proven insolvency of


the debtor661 deterioration of the goods 662, prevailing
party’s inability to enjoy the decision, or it’s becoming
illusory. In a recent case, old age was found to be a
good reason663

2.5 Stay of discretionary execution can be had upon


approval by the proper court of a sufficient
supersedeas bond filed by the party against whom it is
directed conditioned upon performance of the
judgment or final order allowed to be executed in case
finally sustained in whole in part. The bond may then
be proceeded against on motion with notice to the
surety664 but, the mere filing of a bond by a successful

658
Supra, Section 2, Rule 39
659
Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
660
Jaca v Davao Lumber Company, 113 SCRA 107
661
Lao v Mencias, 21 SCRA 1021
662
Intramuros Tennis Club, Inc. v Court of Appeals, 341 SCRA 90
663
FEBTC v Toh, Sr. 404 SCRA 590
664
Supra, Section 3, Rule 39

126
party allow execution pending appeal nor constitute
good ground.665

3. There are judgments not stayed by appeal such as


judgments in injunction, to include a judgment dissolving it 666
receivership, accounting and support and such other judgments as
are now or hereafter be declared to be immediately executory, shall
be enforceable upon their rendition, they shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial
court.

3.1 If stayed, it shall be upon such terms as to bond or


otherwise as may be considered proper for the security
/ protection of the rights of the adverse party. On
appeal though, the appellate court may make an order
– suspending, modifying, restoring or granting the
injunction, receivership, accounting or award of
support.667

3.2 Judgments in Forcible Entry / Illegal Detainer, if


against the defendant are immediately executory. 668
The same is true of a judgment by compromise.669

4. Separate, Several or Partial Judgments may executed under


the same terms and conditions as execution of a judgment / final
order pending appeal.670

4.1 If execution is granted by the judgment/final order is


reversed on appeal or totally / partially or annulled,
on appeal or otherwise, the trial court, on motion, may
issue orders of reparation or restitution of damages as
equity and justice may warrant under the
circumstances.671

4.2 The phrase “or otherwise” applies to reversal after a


petition for relief has been granted under Rule 38 and
upon a favorable judgment in a petition for annulment
of judgment under Rule 47

5. The Court of Appeals has no authority to issue immediate


execution pending appeal of its own decision. Discretionary
execution applies only to a judgment or final order of the trial
court.672

WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION

1. Only judgments or final orders, or one which disposes of the


whole subject matter or terminates a particular proceeding or

665
International School v. Court of Appeals, 309 SCRA 474
666
ITC v PTA, 341 SCRA 90
667
Supra, Section 4, Rule 39
668
Supra, Section 19, Rule 70
669
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
670
Supra, Section 2 (b), Rule 39
671
Supra, Section 5, Rule 39
672
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206

127
action, leaving nothing to be done but to enforce by execution that
which has been determined.

1.1 Distinguishing a “final judgment or order” from one


which has become “final and executory”. A final
judgment is one that finally disposes of a case, leaving
nothing more to be done by the court in respect
thereto. It is adjudication on the merits. Once
rendered, the task of the court is ended, as far
deciding the controversy or determining rights and
liabilities of litigants. Nothing more is to be done but to
await the parties’ next move, and ultimately, to cause
execution of the judgment once it becomes final and
executory.673

1.2 An exception for the need to await a final judgment or


order is a judgment for support pendente lite. 674 The
principal case in this instance still continues.

1.3 As a rule, after a judgment becomes final and


executory, execution becomes a ministerial duty of the
court.675

1.4 Execution may however be denied when: (a) judgment


has been complied with voluntarily 676(b) When the
judgment has been novated (c) When a petition for
relief has been filed and a writ of injunction is granted
(d) When execution is sought more than five years
from entry of judgment (e) When execution is sought
against exempt property (f) when the judgment is
conditional

HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED

1. A final and executory judgment may be enforced by (a) By


motion within 5 years from date of entry of judgment (b) By
action after the lapse of 5 years from date of entry of judgment but
before barred by statute of limitations, which is 10 years. This is
known as “action to revive judgment”.677

2. The revived judgment may also be enforced by motion within


5 years from date of entry, and thereafter by action before it is
barred by the statute of limitations. The purpose of the action is
not to re-examine the issues as the cause of action is the judgment
itself and not the merits of the original action. 678

The proper venue of an action for revival of judgment depends on


the determination of whether the present action for revival is a real
or personal action.679

673
Denso Philippines, Incorporated v IAC, 148 SCRA 280
674
Supra, Section 5, Rule 61
675
Fideldia v. Songcuan, 465 SCRA 218
676
Cunanan v Court of Appeals, 25 SCRA 263
677
Supra, Section 6, Rule 39
678
Laperal v Ocampo, 410 SCRA 339
679
Infante v Aran Builders, 531 SCRA 123 (August 24, 2007)

128
3. Reconciling the actions upon a judgment under Article 1144
of the Civil Code, which prescribes in 10 years, there is no conflict
as the Rules of Court refer to the manner of execution of the
judgment.

3.1 Note that this is not applicable in land registration


cases or other special proceedings but only in civil
actions.

4. There are however instances when judgment / final order


can still be enforced by motion even after lapse of 5 years when the
delay is caused or occasioned by the actions of the judgment
obligee or incurred for his benefit or advantage.680

4.1 The liberal construction of the rule resulting in non


inclusion of the period of delay occasioned by the acts
of the judgment obligee in the counting of the period
was resorted to as strict adherence to the letter of the
law would result in absurdity and manifest injustice. 681

ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION

1. A writ of execution shall (a) Issue in the name of the


Republic of the Philippines from the Court that granted the
judgment (b) State the name of court, case number, title, and
dispositive portion (c) Require the sheriff or other proper officer
to whom it is directed to enforce the writ according to its terms.

2. The terms or manner so provided is as follows: (a) execution


be against property of judgment obligor, to satisfy judgment with
interest, out of his real or personal property (b) if against real or
personal property, in the hands of personal representatives, heirs,
devisees, legatees, tenants trustees of the judgment obligor, to
satisfy the judgment, with interest, out of such property (c) if it be
for sale of real / personal property, to sell it, describing it, and
apply the proceeds in conformity with the judgment, the material
parts of which shall be recited in the writ (d)if it be for delivery of
the possession of real / personal property, to deliver the
possession of the same, describing it, to the party entitled thereto
and to satisfy any costs, damages, rents, profits covered by the
judgment out of the personal property of the person against whom
it was rendered, and if no sufficient personal property be present,
out of real property (e) in all cases, the writ shall specifically state
the amount of interest, costs damages, rents, profits due as of the
date of issuance of the writ aside from the principal obligation
under judgment682

IF EXECUTION IS FOR SUMS OF MONEY

1. Immediate payment on demand from judgment obligor


payable in cash of certified bank check payable to the obligee or

680
Camacho v Court of Appeals, 287 SCRA 611
681
Republic v Court of Appeals, 260 SCRA 344
682
Supra, Section 8, Rule 39

129
any form acceptable to him plus lawful fees to be turned over to
the clerk of court of the court that issued the writ.

1.1 If judgment obligee is not present to receive the


amounts, it shall be delivered by judgment obligor to
the sheriff, turning in all amounts on the same day to
the clerk of court or if not practicable, to deposit in the
nearest government depository bank of Regional Trial
Court in the locality, then arrangements are then
made for remittance to clerk of court issuing the writ
for delivery to the judgment obligee. In no case shall
the sheriff demand payment by check payable to him.

2. Satisfaction by Levy, if not paid in cash, the sheriff shall levy


on the properties of judgment obligor of any kind / nature which
may be disposed of for value and not otherwise exempt from
execution.

2.1 The obligor is given the option to immediately choose


which property or part thereof may be levied upon to
satisfy judgment. If not, sheriff shall levy on personal
properties first, if any, then on real properties if
insufficient to answer for judgment.

2.2 Sheriff can only sell sufficient portion of the personal /


real property levied upon when there is more property
then is sufficient to satisfy judgment, on so much of it
to satisfy judgment is to be sold. The conduct of the
sale shall be the same as that of execution for the sale
of property.

2.3 The effect of a levy is that it shall create a lien in favor


of the judgment obligee over the right, title and
interest of the judgment obligor in such property at the
time of levy, subject to liens / encumbrances then
existing. Hence, the effect then on 3rd persons will be
dependent on when their liens / encumbrances, if any,
was annotated or interposed.683

2.4 If a levy is made beyond the period of 5 years from


entry of judgment. The same is not valid as lifetime or
a writ of execution is 5 years from date of entry of
judgment.684

3. Garnishment of debts and credits. The officer may levy on


debts due the judgment obligor and other credits. Examples: bank
deposits, financial interests, royalties, commissions, and other
personal property. These are not capable of normal delivery and
are in the possession and control of third parties.

3.1 Levy shall be made by serving notice on the person


owing such debts or having in his possession or
control such credits to which the judgment obligor is
entitled.
683
Supra, Section 12, Rule 39
684
Supra, Section 14, Rule 39

130
3.2 The garnishee, shall then make a written report to the
court from service of notice stating whether or not the
judgment obligor has sufficient funds or credits to
satisfy the judgment. The garnished amount shall then
be delivered directly to the judgment obligee within 10
working days from service of notice on him requiring
delivery, less lawful fees to be paid directly to the
Court.

3.3 If there are 2 or more garnishees, the judgment obligor


shall have the right to indicate the garnishee/s who
shall deliver, otherwise it shall be the choice of the
judgment obligee.685

4. Writ is to be returned to the Court issuing it immediately


after judgment has been satisfied in part or in whole. If not /
cannot be satisfied in full within 30 days from receipt of the writ,
the officer shall report to the court and state the reason therefor.
Such writ will continue to be in effect during the period within
which judgment may be enforced by motion, the officer shall then
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. The returns / reports shall set forth the proceedings
taken, filed with the court and copies promptly furnished
parties.686

EXECUTION FOR SPECIFIC ACTS687

1. If conveyance, delivery of deeds or other specific acts are


required, a party is directed to comply if he fails to do so within the
period specified, court may direct the act to be done at the cost of
the disobedient party, by some other person appointed by the
court and when so done it is as if done by the disobedient party. If
it involves real / personal property located in the Philippines, the
court in lieu of directing a conveyance thereof may by an order
divest title and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law.

IF EXECUTION IS FOR THE SALE OF REAL/PERSONAL


PROPERTY

1. The property is to be sold, describing it, and applying the


proceeds in conformity with the judgment.

2. Notice must be given as follows: (a) Perishable property –


posting of written notice(of time, place, sale in 3 public places
preferably in conspicuous areas of the municipal/city hall, post
office, public market, for such a time as may be reasonable
depending on circumstances (b) Personal property – posting of
written notice in 3 public places for not less than 5 days (c) Real
property – posting of written notice in 3 public places for at least
20 days, describing the property, where it is to be sold, and if
685
Supra, Section 9, Rule 39
686
Supra, Section 14, Rule 39
687
Supra, Section 10, Rule 39

131
assessed value is in excess of PHP 50,000.00, publishing the notice
in a newspaper of general circulation once a week for 2 consecutive
weeks. In all cases – written notice is also given to judgment
obligor at least 3 days before the sale except in (a) notice is given at
any time in the same manner as personal service of pleadings. 688

2.1 The contents of the notice are the place, date exact
time not earlier than 9:00 am or later than 2:00 pm.
The place may be agreed upon. If not agreed upon: (a)
Real/Personal property not capable of manual delivery
shall be sold at the Office of the Clerk of Court of
Regional or Municipal Trial Court issuing the writ (b) If
capable of manual delivery, where personal property is
located.

2.2 If there is a sale without notice, the officer is liable for


punitive damages in the amount of PHP 5,000.00 in
addition to actual damages sustained by injured
person. If the notice is defaced or removed before the
sale / satisfaction of the judgment, the person so
defacing or removing shall be liable to pay PHP
5,000.00 plus actual damages. These are recoverable
upon motion.689

3. The manner of sale shall be by public auction. This applies


also when property is levied upon.

3.1 Sale is made to the highest bidder, to start at the exact


time stated in the notice.

3.2. If sufficient property has been sold, no more shall be


sold and any excess property / proceeds shall be
delivered to the judgment obligor or his representative,
unless otherwise directed by the court. Like when
other debts due to be paid

3.3 If sale is of real property consisting of several known


lots, they must be sold separately or if claimed by a
3rd person, he may require it to be sold separately.

3.4 Personal property capable of manual delivery must be


sold within view of those attending and in such parcels
so as to bring the highest price.

3.5 The judgment obligor, if present may direct the order


in which the property is to be sold when such property
consists of several parcels / known lots which can be
sold to advantage separately.

3.6 No officer or his deputies, can be a purchaser, nor be


interested directly or indirectly in any purchase at
such sale.690

688
Supra, Section 15, Rule 39
689
Supra, Section 17, Rule 39
690
Supra, Section 19, Rule 39

132
3.7 By written consent of both judgment obligor / obligee
or their duly authorized representatives, the auction
sale may be adjourned to any date or time agreed by
them. Without an agreement – officer may adjourn
from day to day if it becomes necessary.691

3.8 When a purchaser refuses to pay , the officer may


again sell the property to the highest bidder and shall
not be responsible for any loss occasioned thereby, like
when it is resold for less. But, the court may order the
refusing purchaser to pay unto the Court such loss,
and punish him with contempt if he disobeys.
Payment shall inure to the benefit of party entitled to
execution, unless he has been satisfied, in which case
to the judgment obligor. In addition, officer may
thereafter reject all bids of such purchaser.692

3.9 The judgment obligee can be a purchaser, and if no 3rd


party claim has been filed, he need not pay the
amount if it does not exceed the amount of his
judgment. If it does he shall only pay the excess. 693

3.10 If the judgment obligor pays the judgment before sale,


the sale is prevented by the payment required by
execution and cost incurred therein694

3.11 A third party claimant is one who claims title to, or


right of possession of the property levied upon by the
sheriff. Note that there may be a 3rd party claimant in
execution, preliminary attachment and replevin.

3.12 A third party claimant can file a 3rd party claim or a


terceria by executing an affidavit showing his title
thereto, or right of possession over the property being
levied upon, stating therein the grounds of such title
or right, serving a copy thereof to the sheriff and
judgment obligee. If filed, sheriff is not obliged to
proceed unless the judgment obligee files an indemnity
bond in an amount not less than value of the property.
No action on the bond may enforced by the third party
claimant unless filed within 120 days from date of the
filing of the bond. If bond is filed, a 3 rd party claimant
may vindicate his claim within the period or he may
institute a separate action to vindicate his claim but
nothing also prevents the judgment obligee from
claiming damages in the same or separate action
against a 3rd party claimant who files a frivolous /
spurious claim. Note that if writ is issued in the name
of the Republic of the Philippines, no bond is required.
Officer is to be represented by the Solicitor General,

691
Supra, Section 22, Rule 39
692
Supra, Section 20, Rule 39
693
Supra, Section 21, Rule 39
694
Supra, Section 18, Rule 39

133
and if damages are assessed, it is to be paid out of the
National Treasury. 695

4. After a sale, a conveyance is to be made as follows:

4.1 Real Property – a certificate of sale is given stating the


description of the property, price paid for each distinct
lot / parcel, whole price paid and a statement that the
right of redemption shall or will expire one year from
date of registration of the certificate 696 making mention
of the existence of a 3rd party claim, if any. 697 Note:
the requirement of mentioning a 3rd party claim, if any,
applies also to conveyance over personal property.

4.2 The parties entitled to redeem are: (a) Judgment


obligor, or his successor in interest, in whole or any
part of the property, or (b) A creditor having a lien by
virtue of an attachment, judgment, mortgage on the
property sold or on some part thereof, subsequent to
the lien under which the property is sold. Such
redeeming creditor is called a redemptioner.698

4.3 The judgment obligor / redemptioner may redeem the


property from the purchaser at any time within 1 year
from registration by paying the amount of purchase,
plus 1% interest per month at the time of redemption,
together with the amounts of assessments / taxes paid
at the purchase and interest on the same at the same
rate, and, if the purchaser be also a creditor having a
prior lien to that of the redemptioner, other than the
judgment, the amount of the lien plus interest.

4.4 Property so redeemed may be redeemed within 60 days


after the last redemption upon payment of the sum
paid, w/ 2% interest thereon plus taxes / assessments
paid, and amount of liens held by redemptioner prior
to his own, and so forth.

4.5 Written notice however of redemption must be given to


the officer who made the sale and duplicate with the
Registry of Deeds and if any assessments / taxes /
prior liens are paid, notice must also be given to above
parties otherwise, redemption can be effected without
paying taxes / assessments / liens. Note: Proof
required of redemption under Section 30

4.6 Proof of Redemption-A redemptioner must produce to


the officer, or person from whom he seeks to redeem,
and serve with notice to the officer, a copy of judgment
or final order, certified by the clerk of court or the
mortgage / other lien, certified copy by the Register of

695
Supra, Section 16, Rule 39
696
Supra, Section 25, Rule 39
697
Supra, Section 26, Rule 39
698
Supra, Section 27, Rule 39

134
Deeds / or memorandum thereof and affidavit showing
amount due on the lien.699

4.7 If the Judgment Obligor redeems, -He must make all


the payments required to effect a redemption by a
redemptioner. Thereupon, no further redemption is
allowed and he is restored to his estate. The person
upon whom redemption payment is made shall
execute a Certificate of Redemption after payment.
Certificate is then filed with the Office of the Registry
of Deeds.700

4.8 Pending redemption, use of the real property shall


remain with the person in possession at the time of
sale or entitled to possession afterwards may continue
to use it in the same manner as it was previously
used, or to use in the ordinary course of husbandry or
to make necessary repairs to buildings thereon while
he occupies the property, but the court in proper
cases, may restrain the commission of waste on the
property by injunction on the application of the
purchaser / judgment obligee with or without notice.
701

4.9 Rents, earnings and income shall belong to the


judgment obligor until the expiration of his period for
redemption. Neither shall the purchaser or judgment
obligee be entitled to the same when such property is
in the possession of a tenant.702

4.10 If no redemption is made within one year from date of


registration, the purchaser is entitled to possession
and conveyance or if so redeemed – whenever 60 days
has elapsed and no other redemption is made and the
time for redemption has expired, the last redemptioner
is entitled to possession and conveyance but, in all
cases the judgment obligor is entitled to have the
entire period of one year.

4.11 Officer shall execute the deed / or his successor in


interest with the same effect. Once done, the
purchaser / redemptioner shall be substituted to and
acquire all the rights title and interest and claim of the
judgment obligor to the property as of the time of the
levy. Possession shall then be given unless property is
held by a 3rd party adverse to the judgment obligor. 703
Manner of effecting transfer of possession is by writ of
possession.704

699
Supra, Section 30, Rule 39
700
Supra, Section 29, Rule 39
701
Supra, Section 31, Rule 39
702
Supra, Section 32, Rule 39
703
Supra, Section 33, Rule 39
704
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678

135
4.12 If the sale is rendered ineffective as when the
purchaser of real property or his successor in interest
fails to recover possession or is evicted therefrom as a
consequence of: irregularities in the proceedings
concerning the sale, judgment has been reversed or set
aside pursuant to a petition for relief,property is
exempt from execution , or that 3rd person has
vindicated his right to the property. He may on motion
in the same action or in a separate action recover from
the judgment obligee the price paid with interest, or so
much thereof as has not been delivered to the
judgment obligor or he may on motion have the
judgment revived in his name, if a redemptioner for
the whole price with interest, or so much thereof as
has been delivered to the judgment obligor. The
judgment revived shall have the same force and effect
as an original judgment would have as of the date of
revived and no more.705

4.13 If it involves personal property that is capable of


Manual Delivery, the officer must deliver the property
and if desired, execute and deliver a certificate of sale,
which shall conveys all right with the judgment obligor
had in such property as of date of levy on execution or
preliminary attachment. 706

4.14 If Incapable of Manual Delivery, the officer must


execute and deliver a certificate of sale and such shall
convey all rights to purchaser as of the date of levy on
execution or preliminary attachment. 707

EXECUTION IS FOR DELIVERY OR RESTITUTION OF REAL


PROPERTY

1. The officer shall demand of the person against whom


judgment is rendered and all persons claiming rights under him to
peaceably vacate the property within 3 working days and restore
possession thereof to the judgment oblige otherwise the officer
shall oust all such persons thereon, with assistance from peace
officers employing reasonable means and place the judgment
obligee in possession.

1.1 Any costs, damages, rents, profits shall be satisfied in


the same manner as a judgment for money.

EXECUTION IS FOR REMOVAL OF IMPROVEMENTS

1. The officer shall not destroy, demolish or remove except


upon special order of the court, issued upon motion / hearing and
after the judgment obligee had failed to remove within a reasonable
time fixed by the rules.

EXECUTION IS FOR DELIVERY OF PERSONAL PROPERTY


705
Supra, Section 34, Rule 39
706
Supra, Section 23, Rule 39
707
Supra, Section 24, Rule 39

136
1. The officer shall take possession and forthwith deliver it to
party entitled thereto and satisfy any judgment for money as
herein provided. 708

EXECUTION OF SPECIAL JUDGMENTS

1. Performance of an act other than those enumerated in


Section 9 and 10, a certified copy of the judgment shall be
attached to the writ of execution and served upon party against
whom it is rendered, or upon any person required thereby, or by
law, to obey the same.

1.1 If such party / person disobey, they may be punished


for contempt.709

2. Examples of special judgments are judgments in cases for


Injunction or Quo warranto

WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION

1. Except as otherwise expressly provided by law, the following


property, and no other, shall be exempt from execution:

a. The judgment obligor’s family home as provided by


law, or the homestead in which he resides, and land
necessarily used in connection therewith;

b. Ordinary tools and implements personally used by him


in his trade, employment, or livelihood;

c. Three horses, or three cows, or three carabaos, or


other beasts of burden, such as the judgment obligor
may select necessarily used by him in his ordinary
occupation;

d. His necessary clothing and articles for ordinary


personal use, excluding jewelry;

e. Household furniture and utensils necessary for


housekeeping, and used for that purpose by the
judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding one
hundred thousand pesos;

f. Provisions for individual libraries and equipment of


judges, lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three hundred thousand
pesos in value;

g. One fishing boat and accessories not exceeding the


total value of one hundred thousand pesos owned by a

708
Supra, Sections 9 and 10, Rule 39
709
Supra, Section 11, Rule 39

137
fisherman and by the lawful use of which he earns his
livelihood;

h. So much of the salaries, wages, or earnings of the


judgment obligor for his personal services within the
four months preceding the levy as are necessary for
the support of his family;

i. Lettered gravestones;

j. Monies, benefits, privileges, or annuities accruing or in


any manner growing out of any life insurance;

k. The right to receive legal support, or money or


property obtained as such support, or any pension or
gratuity from the Government;

l. Properties specially exempted by law.

