Dean Jara Lecture Notes in Remedial Law 2013
accordance with the Constitution, the Labor Code of the
Plea of guilty – in civil cases, specific denial is not applied, if pleaded, the court
cannot compel the defendant to explain why plea of guilt was given.
Denial without specificity – in civil cases, it is tantamount to admission of
allegations in the pleadings, and thus could lead to a judgment on the
pleadings. This is not allowed in criminal cases.
Quantum of evidence – guilt should be proof beyond reasonable doubt in
criminal cases, while only preponderance of evidence is required in civil cases.
Jurisdiction of courts in civil actions, laws governing:
1. Constitution
2. Judiciary Act of 1848 (RA 296)
3. BP 129 and its amendments
4. Law creating the family court (1997)
5. Law creating the Sandiganbayan
General Law on jurisdiction: BP 129 and its amendments.
Note: The cases formerly taken in cognizance by the abolished Juvenile and
Domestic Relations Court came under the jurisdiction of the RTC under BP 129,
which is in the concept of exclusive original jurisdiction. Then came the special
law creating the Family Court, which provides that the said court has exclusive
original jurisdiction over cases involving marriage, adoption, cases involving
minors, habeas corpus involving minors, and other civil or criminal cases
involving minors.
BP 129 vs. special law on jurisdiction – the special law generally prevails.
(General law shall give way to special law, except if the special law specifically
provides otherwise or that the law allows parties to stipulate pertaining to the
matter of jurisdiction.)
Jurisdiction is a matter of substantive law.
This is not necessarily true. (Dean Jara) Substantive law deals with jurisdiction
over the subject matter and/or jurisdiction over the nature of the action. This
is the aspect of jurisdiction governed by BP 129 and the other substantive laws
on jurisdiction.
Other aspects of jurisdiction governed by procedural law:
Jurisdiction over the person of the litigants – governed by the RoC
Jurisdiction over the property involved – governed by the RoC
Jurisdiction over the issues of the case – governed by the RoC
Thus, jurisdiction as part of substantive law is limited to a court to decide the
case insofar as the subject matter of the case or the nature of the action.
Jurisdiction over the litigants, the issues of the case and property involved are
governed mostly by procedural law, mostly under the Rules of Court.
BP 129 does not mention anything about the SC. It begins with the CA
downwards, up to the MTC and the Sharia Courts. Supreme Court exercises its
authority from the Constitution. In the Constitution, the SC exercises original
jurisdiction and appellate jurisdiction. But the Constitution does not say that
original jurisdiction of the SC is exclusive, nor about the appellate jurisdiction
being exclusive. The basis for this is in the old Judiciary Act of 1948 where SC
jurisdiction is delineated in a very thorough manner, providing exclusive
original and appellate jurisdiction of the SC. Note that BP 129 did not repeal
the old judiciary act and hence it is still in force. What BP 129 did repeal are
provisions of Judiciary Act of 1948 that are inconsistent with BP 129. The best
argument to support this statement is Sec. 9 in BP 129.
Sec. 9 BP 129 last sub¶ – provides for the jurisdiction of
the CA.
“3. Exclusive appellate jurisdiction over all final
judgments, resolutions, orders or awards of Regional
Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commission, including the Securities and
Exchange Commission, the Social Security Commission,
the Employees Compensation Commission and the Civil
Service Commission, Except those falling within the
appellate jurisdiction of the Supreme Court in
Philippines under Presidential Decree No. 442, as
amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and
subparagraph 4 of the fourth paragraph of Section 17 of
the Judiciary Act of 1948.”
The Constitution provides for a limited number of cases over which the SC can
exercise original jurisdiction and limited number of cases over which it can
exercise appellate jurisdiction. These are not exclusive.
Art. VIII Sec. 5
Section 5. The Supreme Court shall have the following
powers:
(1) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity
of any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty imposed
in relation thereto.
(c) All cases in which the jurisdiction of any lower
court is in issue.
(d) All criminal cases in which the penalty imposed
is reclusion perpetua or higher.