2. But no article or species of property mentioned in this


section shall be exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of a
mortgage thereon.710

3. Claims for exemption from execution of properties must be


presented before its sale on execution by the sheriff. 711

WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A PARTY

1. It may issue or be enforced:

1.1 In case of death of judgment obligee, upon application


of his executor or administrator

1.2 In case of death of judgment obligor, against his


executor, administrator, or successor in interest, IF it
be for recovery of real or personal property or
enforcement of a lien.

1.3 Death of judgment obligor after execution is actually


levied upon any of his property, the same may be sold
for the satisfaction of the judgment obligation and the
officer must account to the executor or administrator
for any surplus, if any. 712

AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION


IS DIRECTED

1. There is a right to contribution or reimbursement if: more


than a due portion of the judgment is satisfied out of the proceeds
of the sale of the property of one of them, or, one pays, without
sale, more than his proportion.

710
Supra, Section 13, Rule 39
711
Gomez v Gealone, 203 SCRA 474
712
Supra, Section 7, Rule 39

138
1.1 If judgment is upon an obligation of one of them, as
security for another, and the surety pays the amount,
or any part thereof, either by sale of property or before
a sale, he may compel repayment from the principal.713

WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT


OBLIGEE IF EXECUTION IS NOT CARRIED OUT OR JUDGMENT
IS NOT SATISFIED

1. Examination of the judgment obligor concerning his property


and income before the court or a commissioner – and proceedings
may thereafter may be had for the application of his property or
income towards satisfaction of judgment but no obligor can be
required to appear before a court or commissioner outside the
province or city where he resides.714

2. Examination of the obligor of the judgment obligor upon


proof shown to the satisfaction of the court that a person,
corporation or other juridical entity has property of the judgment
obligor or is indebted to him, the Court may by order require the
person, corporation or juridical entity to appear before the Court /
commissioner and be examined concerning the same.

2.1 The service of the order shall bind all credits due the
judgment obligor and all money / property of the
judgment obligor in the possession / control of the
person, corporation or juridical entity.

2.2 Notice of all proceedings may also be required by the


715
court.

2.3 Obligor of judgment obligor may thereafter pay after


writ of execution on property has been issued, the
amount of his debt or so much thereof as may be
necessary to satisfy the judgment and the sheriff’s
receipt shall constitute sufficient discharge for the
amount so paid or directed to be credited by the
judgment obligee on the execution716

2.4 In relation to both remedies – party or other person


may be compelled to appear by subpoena and failure
to obey an order, subpoena or be sworn or answer as a
witness or subscribe to a deposition is punishable by
contempt. 717

3. Order for application of property and income to satisfaction


of judgment. – it may include his property or money due the
judgment obligor, not exempt from execution, in his hands or other
person, corporation or juridical entity may be applied to
satisfaction of judgment subject to any prior rights over such
property.
713
Supra, Section 35, Rule 39
714
Supra, Section 36, Rule 39
715
Supra, Section 37, Rule 39
716
Supra, Section 39, Rule 39
717
Supra, Section 38, Rule 39

139
3.1 Also, if upon investigation of current income and
expenses, the earnings of judgment obligor are more
than necessary for the support of his family, the court
may order that judgment be paid by monthly
installments, failing in which he may be punished for
indirect contempt.718

4. Appointment of a receiver – for the property of the judgment


obligor, it may also forbid a transfer or other disposition of or
interference with the property of the judgment obligor not exempt
from execution.719

4.1 Thereafter, there can be a sale by the receiver upon


order of ascertainable interest (or the real estate itself)
of a judgment obligor in real estate in the place where
proceedings are had as mortgagor / mortgagee or
otherwise and if his interest can be ascertained
without controversy, the receiver may be ordered to
sell and convey such interest or real estate or the
interest of the obligor therein. All proceedings to be
approved by the Court before execution of the deed.720

5. In relation to the foregoing, if it appears that a person or


corporation, alleged to have property of the judgment obligor
denies or claims an interest in the property adverse to him, the
court may: (a) order judgment obligee to institute an action against
such person or corporation for the recovery of such interest or debt
(b) forbid a transfer / disposition of such interest / debt within 120
days from notice of the order (c) punish disobedience of such order
as for contempt. The order may be modified or vacated at any time
by the court that issued it, or by the court in which the action is
brought, upon terms as may be just.721

WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED

1. Entry of satisfaction of judgment by the Clerk of Court in


Court Docket and Execution Book upon a return of the writ
indicating satisfaction or admission of satisfaction by the judgment
oblige or counsel.722

2. It can also be entered upon demand of judgment obligor


when judgment is satisfied in fact or upon notice / motion, the
court may order entry without admission 723

EFFECT OF JUDGMENTS OR FINAL ORDERS

1. The effect of a judgment / final order rendered by a court in


the Philippines, having jurisdiction to pronounce the same.

718
Supra, Section 40, Rule 39
719
Supra, Section 41, Rule 39
720
Supra, Section 42, Rule 39
721
Supra, Section 43, Rule 39
722
Supra, Section 44, Rule 39
723
Supra, Section 45, Rule 39

140
a. In case of a judgment / final order against a specific
thing, or in respect to probate of a will or
administration of the estate of a deceased person, or in
respect to personal, political or legal condition / status
of a particular person or his relationship to another,
the judgment or final order is conclusive upon the title
to the thing, the will, administration status or
relationship of the person. However, probate or
granting of letters of administration shall only be
prima facie evidence of the death of the testator.724

b. Other cases, judgment / final order is with RESPECT


TO THE MATTER DIRECTLY ADJUDGED OR AS TO
ANY MATTER THAT COULD HAVE BEEN RAISED IN
RELATION THERETO is CONCLUSIVE BETWEEN
THE PARTIES AND THEIR SUCCESSORS IN
INTEREST BY TITLE SUBSEQUENT TO THE
COMMENCEMENT OF THE ACTION OR SPECIAL
PROCEEDING LITIGATING FOR THE SAME THING,
UNDER THE SAME TITLE AND IN THE SAME
CAPACITY.725

c. In any other litigation between the same parties or


their successors in interest, that only is deemed to
have been adjudged in a former judgment / final order
which appears on its face to have been so adjudged or
which was actually and necessarily included therein or
necessary thereto.726

1.1 Paragraphs (a) and (b) are illustrative of the concept of res
judicata that is also known as “bar by prior judgment”.
This exists when between the first case where judgment is
rendered, and the second case where such judgment is
invoked, there is identity of parties, subject matter, and
cause of action. When all three are present, the judgment
on the merits rendered in the first constitutes an absolute
bar to the subsequent action.

1.2 Paragraph (c) is illustrative of what is known as


“conclusiveness of judgment”, when between the first case
wherein judgment was rendered and the second case
wherein such judgment is invoked, there is only identity
of parties, but there is no identity of cause of action, the
judgment is thus conclusive in the second case, only as to
the matters actually and directly controverted and
determined, and not as to matters merely involved
therein.727

1.3 CONCLUSIVENESS OF JUDGMENT, also known as


PRECLUSION OF ISSUES or COLLATERAL ESTOPPEL
OR IMMUTABILITY OF JUDGMENTS espouses that
issues actually and directly resolved in a former suit
724
Supra, Section 47 (a), Rule 39
725
Supra, Section 47 (b), Rule 39
726
Supra, Section 47 (c), Rule 39
727
Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278

141
cannot again be raised in any future case between the
same parties involving a different cause of action. 728Once
a case is decided with finality, the controversy is settled
and the matter is laid to rest. The prevailing party is
entitled to enjoy the fruits of victory while the other party
is obliged to respect the court’s verdict and comply with
it.729

1.4 The doctrine of “The law of the case” states that whatever
has once been irrevocably established as the controlling
legal rule of decision between the same parties, whether
correct on general principles or not, so long as the facts
on which the decision was predicated continue to be the
facts of the case before the court.730 This principle
generally finds application in cases where an appellate
court passes on a question and remands the case to the
lower court for further proceedings. The question thus
settled by the appellate court becomes the law of the case
upon a subsequent appeal. Consequently, the court
reviewing the succeeding appeal will not re-litigate the
case but instead apply the ruling in the previous
appeal.731

2. Effect of a foreign judgment/final order: (a) If upon a specific


thing, the judgment / final order is conclusive upon title to the
thing (b) If against a person – it is presumptive evidence of a right
between the parties and their successors in interest by subsequent
title (c) In either case, judgment / final order may be repelled by
evidence of want of jurisdiction, want of notice, collusion, fraud,
clear mistake of fact / law.732

3. Effect of judgment against a surety: When a judgment is


rendered against a party who stands as surety for another, the
latter (principal) is also bound from the time he has notice of the
action or proceeding, and an opportunity at the surety’s request to
join in the defense.733

APPEALS

PRELIMINARIES

1. As a general rule, the remedy to obtain a reversal or a


modification of judgment on the merits is appeal. This is true even
if the error ascribed to the court is lack of jurisdiction over the
subject matter, or exercise of power in excess thereof, or grave
abuse of discretion in the findings of law or fact set out in the
decision.734

728
Tan v Court of Appeals, 363 SCRA 444
729
Siy v NLRC, GR No. 158971, August 25, 2005
730
Boiser v NTC, 169 SCRA
731
RCPI v Court of Appeals, GR No. 139763, April 26, 2006
732
Supra, Section 48, Rule 39
733
Supra, Section 46, Rule 39
734
Association of Integrated Security Force of Bislig-ALU v Court of Appeals, 467 SCRA 483

142
2. The right to appeal is not part of due process but is a mere
statutory privilege that has to be exercised only in the manner and
in accordance with the provisions of law.735

3. Where the judgment or final order is not appealable, the


aggrieved party may file the appropriate civil action under Rule 65.
An example is a judgment in summary proceeding case under the
Family Code.

4. On appeal, a party may not change his theory of the case. 736
Hence, defenses not pleaded in the answer may not for the first
time be raised on appeal.737

4.1 A basic appellate rule is that the court shall not


consider no error unless stated in the assignment of
errors.738

4.2 The exceptions to the rule are: (a) it is an error that


affects jurisdiction over the subject matter (b) it is an
error that affects the validity of the judgment appealed
from (c) it is an error that affects proceedings (d) it is
an error closely related to or dependent on an assigned
error and properly argued in the brief, or (e) it is a
plain and clerical error.

4.3 The Supreme Court 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.739

5. Payment of docket fees is mandatory for the perfection of an


appeal.

5.1 Without payment, the court does not acquire


jurisdiction over the subject matter of the action and
the decision sought to be appealed becomes final and
executory.740

5.2 However, the rule is qualified: (a) the failure to pay


appellate docket fees within the reglementary period
only allows discretionary dismissal, not automatic
dismissal of the appeal, (b) such power should be used
in the exercise of the court’s sound discretion in
accordance with the tenets of fair play and with great
deal of circumspection considering all attendant
circumstances.

735
Cu-Unjieng v Court of Appeals, 479 SCRA 594
736
Supra, Section 15, Rule 44
737
Commissioner of Internal Revenue v Migrant Pagbilao Corporation, GR No. 159953, October
12, 2006
738
Supra, Section 8, Rule 51
739
Boston Bank of the Philippines v Manalo, GR No. 158149, February 9, 2006
740
Regalado v Go, GR No. 167988, February 6, 2007

143
RULE 40- APPEALS FROM THE MTC TO THE RTC

WHERE CAN AN MTC DECISION BE APPEALED

1. A judgment / final order of the Municipal Trial Court is


appealable to the Regional Trial Court exercising jurisdiction over
the area to which the Municipal Trial Court pertains.

2. In the appeal, the case title remains, but party appealing is


designated as appellant, while the adverse party is designated as
the party-appellee.741

WHEN CAN APPEAL BE TAKEN

1. 15 days after notice to the appellant. If record on appeal is


required 30 days after notice but the period can be interrupted by
a motion for reconsideration or for new trial, although no motion to
extend time for its filing is allowed. 742

2. Note the “fresh period rule” that is now applicable to an


appeal under Rule 40, Rule 41, Rule 43 and Rule 45, which allows
a party intending to appeal another 15 days from receipt of an
order denying a motion for reconsideration or new trial to file an
appeal 743

HOW IS APPEAL TAKEN

1. By notice of appeal indicating parties, judgment or final


order appealed from statement of the material dates showing
timeliness of the appeal.

2. By record on appeal, in special proceedings or cases allowing


for multiple appeals, like probate or partition. The record on appeal
shall contain the following:

a. Full name of the parties stated in the caption


including the judgment / final order from which
appeal is taken

b. In chronological order, copies of all pleadings,


petitions, motions, and all interlocutory orders as are
related to the appealed judgment / final order for
proper understanding of the issue.

c. Data to show that appeal was filed on time

d. If issue of fact is to be raised, it should include


reference the documentary evidence by exhibit taken
on the issue – specifying the documentary evidence by
exhibit nos. or letters and testimonial evidence by the
names of the witnesses. If the whole of it is included, a
statement to such effect is sufficient.
741
Supra, Section 1, Rule 40
742
Supra, Section 2, Rule 40
743
Neypes v Court of Appeals, GR 141524, September 14, 2005

144
744
e. If more than 20 pages include a subject index

3. Note that the requirement for a Approval of record on


appeal745 – the trial court may approve it, if no objection is filed by
the appellee – or upon its motion / appellee direct its amendment
by the inclusion of omitted matters which are deemed essential to
the determination of the issue of law or facts involved in the
appeal. If amendment is ordered, which the appellant must comply
with within the period stated, any extension or if none, within 10
days, submitting the redrafted record for the approval of the Court.
Where both parties are appellants, they may file a joint record on
appeal.746

4. Regardless of the mode of appeal, the adverse party is to be


furnished with a copy.

WHEN PERFECTED

1. Perfection is determined by Section 9, Rule 41:

1.1 If by notice of appeal, it is perfected upon the filing of


the notice in due time. The court loses jurisdiction
upon perfection and expiration of the time of appeal of
other parties.

1.2 If by record on appeal, it is perfected upon approval of


record on appeal filed in due time. Court loses
jurisdiction upon approval and expiration of time to
appeal of other parties.

2. In either case, prior to transmittal of the records, the court


may issue orders: (a) protection and preservation of the rights of
the parties not involving any matter litigated by the appeal (b)
approve compromises (c) permit appeals of indigent litigants (d)
order execution pending appeal (e) allow withdrawal of appeal. 747

2.1 This is power is known as “residual jurisdiction”. This


is also known as retained jurisdiction which is an
extension of the original jurisdiction of the court for
certain specific purposes after perfection of the appeal
but before transmittal of the records or record on
appeal.

3. In both cases, docket fees and other fees are also to be paid
to the clerk of court of the court that rendered judgment. Proof
payment of the same shall be transmitted to the appellant court
together with the records / record on appeal. 748
744
Supra, Section 6, Rule 41
745
Supra, Section 7, Rule 41
746
Supra, Section 8, Rule 41
747
Supra, Section 4, Rule 40
748
Supra, Section 5, Rule 40

145
3.1 Late payment of docket fees may be admitted when a
party shows a willingness to abide by the Rules by
immediately paying the docket fee six days after filing
a notice of appeal and beyond the period for perfecting
an appeal.749

3.2 Where delay in the payment of docket fee was not due
to a desire to delay or defeat the ends of justice, late
payment thereof which causes no prejudice to anyone
should not result in the dismissal of the appeal. 750

4. The record or record on appeal is transmitted by the clerk of


court within 15 days from perfection, together with transcripts /
exhibits, which he will certify as complete.

4.1 A copy of the transmittal shall be furnished the


parties.751

WHAT HAPPENS UPON TRANSMITTAL TO THE RTC

1. Within 15 days from notice, appellant shall submit a


memorandum briefly discussing errors imputed to the lower court,
copy furnished the adverse party. Within 15 days from receipt of
appellants’ memorandum, appellee may file his own memorandum.
Failure of appellant shall be ground for dismissal of the appeal.
Upon filing / expiration, the case is submitted for decision on the
basis of the record in Municipal Trial Court and the memoranda
submitted by the parties.752

2. When an appeal is taken from an order of the lower Court


dismissing the case without trial on the merits, the Regional Trial
Court may affirm or reverse it as the case may be:

2.1 In case it is affirmed and ground of dismissal is lack of


jurisdiction over the subject matter of the case, the
Regional Trial Court, if it has jurisdiction, shall try the
case on the merits as if the case was originally filed
with it. In case of reversal, it shall be remanded back
for further proceedings.

2.2 If it was tried on the merits, without jurisdiction, the


Regional Trial Court on appeal shall not dismiss the case if it
has original jurisdiction, but shall decide the case in
accordance with Section 7, without prejudice to the
admission of amended pleadings and additional evidence in
the interest of justice.753

749
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
750
Lopez v Court of Appeals, 75 SCRA 401
751
Supra, Section 6, Rule 40
752
Supra, Section 7, Rule 40
753
Supra, Section 8, Rule 40

146
RULE 41 – APPEALS FROM REGIONAL TRIAL COURTS

1. An appeal may be taken from a judgment /final order that


completely disposes of a case, or a particular matter therein when
declared by the Rules to be appealable but no appeal can be taken
from:

(a) Order denying a motion for new trial or reconsideration. An


appeal of judgment/final order is remedy or certiorari under Rule
65. Note that this has been omitted as of December 27, 2007754

(b) Order denying a petition for relief from judgment or similar


motion. Certiorari under Rule 65 is remedy

(c) Interlocutory order. Certiorari under Rule 65 or mandamus


is remedy

(d) Order disallowing or dismissing an appeal. Mandamus or


petition for relief from judgment is the remedy

(e) Order denying a motion to set aside judgment by consent


confession, compromise on the ground of fraud, mistake, duress or
any ground vitiating consent. A petition for relief or a petition to
annul judgment under Rule 47 or Certiorari under Rule 65 is the
remedy

(f) Order of execution. Certiorari under Rule 65 is the remedy

(g) Judgment / final order in separate claims, counterclaims,


cross claims – 3rd party claims, while main case is pending, unless
the court allows an appeal therefrom. The object is facilitate the
trial of all issues.

(h) Order dismissing an action without prejudice. The remedy is


to refile or certiorari under Rule 65.755

2. That declaration of presumptive death is not appealable by


the state or the other party.

2.1 Remedy of the spouse declared presumptively dead is


to file affidavit of reappearance.756

WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL


ORDER OF A REGIONAL TRIAL COURT757

1. Ordinary appeal refers to an appeal by notice of appeal of the


decision of the Regional Trial Court in cases decided in the exercise
of its original jurisdiction raising question of fact or mixed
questions of law and fact

1.1 The period of ordinary appeal is 15 days from notice of


judgment / final order appealed from. If requiring a
754
A.M. No. 07-7-12-SC
755
Supra, Section 1, Rule 41
756
Article 41, Family Code
757
Supra, Section 2, Rule 41

147
record on appeal, it is 30 days. Said periods are
interrupted by a motion for new trial or
reconsideration but no extension of time for their filing
is allowed. Note that in habeas corpus cases the period
is 48 hours from notice of judgment or final order 758
Note also the application of the “fresh period rule”.

1.2 Appellate court docket fees / lawful fees shall be paid


within the period for taking an appeal to the clerk of
court of the court that rendered judgment but failure
to pay is a ground for dismissal of the complaint759

1.3 If Appeal is by Notice of Appeal, it must indicate


parties, judgment or final order appealed from, and
include a statement of the material dates showing
timeliness of the appeal.760 or if by Record on Appeal it
must comply with the requirements as previously
discussed in an appeal from the Municipal Trial Court
to the Regional Trial Court.761

1.4 Perfection of Appeal is as discussed under Rule 40. 762


Subsequently, it is the duty of the clerk of court of the
lower court within 30 days after perfection of all
appeals to: (a) verify correctness of the original
record / record on appeal and make a certification as
to correctness (b) verify completeness of records
transmitted to appellate court (c) If incomplete, take
necessary measures as may be required to complete
the records, availing of the authority that he or the
court may exercise for this purpose. (d) transmit the
records to the appellate court. (e) then furnish parties
of his transmittal. 763

1.5 If efforts to complete fail, it shall be indicated in the


letter of transmittal which exhibits / transcripts are
not included, the reasons why they were not
transmitted and the steps taken to make them
available.

1.6 It is likewise required that the transcripts be


transcribed764 and that the transmittal to include proof
of payment of docket fees.

1.7 Prior to transmittal of record / record on appeal, the


court may motu propio or on motion to dismiss the
appeal for having been take out of time or for non
payment of docket and other lawful fees within the
reglementary period.765 If transmitted already, the
Court of Appeals may dismiss.
758
Supra, Section 3, Rule 41
759
Supra, Section 13, Rule 41
760
Supra, Section 5, Rule 41
761
Supra, Sections 6,7,8, Rule 41
762
Supra, Section 9, Rule 41
763
Supra, Section 10, Rule 41
764
Supra, Section 11 and 12, Rule 41
765
Supra, Section 13, Rule 41

148
1.8 Other procedural requirements and disposition of the
appeal are governed by Rule 44:

1.9 The title of the case shall remain, party appealing shall
be referred to as appellant / adverse party-appellee. 766
Counsel / guardians ad litem of parties shall likewise
be considered as such in Court of Appeals, when
others appear or are appointed, notice shall be filed
and furnished adverse parties.767

1.10 If the records are not transmitted to the Court of


Appeals within 30 days after perfection of the appeal,
either party may file a motion with the Regional Trial
Court, with notice to the other, for transmittal. 768

1.11 Upon receipt by the Court of Appeals, the clerk shall


docket the case and notify the parties. If appeal is by
record on appeal, within 10 days from receipt of
notice, appellant must file with the clerk of court 7
clearly legible copies of approved record on appeal and
proof of service thereof to adverse party of 2 copies.
Any unauthorized, alteration, omission or addition
shall be ground for dismissal of the appeal.769

1.12 The Clerk of the Court of Appeals should also


ascertain the completeness of the records. If
incomplete, he shall inform the court and recommend
measures to complete the record within the shortest
possible time but if it cannot be completed due to
insuperable or extremely difficult circumstances. The
court, on its own or upon motion, may declare the
record sufficient to decide issues and explain reason
for such declaration.770

1.13 Once done, Briefs are to be filed: (a) The Appellant’s


Brief must be filed within 45 days from notice that all
evidence, documentary / testimonial are attached to
the record, 7 copies of the brief are to be filed
attaching proof of service of 2 copies to adverse
party.771 Where there are several parties, each counsel
representing one or more but not all may be served
with 1 copy. If several counsels represent one party,
service may be made on any one of them.772 The
contents of the appellant’s brief are: (a) subject index
(b) assignment of errors (c) statement of the case (d)
statement of facts (e) statement of issues (f) arguments
(g) relief (f) if not by record on appeal, an appendix,
copy of judgment / final order appealed. 773
766
Supra, Section 1, Rule 44
767
Supra, Section 2, Rule 44
768
Supra, Section 3, Rule 44
769
Supra, Section 4, Rule 44
770
Supra, Sections 4 and 5, Rule 44
771
Supra, Section 7, Rule 44
772
Supra, Section 11, Rule 44
773
Supra, Section 13, Rule 44

149
1.14 The Appellee’s Brief is to be filed within 45 days from
receipt of Appellant’s Brief. It is required that 7 copies
be filed with proof of service of 2 copies on appellant.
The contents of the appellee’s brief are: (a) subject
index (b) statement of facts, either a statement of
acceptance or counter-statement of facts (c)
Arguments774

1.15 A Reply Brief may be filed by appellant within 20 days


from receipt of the Appellee’s Brief. 775 No extension of
time to file briefs is allowed except for good and
sufficient cause, and only if filed before expiration of
the time sought to be extended 776 In lieu of briefs,
memoranda may be required is required in certiorari,
prohibition, madamus, quo warranto, hebeas corpus
within a non-extendible period of 30 days from notice
that all evidence is attached to the record. Failure of
appellant to file his memoranda is ground to dismiss
the appeal.777

1.16 Questions of law or fact may be raised in the appeal,


whether or not a motion for new trial has been filed
and must within the issues framed by the parties. 778
As a rule, 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 his theory
on appeal. Points of law, theories, issues, and
arguments not brought to the attention of the lower
court need not be, and ordinarily not be, considered by
a reviewing court, as these cannot be raised for the
first time at such late stage. Basic considerations of
due process underlie this rule.779

1.17 In Criminal Cases, note the possibility of the filing of


two notices of appeal when the penalty imposed by the
Regional Trial Court is life imprisonment or reclusion
perpetua, appeal is by notice to the Court of Appeals,
and by notice again to the Supreme Court. If the
penalty is death,it is automatically reviewed by the
Supreme Court, but such shall be made by the Court
of Appeals, which shall render judgment, then certify it
to the Supreme Court, who will then enter the same.780

2. Petition for Review is an appeal to the Court of Appeals of


judgment / final order of the Regional Trial Court in the exercise of
its appellate jurisdiction under Rule 42

774
Supra, Section 14, Rule 44
775
Supra, Section 9, Rule 44
776
Supra, Section 12, Rule 44
777
Supra, Section 10, Rule 44
778
Supra, Section 15, Rule 44
779
BPI v Leobrera, 416 SCRA 15
780
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004

150
2.1 It is initiated by the filing of a Verified Petition for
Review with the Court of Appeals, paying at the same
time to the Clerk of Court of Appeals the
corresponding docket fees and lawful fees, depositing
500 for costs, furnishing the Regional Trial Court and
adverse party with a copy of the Petition.

2.2 It is to be filed within 15 days from notice of decision


sought to be reviewed or denial of motion for new trial
or motion for reconsideration. Upon payment of docket
fees and deposit for costs and before the expiration of
the period, the Court of Appeals may grant an
extension of 15 days. No further extension can be
given unless for the most compelling reason, but in no
case to exceed 15 days. 781

2.3 FORM, CONTENTS, NUMBER OF COPIES. 7 copies


are to be filed, indicating the original copy intended for
the Court of Appeals containing (a)full names of
parties, without impleading the lower court / judges
(b)specific material dates indicating that it is filed on
time (c) statement of matters, issues, specification of
errors of fact / law and reasons / arguments relied
upon (d)accompanied by clearly legible duplicate
copies or true copies of judgment of the lower courts,
certified correct by Regional Trial Court clerk of court,
pleadings and other material portions supporting the
allegations of the petition (e) certification against
forum shopping / verification. NOTE: Failure to pay
fees or comply with the requirements shall be
sufficient ground for dismissal.782

2.4 The appeal is deemed PERFECTED upon timely filing


of the petition and payment of docket fees. The RTC
loses jurisdiction upon perfection of the appeal and
lapse of time to appeal by the other parties. The
Regional Trial Court continues to have RESIDUAL
JURISDICTION until the same has been given DUE
COURSE.783

2.5 Note that except in cases covered by the Rule on


Summary Procedure, appeal shall stay the judgment /
final order unless Court of Appeals or the Rules
provide otherwise

2.6 ONCE FILED, the Court of Appeals may: (a) Require


the respondent to file a comment, not a motion to
dismiss, within 10 days from notice (b)Dismiss the
petition if found to be patently without merit,
prosecuted manifestly for delay, or questions raised
therein are too unsubstantial to require
consideration.784
781
Supra, Section 1, Rule 42
782
Supra, Sections 2 and 3, Rule 41
783
Supra, Section 8, Rule 42
784
Supra, Section 4, Rule 42

151
2.7 The COMMENT should be filed in 7 copies,
accompanied by certified true copies of such
MATERIAL PORTIONS OF THE RECORD AND OTHER
SUPPORTING DOCUMENTS, stating: (a)Statement of
whether or not he accepts the statement of matters (b)
Point out the insufficiencies / inaccuracies (c)
State reasons why it should not be given due course.
Copy of which must be served on adverse party.785

2.8 A petition is given DUE COURSE when upon the filing


of the comment or expiration of the period to file; the
Court of Appeals finds PRIMA FACIE that the lower
court has committed an error of fact / law that will
warrant a reversal / dismissal. CONSEQUENTLY, the
Court of Appeals, if it deems necessary, will order the
elevation by the clerk of the Regional Trial Court of the
entire record within 15 days from notice. 786

2.9 IT IS SUBMITTED FOR DECISION after the filing of


last pleading or memorandum. Prior to that though,
the Court of Appeals may set it for oral argument / or
require memoranda to be submitted within a period of
15 days from notice.787

3. Appeal by Certiorari or Petition for Review on Certiorari


which should involve a pure question of law direct to the Supreme
Court under Rule 45

3.1 A Question of Law is one that requires interpretation


or application of a law, while a Question of Fact is one
that pertains to a resolution of a factual dispute.

3.2 There is a question of law in a given case when the


doubt or difference arises as to what the law is
pertaining to a state of acts, and there is a question of
fact when the doubt arises as to the truth or falsity of
alleged facts.788

3.3 This is initiated by the filing of a Verified Petition for


Review on Certiorari raising only questions of law. This
mode of appeal is available to question judgment /
resolutions of the Court of Appeals, the
Sandiganbayan, a Regional Trial Court, and other
Courts whenever authorized by law.789

3.4 The TIME FOR FILING is 15 days from notice of the


judgment, final / order, or resolution or of denial of
petitioner’s motion for new trial / reconsideration. On
motion and with full payment of docket fees and
deposit of costs, the Supreme Court on justifiable
785
Supra, Section 5, Rule 42
786
Supra, Section 6, Rule 41
787
Supra, Section 9, Rule 42
788
Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
789
Supra, Section 1, Rule 45

152
reason may grant an extension of 30 days within
which to file the petition.

Docket fees and proof of service of the petition on the


lower court and adverse party must accompany the
filing of the petition.790

3.5 18 copies of the petition are required to be filed,


indicating the original copy for the court. It should
contain: (a) full names of parties (petitioner /
respondent) without impleading court / judge (b)
indicate material dates (c) concise statements of the
matters involved and the reason / arguments relied
upon for the allowance of the petition (d) clearly legible
copies of judgment / final order / reconsideration or
certified true copy and other material portion
supporting the record (e) Certificate against forum
shopping and verification791

3.6 UPON FILING, the Supreme Court can:

(a) DISMISS – (1) for failure to comply with the


requirements regarding payment, proof of
service, contents and documents (2) on its own
initiative because it is without merit, prosecuted
for delay, or issues are too unsubstantial to
require consideration, OR

(b) ALLOW REVIEW, which is not a matter of right


but is discretionary, when there are special /
important reasons therefor: EXAMPLES- (1)
when the court a quo has decided a matter of
substance not therefore determined by the
Supreme Court or decided in a way not in
accord with the law or applicable decisions of
the Supreme Court (2) when court a quo has so
far departed from the accepted and usual course
judicial proceedings, or so far sanctioned such
departure by a lower court, as to call for an
exercise of the power of supervision.792

3.7. If given DUE COURSE, the Supreme Court can: (a)


Require elevation of the records / or specified portions
thereof within 15 days from notice 793 (b) Require filing
of pleadings, briefs, memoranda or documents as it
may deem necessary within periods / conditions it
may consider appropriate and impose sanctions for
non-filing / non-compliance or unauthorized filing.
This ALSO applies to a determination as to whether it
should be dismissed or denied.794 The RULE APPLIES
TO BOTH CIVIL / CRIMINAL ACTIONS, except in cases
790
Supra, Sections 2 and 3, Rule 45
791
Supra, Section 4, Rule 45
792
Supra, Sections 5 and 6, Rule 45
793
Supra, Section 8, Rule 45
794
Supra, Section 7, Rule 45

153
where penalty is death, reclusion perpetua / life
imprisonment.795

3.8 The exceptions to the general rule that only questions


of law may be raised in a petition for review are:(a)
when the conclusion is a finding grounded entirely on
speculation, surmises, or conjectures; (b) when the
inference made is manifestly mistaken, absurd, or
impossible; (c) where there is a grave abuse of
discretion; (d) when the judgment is based on a
misapprehension of facts; (e) when the findings of fact
are conflicting; (f) when the Court of Appeals, in
making its findings, went beyond the issue of the case
and the same is contrary to the admissions of both
appellant and appellee; (g) when the findings of the
Court of Appeals are contrary to those of the trial
courts; (h) when the findings of facts are conclusions
without citation of specific evidence on which they are
based; (i) when the facts set forth in the petition as
well as in the petitioner’s main and reply briefs are not
disputed by the respondents; (j) when the finding of
fact of the Court of Appeals is premised on the
supposed absence of evidence but is contradicted by
the evidence on record; and (k) 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. 796

4. By Petition for Review under Rule 43 in a case decided by


the Regional Trial Court sitting as a commercial court.797

4.1 Applies primarily to appeals from the Court of Tax


Appeals and other quasi-judicial agencies to the Court
of Appeals, but is not applicable to judgments / final
orders under the Labor Code.798

4.2 The appeal can include questions of fact, law or mixed


questions of law and fact.799

4.3 The appeal shall be taken within fifteen (15) days from
notice if the award, judgment, and final order of
resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of
the denial of the 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 payment of the
full amount of the docket fee before the expiration of
the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only
795
Supra, Section 9, Rule 45
796
Martinez v Court of Appeals, 358 SCRA 38
797
A.M. No. 04-9-07-SC, September 14, 2004
798
Supra, Sections 1 and 2, Rule 43
799
Supra, Section 3, Rule 43

154
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.800

4.4 All other procedural matters and requirements are


similar to a Petition for Review under Rule 42 EXCEPT
that an appeal under this Rule shall not stay the
award, judgment, final order or resolution unless the
Court of Appeals deems otherwise.801

4.6 In summary judicial proceedings under the Family


Code, there is no reglementary period within which to
perfect an appeal, precisely because judgments
rendered thereunder, by express provision of Section
247 of the Family Code, are immediately final and
executory.802 Appeal by notice of appeal is erroneous.
The Court of Appeals should have dismissed as it had
no jurisdiction to review on appeal. Per Justice
Panganiban, Certiorari under Rule 65 is the remedy of
the State.

PROCEDURE BEFORE THE COURT OF APPEALS

RULE 46 – ORIGINAL CASES FILED WITH THE COURT OF


APPEALS

1. Parties are to be designated as petitioner / respondent 803 and


is to apply to cases of Certiorari, Prohibition, Mandamus, Quo
Warranto and to petitions for annulment of judgment under Rule
47804

CONTENTS OF PETITION – FILING – EFFECTS OF NON


COMPLIANCE

1. Petitions filed before the Court of Appeals must contain the


following: (a) identification of the parties, a concise statement of
matters involved, the factual background of the case, and the
grounds relied upon for the relief prayed for (b)statement of
material dates, and in a Rule 65 Petition, material dates are dates
of notice of judgment or final order, when a motion for new trial or
reconsideration was filed, if any, and when notice of denial was
received (c) clearly legible duplicate originals or certified true copy
of the attachments (d)certification against forum shopping
(5)docket fees / deposit for cost.805

1.1 Failure to comply is sufficient ground for dismissal of


the petitions.

800
Supra, Section 4, Rule 43
801
Supra, Section 12, Rule 43
802
Republic v Bernardez-Lorino, 449 SCRA 57
803
Supra, Section 1, Rule 46
804
Supra, Section 2, Rule 46
805
Supra, Section 3, Rule 46

155
2. A certified true copy is one the certification of which is made
by the proper clerk of court or his duly authorized
representative.806

HOW DOES THE COURT ACQUIRE JURISIDICTION

1. Jurisdiction over the person or the respondent is acquired by


service of order or resolution indicating initial action on the
petition or voluntary submission to jurisdiction.807

ACTION TO BE TAKEN BY THE COURT OF APPEALS

1. The court may dismiss the petition outright with specific


reasons OR require the filing of a comment within 10 days from
notice.

1.1 Only pleadings required to be filed may be filed. Other


pleadings will require leave of court.808

2. If factual issues are to be resolved, the Court of Appeals can


conduct hearings or delegate reception of evidence on such issues
to any of its members or to an appropriate court / agency / office.
809

3. If comment is not filed, it may be decided on the basis of the


record without prejudice to any disciplinary action against
disobedient party.810

4. The court, if the petition is not dismissed outright:

4.1 Can call the parties / counsel to a preliminary


conference, the object of which is to : (a) consider
compromise agreements, except when case is not
allowed to be compromised (b) define, simplify and
clarify issues (c)formulate stipulation of facts and
admissions of documentary exhibits, limit the number
of witnesses in cases falling within its original
jurisdiction or those within its appellate jurisdiction
where a motion for new trial is granted on newly
discovered evidence (d) other matters that may aid in
prompt disposition of the case.811

4.2 Record of proceedings is made and a Resolution


embodying actions shall be issued812 which shall be
binding upon parties and control subsequent
proceedings unless within 5 days from notice, it can be
shown by valid cause why it should not be followed or

806
Paras v Baldado, 354 SCRA 141
807
Supra, Section 4, Rule 46
808
Supra, Section 5, Rule 46
809
Supra, Section 6, Rule 46
810
Supra, Section 7, Rule 46
811
Supra, Section 1, Rule 48
812
Supra, Section 2, Rule 48

156
there is need for modifications to prevent manifest
injustice813

4.3 At its own instance or by motion, to hear the parties in


oral argument on the merits of the case or on any
material incident and is limited to such matters as the
court may specify in its order or resolution.814

4.4 In the conduct of oral arguments, unless authorized,


only 1 counsel may argue for a party. Duration,
sequence and all related matters shall be as directed
by the Court.815

4.5 Motions are not set for hearing, and unless directed by
the court, no hearing or oral arguments shall be
allowed in support thereof. The adverse party may file
objections within 5 days from notice. Upon expiration
of the period, it is submitted for resolution.816

RULE 47-ANNULMENT OF JUDGMENT

1. Annulment of judgment covers judgments of the Regional


Trial Court 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 petitioner817

1.1 An important condition for the availment is that the


petitioner failed to move for new trial, or appeal from,
or file a petition for relief against, or take other
appropriate remedies through no fault attributable to
him.

1.2 If he failed to avail of the other remedies through his


own fault, he would then benefit from his inaction or
negligence.818

1.3 He must allege non availment of other remedies


through no fault of the petitioner, otherwise the
petition will be dismissed.819

1.4 Note that the correctness of the judgment is not in


issue in a petition for annulment of judgment.820

2. It is a remedy that may be availed of by those who are not


even parties to the judgment or to annul even judgments that have
been fully executed.821
813
Supra, Section 3, Rule 48
814
Supra, Section 1, Rule 49
815
Supra, Section 2, Rule 49
816
Supra, Section 3, Rule 49
817
Supra, Section 1, Rule 47
818
Manipor v Ricafort, 407 SCRA 298
819
Ancheta v Ancheta, 424 SCRA 725
820
Republic v Heirs of Sancho Magdato, 340 SCRA 115
821
Malolos v Dy, 325 SCRA 827

157
3. It is available only on grounds of: (a) Extrinsic Fraud but
only when it was not availed of or could have been availed of in a
motion for new trial or petition for relief or (b) Lack of Jurisdiction

3.1 There is extrinsic fraud when the unsuccessful party


had been prevented from exhibiting fully his case, by
fraud or deception practice upon him by his opponent,
as keeping him away from the court, or where the
defendant never had knowledge of the suit, being kept
in ignorance by the acts of the plaintiff. 822

4. The period for its filing if based on extrinsic fraud is within 4


years from its discovery, or if based on lack of jurisdiction before it
is barred by laches or estoppel.823

FILING / CONTENTS OF THE PETITION

1. Filing is by verified petition alleging therein with


particularity, the facts and the law relied upon for annulment as
well as supporting petitioner’s good and substantial cause of action
/ defense, as the case may be. Containing (a) certified true copy of
judgment / final order / resolution shall be attached to the original
copy intended for the court (b) affidavits of witnesses (c)
certification against forum shopping824

WHAT THE COURT OF APPEALS WILL DO UPON FILING

1. If no substantial merit, it will be dismissed outright with


specific reasons for such dismissal.

2. If prima facie merit be found, it shall be given due course


and summons shall be served on the respondent. If so, procedure
in ordinary civil cases shall be followed but reception may be
referred to a member of the Court or a Regional Trial Court
judge.825

EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT

1. It shall set aside the questioned judgment / final order /


resolution and render the same null and void, without prejudice to
the re-filing of the original action in the proper court .

1.1 However, where it is set aside by reason of extrinsic


fraud, the court on motion, may order the trial court to
try the case again as if a timely motion for new trial
has been granted therein.826

1.2 The prescriptive period for the re-filing of the original


action shall be deemed suspended from the filing of
such original action until finality of the judgment of
822
Leonardo v ST Best, 422 SCRA 347
823
Supra, Section 3, Rule 47
824
Supra, Section 4, Rule 47
825
Supra, Sections 5 and 6, Rule 47
826
Supra, Section 7, Rule 47

158
annulment. However, the prescriptive period is or shall
not be suspended where extrinsic fraud is attributable
to the plaintiff is original action.827

SCOPE OF RELIEF

1. It may include award of damages, attorney’s fees and other


relief. If already executed, restitution or other relief as justice /
equity may warrant.828

2. It also applies to a petition for annul the judgment of an


MTC but is to be filed with the RTC and treated as an ordinary civil
action.829

2.1 All sections except Section 5 pertaining to dismissal or


determination of prima facie merit shall apply.

RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF


APPEALS

1. In all cases that come before it, and besides on a finding that
the case is without merit, prosecuted for delay or issue is too
unsubstantial to merit consideration, on motion of the court or the
appellee, it may dismiss the petition on the basis of:

1.1 Failure of record on appeal to show on its face that


appeal was taken within period fixed by the Rules.

1.2 Failure to file notice of appeal or record on appeal


within period within the period prescribed by the
Rules.

1.3 Failure to pay docket fees as provided under Section 5,


Rule 40 and Section 4, Rule 41.

1.4 Unauthorized alterations, omissions, additions on


record on appeal as provided under Section 4, Rule 44

1.5 Failure of appellant to serve and file required number


briefs or memoranda within provided time by these
Rules

1.6 Absence of specific assignment of errors or page


references to the record as required by Section 13,
paragraphs(a),(c),(d), and (f) of Rule 44

1.7 Failure of appellant to take necessary steps for the


correction or completion of the records within time
limited by the Court

827
Supra, Section 8, Rule 47
828
Supra, Section 9, Rule 47
829
Supra, Section 10, Rule 47

159
1.8 Failure to appear at preliminary conference under Rule
48, or comply with orders, circulars or directives of the
Court without justifiable cause

1.9 The fact that order / judgment appealed from is not


appealable.830

DISMISSAL OF IMPROPER APPEAL

1. An appeal under Rule 41 from the Regional Trial Court to


the Court of Appeals raising only questions of law shall be
dismissed as issues purely of law are not reviewable by the Court
of Appeals

2. An appeal by notice of appeal instead of petition for review


from a Regional Trial Court exercising appellate jurisdiction shall
be dismissed

3. An appeal erroneously taken to Court of Appeals shall not be


transferred but shall be dismissed outright.831

WITHDRAWAL OF AN APPEAL

1. An appeal may be withdrawn as of right at any time before


the filing of the appellee’s brief.

1.1 Thereafter, only upon discretion of the Court.832

RULE 51 - JUDGMENT

WHEN SUBMITTED FOR JUDGMENT

1. In Ordinary Appeals:

1.1 Where no hearing on merits is held, upon filing of the


last pleading, brief, memoranda or expiration of period
to file.