(e) All cases in which only an error or question of
law is involved.
(3) Assign temporarily judges of lower courts to other
stations as public interest may require. Such temporary
assignment shall not exceed six months without the
consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a
miscarriage of justice.
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice
of law, the integrated bar, and legal assistance to the
under-privileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless disapproved
by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
The Constitution provides that the SC has original jurisdiction over cases
involving ambassadors, other public ministers and consuls, and over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
Reading the 1987 Constitution with BP 129, we will find out that the same
authority is given by BP 129 to other courts.
SC’s Exclusive original jurisdiction:
Petitions for certiorari, prohibition or mandamus against CA, COMELEC, CoA
and Sandiganbayan
Concurrent Jurisdiction: (Subject to Doctrine of Hierarchy of Courts and direct
recourse only in cases when redress desired cannot be obtained in the lower
courts or when it serves the broader interest of justice)
With RTC:
Cases affecting ambassadors, other public ministers and Consuls
With CA:
Petitions for certiorari, prohibition or mandamus against RTC
Petitions for Writ of Kalikasan
With RTC and CA:
Petition for habeas corpus
Petition for quo warranto
Petitions for certiorari, prohibition or mandamus against MTC and other bodies
With RTC, CA and Sandiganbayan:
Petition for Writ of Amparo
Petition for Writ of Habeas Data
Appellate Jurisdiction:
By way of Certiorari under Rule 45 against CA, Sandiganbayan, RTC (pure
questions of law only), CTA en banc and cases on the constitutionality and
validity of a law or treaty, international agreement or executive agreement,
presidential decree, proclamation order, instruction, ordinance or regulation,
legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower
court.
BP 129 provides that CA exercises original jurisdiction over certiorari,
prohibition, mandamus, quo warranto and habeas corpus.
BP 129 vests jurisdiction to the RTC to exercises original jurisdiction over
certiorari, prohibition, mandamus, quo warranto and habeas corpus.
In effect, there are 3 courts in the judiciary which exercise jurisdictions over
certiorari, prohibition, mandamus, quo warranto and habeas corpus: SC, CA
and RTC. Thus, theoretically, if one has been wronged due to grave abuse of
discretion amounting to lack of jurisdiction, petition for mandamus can be filed
with the SC immediately, based on the 1987 Constitution and BP 129.
However, Certiorari, Prohibition and Mandamus have been greatly limited by
certain procedural rules. The limitation is known as hierarchy of courts. (See
Rule 65) Thus, while theoretically a petition can be filed directly to the SC, one
should follow the procedure under the principle of hierarchy of courts. In Rule
65, it is expressly provided that petitions for Certiorari, Prohibition and
Mandamus (and even Quo Warranto. Dean Jara) should be filed directly only
with two courts, a RTC or the CA. On analysis, Sec. 4 Rule 65 is a severe
limitation on the right of an aggrieved party to avail of Certiorari, Prohibition
and Mandamus as provided for in the Constitution.
Rule 65, Sec. 4. Where petition filed.
The petition may be filed not later than sixty (60) days from notice of the
judgment, order or resolution sought to be assailed in the Supreme Court or, if
it relates to the acts or omissions of a lower court or of a corporation, board,
officer or person, in the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it
involves the acts or omissions of a quasi-judicial agency, and unless otherwise
provided by law or these Rules, the petition shall be filed in and cognizable only
by the Court of Appeals.
Among the basic principles of the enactment of BP 129 was to do away with
the concept of concurrent jurisdiction. BP 129 has not been able to do away
entirely with concurrent jurisdiction. BP 129 does not use the term concurrent
in vesting jurisdiction upon courts. The law classifies jurisdiction into original
jurisdiction; appellate jurisdiction; exclusive original jurisdiction, and exclusive
appellate jurisdiction; unlike that under the old Judiciary Act of 1948 where the
law expressly contained provisions that conferred concurrent jurisdiction over
different cases upon different courts, which resulted in confusion. Generally,
BP 129 has been able to do away with the concept of concurrence of
jurisdiction, except with respect to certiorari, prohibition, mandamus, quo
warranto and habeas corpus. Since the Constitution and BP 129 allocate
original jurisdiction upon 3 courts, then it is safe to conclude that these 3
courts exercise original and concurrent jurisdiction over these petitions.