1.2 Where a hearing is held, upon termination of hearing


or upon filing of the last pleading, memoranda as may
be required or permitted, or expiration of period to file

2. In Original Actions or Petitions for Review

2.1 Where no comment is filed, upon expiration of the


period to file comment

2.2 Where no hearing, same as 1.1

2.3 Where hearing is held, same as 1.2833

HOW JUDGMENT IS RENDERED


830
Supra, Section 1, Rule 50
831
Supra, Section 2, Rule 50
832
Supra, Section 3, Rule 50
833
Supra, Section 1, Rule 51

160
1. Judgment is rendered by members of the court who
participated in the deliberations on the merits before assignment
to a member for writing of the decision.834

2. Participation of all 3 justices shall be necessary at


deliberation and unanimous vote shall be required for
pronouncement. If not, the clerk shall enter the vote of dissenting
justices in the record. Thereafter, Chairman of the division refers it
to the Presiding Justice, who will designate 2 justices by raffle to
sit temporarily and to form a special division of five (5) justices.
The participation of all is required for deliberation. Concurrence of
majority is required for pronouncement. 835

2.1 Note that in rendering judgment, harmless errors or


those which do not affect the substantial rights of the
parties836 or errors that are not assigned will not be
considered unless they affect jurisdiction, validity of
judgment, and of proceedings.837

2.2 Harmless Error Doctrine means that any error or


defect which does not affect substantial rights will be
disregarded by the reviewing court or tribunal. It is
followed to deal with evidence improperly admitted
during trial wherein its damaging quality and impact
to the substantial rights of the litigant are examined. If
deemed slight and insignificant, the error is
disregarded.838 It is not a ground for granting of a new
trial or for setting aside, modifying, or disturbing a
judgment or final order unless the refusal appears to
the Court inconsistent with substantial justice.

3. Judgments of the Court of Appeals in the exercise of


appellate jurisdiction may affirm, reverse, or modify the judgment
or final order appealed from. It may also order or direct a new trial
to be held or that further proceedings be taken. 839 The decision
must state clearly and distinctly the findings of fact and
conclusions of law on which it is based, which may be contained in
the resolution itself or adopted from those set forth in the
judgment, final order appealed from.840

PROCEDURE AFTER JUDGMENT

1. After signing by the justices, it shall be delivered to the clerk


of court, who shall indicate thereon the date of promulgation and
cause true copies thereof to be served upon the parties or
counsel.841

834
Supra, Section 2, Rule 51
835
Supra, Section 3, Rule 51
836
Supra, Section 6, Rule 51
837
Supra, Section 8, Rule 51
838
People v Teehankee, 269 SCRA 54.
839
Supra, Section 4, Rule 51
840
Supra, Section 5, Rule 51
841
Supra, Section 9, Rule 51

161
2. If no appeal, or motion for new trial or reconsideration is
filed within the period, the judgment or final resolution shall be
entered in the book of Entries of Judgment. Judgment or final
resolution shall be deemed executory as of the date of entry. The
record shall contain the dispositive portion, signed by the clerk
with a statement that it is final and executory.842

3. Execution shall as a rule issue upon a motion in the proper


court upon its entry. In appealed cases, where the motion is filed
with the Court of Appeals at the time that it is in possession of the
original records or record on appeal, the resolution granting the
motion shall be transmitted to the lower court from which the case
originated, together with certified copy of the judgment to be
executed, with a directive to said court to issue the proper writ for
its enforcement. In original actions, the writ shall be accompanied
by a certified true copy of the entry of judgment and addressed to
appropriate officer for enforcement.843

RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE CA

1. Judgments of the Court of Appeals can be the subject of


reconsideration within fifteen (15) days from notice thereof, with
proof of service to the adverse party. 844

2. No second motion for reconsideration will be entertained. 845

3. It is to be resolved within sixty (60) days from submission for


resolution846 and while pending, shall stay the execution unless
for good reason, court directs otherwise.847

RULE 53- MOTION FOR NEW TRIAL

1. It can be filed at any time after appeal from the lower court
has been perfected and before the Court of Appeals loses
jurisdiction, 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 must be
accompanied by affidavits showing the facts constituting the
grounds and the newly discovered evidence.848

2. The Court of Appeals shall then consider the evidence and


that adduced at the trial, to determine if it will grant or refuse a
new trial, or make such order, with notice to both parties, as to the
taking of further testimony, either orally in court, by depositions,
or render such other judgment as ought to be rendered upon terms
it may deem just.849 If granted, the procedure shall be the same as
that granted by a Regional Trial Court.850
842
Supra, Section 10, Rule 51
843
Supra, Section 11, Rule 51
844
Supra, Section 1, Rule 52
845
Supra, Section 2, Rule 52
846
Supra, Section 3, Rule 52
847
Supra, Section 4, Rule 52
848
Supra, Section 1, Rule 53
849
Supra, Section 2, Rule 53
850
Supra, Section 4, Rule 53

162
2.1 Motion should be resolved within 90 days from the
date it is declared to be submitted.851

OTHER MATTERS

RULE 54 – INTERNAL BUSINESS

1. Allotment of cases shall be among the different divisions for


hearing and decision.

2. The Court of Appeals En Banc shall make proper orders or


rules to govern allotment, the constitution of such divisions, the
regular rotation of justices, filling of vacancies, and other matters.
Such will continue in force and repealed or altered by it or the
Supreme Court.852

3. A majority of the court shall constitute a quorum for


sessions en banc and a majority of the members present shall be
necessary to pass a resolution. Three members of a division shall
constitute a quorum for sessions of a division and the affirmative
vote of three members shall be necessary for pronouncement of
judgment/resolution, which shall be reached in consultation
among them before the writing of the opinion by any member of
the division.853

RULE 55 – PUBLICATION OF JUDGMENT/FINAL


ORDER/RESOLUTIONS

1. Judgments and Final Resolutions shall be published in the


Official Gazette and in the Reports officially authorized by the
Court, in the language originally written, together with a syllabi. If
not so published, a memoranda shall be made and published in
the like manner. 854
855
1.1 The publication is to be prepared by the Reporter.

1.2 Those of the Supreme Court are called Philippine


Reports, while those of the Court of Appeals are called
Court of Appeals Reports. 856

RULE 56 – PROCEDURE IN THE SUPREME COURT

ORIGINAL CASES

1. The cases cognizable by the Supreme Court are Certiorari,


Mandamus, Prohibition, Quo Warranto, Habeas Corpus,
Disciplinary Actions against members of the Judiciary and

851
Supra, Section 3, Rule 53
852
Supra, Section 1, Rule 54
853
Supra, Section 2, Rule 54
854
Supra, Section 1, Rule 55
855
Supra, Section 2, Rule 55
856
Supra, Section 3, Rule 55

163
Attorneys, Cases affecting Ambassadors, Public Ministers or
Consuls.857

2. In resolving the cases, applicable rules in the Court of


Appeals are also applicable in the Supreme Court.858

APPEALED CASES

1. The only mode of appeal to the Supreme Court is by Petition


for Review on Certiorari, except in criminal cases where the penalty
is death, reclusion perpetua, and life imprisonment 859

1.1 Except in appeal of criminal cases where penalty is


death, reclusion perpetua, life imprisonment, appeal
by Notice of Appeal, will be dismissed860

2. If by certiorari from the Regional Trial Court to the Supreme


Court, raising issues of fact may be referred to the Court of
Appeals for decision or appropriate action. Determination of the
Supreme Court as to whether or not there are issues of fact is
final.

3. All appealed cases shall be governed by and disposed of in


accordance with the applicable provisions of the Constitution, Rule
45 (Petition for Review on Certiorari) Rule 48 (Preliminary
Conference), Sections 1 (When submitted) 2 (Who renders
judgment) and 5 to 11 ( Form to Execution) Rule 51, Rule 52
(Motion for Reconsideration) and Rule 56. 861

GROUNDS FOR DISMISSAL OF AN APPEAL

1. An appeal may, motu propio or upon motion of respondent,


be dismissed on
a. failure to take appeal within the reglementary period
b. lack of merit
c. failure to pay docket and lawful fees
d. failure to comply with requirements of proof of service
and documents
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
g. that it is not appealable to the Supreme Court862

IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR


NECESSARY MAJORITY CANNOT BE OBTAINED

857
Supra, Section 1, Rule 56
858
Supra, Section 2, Rule 56
859
Supra, Section 3, Rule 56
860
Supra, Section 6, Rule 56
861
Supra, Section 4, Rule 56
862
Supra, Section 5, Rule 56

164
1. It will be deliberated further. If after deliberation, no decision
is reached, the original action commenced in the court shall be
dismissed. If appealed, it shall stand affirmed. If on incidental
matters, it shall be denied.863

PROVISIONAL REMEDIES

PRELIMINARIES

1. Provisional Remedies are temporary, auxiliary and ancillary


remedies available to a litigant for the protection and preservation
of his rights pending the main action.

1.1 They are issued in the form of writs or processes and


they presuppose the existence of a principal action,
although the remedies of Injunction, Receivership and
Replevin have been allowed to exist as principal
actions in proper cases.

1.2 These remedies are to be granted by the court where


the principal action is pending. Hence, an MTC has
the power to grant a provisional remedy. The exception
being support pendente lite in an action for support as
this is incapable of pecuniary estimation and is thus
only within the jurisdiction of an RTC.

2. The purpose for resort to provisional remedies are: (a)


preserve and protect rights or interests while the main action is
pending (b) secure the judgment (c) preserve the status quo (d)
preserve the subject matter of the action.

3. The enumeration of provisional remedies is not exclusive as


there is jurisprudence to allow the court to exercise its equity
jurisdiction when the law is silent, obscure or insufficient.
Examples are the grant of visitation rights or temporary custody of
a child864or deposit of amount paid in an action for rescission to
prevent its dissipation.865

RULE 57 – PRELIMINARY ATTACHMENT

Rule 57 does not provide any lifetime for a writ of preliminary


attachment unlike a writ of execution (See: Roque vs. CA, 93 SCRA
540). What the law provides are enforcing the writ without delay
and making sheriff’s return thereon without delay.
Preliminary attachment shall be discharged in any of the following
instances:
1. property attached is exempt from execution, hence, it
is also exempt from preliminary attachment (Sections
2 and 5, Rule 57);
2. applicant has made cash deposit or filed counter bond
in court (Section 12, Rule 57);
3. attachment was improperly or irregularly issued or
enforced (Section 13, Rule 57);
863
Supra, Section 7, Rule 56
864
Tan v Adre, 450 SCRA 145
865
Reyes v Lim, 408 SCRA 560

165
4. attachment bond is insufficient (Section 13, Rule 57);
5. attachment affidavit is defective (Section 13, Rule 57);
6. attachment is excessive, but discharge is limited to the
excess (Section 13, Rule 57); and
7. judgment in the main case is rendered against the
attaching party (Section 19, Rule 57)
When the preliminary attachment is issued upon a
ground which is at the same time the applicant’s
cause of action: ie., an action against a party who has
been guilty of fraud in contracting the debt or
incurring the obligation upon which the action is
brought, the only way it can be dissolved is by a
counter-bond. (FCY Const., Group Inc. vs. CA, 324
SCRA 270)

The merits of the complaint are not triable in a motion to discharge


an attachment. (CBTC vs. CA, 197 SCRA 663)

WHAT IS PRELIMINARY ATTACHMENT

1. It is a provisional remedy issued upon order of the court


where the action is pending to levy upon the properties of the
defendant therein, the same to be held thereafter by the sheriff as
security for the satisfaction of whatever judgment might be
rendered in favor of the attaching creditor.

2. It can also extend to property of the defendant in the hands


of 3 persons or money owed by 3rd persons to the defendant. This
rd

is also known as garnishment.

3. If judgment has become final and executory, there is a final


attachment which is also known as Levy on Execution

4. It can be availed of at any time before entry of judgment.

DISTINCTIONS BETWEEN PRELIMINARY ATTACHMENT AND


GARNISHMENT

1. In Preliminary Attachment there are two parties, the plaintiff


or proper party and the defendant, while in Garnishment, there is
an additional party in the person of the garnishee. In the former,
property is actually seized and a lien is created thereon, while in
the latter, there is no actual seizure.

GROUNDS FOR ATTACHMENT

1. Action for recovery of money or damages other than moral /


exemplary, on a cause of action that arise from law, contract, quasi
– contract, delict, or quasi-delict against a party who is about to
depart from the Philippines with intent to defraud creditors.

1.1 It is required that the movant be able to show that the


defendant is about to depart from the Philippines with
intent to defraud creditors.866

866
K.O. Glass Construction Co. Inc. v. Valenzuela, 116 SCRA 563

166
1.2 It cannot issue when the amount of money or damages
is not specified.867

2. Action for money or property embezzled or fraudulently


misapplied or converted to his own use by a public officer, an
officer of a corporation, or an attorney, factor, broker, agent or
clerk in the course of his employment as such, or by any person in
a fiduciary capacity, or for willful violation of such duty.

2.1 Examples are when an officer of a corporation who has


control of its funds will utilize the same for his
personal use or when a person appropriates the entire
property knowing that a portion thereof does not
belong to him.

3. Action to recover 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 authorized
person.

3.1 The property referred to may be either real or personal


property.

3.2 Distinguishing it from replevin: the object is to attach


real or personal property belonging to the defendant to
secure satisfaction of his judgment for recovery, while
in replevin, the object of the movant is the recovery of
his own property.

4. Action against a party guilty of fraud in contracting the debt


or incurring the obligation upon which the action is brought or in
the performance thereof.

4.1 The fraud should be committed either upon


contracting the debt or incurring the obligation sued
upon or in the performance thereof. A debt is
fraudulently contracted if at the time of contracting it,
the debtor has a preconceived plan or intention not to
pay.868

5. Action against a party who has removed or disposed of his


property, or is about to do so, with intent to defraud creditors.

5.1 Mere removal or disposition, by itself, is not ground


for the issuance of a writ of preliminary attachment,
notwithstanding the insolvency of the defendant or the
absence of security for the satisfaction of any
judgment is alleged against the defendant.869

5.2 Where fraudulent disposal is put in issue, the parties


should be given the opportunity to prove their claims,
867
Peregrina v Panis, 133 SCRA 71
868
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
869
Peoples Bank and Trust Company v Syvel’s Incorporated, 164 SCRA 247

167
or at the very least, the defendant should be given the
chance to show that he has not been disposing of his
property in fraud of creditors.870

6. Action against a party who does not reside and is not found
in the Philippines or on whom summons may be served by
publication.871

HOW APPLIED FOR

1. Generally, by motion or is incorporated in the complaint,


accompanied by an affidavit, containing the following: (a) It is
executed by the applicant / or some person who is aware or
personally knows the facts (b) A sufficient cause of action exists
(c) That a ground/s as stated in Section 1 exists (d) There is no
other sufficient security for the claim sought to be enforced by the
action (e) The amount due the applicant or value of the property
that he is entitled to recover, is as much as the sum for which the
Order is granted, above all legal counterclaims872

1.1 An ordinary creditor appointed as administratror of


the estate of the deceased cannot file a petition for
preliminary attachment as that would constitute him
as a preferred creditor.873

2. A bond must then be executed to the adverse party in the


amount fixed by the court, conditioned that the latter will pay all
costs which may be adjudged and all damages sustained by reason
of the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto.874

WHEN ISSUED / BY WHOM

1. Either ex parte or on motion with notice and hearing, by the


court in which
action is pending, by the Court of Appeals or the Supreme Court
and must require the Sheriff 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 claim unless
the other party makes a deposit or gives a bond in an amount
equal to that fixed in the order, exclusive of costs.

1.1 Several writs may be issued at the same time to the


sheriffs of the courts of different judicial regions.875

2. It is issued ex-parte when the ground is justified further by


the fact that the defendant might abscond or dispose of his
property before the writ is issued. It can take place even before he
is summoned but note that it cannot be enforced unless it is
preceded or contemporaneously accompanied by service of

870
Adlawan v. Torres, 233 SCRA 645
871
Supra, Section 1, Rule 57
872
Supra, Section 3, Rule 57
873
Gruenberg v Court of Appeals, 138 SCRA 471
874
Supra, Section 4, Rule 57
875
Supra, Section 2, Rule 57

168
summons, together with complaint, application for attachment,
affidavit, bond, order and the writ itself.

2.1 This is the Prior or Contemporaneous Rule.

2.2 Note that an Alias Summons belatedly filed cannot be


deemed to have cured the fatal defect in the
enforcement of the writ of preliminary attachment.876

2.3 The prior or contemporaneous rule does not apply


when: (a) Summons could not be served personally or
by substituted service despite diligent efforts (b)
Defendant is a resident but temporarily out of the
PhiIippines (c) Defendant is a non-resident of the
Philippines (d) It is an action in rem or quasi in rem

BY WHOM / HOW ENFORCED

1. By the sheriff, without delay and with all reasonable


diligence

1.1 Note that Rule 57 does not provide any lifetime for a
writ of preliminary attachment unlike a writ of
execution. 877 What the law provides for are the
enforcement of the writ without delay and making
sheriff’s return thereon without delay.

2. He may attach only such property not exempt from


execution, as may be sufficient to satisfy the demand unless the
defendant makes a deposit or gives a counter bond in an amount
equal to the bond fixed by the court or to the value of the property
attached. 878

2.1 Note that the attachment shall proceed nevertheless


until there have been proceedings undertaken to
discharge the attachment. If found to be insufficient /
or is not filed, a new order of attachment may be
applied for.879

3. Attachment should be in accordance with the following:

(a) If real property, it requires the filing with the Office of the
Register of Deeds of a copy of the order together with notice that
property or interest therein is attached.

(b) If personal property capable of manual delivery taking it and


safely keeping it in custody after issuance of proper receipt.

(c) If stocks / shares / interest in companies, by leaving with


the president or managing agent a copy of the writ and notice.

876
Mangila v Court of Appeals, 387 SCRA 162
877
Roque v Court of Appeals, 93 SCRA 540
878
Supra, Section 5, Rule 57
879
Supra, Section 12, Rule 57

169
(d) If debts, credits, bank deposits and other like personal
properties not capable of manual delivery – leaving with such
persons owing debt, holding credits or in possession a copy of the
writ and notice.

(e) If interest is in the estate of a decedent, by virtue of his being


an heir, legatee, or devisee, by serving the writ / notice on executor
or administrator.

(f) If in custodia legis – copy of writ is filed if the proper court or


quasi-judicial agency and notice served on the custodian of the
property. 880

3.1 Effect of attachment of debts, credits and similar


personal property – persons who have them are liable
to the applicant for the amount of such credits until
the attachment is discharged, judgment is satisfied or
debts are paid881

3.2 Effect if on property belonging the estate of the


decedent, it will not impair the powers of the
executor / administrator or representative – BUT they
shall report the attachment to the court when any
petition for distribution is filed – and in the order
made upon such petition – the property may be
awarded to the heir / legatee / devisee , but the
property attached shall be delivered to the sheriff,
subject to the claim of the heir, legatee, devisee or
person claiming under him.882

3.3 There can also be an examination of the listed persons


to determine if there are properties in their possession
that may be attached.883

4. Sheriff shall also make a return without delay, containing a


full statement of his proceedings under the writ and a complete
inventory of property attached, together with a copy of a counter-
bond if one has been filed, furnishing copies thereof on the
applicant.884

5. Property is to be held and disposed of in the following


manner:

5.1 If judgment is recovered by the attaching party

(a) Paying to obligee proceeds of all sales of


perishable property or others sold pursuant to
order of the court as shall be necessary to
satisfy the judgment.

880
Supra, Section 7, Rule 57
881
Supra, Section 8, Rule 57
882
Supra, Section 9, Rule 57
883
Supra, Section 10, Rule 57
884
Supra, Section 6, Rule 57

170
(b) If there is a balance, selling so much of the real
or personal property as may be necessary to
satisfy the balance, if enough for that purpose,
remains in the hands of the sheriff or clerk of
court. Note that there can be an EARLY SALE if
it is made to appear to the court in which the
action is pending that the property attached is
perishable, or that the interest of all the parties
to the action will be subserved by the sale of the
properties at public auction, the proceeds to be
deposited with the court to abide the
judgment.885

(c) Collecting from all persons having in their


possession credits belonging to the obligor or
debts due him

(d) If there be a balance, he proceeds to collect as


upon ordinary execution. If there be a surplus, it
must be returned.

(e) If judgment becomes executory, the surety/ies


shall become charged on the counter-bond and
bound to pay the judgment obligee upon
demand, the amount due on the judgment,
which amount can be recovered after notice and
summary hearing in the same action.886

(f) If money was deposited in lieu of a bond, it is


applied under direction of the Court and if
judgment is against attaching party, the whole
sum deposited is refunded. 887

A Report or Return of all proceedings must be


filed with the court and copies furnished all
parties.888

5.2 If judgment is for adverse party –

(a) All proceeds of sales or money collected by the


sheriff and property attached shall be delivered
to the party whose properties were attached and
the order of attachment discharged.

(b) Claim for damages before trial, perfection of


appeal, or judgment becomes executory, with
due notice to the attaching party and surety
setting forth the facts showing his right to
damages in instances where there is improper,
irregular or excessive attachment, are to be
awarded after hearing and is to be included in
the judgment in the main case.
885
Supra, Section 11, Rule 57
886
Supra, Section 17, Rule 57
887
Supra, Section 18, Rule 57
888
Supra, Section 15, Rule 57

171
(c) If the judgment favorable to him is rendered by
the appellate court, he must claim the damages
during the pendency of the appeal by filing the
application in the appellate court, before the
judgment becomes executory. The appellate
court may allow the application to be heard and
decided by the trial court.

(d) Nothing, likewise, prevents the party against


whom attachment is 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 be insufficient.889

WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES


ARE ATTACHED

1. Discharge the attachment by making a cash deposit or


counter bond.890 Note that bond may be subject to recovery by
attaching party;

1.1 A motion to discharge / dissolve is not allowed if the


preliminary attachment is issued on a ground which is
at the same time the applicant’s cause of action as
that is tantamount to a trial on the merits. Example:
action for money, property embezzled, party guilty of
fraud in incurring the obligation

2. Discharge or set aside the attachment on the ground that it


was improperly issued or irregularly enforced, or bond is
insufficient or what has been attached is excessive, the discharge
is only for the excess.891

3. Claim for damages on account of improper, irregular, or


excessive attachment. 892

WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON

1. Claim is to be initiated by affidavit.

1.1 Upon filing, the sheriff not under obligation to keep the
property, unless attaching party files a bond.

1.2 No claim for damages for the taking or keeping of the


property may be filed / enforced against the bond
unless the action is filed within 120 days from date of
the filing of the bond. 893

889
Supra, Section 20, Rule 57
890
Supra, Section 12, Rule 57
891
Supra, Section 13, Rule 57
892
Supra, Section 20, Rule 57
893
Supra, Section 14, Rule 57

172
RULE 58 – PRELIMINARY INJUNCTION

1. A Preliminary Injunction is an order granted at any stage of


an action or proceeding prior to judgment or final order, requiring
a party or a court, agency, person to refrain from a particular act
or acts. It may also require the performance of an act, if such it is
called a preliminary mandatory injunction. 894

2. Note that Injunction may also exist as a cause of action. This


is best illustrated by the appropriate remedies for obligations to do
or not to do. Obligations to do, the remedy are specific
performance. Obligation not to do, remedy is injunction.

2.1 An example is that provided for by Article 26 of the


Civil Code that allows an injunction against one prying
into the privacy of another residence, meddling with or
disturbing the private life or family relations of another
or the enforcement of an easement of light and view.

PRIMARY PURPOSE OF INJUNCTION

1. Is to preserve the status quo or the last actual, peaceable,


uncontested status which precedes the pending controversy.

WHO MAY GRANT

1. Court where the action is pending. If pending in the Court of


Appeals or the Supreme Court, it may be issued by the Court or
any member thereof.895

GROUNDS FOR ISSUANCE

1. The applicant is entitled to the relief demanded, and the


whole or part of the relief consists in restraining the commission /
continuance of the act/s complained of, or in requiring the
performance of an act/s, for a limited period or perpetually.

2. The commission / continuance / non performance of the


act/s during litigation will probably work injustice to the applicant,
or

3. 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/s in violation of the rights of the applicant respecting the
subject of the action and tending to render judgment ineffectual. 896

REQUISITES FOR ISSUANCE OF AN INJUNCTION

1. The requisites are: (a) Existence of a right to be protected,


and (b) Acts against which the injunction is to be directed are
violative of the right

894
Supra, Section 1, Rule 58
895
Supra, Section 2, Rule 58
896
Supra, Section 3, Rule 58

173
2. These must clearly appear in the allegations in the
complaint, otherwise, it may be ground for its outright denial for
insufficiency, which is apparent in the application itself or if
already granted, may be dissolved.897

MAY IT BE ISSUED EX-PARTE

1. As a general rule, the issuance requires (a) a hearing (b)


reception of evidence with opportunity to cross (c) finding that
prohibited acts are threatened to be committed or that irreparable
injury would be inflicted upon the applicant.

2. If great/irreparable injury would result before then the Court


by way of an exception on non ex-parte issuance (a) can issue a
Temporary Restraining Order for 20 days after a summary hearing
or If it is of extreme urgency, it may issue ex-parte a 72 hour
Temporary Restraining Order, within which period a summary
hearing to determine whether or not the same is to be extended for
the full 20 day period must be held.

2.1 Note that within the 20 day effectivity period of the


Temporary Restraining Order, the court must order
the party or person to show cause why the injunction
should not be granted, determine also whether or not
the preliminary injunction should be granted, and
accordingly issue the order. 898

2.2 The lifetime of a Temporary Restraining Order is 20


days if issued by a trial court, 60 days if issued by the
Court of Appeals, and until further orders if issued by
the Supreme Court. Note that when the trial court
omits to state a period, the 20 day period is deemed
incorporated in the order.899

2.3 A second Temporary Restraining Order issued by the


Court of Appeals after the expiration of the first period
is a patent nullity.900

3. A status quo order is not a temporary restraining order. It is


more in the nature of a cease and desist order, has no specified
duration and does not specifically direct the performance of an act.
It lasts until revoked, may be the subject of an agreement, and
does not require the posting of a bond.

HOW OBTAINED

1. A preliminary injunction or temporary restraining order is


obtained upon (a) filing of a verified application showing facts
entitling the applicant to the relief demanded, (b) unless exempted,
filing of a bond in an amount fixed by the court, to the effect that
applicant will pay all damages that may be sustained if the court
should finally decide that applicant was not entitled thereto (c) if
897
Supra, Section 6, Rule 58
898
Supra, Section 5, Rule 58
899
Bacolod City Water District v Labayen, 446 SCRA 110
900
Padilla v Asuncion, AM No. 06-44-CA-J, March 20, 2007

174
included in a complaint / initiatory pleading it shall be raffled only
after notice to and in the presence of the adverse party.

2. In any event, notice shall be preceeded by or


contemporaneously accompanied by service of summons, together
with affidavit and bond but such will not be applicable if
defendant / adverse party cannot be served personally /
substituted service, is temporarily absent or is a non-resident.

3. The matter shall thereafter be acted upon only after all


parties are heard in a summary hearing, conducted within 24
hours after sheriff’s return of service.901

WHEN INJUNCTION WILL NOT ISSUE

1. Under BP Blg. 227 amending the Labor Code, a court cannot


grant injunctive relief in cases growing out of a labor dispute as
the said power is vested in the NLRC. An exception is when the
injunction is sought by a third person whose property is levied
upon to satisfy the liability of another.902

2. Under RA 8735 and PD 1818, injunction does not lie against


the execution or implementation of government infrastructure
programs, essential government projects, including arrastre 903

3. Under Section 55, RA 6657 of the Comprehensive Agrarian


Reform Law, injunction cannot issue against the Presidential
Agrarian Reform Council or any of the implementing agencies.

4. As against the Asset Privatization Trust as taken over by the


Privatization and Management Office of the Department of
Finance.904

5. As against a court of co-equal rank or decrees of a court with


concurrent or coordinate jurisdiction.905

6. As against quasi-judicial bodies of co-equal rank as an RTC


such as the Social Security System or the SEC

7. By the RTC as against the Intellectual Property Office,


Commission on Elections or Workmen’s Compensation
Commission

8. As against the collection of a national internal revenue tax,


fee or charge imposed by the NIRC 906 or the Commissioner of
Customs over seizure or forfeiture proceedings907

9. As against consummated acts or a judgment already


executed908
901
Supra, Section 4, Rule 58
902
Penalosa v Villanueva, 177 SCRA 78
903
Philippine Ports Authority v Pier 8 Arrastre and Stevedoring, 475 SCRA 426
904
Section 31-A, Proclamation 50-A, EO No. 323, 2000
905
Ching v Court of Appeals, 398 SCRA 88
906
Filipino Metals Corporation v Secretary, Trade and Industry, 463 SCRA 616
907
Zuno v Cabredo, 402 SCRA 75
908
PNB v Adi, 173 SCRA 550

175
10. To transfer possession or control over property when legal
title is still in dispute or when it has not yet been clearly
established or there is a lack of clear and unmistakable right on
the part of the applicant.909

11. To establish new relations between the parties910

12. When it disposes of the main case without trial as the grant
of injunctive relief assumes the proposition that petitioner must
prove.911

13. To restrain a criminal prosecution 912 except: (a) to afford


adequate protection to the constitutional rights of the accused; (b)
when necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions; (c) when double jeopardy is
clearly apparent; (d) where the charges are manifestly false and
motivated by the lust for vengeance; or (e) where there is clearly no
prima facie case against the accused and a motion to quash on
that ground has been denied.913

14. In applications for restraining order and injunction against


the foreclosure of a real estate mortgage on the ground that it has
been paid or not delinquent, unless it be verified and supported by
evidence of payment.

14.1 If on the allegation that interest is unconscionable, the


debtor must pay the mortgagee at least 12% per
annum on the principal obligation as stated in the
application for foreclosure, which shall be updated
monthly while the case is pending.

14.2 The bond shall be equal to the amount of the


outstanding debt, and the time for its effectivity shall
apply as well to a status quo order.

GROUNDS FOR OBJECTION / DISSOLUTION

1. The application may be denied or if granted, dissolved, upon


showing of insufficiency, or while entitled to an injunction, the
issuance or continuance thereof will cause irreparable damage to
the person enjoined while the applicant can be compensated for
the damages and a bond is filed or if it appears that extent is too
great, it may be modified. 914

2. It may also be dissolved on objection to the sufficiency of the


bond, or upon finding of insufficiency, the failure of surety to
justify or filing of a sufficient bond. If it the objection is to the bond

909
Cortez Estrada v Samut, 451 SCRA 275
910
Almeida v Court of Appeals, 448 SCRA 68
911
Levi Strauss v Clinton Apparelle, 470 SCRA 236
912
Andres v Cuevas, 460 SCRA 38
913
Roberts vs. CA, 254 SCRA 307; Brocka vs. Enrile, 192 SCRA 183
914
Supra, Section 6, Rule 58

176
of the party enjoined, the injunction shall be granted or restored.
915

JUDGMENTS OR ORDERS IN INJUNCTION

1. An order discharging an injunction is immediately effective.

2. A Final Injunction is granted if it appears that the applicant


is entitled to have the act/s permanently enjoined or confirming
the preliminary mandatory injunction.916

3. Judgments eventually rendered may include damages


against a party and sureties. 917

4. No injunction can issue against the acts of a co-equal court,


except in a 3rd party claim where claimant vindicates his right by a
separate action.

RESOLUTION OF THE MAIN CASE OR PETITION

1. The trial court, the Court of Appeals, the Sandiganbayan, or


the Court of Tax Appeals that issued the writ of preliminary
injunction against a lower court, board, officer or quasi-judicial
agency shall decide the main case or petition within a period of six
(6) months from the issuance of the writ.918

RULE 59 – RECEIVERSHIP

WHEN IS A RECEIVER APPOINTED

1. When it appears from a verified application, and as 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 as such
property / fund is in danger of being lost, removed or materially
injured unless a receiver be appointed to administer and preserve
it.

2. When it appears in an action by the mortgagee for the


foreclosure of mortgagee that the property is in danger of being
wasted, 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 mortgage contract.

3. When after judgment, to preserve the property during the


pendency of an appeal, or to dispose of it according to the
judgment, or to aid in execution when the execution is returned
unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment or otherwise carry the judgment into
effect.

915
Supra, Section 7, Rule 58
916
Supra, Section 9, Rule 58
917
Supra, Section 8, Rule 58
918
A.M. 07-7-12-SC

177
4. 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 property in litigation.

WHO APPOINTS A RECEIVER

1. The court where action is pending or the Court of Appeals,


the Supreme Court or a member thereof.

1.1 During appeal, the appellate court may allow the


application for the appointment to be filed in the court
of origin, which can also decide on the same to be
subject to the control of said court.919

2. A receiver of real or personal property, which is the subject


of the action, may be appointed by the court when it appears from
the pleadings or such other proof as the judge may require, that
the party applying for such appointment has:
(a) an actual interest in it, and (b) that such property is in danger
of being lost, removed, or materially injured; or whenever it
appears to be the most convenient and feasible means of
preserving or administering the property in litigation.920

3. A receiver is a person appointed by the court or by a quasi-


judicial administrative agency, in behalf of all the parties for the
purpose of preserving and conserving the property and preventing
its possible destruction or dissipation, if it were left in the
possession of any of the parties. It is the duty of the receiver to
administer the assets of the receivership estate; and in the
management and disposition of the property committed to his
possession, he acts in a fiduciary capacity and with impartiality
toward all interested persons.921

4. A receiver is not an agent or representative of any party to


the action.

4.1 He is an officer of the court exercising his functions in


the interest of neither plaintiff nor defendant, but for
the common benefit of al the parties in interest.

4.2 He performs his duties “subject to the control of the


Court,” and every question involved in the receivership
may be determined by the court taking cognizance of
the receivership proceedings.

4.3 Thus, unauthorized contracts of a receiver do not bind


the court in charge of receivership. They are the
receiver’s own contracts and not recognized by the
court as contracts of the receivership.922

WHAT ARE THE POWERS OF THE RECIEVER

919
Supra, Section 1, Rule 59
920
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
921
Arranza versus B.F. Homes, Inc., 333 SCRA 799
922
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564

178
1. Subject to the control of the court, a receiver can: (a) Bring
and defend actions in his own name (b)Take and keep possession
of the properties in controversy (c)To receive rent (d)Collect debts,
including power to compound and compromise them, to pay debts
(e)Make transfers (f) To divide money or other property (g)
Other acts as may be authorized by the court

2. Funds though may only be invested by order of the court


upon written consent of all parties. No action may be filed by or
against the receiver without leave of court to prevent
harassment.923

3. Should there be refusal / neglect to deliver property to a


receiver – it is punishable by contempt and shall be liable for the
money or value of the property, plus damages sustained as a
consequence of the refusal / neglect.924

HOW APPLIED FOR

1. By verified application.

1.1 More than 1 receiver may be applied for and appointed


by the court.

1.2 Note that receivership may be a principal action or an


ancillary remedy.

2. If application is granted – the receiver shall await the filing


by the applicant of a bond executed to the party against whom the
application is presented in an amount fixed by the Court to the
effect that the applicant will pay such party all damages that he
may sustain by reason of the appointment in case the same has
been procured without sufficient cause – and the court in its
discretion may require an additional bond to be filed as further
security for damages.925

3. The application may be denied or receiver discharged when


the adverse party files a bond executed to the applicant to the
effect that such party will pay to the applicant all damages he may
suffer by reason of acts, omissions or other matters specified as
grounds in the application.

3.1 It may also be discharged if it is shown that


appointment was obtained without sufficient cause.926

4. 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 amount fixed by the court, to the effect that he will
faithfully discharge his duties and obey orders from the Court.927

923
Supra, Section 6, Rule 59
924
Supra, Section 7, Rule 59
925
Supra, Section 2, Rule 59
926
Supra, Section 3, Rule 59
927
Supra, Section 4, Rule 59

179
5. Copies of bonds of the applicant and receiver or the adverse
party shall be served on each interested party – who may except to
its sufficiency or the surety. If found to be insufficient or is not
justified and a bond sufficient in amount and surety is not filed,
the application shall be denied and the receiver discharged. If
adverse party’s bond is the one excepted to or found insufficient,
the receiver shall be appointed or reappointed as the case may
be.928

WHEN TERMINATED

1. When the court, motu propio or upon motion, shall


determine that the necessity for a receiver no longer exists, it shall
alter due notice, settle all accounts, direct delivery of the funds /
property in his possession to the person adjudged to be entitled to
receive them and order the discharge of the receiver from further
duty.

2. He is to be allowed compensation as circumstances will


warrant to be taxed against defeated party or apportioned as
justice may require.929

3. Any judgment may include the amount, if any, to be


awarded any party upon any bond.930

RULE 60 – REPLEVIN

The lessor in a lease with option to purchase, in choosing through


replevin, to deprive the lessee of possession of the leased
equipment, waived its right to recover unpaid rentals on the said
leased items. The remedy provided by Article 1484 are alternative,
not cumulative.931

WHAT IS REPLEVIN

1. It is a form of a principal remedy and provisional remedy /


relief.

1.1 It is also a mixed action partly in rem as far as the


claim for recovery of personal property and in persona
as far as the claim of damages, the object of which is
recovery of possession of personal property applied for
at the commencement of the action or at any time
before answer by the party praying for recovery of
personal property.932

HOW APPLIED FOR

1. Filing of Affidavit containing the following: (a) that applicant


is the owner of the property claimed, particularly describing it, or
is entitled to possession of the same (b)that property is a
928
Supra, Section 5, Rule 59
929
Supra, Section 8, Rule 59
930
Supra, Section 9, Rule 59
931
PCI Leasing and Finance Inc v Giraffe X Creative Imaging, Inc, 527 SCRA 405,(July 12, 2007)
932
Supra, Section 1, Rule 60

180
wrongfully detained by the adverse party, alleging the cause of
detention according to the best of his knowledge, information or
belief (c) that property has not been distrained or taken for a tax
assessment or payment of fine or seized under execution,
preliminary attachment or in custodia legis, or if so seized, it is
exempt from seizure / custody (d) actual market value not the
probable value as declared by the applicant. Should there be a
dispute, it is to be resolved by the Court.

2. Filing of bond in double the value of the property – for return


of the property to the adverse party and payment of such sum as
he may recover from the applicant

3. Upon filing of the affidavit and bond, the writ of replevin


shall issue requiring the sheriff to forthwith take the property in
custody.933

3.1 In taking custody – if concealed, he may demand


delivery, if not delivered, he may cause the building /
enclosure to be broken.

3.2 Once in possession, it must be kept in a secure place


and shall be responsible for its delivery to the party
entitled thereto upon receipt of his fees and
expenses.934

REMEDIES FOR RETURN OF PROPERTY

1. Objection to the sufficiency of the bond / surety but he


cannot immediately require delivery or at any time before delivery
to the applicant, by filing a bond known as a redelivery bond
executed to the applicant in double the value of the property as
stated in the applicant’s affidavit.

MANNER OF DISPOSITION BY SHERIFF

1. If within 5 days after taking of the property, the adverse


party does not object to sufficiency of the bond / sureties or he
objects and the court affirms its approval of the bond or approves
a new bond or if he requires return but his bond is objected to
(adverse party) and he does not forthwith file an approved bond –
the sheriff shall deliver the property to the applicant, if for any
reason it is not delivered, it must be returned to the adverse
party.935

2. If claimed by a 3rd Party by affidavit, the sheriff is not bound


to keep and deliver the property unless applicant / agent on
demand of the sheriff files a bond approved by the Court to
indemnify the 3rd party claimant in a sum not less than the value
of the property under replevin.

2.1 In case of disagreement as to value, the court shall


determine the same.
933
Supra, Sections 2 and 3, Rule 60
934
Supra, Section 4, Rule 60
935
Supra, Section 6, Rule 60

181
2.2 Note that no action on the bond may be enforced
unless filed within 120 days from filing.

2.3 The sheriff shall not be liable for damages for the
taking and keeping of the property to any such 3 rd
party if the bond is filed. Nothing also prevents the 3 rd
party claimant or the applicant from vindicating their
rights or claims in the same action or in a separate
action.

2.4 If writ is issued in the name of RP, no bond is required


and the sheriff is to be represented by the Solicitor
General and damages so adjudged are paid out of the
National Treasury. 936

3. The sheriff must make return within 10 days after taking of


the property.937

4. The judgment shall include a determination who has a better


right of possession to and value of the property and render
judgment in the alternative for delivery thereof to the party entitled
or its value in case delivery cannot be made, and also for damages
as either party may prove, with costs.

4.1 Any amount awarded a party upon any bond shall be


claimed, ascertained and granted as provided by
Section 20 of Rule 57.938

5. A writ of replevin may be served anywhere in the Philippines.

RULE 61 – SUPPORT PENDENTE LITE

WHEN FILED AND HOW

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


at any time prior to a judgment or final order – a verified
application may be filed by a party stating the grounds for the
claim and the financial conditions of both parties, accompanied by
affidavits, depositions, or other authentic documents in support
thereof.939

2. It is also available in criminal cases when: (a) child is born to


offended party allegedly because of the crime (b) civil liability
arising from the criminal action includes support for the offspring
(c) civil aspect has not been waived, reserved or instituted prior to
filing of criminal action.

2.1 This application may be filed successively by the


offended party, her parents, grandparents, guardian or

936
Supra, Section 7, Rule 61
937
Supra, Section 8, Rule 61
938
Supra, Sections 9 and 10, Rule 61
939
Supra, Section 1, Rule 61

182
the State in the corresponding criminal case during its
pendency.940

PROCEDURE

1. Upon filing of verified application – it shall be served on the


adverse party, who shall have 5 days to comment unless a different
period is fixed by the court.

1.1 The comment shall also be verified and accompanied


by affidavits, depositions, authentic documents.941

2. Hearing shall then be conducted no more than 3 days after


comment is filed or the period expires.942

3. Court shall determine provisionally the pertinent facts and


render such orders as justice and equity may require, having due
regard to the probable outcome of the case and such other
circumstances.

3.1 If granted, it shall fix the amount of money to be


provisionally paid or such other forms or support as
should be provided – taking into account the
necessities of the applicant and resources or means of
the adverse party and the terms or mode for providing
support.

3.2 If denied, the principal case shall be tried and decided


as early as possible.943

HOW ENFORCED

1. If adverse party fails to comply, the court shall, motu propio


or on motion, issue an order of execution without prejudice to his
liability for contempt.

2. If support be paid by a 3rd person, after due notice and


hearing in the same case, he may obtain a writ of execution to
enforce his right of reimbursement against the person ordered to
provide support.944

RESTITUTION

1. If upon judgment / final order – The court finds that the


person who has been providing support is not liable therefor – it
shall order the recipient to return the amounts paid plus interest
from 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 support.

940
Supra, Section 6, Rule 61
941
Supra, Section 2, Rule 61
942
Supra, Section 3, Rule 61
943
Supra, Section 4, Rule 61
944
Supra, Section 5, Rule 61

183
1.1 Should the recipient fail to reimburse, the person who
provided the same, may, in a separate action, seek
reimbursement thereof from the person obliged to give
support.945

SPECIAL CIVIL ACTIONS

RULE 62 - INTERPLEADER

WHEN PROPER

1. 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 interplead and litigate their
several claims among themselves.946

2. Examples of when interpleader is proper: (a) where a


warehouseman is in custody of goods being claimed by two or
more persons who do not have the same interest, or (b) two or
more lessors are trying to collect from a lessee.

PROCEDURE:

1. Upon filing of the complaint, the court shall issue an order


requiring the conflicting claimants to interplead with one another.

1.1 If the interest of justice requires, it may order the


subject matter be paid or delivered to the court.947

2. Summons shall then issued to claimants, together with a


copy of the complaint and order.948

3. Within the time for the filing of an answer, motions to


dismiss may be filed, if denied the claimant must file an answer
within the period remaining but in no case less than 5 days.

3.1 If not, he may be declared in default and thereafter the


court may render judgment barring him from any
claim in respect of the subject matter.

3.2 They may also file counter-claims, cross-claims, 3 rd


party claims, and other responsive pleadings.949

4. After the pleadings of the conflicting claimants have been


filed, pre-trial conducted, the court shall proceed to determination
and adjudication of their respective claims. The docket and other
lawful fees paid by a party who filed the complaint, as well as costs

945
Supra, Section 7, Rule 61
946
Supra, Section 1, Rule 62
947
Supra, Section 2, Rule 62
948
Supra, Section 3, Rule 62
949
Supra, Sections 4 and 5, Rule 62

184
/ expenses of litigation shall constitute a lien or charge upon the
subject matter, unless the court orders otherwise.950

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

WHAT IS DECLARATORY RELIEF

1. It is a special civil action brought before the Regional Trial


Court only by a person interested in a deed, will, contract or other
written instrument, or whose rights are affected by a statute,
executive order, regulation or ordinance or any other government
regulation, before breach thereof, asking the court to determine
any question of construction or validity arising therefrom, and for a
declaration of his rights or duties thereunder.951

1.1 The list of what may properly be addressed by a


petition for declaratory relief is exclusive. Hence, an
action for declaratory relief to determine the import of
a judgment or to resolve doubts as to citizenship is not
proper.

1.2 Note that even if the subject is enumerated, the court


will refuse to act if the contract is clear and there is no
doubt as to its meaning as there is no need for
construction or a declaration of rights.