BP 129 WITH RESPECT TO THE COURT OF APPEALS:
Exclusive Original Jurisdiction – only cases of annulment of judgment of an
RTC.
Appellate Jurisdiction:
Ordinary appeal from RTC and Family Courts
Petition for review from RTC in exercise of its appellate jurisdiction
Petition for review from decisions, resolutions, orders or awards from CSC,
Ombudsman in administrative cases and other quasi-judicial agencies in
exercise of its quasi-judicial functions as mentioned in Sec. 1 Rule 43.
Concurrent Jurisdiction: With SC:
Petitions for certiorari, prohibition or mandamus against the RTC
Petitions for Writ of Kalikasan
Petition for Mandamus against NLRC (But St. Martin Funeral Homes vs. CA says
petition should be filed in CA instead of SC)
Concurrent Jurisdiction with RTC and SC:
Petition for habeas corpus
Petition for Quo warranto
Petitions for certiorari, prohibition or mandamus against the MTC and other
bodies
Concurrent Jurisdiction with RTC and Sandiganbayan:
Petition for writ of Amparo
Petition for habeas data
The SC, despite being the supreme court of the land, is not a court of general
jurisdiction, it exercises only limited original jurisdiction as provided for under
the Constitution. It is generally not a trier of facts. The same is true in the CA. In
Sec. 9 BP 129, the CA’s authority is very limited.
CA has exclusive original jurisdiction over Annulment of Judgment of an RTC
under Rule 47. Does it mean that the CA can annul a judgment rendered by
an MTC?
Since the CA is a court of limited jurisdiction, it is allowed to annul judgment
only judgments from the RTC. It cannot annul decisions of an MTC.
Would it mean that the judgment of an MTC is immune from annulment of its
judgment?
Yes. The decision of an RTC can be annulled by the CA. But the decision of an
MTC is immune from annulment by the CA. But, the decision of an MTC can be
annulled by an RTC. It is not so provided in BP 129 that an RTC can annul a
judgment of an MTC, but it is provided for under Section 10 of Rule 47 on
Annulment of Judgment in the Rules. Thus, jurisdiction is vested in the RTC
under the Rules for it to be able to annul judgments rendered by an MTC.
Can we then challenge the jurisdiction of RTC as BP 129, a special law, should
take precedence over a substantive law, as BP 129 does not expressly give the
RTC the authority to annul judgment of an MTC? Why?
We cannot. This is because, under BP 129 there is an allocation to the RTC of
jurisdiction to entertain and decide all kinds of actions which are not especially
given to other courts. This is the provision why an RTC can annul judgments of
the MTC as well as the reason why the RTC is considered as the real court of
general jurisdiction in our justice system. Since no substantive law has allocated
to other courts the jurisdiction to annul judgments of an MTC, it follows now
that the RTC is the proper court to decide on the matter as provided under BP
129 for an RTC to entertain and decide all kinds of actions not especially given
to other courts.
Islamic Da'wah Case – BP 129
The SC traced the history of annulment of judgment as an action. SC mentioned
that before BP 129, the SC had recognized the regularity and propriety of filing
a petition to annul an MTC judgment in the RTC.
Can an RTC entertain and decide on cases of annulment of judgments of
another RTC prior to BP 129? Why?
Before BP 129, SC held yes, because the RTC is a court of general jurisdiction.
This is the reason why in BP 129, Congress deemed it necessary to incorporate
a provision giving exclusive authority to the CA to annul a judgment rendered
by the RTC to do away with the anomalous situation where an RTC is able to
annul judgments rendered by another RTC, as there was no specific substantive
law prior to BP 129 which allocated to other courts the authority to annul
judgments of the RTC.