2. The similar remedies are the actions for reformation of


instruments, to quiet title or remove clouds therefrom, or to
consolidate ownership under Article 1607 of the Civil Code . They
may be brought as civil actions for declaratory relief.

3. Note that it can be brought only before a breach / violation


of the statute or instrument.

3.1 If already brought and a breach / violation is


committed before final termination, it is converted into
an ordinary civil action.

3.2 The parties may then file such pleading as may be


necessary or proper.952

WHO ARE THE ALLOWED PARTIES

1. All persons who have or claim an interest which would be


affected by the declaration shall be made parties and no
declaration shall as except as otherwise provided in these Rules
prejudice the rights of persons not parties to the action.

2. If involving validity of a statute, executive order, regulation,


or any other government regulation. The solicitor general shall be
notified and is entitled to be heard upon such question. 953

950
Supra, Sections 6 and 7, Rule 62
951
Supra, Section 1, Rule 63
952
Supra, Section 6, Rule 63
953
Supra, Section 3, Rule 63

185
3. If local government ordinance, the corresponding attorney /
prosecutor of the Local Government Unit shall be similarly notified
and heard. If alleged to be unconstitutional, the Solicitor General
shall be notified and heard.954

ACTION BY THE COURT

1. Except in actions falling under the 2 nd paragraph of Section


1, the court, motu propio, or on motion, may refuse to exercise the
power to declare rights and to construe instruments in any case
where a decision would not terminate the controversy or
uncertainty that gave rise to the action, or in any case, where the
declaration or construction is not necessary or proper under the
circumstances.955

RULE 64 – REVIEW OR JUDGMENTS / FINAL ORDER OF THE


COMELEC AND COA

1. A judgment / final order of COMELEC / COA is to be


brought by the aggrieved party to the Supreme Court under Rule
65 but the period for filing is 30 days from notice of the judgment
or final order sought to be reviewed.

1.1 This rule was promulgated by the Supreme Court to


implement Section 7 of Article IX-A of the 1987
Constitution which provides that any decision, order
or ruling of a constitutional commission may be
brought to it on certiorari within 30 days from receipt
of a copy thereof, having interpreted the same to refer
to a certiorari petition under Rule 65. However, if it
has for its subject an interlocutory order, it has been
submitted that the periods provided for under Rule 65
will prevail over that provided by Rule 64.

1.2 The filing of a motion for new trial / recon if allowed


under the procedural rules of the COMELEC / COA
will toll the period. If denied, the aggrieved party only
has the remaining period which is no case shall be less
than 5 days in any event, reckoned from notice of
denial.956

1.3 Note that only judgments/final orders of the


COMELEC en banc can be brought to the SC. What is
exercised is the power of review.

2. The bringing of a petition shall not stay the execution of the


judgment, final order or resolution unless directed otherwise by
the Supreme Court.957

RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS


954
Supra, Section 4, Rule 63
955
Supra, Section 5, Rule 63
956
Supra, Sections 1,2, and 3, Rule 64
957
Supra, Section 8, Rule 64

186
The exercise of judicial function is to determine what the law is,
and what the legal rights of paties are, with respect to a matter is
controversy; and whenever an officer is clothed with that authority,
and undertakes to determine those questions, he acts judicially.
(The Mun.Council of Lemery, Batangas vs. The Prov. Board of
Batangas, 56 PHIL. 260)

A quasi-judicial act or function is a judicial act or function


performed by one who is not a judge.
Without jurisdiction refers to lack of jurisdiction of the court,
board, or officer from the beginning.

Mandamus will lie:


a) in case any tribunal unlawfully neglects the performance of
an act which the law specifically enjoys as a duty;
b) in case any corporation, board or person unlawfully neglects
the performance of an act which the law enjoins as a duty
resulting from an office, trust, or station;
c) in case any tribunal, corporation, board or person unlawfully
excludes another from the use and enjoyment of a right or
office to which such other is legally entitled; and
d) there is no other plain, speedy and adequate remedy in the
ordinary course of law.

The legal right of the plaintiff (petitioner) to the thing demanded


must be well defined, clear and certain. The corresponding duty of
the defendant (respondent) to perform the required act must also
be clear and specific. (Enriquez, Jr. vs. Bidin, 47 SCRA 183).

Mandamus lies only to compel performance of a ministerial duty


but not to compel performance of a discretionary duty. (Calderon
vs. Sol. General, 215 SCRA 876)

The initial determination of what pleadings, documents or orders


are relevant and pertinent to the petition rests on the petitioner. 958

WHAT IS CERTIORARI

1. Special Civil Action against a tribunal board or officer


exercising judicial or quasi-judicial function which is alleged in a
verified petition filed by an aggrieved party to have acted without
jurisdiction or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.

1.1 There is no appeal, or any plain speedy and adequate


remedy in the ordinary course of law.

1.2 Praying for the judgment annulling / modifying the


proceedings of such, tribunal board officer, tribunal
and granting such incidental reliefs as law and justice
may require.959

958
Condes v Court of Appeals, 528 SCRA 339 (July 27, 2007)
959
Supra, Section 1, Rule 65

187
2. Certiorari may prosper notwithstanding the presence of an
appeal when: (a) public welfare and the advancement of public
policy dictate it (b) when the broader interest of justice requires it
(c) when the writs issued are null, (d) the questioned order
amounts to an oppressive exercise of judicial authority. 960

DISTINGUISHED FROM PETITION FOR REVIEW ON CERTIORARI

1. Certiorari as distinguished from a Petition for Review on


Certiorari:

(a) In the former, the issue is whether the lower


court acted without, in excess of or with grave
abuse of discretion, while in the latter the issue
is based on questions of law

(b) In the former, it is addresses an interlocutory


order prior to appeal of a judgment when there
is no appeal or any other speedy or adequate
remedy, while the latter involves a review of
judgment/final order/ resolution on the merits

(c) The former is filed within 15 days from notice of


judgment / order, while the latter is filed not
later than 60 days from notice of the resolution
sought to be assailed or denial of a motion for
reconsideration

(d) The former shall stay the judgment /final order


or award, while the latter does not stay the order
or resolution unless a temporary restraining
order or preliminary injunction is issued

(e) In the former, the petitioner/respondent are the


original parties in the case and the lower court
is not impleaded, while in the latter, the
aggrieved party is the petitioner against the
against the lower court, agency and the
prevailing party

(f) The former does not require the filing of a


motion for reconsideration prior to filing, while
the latter requires a motion for reconsideration
prior to filing

(g) In the former, the court is exercising appellate


jurisdiction, while in latter, it is exercising
original jurisdiction

(h) The former can only be filed in the Supreme


court, while the latter may be filed with Supreme
Court, Court of Appeals, or the Regional Trial
Court

960
Mallari vs. Banco Filipino Savings & Mortgage Bank, 563 SCRA 664, Leyte IV Electric
Cooperative, Inc. vs. Leyteco IV Employees Union, ALU, 537 SCRA 154

188
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR
RECONSIDERATION PRIOR TO FILING A PETITION FOR
CERTIORARI UNDER RULE 65

1. The exceptions are:


(a) order is a patent nullity – court a quo has no
jurisdiction
(b) questions have been raised in certiorari have been
duly raised and passed upon by lower court
(c) urgent necessity for resolution
(d) where a motion for reconsideration will be useless
(e) petitioner is deprived of due process, there is
extreme urgency for relief
(f) in criminal case, relief from order of arrest is
urgent, and grant of relief by trial court is not
probable
(g) proceedings in lower court are a nullity for lack of
due process
(h) issue is purely of law or where public interest is
involved.

WHAT IS PROHIBITION

1. Special civil action against a tribunal, corporation, board, or


person exercising judicial, quasi-judicial or ministerial function
which is alleged by an aggrieved party to be acting or about to act
without jurisdiction, in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction

1.1 There is no appeal or any plain, speedy and adequate


remedy in the ordinary course of the law

1.2 Praying that judgment be rendered commanding the


respondent to desist from further proceeding in the
action or proceeding therein or otherwise granting
such incidental reliefs as law and justice may
require.961

DISTINGUISHED FROM CERTIORARI

1. In certiorari the object is to correct the respondent’s acts by


annulling proceedings, while in prohibition it is to prevent the
commission of an act or stopping proceedings.

2. In the former, the assailed acts have already been done,


while in the latter the assailed acts are about to be done or are
being done.

961
Supra, Section 2, Rule 65

189
3. In the former, the respondent performs judicial or quasi-
judicial, while in the latter, the respondent performs judicial,
quasi-judicial functions or ministerial functions.

WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER

1. The exercise of judicial function is to determine what the law


is, and what the legal rights of parties are, with respect to a matter
is controversy; and whenever an office is clothed with that
authority, and undertakes to determine those questions, he acts
judicially.962

2. A quasi-judicial act or function is a judicial act or function


performed by one who is not a judge.

WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION

1. Capricious and whimsical exercise of judgment as may be


equivalent to lack or excess of jurisdiction.

WHAT IS MANDAMUS

1. It is a special civil action against a tribunal, corporation,


board, or officer alleged in a verified petition filed by an aggrieved
party to have unlawfully neglected the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust
or station, or unlawfully excluded another from the use and
enjoyment of a right or office to which such other is entitled.

1.1 There is no plain, speedy or adequate remedy in the


ordinary course of the law

1.2 Praying that judgment be rendered commanding the


respondent, immediately or at some other time
specified by the Court to do the act required to be done
to protect the rights of the petitioner, pay damages
sustained by reason of the wrongful acts.

2 ASPECTS OF MANDAMUS

1. The aspects of Mandamus are: (a) respondent unlawfully


neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station or (b)
respondent unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled.

2. The legal right of the plaintiff (petitioner) to the thing


demanded must be well defined, clear and certain. The
corresponding duty of the defendant (respondent) to perform the
required act must also be clear and specific. 963

3. Mandamus lies only to compel performance of a ministerial


duty but not to compel performance of a discretionary duty.964
962
Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
963
Enriquez, Jr v Bidin, 47 SCRA 183
964
Calderon v Sol, 215 SCRA 876

190
3.1 In granting mandamus, respondent is commanded to
perform the particular act or required to be done and
to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.

4. An act is ministerial when officer or tribunal performs in a


given state of facts, in a prescribed manner in obedience to the
mandate of a legal authority without regard to the exercise of his
own judgment. If given the authority to decide how and when, it is
discretionary.

5. Mandamus does not lie to correct / enforce contractual


obligations.

HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION

1. In Mandamus, the respondent is exercising ministerial power


and he has unlawfully neglected to perform it or excluded a party
from occupying or enjoying the privilege of an office to which he is
lawfully entitled and the object is to compel action.

2. In Certiorari, the respondent is exercising judicial or quasi-


judicial powers without jurisdiction or with grave abuse of
discretion amounting to an excess or lack of jurisdiction and the
object is to correct.

3. In prohibition , the respondent is exercising judicial, quasi-


judicial or ministerial powers and he is acting or about to act
without jurisdiction or with grave abuse of discretion amounting to
an excess or lack of jurisdiction, and the object is to prevent

WHEN MAY IT BE FILED

1. Not later than 60 days from notice of the assailed judgment,


order or resolution.

1.1 But if a timely motion for reconsideration is filed,


whether required or not, the 60 days period shall be
counted from notice of the denial of the motion.965
1.2 An extension may be granted for compelling reasons
but in no case to exceed 15 days.

WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF


APPEALS

1. The petition may be filed in the Supreme Court, the Regional


Trial Court if relates to an act / omission of a lower court,
corporation, board, officer or person within its territorial
jurisdiction, or the Sandiganbayan, if in aid of its appellate
jurisdiction

IT IS FILED WITH THE COURT OF APPEALS

965
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC

191
1. Whether or not in aid of its appellate jurisdiction, when it
involves acts / omissions of quasi-judicial body, unless otherwise
provided.

PARTIES TO BE IMPLEADED

1. In addition to the public respondents, the petition shall also


join the person/s interested in sustaining the proceedings and it
shall be the duty of the private respondent to appear and defend
both in his behalf and that of the public respondents.

1.1 If costs are awarded, it shall be against private


respondent only.

2. Unless otherwise directed by the court, the public


respondents shall not appear or file an answer or comment. If
elevated to a higher court the public respondents shall be nominal
parties, and unless directed shall not appear or participate in the
proceedings therein.966

ORDER TO COMMENT

1. If petition is sufficient in form or substance, a comment will


be required, not a motion to dismiss.967

1.1 Orders expediting proceedings / temporary restraining


order / injunctions for the preservation of the rights of
the parties may be issued but the filing of the petition
shall not interrupt the course of the principal case
unless a Temporary Restraining Order or Injunction is
granted enjoining the public respondent from further
proceeding.968

ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY

1. Court may hear or require filing of memoranda. If it finds the


allegations to be true, it shall render judgment for the relief prayed
for or to which petitioner is entitled.

2. It may also dismiss if patently without merit, prosecuted


manifestly for delay or issues are too unsubstantial to require
consideration.969

SERVICE / ENFORCEMENT OF JUDGMENT –

1. Certified copy of judgment shall be served in such manger as


the court may direct and disobedience thereto shall be punished as
contempt.

1.1 Execution may issue for any damages / cost in


accordance with Section 1, Rule 39.970
966
Supra, Section 5, Rule 65
967
Supra, Section 6, Rule 65
968
Supra, Section 7, Rule 65
969
Supra, Section 8, Rule 65
970
Supra, Section 9, Rule 65

192
RULE 66 -QUO WARRANTO

Quo warranto literally means “by what authority.” It is a special


civil action to determine the right to the use or exercise of public
office or franchise and to oust the holder from its enjoyment, if his
claim is not well founded, or if he has forfeited his right to enjoy
the privilege. The action may be commenced for the Government
by the Solicitor General or by a public prosecutor; or by a person
claiming to be entitled to a public office or public position usurped
or unlawfully held or exercised by another may bring an action in
his own name. Where a private person files the action, he must
prove that he is entitled to the controverted position, otherwise the
respondent has a right to the undisturbed possession of his office.
(See: Castro vs. Del Rosario, 19 SCRA 196; Tecson vs. Comelc, 424
SCRA 277)

DEFINED

1. Quo Warranto is a special civil action brought by verified


petition in the name of the Republic of the Philippines against: (a)
person who usurps, intrudes into or unlawfully holds or exercises
a public office, positions or franchise (b) public officer who
performs an act that constitutes a ground for forfeiture of his office
(c) an association that acts as a corporation within the Philippines
without legally being incorporated or without lawful authority to
act.971

2. It literally means “by what authority”. 972

WHO CAN BRING A QUO WARRANTO PROCEEDING

1. An individual can bring a quo warranto action in his name


when he is claiming to be entitled to a public office or position
usurped or exercised by another may bring an action. 973

2. A quo warranto action must be commenced by the Solicitor


General or Public Prosecutor when directed by the President or
upon complaint or otherwise he has good reason to believe that a
cause can be established by proof. 974 If by complaint, a request for
indemnity for expenses and costs may be required to be
deposited.975

WHERE ACTION IS BROUGHT

1. Besides the Court of Appeals, the action can be brought


before the Supreme Court, a Regional Trial Court exercising
jurisdiction over the area where the respondent/s reside but, if the
Solicitor General commences the action, he may bring it before a

971
Supra, Section 1, Rule 66
972
Tecson v Comelec, 424 SCRA 277
973
Supra, Section 5, Rule 66
974
Supra, Section 2, Rule 66
975
Supra, Section 3, Rule 66

193
Regional Trial Court in Manila, the Court of Appeals or the
Supreme Court.976

WHEN FILED

1. Within 1 year from accrual of the cause of action arising


from ouster or right to hold position

PARTIES AND CONTENTS OF PETITION

1. When the action is against the person for usurping a public


office, position or franchise, the petition shall set forth the name of
the person who claims to be entitled thereto; if any with an
averment of his right to the same and that the respondent is
unlawfully in possession thereof.

1.1 All persons who claim to be entitled may be made


parties, and their respective rights may be determined
in the same action.977

2. A reduction of time for pleadings and other proceedings may


be directed by the Court to secure the most expeditious
determination of the matters involved therein consistent with the
rights of the parties. It can also take precedence over other civil
matters pending before the Court.978

CONTENTS OF JUDGMENT

1. A judgment where the respondent is found guilty of


usurping, intruding into, or unlawfully holding or exercising a
public office, position or franchise shall state that he be ousted
and altogether excluded therefrom, and that the rights of the
petitioner or relator, meaning the real party in interest, be
determined as justice requires.979

1.1 It can also include a judgment for costs980

1.2 The rights of a person entitled to public office include


the right to demand of the respondent all books and
papers in his custody or control appertaining to the
office, otherwise he may be punished for contempt.981

2. Damages if recoverable must be in another action filed


within 1 year from entry of judgment.982

DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION


PROTEST

976
Supra, Section 7, Rule 66
977
Supra, Section 6, Rule 66
978
Supra, Section 8, Rule 66
979
Supra, Section 9, Rule 66
980
Supra, Section 12, Rule 66
981
Supra, Section 10, Rule 66
982
Supra, Sections 10 and 11, Rule 66

194
1. In Quo Warranto the issue is the disqualification /
ineligibility of the proclaimed candidate, in a Protest the issue is an
irregularity in the election.

2. If in the former, if the respondent is ineligible, the petitioner


does not occupy the position, while in the latter, the protestant can
occupy the position if he obtains a plurality of the votes.

DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF


POSITION

1. In quo warranto involving an elective post the issue is the


eligibility of candidate elected, while in that involving an appointive
post the issue is the legality of appointment.

2. In the former, if the respondent is found ineligible, the 2 nd


highest vote getter, even if eligible cannot be declared elected, while
in the latter, the resolution shall determine who has been legally
appointed and declare who is entitled to occupy the office.

RULE 67 – EXPROPRIATION

WHAT IS EXPROPRIATION

1. The taking of private property for public purpose upon the


payment of just compensation. It is also known as exercise of the
power of eminent domain.

2. Public purpose which will justify expropriation of property


generally means such activity which will serve as convenience,
safety, welfare, advantage, or benefit to the entire community, and
not to a particular individual, class or group of persons.

2.1 Public use is one which confers some benefit or


advantage to the public. It is not confined to actual
use by the public. It includes the right of use by the
public, whether it is exercised by one or some or many
members of the public.

2.2 Public use contemplates indirect public benefit or


advantage.983 It must be considered in its general
concept of meeting a public need or a public
exigency.984 At present, whatever may be beneficially
employed for the general welfare satisfies the
requirement of public use.985

3. The commencement of the action is necessary only when the


owner refuses to agree to sell his property or if he agrees to sell, he
is not amenable to the price.

HOW EXERCISED

983
Estate of Salud Jimenez v PEZA, 349 SCRA 240
984
Manosca v Court of Appeals, 252 SCRA 412
985
Reyes v NHA, 395 SCRA 494

195
1. Filing of a verified complaint which shall state with certainty
the right and the purpose of expropriation, describing the real /
personal property sought to be expropriated, joining as defendants
all persons claiming / owning or occupying any part thereof or
interest therein.

1.1 Note that the subject can be either real / personal


property.986

2. If a local government unit intends to exercise the power of


expropriation Section 19 of RA 7610 987, it must comply with the
following requisites: (a) An ordinance, not a resolution988 must be
enacted authorizing local chief executive to exercise the power of
eminent domain (b) the purpose is for public use, purpose or
welfare or for the benefit of the poor and landless (c)there is
payment of just compensation, and (d) a valid and definite offer
has previously been made to the owner but was not accepted.

WHERE FILED

1. Regional Trial Court, regardless of value as it is an action


which is incapable of pecuniary estimation.989

UPON FILING AND SERVICE OF SUMMONS

1. The defendant may file: (a) A Manifestation that he has


no objection or defense to the action, or (b) An Answer stating all
objections and defenses to the taking of the property.

1.1 No counterclaim, cross claim or 3 rd party complaint


shall be allowed in the answer or any subsequent
pleading.990

1.2 The non filing of an answer does not result in the


defendant being declared in default nor does it bar him
from presenting evidence as to the amount of
compensation due and to share in the distribution of
the award.

2. The plaintiff may upon making a deposit in or with an


authorized government depository of an amount equal to the
assessed value of the property for purposes of taxation may take
possession of the real property.

2.1 If it involves personal property, its value as


provisionally ascertained.991

2.2 Note that under Section 19 of the Local Government


Code, the LGU can take possession upon deposit with

986
Supra, Section 1, Rule 67
987
Local Government Code
988
Beluso v Muncipality of Panay, Capiz, GR No. 153974, August 7, 2006
989
Barangay San Roque v Heirs of Pastor, 334 SCRA 127
990
Supra, Section 3, Rule 67
991
Supra, Section 2, Rule 67

196
the court of fifteen (15%) percent of the Fair Market
Value based on the current tax declaration.

2.3 Under RA 8974,992 the government is required to make


immediate payment to the property owner upon filing
of the complaint equivalent to the market value as
stated in the current tax declaration or the zonal value
whichever is higher, plus the value of the
improvements using the replacement cost method.993

3. The case now proceeds to a determination of the authority of


the plaintiff to expropriate.

3.1 Thereafter, the court may dismiss the petition or issue


an order of expropriation or order of condemnation.

3.2 The order of expropriation is appealable but shall not


prevent the determination of just compensation.

3.3 Since the order of expropriation has been entered, the


plaintiff cannot dismiss or discontinue the case except
on terms that the court deems just and equitable.994

4. The right of plaintiff to enter into the property and


appropriate shall not be delayed by an appeal. However, if
appellate court determines that no right of expropriation exists, it
shall order the RTC to enforce restoration and determine the
damages that the defendant sustained.995

5. Just compensation is then determined by no more than 3


court appointed commissioners. If the Court accepts their report, it
will render judgment based thereon. Such judgment is also
appealable.996 The receipt by the defendant of the compensation
does not strip him of the right to appeal as the rules provide that
the plaintiff may execute its judgment as soon as it is obtained. 997

5.1 Just compensation is defined as the full and fair


equivalent of the property sought to be expropriated
considering the cost of acquisition, current value of
like properties, actual or potential uses and in case of
lands, their size, shape and location.998

5.2 As a rule, the just compensation to be determined is


that which obtains at the time of the taking of the
property or the filing of the action, whichever comes
first.999The rationale is that the owner must be
compensated only for what he actually loses,

992
An Act to Facilitate the Acquisition of a Right of Way Site for National Governement
Infrastructure Projects and Other Purposes
993
Republic v Gingoyon, GR No. 166429, December 19, 2005
994
Supra, Section 4, Rule 67
995
Supra, Section 11, Rule 67
996
Supra, Sections 5,6,7, and 8, Rule 67
997
City of Manila v Batlle, 25 Phil 566
998
NPC v De La Cruz, GR No. 156093, February 2, 2007
999
Republic v Sarabia, 468 SCRA 142

197
regardless of appreciation or depreciation subsequent
to taking possession or filing of the action.

5.3 If upon determination of just compensation, the


ownership is uncertain or claims are conflicting, the
court may order sum / sums paid to be given to the
Court for the benefit of the person adjudged in the
same proceeding to be entitled thereto but payment
will be required to be given to the defendant or the
court before plaintiff can enter into or retain the
property.1000

5.4 The plaintiff shall have the right to enter into the
property and expropriate for public use or retain it if
already entered. If defendant or counsel absent
themselves from the court or decline to receive the
amount, it shall be deposited in the court and shall
have the effect of actual payment.1001

5.5 Title will pass only upon full payment of the just
compensation.1002

5.6 Non payment does not entitle the landowner to recover


possession. However, if the government fails to pay
just compensation within 5 years from finality of
judgment, the owners shall have the right to recover
the property.1003

5.7 When private land is expropriated for a particular


public use and that public use is abandoned, the land
expropriated: (a) shall not revert if the acquisition is in
fee simple unconditional, or (b) is re-acquired if
expropriated with a condition that if the public use is
abandoned or ended, title reverts to former owner.1004

6. The judgment 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, a certified copy of which judgment shall be recorded
in the registry of deeds and its effect shall to be shall to be vest in
the plaintiff title to the real estate for public use or purpose. 1005

WHO PAYS FOR COSTS

1. All costs, except that incurred by rival claimants, shall be


paid by the plaintiff unless an appeal is taken therefrom by the
owner of the property and the judgment is affirmed. Costs shall
include the fees of the commissioners.1006

1000
Supra, Section 9, Rule 67
1001
Supra, Section 10, Rule 67
1002
Federated Realty Corporation v Court of Appeals, 477 SCRA 707
1003
Yujuico v Atienza, Jr., 472 SCRA 463
1004
Fery v Municipality of Cabanatuan, 42 Phil 28
1005
Supra, Section 13, Rule 67
1006
Supra, Section 12, Rule 67

198
RULE 68 – FORECLOSURE OF REAL ESTATE

NATURE OF THE ACTION

1. It is an action affecting interest in real property and is hence,


a real action. Thus venue is where the real property or a portion
thereof is located.

1.1 If it involves several parcels of land in different


provinces covered by a single mortgage contract, it can
be filed in any place where one of the parcels is located
and the judgment so rendered may be executed in the
other provinces.1007

2. It is also an action that is incapable of pecuniary


estimation.1008

WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION

1. The complaint in foreclosure of a mortgage or other


encumbrance shall set forth:
(a) Date and due execution of the mortgage
(b) Its assignments, if any
(c) Names/residences of mortgagor/mortgagee
(d) Description of the mortgaged property
(e) Statement of the date of the note or other documentary
evidence of the obligation secured by the mortgage
(f) Amount claimed to be unpaid
(g) Name/residences of 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.1009

WHAT COURT CAN DO

1. The action proceeds like an ordinary civil action.

2. After trial, if the court shall find the facts to be true, it shall
ascertain the amount due the plaintiff and render judgment for the
sum with an order for it to be paid by the adverse party to the
court or judgment oblige within a period of not less than ninety
(90) days nor more than one hundred twenty (120) days from entry
of judgment, and that in case of default, the property will be sold
at public auction. This period is known as the Mortgagor’s Equity
of Redemption. 1010

2.1 Distinguishing Equity of Redemption from Right of


Redemption:
(a) Equity of Redemption is the equitable
right of the mortgagor to redeem, while
Right of Redemption is the statutory
right of the mortgagor to redeem.

1007
El Hogar Filipino v Seva, 57 Phil 573
1008
Russel v Vestil, 304 SCRA 738
1009
Supra, Section 1, Rule 68
1010
Supra, Section 2, Rule 68

199
(b) The former is available before auction
sale, while the latter is available after
auction sale
(c) The former is available only judicial
foreclosure, while the latter is available
only in extra-judicial foreclosure, but
by exception is allowed in judicial
foreclosure when the mortgagee is the
PNB or a bank or a banking institution
(d) The period for the exercise of the
former is within 90 days but no more
than 120 days from entry of foreclosure
judgment, while in the latter it is one
year from redemption is within one
year from date of registration of the
sheriff’s certificate of sale, except when
the mortgagor is a juridical person, in
which case, the right to redeem must
be exercised until, but not after, the
registration of the certificate of sale
with the applicable register of deeds
which in no case shall be more than
three months after foreclosure,
whichever is earlier.1011

3. If not paid, upon motion, the court shall order the property
sold in the manner prescribed under Rule 39, such sale shall not
affect the rights of persons holding prior liens/encumbrances on
the property or parts thereof.

3.1 Upon motion, sale shall be confirmed, and such 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.

3.2 Note that when judicial foreclosure is resorted to there


is no right of redemption except when the law allows a
redemption. Example: Section 47 of the Philippine
General Banking Law which allows a one year period
for redemption.

3.3 Upon finality of the order of confirmation or upon


expiration of the period of redemption when allowed by
law, the purchaser at auction is entitled to possession
unless a third party is holding it adversely to the
judgment obligor, in which case, the purchaser at the
auction sale may secure a writ of possession from the
Court ordering the sale.1012

3.4 What is to be registered is the order of confirmation. If


there is no right of redemption, the title of the
mortgagor is cancelled and a new one issued in the
name of the purchaser.
1011
Section 47, Philippine General Banking Law
1012
Supra, Section 3, Rule 68

200
3.5 If with right of redemption, the annotation is to await
final deed of sale executed by Sheriff.1013

4. Proceeds of the sale shall, after deducting the costs, be paid


to the persons foreclosing the mortgage. If there be a balance or
residue, it shall be paid to the junior encumbrancers, in the order
of priority ascertained by the Court, if none or there still be a
balance or residue after payment, to the mortgagor.1014

5. If debt is not all due, as soon as a sufficient portion of the


property has been sold to pay the total amount, the sale shall
terminate. Afterwards, no more shall be sold, but if property
cannot be sold in portions, the entire property is to be sold with
rebate of interest if proper when the full debt is paid.1015

6. There can be a deficiency judgment if there is a balance.


Upon motion, the court shall render judgment against the
defendant for the balance which may then be the subject of
execution.

6.1 If the balance is due at the time of rendition of


judgment or at such time as the remaining balance
becomes due under the terms of the original contract,
which time shall be stated in the judgment.1016

7. Note that the provisions of Section 31 as to use of premises


by obligor, Section 32 as to rents still due the obligor, and Section
34 as to recovery of price if sale is not effective under Rule 39 are
applicable insofar as they are not inconsistent. 1017

RULE 69 – PARTITION

A partition agreement which was executed pursuant to a will that


was not probated can not be given effect.1018

OBJECT OF PARTITION

1. Separate, divide and assign a thing that is held in common


among those to whom it may belong. The remedy may be availed of
regardless of whether it involves real or personal property, or both

WHO CAN FILE AND HOW

1. Any person, having the right to compel partition of real


estate may file, setting forth therein the nature and extent of his
title, adequate description of the property, joining as defendants all
other persons interested in the property.1019

1013
Supra, Section 7, Rule 68
1014
Supra, Section 4, Rule 68
1015
Supra, Section 5, Rule 68
1016
Supra, Section 6, Rule 68
1017
Supra, Section 8, Rule 68
1018
Rodriguez v Rodriguez, 532 SCRA 642 (September 11, 2007)
1019
Supra, Section 1, Rule 69

201
2. Partition and Accounting under this rule is in the nature of a
quasi in rem action1020.

PROCEDURE

1. If after trial, it finds for the plaintiff, it will order partition.


This is known as the order of partition

1.1 A final order decreeing partition and accounting may


be appealed by the party aggrieved thereby. 1021

2. Thereupon, if the parties agree, the parties may undertake


the partition among themselves by proper instruments. The court
shall thereupon confirm the partition so agreed by the parties.
Such partition and order of confirmation shall then be recorded in
the registry of deed of the place where the property is situated.

2.1 If they fail to agree, the Court shall appoint not more
than 3 commissioners, commanding them to set-off to
the plaintiff and each party in interest such part and
proportion of the property as the court will direct.1022

2.2 Before discharging their duties, the commissioners


shall take an oath that they will faithfully discharge
their duties, and in so doing they shall view and
examine the real property, shall hear the preferences
of the parties, determine the comparative value of the
property, and shall set apart the same to the parties in
lots or parcels as will be most advantageous and
equitable, having due regard to the improvements,
situation and quality of the different parts thereof. 1023

2.3 If the property cannot be divided without prejudice to


the interest of the parties, the court may order it
assigned to one of the parties willing to take the same,
provided he pays to the other parties such amount as
determined by the commissioners to be equitable,
unless one of the interested parties asks that the
property be sold instead.1024

2.4 A report should thereupon be made by the


commissioners and filed with the court, which shall
then give the parties 10 days within which to file heir
objections to the findings. No proceeding shall pass
title to the property or bind the parties until the court
shall have accepted the report and rendered judgment
thereon. Note though that the court has the option to
accept or re-commit the matter to the
1025
commissioners.

1020
Valmonte v Court of Appeals, 52 SCRA 92
1021
Supra, Section 2, Rule 69
1022
Supra, Section 3, Rule 69
1023
Supra, Section 4, Rule 69
1024
Supra, Section 5, Rule 69
1025
Supra, Sections 6 and 7, Rule 69

202
2.5 If actual partition of the property is made, judgment
shall state definitely the metes and bounds and
adequate description of the property, the particular
portion allocated to each party and its effect is to vest
to each party in the action in severalty the portion of
real estate assigned to him. If the whole property is
assigned to one after payment to the others, judgment
has the effect of vesting in the party making payment
the whole of the real estate free from any interest of
the other parties. If the property is sold and proceeds
divided, judgment has the effect of vesting the property
or portion sold in the purchaser free from any interest
of the parties to the action. 1026Judgment may include
recovery from the other of just share of rents and
profits received by the other from the real estate in
question1027 and costs equitably apportioned among
the parties.1028

2.6 This judgment is called the judgment of partition and


may be the subject of an appeal.

RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL DETAINER

WHAT IS FORCIBLE ENTRY AND UNLAWFUL DETAINER

1. Forcible Entry is an action brought when a person is


deprived of possession of land/building by force, intimidation,
stealth or threat.

2. Unlawful Detainer is an action brought by a lessor, vendor,


vendee or other person against whom possession of land/building
is unlawfully withheld after expiration or termination of the right to
hold possession, by virtue of a contract, express or implied.

2.1 Such action must be brought within one year after


withholding such possession. It is also known as an
accion interdictal which seeks to recover possession de
facto or physical, actual or material possession.

3. Note that it is the character or nature of the defendant’s


possession which will determine which of the two actions is
appropriate.

4. In addition to restitution of possession, damages and costs


may also be recovered.1029

UNLAWFUL DETAINER OR FORCIBLE ENTRY OR ACCION


INTERDICTAL DISTINGUISHED

1026
Supra, Section 11, Rule 69
1027
Supra, Section 8, Rule 69
1028
Supra, Section 10, Rule 69
1029
Supra, Section 1, Rule 70

203
1. From Accion Publiciana- which is a plenary action to recover
right of possession that is brought after one year from accrual of
the cause of action in a Regional Trial Court

2. From Accion Reivindicatoria- which is an action to recover


ownership, including possession.

WHAT IS REQUIRED FOR THE ACTION TO BE FILED

1. In Illegal Detainer ,unless otherwise stipulated, the lessor


can proceed against lessee only after demand to pay or comply
with the conditions of the lease and to vacate is made upon the
lessee

1.1 Or by serving written notice of such demand upon the


person found within the premises

1.2 Or by posting such notice on the premises if no person


is found thereon and the lessee fails to comply within
15 days in the case of land or 5 days in case of
building.1030

1.3 If the lease is on a month to month basis, demand to


vacate is necessary to terminate the lease upon
expiration of the month so as to prevent tacita
reconduccion.1031 It is also necessary when one
occupies upon tolerance or permission without a
contract as the occupant is bound by an implied
promise to vacate upon a demand.1032

1.4 If action is due to the termination of the lease due to


the expiration of its term, demand is not a
prerequisite.1033Neither is it required when there is a
stipulation dispensing with the need for demand.

2. No demand is required in Forcible Entry cases.

WHEN, WHERE FILED AND NATURE OF PROCEEDINGS

1. Cases of Forcible Entry/Unlawful Detainer are to be filed


within one year from date of actual entry or date of last demand
before the Municipal Trial Court and shall be covered by the Rules
on Summary Procedure, irrespective of the amount of damages or
unpaid rentals, unless they are covered by agricultural tenancy
laws or otherwise provided by law.1034

PROCEDURE TO BE FOLLOWED

1030
Supra, Section 2, Rule 70
1031
Yap v Cruz, 208 SCRA 692
1032
Sps. Llobrera v Fernandez, GR No. 142882, May 2, 2006
1033
Lanuza v Munoz, 429 SCRA 562
1034
Supra, Section 3, Rule 70

204
1. The only allowable pleadings are the complaint, compulsory
counterclaim and cross-claim pleaded in the answers and answers
thereto. All pleadings are to be verified.1035

2. Upon filing of the complaint, the court may, from an


examination of the allegations in the complaint and such evidence
attached thereto, dismiss the complaint on any of the grounds for
a motion to dismiss which are apparent therein.

2.1 If not dismissed, it shall proceed to issue summons.1036

3. If summons is issued, the defendant shall file his answer


within 10 days from receipt, serving a copy thereof to the plaintiff.
It is an error on the part of the judge to give the defendants 15
days to file an answer.1037

3.1 Affirmative or negative defenses not pleaded are


deemed waived, except lack of jurisdiction over the
subject matter.

3.2 Crossclaims or counterclaims not asserted are barred.


If the answer contains crossclaims or counterclaims,
answers thereto are to be filed within 10 days from
service of the answer in which they are pleaded.1038

4. Failure to answer the complaint within the period above


provided, the court, motu proprio, or on motion of the plaintiff,
shall render judgment as may be prayed for therein: Provided,
however, That the court may in its discretion reduce the amount of
damages and attorney’s fees claimed for being excessive or
otherwise unconscionable. This is without prejudice to the
applicability of Section 3, Rule 9 of the Rules of Court, if there are
two or more defendants.1039

5. A preliminary conference is then scheduled not later than 30


days after the last answer is filed. The provision of Rule 18 on pre-
trial shall be applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.

5.1 The failure of the plaintiff to appear in the preliminary


conference shall be a cause for the dismissal of his
complaint.

5.2 The defendant who appears in the absence of the


plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All
cross-claims shall be dismissed.

5.3 If a sole defendant shall fail to appear, the plaintiff


shall be entitled to judgment in accordance with
1035
Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
1036
Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
1037
Santos vs. Tanciongco, 567 SCRA 134
1038
Supra, Section 6, Rule 70, Article II, Section 5, Rules on Summary Procedure
1039
Supra, Section 7, Rule 70, Article II, Section 6, Rules on Summary Procedure

205
Section 6 hereof. This Rule shall not apply where one
of two or more defendants sued under a common
cause of action who had pleaded a common defense
shall appear at the preliminary conference.

5.4 No postponement shall be granted except for highly


meritorious grounds and without prejudice to
sanctions which the court may deem to impose.1040

6. Within 5 days after the termination of the preliminary


conference, an order shall be issued by the court stating the
following matters: (a) Whether the parties have arrived at an
amicable settlement, and if so, the terms thereof (b)The
stipulations or admissions entered into by the parties (c) Whether,
on the basis of the pleadings and the stipulations and admissions
made by the parties, judgment may be rendered without the need
of further proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the order (d) A
clear specification of material facts which remain controverted; and
(e) Such other matters intended to expedite the disposition of the
case.1041

7. Within 10 days from receipt of the order, the parties shall


submit the affidavits of their witnesses, evidences and position
papers setting forth the law and the facts relied upon. 1042

7.1 The affidavits submitted shall only state the facts of


direct personal knowledge of the affiant which are
admissible in evidence and must indicate their
competence to testify. A violation may subject the
party or counsel to disciplinary action and will be
cause to expunge the inadmissible affidavit or portion
thereof from the record.1043

8. The following petitions, motions, or pleadings are prohibited


and shall not be allowed to be filed:

(a) Motion to dismiss the complaint except on the ground of


lack of jurisdiction over the subject matter, or failure to
comply with the preceding section pertaining to referral to
the Lupon for conciliation. The case may then be
dismissed without prejudice and may be revived upon
showing of compliance.1044 The filing of a motion to
dismiss after an answer is filed does not violate the rules.
What is proscribed is a motion to dismiss that stops the
running of the period for the filing of an answer and
cause undue delay.1045

(b) Motion for a bill of particulars;

1040
Supra, Section 8, Rule 70, Article II, Section 7, Rules on Summary Procedure
1041
Supra, Section 9, Rule 70, Article II, Section 8, Rules on Summary Procedure
1042
Supra, Section 10, Rule 70, Article II, Section 9, Rules on Summary Procedure
1043
Supra, Section 14, Rule 70, Article II, Section 20, Rules on Summary Procedure
1044
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
1045
Heirs of Olivas v Flor, 161 SCRA 393

206
(c) Motion for new trial, or for reconsideration of a judgment,
or for reopening of trial; A motion for reconsideration can
be filed when the case is already pending before the
appellate court.1046 And a motion for reconsideration of
rulings or pertaining to other incidents, not of the
judgment is allowed1047

(d) Petition for Relief from Judgment

(e) Motion for extension of time to file pleadings, affidavits or


any other paper;

(f) Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against


any interlocutory order issued by the court;

(h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

(j) Reply;

(k) Third-party complaints; and

(l) Interventions.1048

9. A preliminary mandatory injunction may be granted by the


court upon motion presented within 5 days from the filing of the
complaint to restore him in possession, which should be decided
by the court within 30 days from filing thereof 1049 and upon
motion of the plaintiff, within 10 days from perfection of an appeal
to the Regional Trial Court to restore him in possession if the court
is satisfied that the appeal of the defendant is frivolous or dilatory
or that the plaintiff’s appeal is prima facie meritorious. 1050

10. The court shall then render judgment within 30 days after
receipt of the last affidavits and position papers, or the expiration
of the period for filing the same.

10.1 However, should the court find it necessary to clarify


certain material facts, it may, during the said period,
issue an order specifying the matters to be clarified,
and require the parties to submit affidavits or other
evidence on the said matters within ten (10) days from
receipt of said order.

10.2 Judgment shall be rendered within fifteen (15) days


after the receipt of the last clarificatory affidavits, or
the expiration of the period for filing the same.

1046
Jakihaca v Aquino, 181 SCRA 67
1047
Lucas v Fabros, 324 SCRA 1
1048
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
1049
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
1050
Supra, Section 20, Rule 70

207
10.3 The court shall not resort to the clarificatory procedure
to gain time for the rendition of the judgment.1051

11. Should the defense of ownership be raised, the court shall


only consider the same if the issue of possession cannot be
resolved without deciding the issue of ownership. It shall thus be
resolved only to determine possession and any judgment shall be
conclusive only on possession and shall not be a bar to another
action between the parties respecting the title to the land or
building1052

12. The judgment to be rendered by the court in favor of the


plaintiff shall include restitution of the premises, the sum justly
due as arrears of rent or as reasonable compensation for the use of
the premises, attorney’s fees and costs. If the allegations are not
true, it shall render judgment for the defendant for recovery of
cost. If a counterclaim is established, the court shall render
judgment for the sum found in arrears from either party and
award costs as justice requires.1053

12.1 While the general rule in ejectment cases that the


recoverable damages are fair rental value or
reasonable compensation for the use or occupation of
real property, liquidated damages may be recovered if
so stipulated.1054

12.2 The judgment is appealable to the appropriate


Regional Trial Court, which shall decide the case on
the basis of the entire record of the proceedings in the
court of origin and such memoranda or brief as may
be submitted or required1055

12.3 If judgment is rendered against the defendant, the


execution shall issue immediately upon motion, unless
an appeal has been perfected and the defendant to
stay execution files a sufficient supersedeas bond if
there are rentals in arrears 1056, approved by the court
and executed in favor of the defendant to pay rents,
damages and costs accruing down to the time of the
judgment appealed from, and unless, during the
pendency of the appeal, he deposits with the appellate
court the amount of the rent due from time to time
under the contract or the reasonable value for use and
occupation adjudged by the court on or before the 10 th
day of each succeeding month or period.1057

12.4 In conformity with Section 19, Rule 70 of the 1997


Rules of Civil Procedure, it has been consistently ruled
that if no supersedeas bond is filed, the trial court,

1051
Supra, Section 11, Rule 70, Article
1052
Supra, Sections 16 and 18, Rule 70
1053
Supra, Section 17, Rule 70
1054
Azcuna, Jr. v Court of Appeals,255 SCRA 215
1055
Supra, Section 18, Rule 70
1056
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
1057
Supra, Section 19, Rule 70

208
upon motion, may correctly order execution of
judgment.1058 Note that there is no necessity for a
motion for the court to fix the supersedeas bond as the
amount of the same can be ascertained from the
judgment. Also, if the records of the case have already
been transmitted to the appellate court, the
supersedeas bond may be filed with the appellate
court.1059

12.5 The filing of a notice of appeal and payment of the


necessary docket does not stay the execution of the
decision.

12.6 The judgment of the appellate court shall however be


subject to immediate execution without prejudice to a
further appeal1060

PERSONS BOUND BY A JUDGMENT IN EJECTMENT CASES

1. In an ejectment case, the judgment is binding on: (a) a


sublessee as his right is subsidiary to that of the lessee 1061 (b) a
guest or successor in interest, including members of the family of
the lessee, his servants and employees 1062(c) trespassers, squatters
or agents of the defendant, and (d) transferees pendente lite.

RULE 71 – CONTEMPT

WHAT IS CONTEMPT

1. Willful disobedience or open disrespect of the orders,


authority, or dignity of a court or judge acting in judicial capacity
by disruptive language or conduct or by failure to obey the orders
of the court

KINDS OF CONTEMPT

1. Direct Contempt – consists of misbehaviour in the presence


of or so near a court as to obstruct or interfere with the
proceedings before the same, it includes, disrespect, offensive
personalities against others, refusal to be sworn or answer as a
witness, or to subscribe to an affidavit/deposition when lawfully
required to do so.

1.1 This kind of contempt may be summarily adjudged


and be punished by a fine not exceeding PHP 2,000.00
or imprisonment of not exceeding 10 days or both if it
be by a Regional Trial Court or a fine not exceeding
PHP 200.00 or imprisonment not exceeding 1 day or
both if it be by a Municipal Trial Court.

1058
Silverio v Court of Appeals, 407 SCRA 240
1059
Chua v Court of Appeals, 286 SCRA 437
1060
Supra, Section 21, Rule 70
1061
Dela Cruz v Roxas, 75 Phil 457
1062
Ariem v Delos Angeles, 49 SCRA 343

209
1.2 The remedy therefrom is certiorari/ prohibition, in
which case the judgment is suspended pending the
petition provided the petitioner files a bond fixed by
the court which rendered the judgment and
conditioned that he will abide by and perform the
judgment should the petition be decided against him.
1063

1.3 It is direct contempt if a pleading contains derogatory,


offensive or malicious statements against a particular
judge when submitted in the same court where the
judge is presiding. If submitted elsewhere, it is indirect
contempt.1064

2. Indirect Contempt – consists of (a) Misbehavior of an officer


of a court in the performance of his official duties or in his official
transactions; (b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the act of a
person who, after being dispossessed or ejected from any real
property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or
upon such real property for the purpose of executing acts of
ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled thereto; (c)
Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under
Section 1 of this Rule; (d) Any improper conduct tending, directly
or indirectly to impede, obstruct, or degrade the administration of
justice; (e) Assuming to be an attorney or an officer of a court, and
acting as such without authority; (f) Failure to obey a subpoena
duly served; (g) The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an order or
process of a court held by him. But nothing in this section shall be
so construed as to prevent the court from issuing process to bring
the respondent into court, or from holding him in custody pending
such proceedings.1065

2.1 This kind of contempt may be initiated motu propio by


the court against which the contempt was committed
by an order or any formal charge requiring the
respondent to show cause why he should not be
punished for contempt. In other cases, it shall be
commenced by verified petition with supporting
particulars and certified true copies of documents or
papers involved therein, and upon full compliance with
the requirements for the filing of initiatory pleadings in
the court concerned.

2.2 If the charges are related to the principal action


pending before the court, the petition shall so allege
such fact but it shall be docketed, heard and decided
separately, unless the court in its discretion orders

1063
Supra, Sections 1 and 2, Rule 71
1064
Ang v Castro, 136 SCRA 453
1065
Supra, Section 3, Rule 71

210
consolidation of the charge and principal action for
joint hearing and decision.1066

2.3 The charge shall be filed in the Regional Trial Court if


the contempt is committed against it or a court of
equal or higher rank or against an officer appointed by
it.

2.4 If against a lower court, it may be filed in the Regional


Trial Court in the place where the lower court sits or in
such lower court, subject to appeal to the Regional
Trial Court.1067

2.5 This kind of contempt is punishable by a fine not


exceeding P 30,000.00 or imprisonment not exceeding
6 months or both, if committed against a Regional
Trial Court. If against a Municipal Trial Court, by a
fine not exceeding P 5,000.00 or imprisonment not
exceeding 1 month. If it consists in a violation of a writ
of injunction, TRO or status quo order, he may also be
ordered to make complete restitution. A writ of
execution may be issued to enforce a fine. 1068 If it
consists in refusal or omission to do an act within his
power to perform, he may be imprisoned by order of
the court until it is performed.1069

2.6 A judgment for indirect contempt is appealable to the


Regional Trial Court, but execution shall not be
suspended without the filing of a bond.1070

2.7 An order dismissing a contempt charge or exoneration


from such, is not appealable.1071

OTHERS

1. If no hearings are held forthwith and the respondent has


been taken into custody, he may be released upon payment of a
bond, but if he fails to appear on the hearing of the charge, he may
be ordered arrested and the bond forfeited.1072

2. If already imprisoned, the court may discharge the


respondent if public interest will not be prejudiced by the
release.1073

APPLICABILITY OF THE RULE

The rules apply to persons, entities, bodies or agencies exercising


quasi-judicial powers or shall have suppletory effect to their rules.

1066
Supra, Section 4, Rule 71
1067
Supra, Section 5, Rule 71
1068
Supra, Section 7, Rule 71
1069
Supra, Section 8, Rule 71
1070
Supra, Section 11, Rule 71
1071
In Re, Mison, Jr, 33 SCRA 30
1072
Supra, Sections 6 and 9, Rule 71
1073
Supra, Section 10, Rule 71

211
The RTC of the place where the contempt is committed shall have
jurisdiction.1074

DEFINING CRIMINAL AND CIVIL CONTEMPT

It is criminal contempt when the purpose is to vindicate the


authority of the court and protect its outraged dignity. It is civil
contempt when there is failure to do something ordered by the
court to be done for the benefit of another party.1075

SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW

SCOPE OF APPLICATION

1. All disputes will require conciliation.

2. The exceptions are the following: (a) where one party is the
government or any subdivision or instrumentality thereof (b) where
one party is a public officer or employee, and the dispute relates to
the performance of his official functions (c) offenses punishable by
imprisonment exceeding 1 year or a fine exceeding PHP 5000.00 (d)
offenses where there is no private offended party (e) where the
dispute is brought by or against a corporation, partnership or
juridical entity (f) where the dispute involves real properties located
in different cities or municipalities unless the parties agree to
submit their differences to amicable settlement by an appropriate
lupon (g) where dispute involves parties who actually reside in
barangays of different cities or municipalities, except when the
barangays actually adjoin each other and the parties agree to
submit their differences to amicable settlement by an appropriate
lupon (h) such other classes of disputes which the President may
determine in the interest of justice or upon recommendation by the
Secretary of Justice (Section 408, PD 1508). (i) disputes arising
from the implementation of the CARP (j) Employer-Employee
disputes (k) action to annul a judgment upon a compromise.

3. Note however that while no petition, complaint, action or


proceeding within the authority of the lupon shall be filed directly
with the court or any government office for adjudication UNLESS
there has been a confrontation before the lupon chairman or
pangkat, and that no conciliation or settlement has been reached
as certified by the lupon secretary or pangkat secretary, or unless
the settlement has been repudiated within 10 days from its date by
a statement sworn before the punong barangay to the effect that
his consent is vitiated by fraud violence or intimidation ( Section
418, PD 1508), the following cases may be filed directly: (1)
accused in under detention (2) person has otherwise been deprived
of personal liberty calling for habeas corpus proceedings (3) when
action is coupled with a provisional remedy (4) where action may
otherwise be barred by prescription (Section 412, PD 1508)

VENUE

1074
Supra, Section 12, Rule 71
1075
Yasay v Recto, 313 SCRA 739

212
1. The proper venue for conciliation is as follows: (a) if between
persons actually residing in the same barangay-before the lupon of
the said barangay (b) if between actual residents of different
barangays within the same city of municipality- before the lupon
where the respondent resides, if there be several respondents-
before the lupon where anyone of them resides at the election of
the complainant (c) if involving real property or any interest
therein- the barangay lupon where the property or larger portion is
located (d) if arising in the workplace where the contending parties
are employed or at the institution where such parties are enrolled
for study- before the lupon of the barangay where the workplace or
institution is located.

2. Any objection to venue shall be raised before the Punong


Barangay, otherwise they are waived. Legal questions may be
submitted to the Secretary of Justice or his duly designated
representative whose ruling thereon shall be binding.

PROCEDURE FOR CONCILIATION OR SETTLEMENT

1. The procedure for settlement is as follows:

(a) Initiation of complaint, orally or in writing, to the lupon


chairman of the barangay

(b) Mediation by lupon chairman on the next working day from


receipt of the complaint, failing in which within 15 days from the
first meeting, he shall forthwith set a date for the constitution of
the pangkat

(c) The pangkat shall convene not later than 3 days from
constitution to hear the parties and explore the possibility of an
amicable settlement within 15 days from the day it convenes,
which period is extendible for another 15 days, except in clearly
meritorious cases.

2. Note however, that while prescription does not run upon


filing of the complaint and shall resume only upon receipt of the
complaint or certificate of repudiation, or certification to file action,
the interruption shall not exceed 60 days from filing of the
complaint with the punong barangay. (Section 410, PD 1508)

3. The form of the amicable settlement shall be in writing, in a


language/dialect known to the parties, signed by them and
attested by the lupon/pangkat chairman (Section 411, PD 1508).

3.1 This shall have the force and effect of a final judgment
of a court upon expiration of 10 days from date thereof
unless repudiation has been made or a petition to
nullify the award has been filed before the proper
court.

3.2 This does not apply to cases already pending but


subsequently referred to the lupon for amicable
settlement under the last paragraph of Section 408,as
the same is submitted back to the court to serve as

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basis for rendition of judgment. (Section 416, PD
1508).

3.3 The award or settlement may be enforced by execution


by the lupon within 6 months from the date of the
settlement. After the lapse of the said period, by action
in the appropriate city of municipal court. (Section
417, PD 1508)

4. Note however that if a settlement is not complied with, the


injured party may bring an action against the offending party to
recover the original amount of his claim, thereby rescinding the
compromise under Article 2041 of the Civil Code which was held
to qualify Article 2037 of the Civil Code as to the effect of a
compromise being considered as constituting res judicata. 1076

REVISED RULE ON
SUMMARY PROCEDURE

RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15,


1991 PROVIDING FOR THE REVISED RULE ON SUMMARY
PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND
MUNICIPAL CIRCUIT TRIAL COURTS.

Pursuant to Section 36 of the Judiciary Reorganization Act of 1980


(B.P. Blg. 129) and to achieve an expeditious and inexpensive
determination of the cases referred to herein, the Court Resolved to
promulgate the following Revised Rule on Summary Procedure:

APPLICABILITY

SECTION 1. Scope: - This rule shall govern the summary


procedure in the Metropolitan Trial Courts in Cities, the Municipal
Trial Courts, and the Municipal Circuit Trial Courts in the
following cases falling within their jurisdiction:

A. Civil Cases:

(1) All cases of forcible entry and unlawful detainer, irrespective


of the amount of damages or unpaid rentals sought to be
recovered. Where attorney’s fees are awarded, the same shall not
exceed twenty thousand pesos (P20,000).

(2) All other cases, except probate proceedings, where the total
amount of plaintiff’s claim does not exceed one hundred thousand
pesos (P100,000) or, two hundred thousand pesos (P200,000) in
Metropolitan Manila, exclusive of interest and costs. (As amended

1076
Chavez v Court of Appeals, GR 159411, March 18, 2005

214
by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this amended took
effect on November 25, 2002)

B. Criminal Cases:

(1) Violations of traffic laws, rules and regulations;


(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Blg 221077
(5) All other criminal cases where the penalty prescribed by law
for the offense charged is imprisonment not exceeding six months,
or a fine not exceeding one thousand pesos (P1,000), or both,
irrespective of other imposable penalties, accessory or otherwise,
or of the civil liability arising therefrom: Provided, however, That in
offenses involving damage to property through criminal negligence,
this Rule shall govern where the imposable fine does not exceed
ten thousand pesos (P10,000).

This rule shall not apply to a civil case where the plaintiff’s
cause of action is pleaded in the same complaint with another
cause of action subject to the ordinary procedure; nor to a criminal
case where the offense charged is necessarily related to another
criminal case subject to ordinary procedure.

SEC. 2. Determination of applicability. – Upon the filing of a


civil or criminal action, the court shall issue an order declaring
whether or not the case shall be governed by this Rule.

A patently erroneous determination to avoid the application


of the Rule of Summary Procedure is a ground for disciplinary
action.

II

CIVIL CASES

SEC. 3. Pleadings. –

A. Pleadings, allowed. – The only pleadings allowed to be


filed are the complaints, compulsory counterclaims and cross-
claims pleaded in the answer, and the answers thereto.

B. Verification. – All pleadings shall be verified.

SEC. A. Duty of court. – After the court determines that the


case falls under summary procedure, it may, from an examination
of the allegations therein and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds apparent
therefrom for the dismissal of a civil action.

If no ground for dismissal is found, it shall forthwith issue


summons which shall state that the summary procedure under
this Rule shall apply.

1077
A.M. 00-11-01-SC, April 15, 2003

215
NOTE: That any of the grounds for dismissal under Rule 16 apply
although no motion to dismiss can be filed except on the grounds
of lack of jurisdiction and non-compliance with the requirement on
conciliation.

NOTE: That the prohibition as to the filing of a motion to dismiss


exists prior to the filing of an answer but a dismissal grounded on
any of the causes stated in Rule 16 can only be effected prior to
the issuance of the court of summons and not after an answer has
been filed (Heirs of Ricardo Olivas vs. Flor, 161 SCRA 393)

SEC. 5. Answer. – Within ten (10) days from service of


summons, the defendant shall file his answer to the complaint and
serve a copy thereof on the plaintiff. Affirmative and negative
defenses not pleaded therein shall be deemed waived, except for
lack of jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer shall be
considered barred. The answer to counterclaims or cross-claims
shall be filed and served within ten (10) days from service of the
answer in which they are pleaded.

SEC. 6. Effect of failure to answer. – Should the defendant


fail to answer the complaint within the period above provided, the
court, motu proprio, or on motion of the plaintiff, shall render
judgment as may be prayed for therein: Provided, however, That
the court may in its discretion reduce the amount of damages and
attorney’s fees claimed for being excessive or otherwise
unconscionable. This is without prejudice to the applicability of
Section 4, Rule 18 of the Rules of Court, if there are two or more
defendants.

NOTE: Rendition by the court of judgment on account of failure to


file an answer or to appear during the preliminary conference may
not require a motion (Sordan vs. De Guzman, A.M. No. MTJ-00-
1296, October 5, 2000)

SEC. 7. Preliminary conference; appearance of parties. – Not


later than thirty (30) days after the last answer is filed, a
preliminary conference shall be held. The rules on pre-trial in
ordinary cases shall be applicable to the preliminary conference
unless inconsistent with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary


conference shall be a cause for the dismissal of his complaint. The
defendant who appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim in accordance with
Section 6 hereof. All cross-claims shall be dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be


entitled to judgment in accordance with Section 6 hereof. This Rule
shall not apply where one of two or more defendants sued under a
common cause of action who had pleaded a common defense shall
appear at the preliminary conference.

216
SEC. 8. Record of preliminary conference. – Within five (5)
days after the termination of the preliminary conference, the court
shall issue an order stating the matters taken up therein,
including but not limited to:

(a) Whether the parties have arrived at an amicable


settlement, and if so, the terms thereof;

(b) The stipulations or admissions entered into by the


parties;

(c) Whether, on the basis of the pleadings and the


stipulations and admissions made by the parties, judgment may be
rendered without the need of further proceedings, in which event
the judgment shall be rendered within thirty (30) days from
issuance of the order;

(d) A clear specification of material facts which remain


controverted; and

(e) Such other matters intended to expedite the disposition of


the case.

SEC. 9. Submission of affidavits and position papers. –


Within ten (10) days from receipt of the order mentioned in the
next preceding section, the parties shall submit the affidavits of
their witnesses and other evidence on the factual issues defined in
the order, together with their position papers setting forth the law
and the facts relied upon by them.

SEC. 10. Rendition of judgment. – Within thirty (30) days


after receipt of the last affidavits and position papers, or the
expiration of the period for filing the same, the court shall render
judgment.

However, should the court find it necessary to clarify certain


material facts, it may, during the said period, issue an order
specifying the matters to be clarified, and require the parties to
submit affidavits or other evidence on the said matters within ten
(10) days from receipt of said order. Judgment shall be rendered
within fifteen (15) days after the receipt of the last clarificatory
affidavits, or the expiration of the period for filing the same.

The court shall not resort to the clarificatory procedure to


gain time for the rendition of the judgment.

NOTE: That hearings are not necessary unless for the purpose of
clarifying certain material facts.

III

CRIMINAL CASES

Sec. 11. How commenced. – The filing of criminal cases


falling within the scope of this Rule shall be either by complaint or

217
by information; Provided, however, That in Metropolitan Manila
and in Chartered Cities, such cases shall be commenced only by
information, except when the offense cannot be prosecuted de
officio.

The complaint or information shall be accompanied by the


affidavits of the complainant and of his witnesses in such number
of copies as there are accused plus two (2) copies of the court’s
files. If this requirement is not complied with within five (5) days
from date of filing, the case may be dismissed.

Sec. 12 Duty of court. –

(a) If commenced by complaint. – On the basis of the complaint


and the affidavits and other evidence accompanying the same, the
court may dismiss the case outright for being patently without
basis or merit and order the release of the accused if in custody.
(b) If commenced by information. – When the case is commenced
by information, or is not dismissed pursuant to the next preceding
paragraph, the court shall issue an order which, together with
copies of the affidavits and other evidence submitted by the
prosecution, shall require the accused to submit his counter-
affidavit and the affidavits of his witnesses as well as any evidence
in his behalf, serving copies thereof on the complainant or
prosecutor not later than ten (10) days from receipt of said order.
The prosecution may file reply affidavits within ten (10) days after
receipt of the counter-affidavits of the defense.

Sec. 13 Arraignment and trial. – Should the court, upon a


consideration of the complaint or information and the affidavits
submitted by both parties, find no cause or ground to hold the
accused for trial, it shall order the dismissal of the case; otherwise,
the court shall set the case for arraignment and trial.

If the accused is in custody for the crime charged, he shall


be immediately arraigned and if he enters a plea of guilty, he shall
forthwith be sentenced.

Sec. 14 Preliminary conference. – Before conducting the trial,


the court shall call the parties to a preliminary conference during
which a stipulation of facts may be entered into, or the propriety of
allowing the accused to enter a plea of guilty to a lesser offense
may be considered, or such other matters may be taken up to
clarify the issues and to ensure a speedy disposition of the case.
However, no admission by the accused shall be used against him
unless reduced to writing and signed by the accused and his
counsel. A refusal or failure to stipulate shall not prejudice the
accused.

Sec. 15 Procedure of trial. – At the trial, the affidavits


submitted by the parties shall constitute the direct testimonies of
the witnesses who executed the same. Witnesses who testified
may be subjected to cross-examination, redirect or re-cross-
examination. Should the affiant fail to testify, his affidavit shall
not be considered as competent evidence for the party presenting

218
the affidavit, but the adverse party may utilize the same for any
admissible purpose.

Except on rebuttal or surrebuttal, no witness shall be


allowed to testify unless his affidavit was previously submitted to
the court in accordance with Section 12 hereof.

However, should a party desire to present additional


affidavits or counter-affidavits as part of his direct evidence, he
shall so manifest during the preliminary conference, stating the
purpose thereof. If allowed by the court, the additional affidavits of
the prosecution or the counter-affidavits of the defense shall be
submitted to the court and served on the adverse party not later
than three (3) days after the termination of the preliminary
conference. If the additional affidavits are presented by the
prosecution, the accused may file his counter-affidavits and serve
the same on the prosecution within three (3) days from such
service.

Sec. 16. Arrest of accused. – The court shall not order the
arrest of the accused except for failure to appear whenever
required. Release of the person arrested shall either be on bail or
on recognizance by a responsible citizen acceptable to the court.

Sec. 17 Judgment. – Where a trial has been conducted, the


court shall promulgate the judgment not later than thirty (30) days
after the termination of trial.

COMMON PROVISIONS

SEC. 18 Referral to Lupon. – Cases requiring referral to the


Lupon for conciliation under the provisions of Presidential Decree
No. 1508 where there is no showing of compliance with such
requirement, shall be dismissed without prejudice, and may be
revived only after such requirement shall have been complied with.
This provision shall not apply to criminal cases where the accused
was arrested without a warrant.

SEC. 19. Prohibited pleadings and motions. – The following


pleadings, motions, or petitions shall not be allowed in the cases
covered by this Rule:

(a) Motion to dismiss the complaint or to quash the


complaint or information except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with the
preceding section;

(b) Motion for a bill of particulars;

(c) Motion for new trial, or for reconsideration of a judgment,


or for reopening of trial;

(d) Petition for Relief from Judgment


(e) Motion for extension of time to file pleadings, affidavits or
any other paper;

219
(f) Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against


any interlocutory order issued by the court;

(h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

NOTE: If motion is well grounded, it may be allowed.

(j) Reply;

(k) Third-party complaints; and

(l) Interventions.

SEC. 20. Affidavits. – The affidavits required to be submitted


under this Rule shall state only facts of direct personal knowledge
of the affiants which are admissible in evidence, and shall show
their competence to testify to the matters stated therein.

A violation of this requirement may subject the party or the


counsel who submits the same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit or portion thereof from
the record.

SEC. 21. Appeal. – The judgment or final order shall be


appealable to the appropriate regional trial court which shall
decide the same in accordance with Section 22 of Batas Pambansa
Blg. 129. The decision of the regional trial court in civil cases
governed by this Rule, including forcible entry and unlawful
detainer, shall be immediately executory, without prejudice to a
further appeal that may be taken therefrom.

NOTE: That immediate execution requires proof that the losing


party has been served with notice of judgment (Dy vs. CA, 191
SCRA 585) and that notice of the motion for execution to the
adverse party is required ( Limpo vs. CA, 333 SCRA 575)

SEC. 22. Applicability of the regular rules. – The regular


procedure prescribed in the Rules of Court shall apply to the
special cases herein provided for in a suppletory capacity insofar
as they are not inconsistent herewith.

SEC. 23. Effectivity. – This revised Rule on Summary


Procedure shall be effective on November 15, 1991.

220
In fact, it has been declared that the motion for extension of time
within which a party may plead 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. (Commercial Union Assurance Company
Limited, et. al. vs. Lepanto Consolidated Mining Company, et. al.,
L-43342. October 30, 1978, 86 SCRA 79, 95-96; Amante vs.
Sunga, et. al., L-40491, May 28, 1975, 64 SCRA 192, 195)

Therefore, as long as it is filed within the period sought to be


extended, a request for extension of time may be filed ex parte and
granted without the usual formalities applicable to motions in
general. (Moya vs. Barton, 76 Phil. 831)

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