A person need not be a party to the judgment sought to be annulled. What is
essential is that he can prove his allegation that the judgment was obtained by
the use of fraud and collusion and he would be adversely affected thereby
(Islamic Da’wah Council v. CA, G.R. No. 80892, Sept. 29, 1989).
Can the SC annul the judgment of the CA?
No. The Constitution and BP 129 does not provide authority for the SC to annul
judgments rendered by the CA. There is no substantive law or special law
authorizing SC to annul judgments rendered by the CA.
It does not mean that the decisions of the CA are immune from annulment. The
SC could still exercise its equity jurisdiction, most likely under Rule 65, in order
to annul a judgment of the CA, based on the same grounds given under Rule
47, extrinsic fraud and lack of jurisdiction.
Fraud is regarded as extrinsic where it prevents a party from having a trial or
from preventing a party from having a trial or from presenting his entire case to
the court, or where it operates upon matters pertaining not to the judgment
itself but to the manner in which it is procured (Alaban v. CA, GR no. 156021,
September 23, 2005).
Extrinsic fraud or collateral fraud– not a valid ground if it was availed of, or
could have been availed of in a motion for new trial or petition for relief.
Lack of jurisdiction as a ground for annulment of judgment refers to either lack
of jurisdiction over the person of the defending party or over the subject
matter of the claim.
Lack of jurisdiction over the subject matter and over the person –
May be barred by estoppels by laches, which is that failure to do
something which should be done or to claim or enforce a right at a
proper time or a neglect to do something which one should do or to
seek or enforce a right at a proper time. (1998 Bar Question)
What is annulment of judgment?
A: It is a remedy in law independent of the case where the judgment sought to
be annulled was rendered. The purpose of such action is to have the final and
executor judgment set aside so that there will be renewal of litigation.
Note: A co-equal court cannot annul the final judgment of a similar
court. CA has exclusive jurisdiction over actions for annulment of
judgments of RTC. An action to annul a judgment or final order of
MTC shall be filed in the RTC having jurisdiction in the former and it
shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47).
Q: When may it be availed of?
A: The remedy of annulment of judgment may be availed of when the ordinary
remedies of new trial, appeal, petition for relief or other appropriate remedies
are no longer available through no fault of the petitioner (Sec. 1, Rule 47).
Q: Who may avail this remedy?
A: A person need not be a party to the judgment sought to be annulled. What
is essential is that he can prove his allegation that the judgment was obtained
by the use of fraud and collusion and he would be adversely affected thereby
(Islamic Da’wah Council v. CA, G.R. No. 80892, Sept. 29, 1989).
The extraordinary action to annul a final judgment is restricted to the grounds
provided by law to prevent it from being used by a losing party to make a
mockery of a duly promulgated decision that has long become final and
executory.
Q: Where should the petition be filed?
A:
Judgments of RTC Judgments of MTC
Filed with the CA Filed with the RTC
Basis – It has exclusive original Basis – RTC as a court of general
jurisdiction over said action under jurisdiction under Sec. 19 (6), BP 129
Sec. 9 (2), BP 129
CA may dismiss the case outright; it RTC has no such discretion. It is
has the discretion on whether or not required to consider it as an ordinary
to entertain the petition. civil action.
If a judgment of an MTC can be the subject of annulment by CA or RTC as the
case may be, can we also seek annulment of the decisions by a quasi-judicial
or administrative body?
Under BP 129, annulment of judgment, as procedurally explained in Rule 47,
does not extend to the quasi-judicial or administrative body, unless such
provision was allowed by the charter of such administrative or quasi-judicial
body.
Rule 47 refers to an action filed by a petitioner to annul a judgment rendered
by an RTC in a civil case. This is what literally BP 129 provided where CA is
given the authority to annul decisions made by an RTC in a civil action.
Therefore, if the action is not a civil action or rendered by a quasi-judicial or
administrative body, we cannot use Rule 47. (possible Bar Q area)
Since Rule 47 says that the annulment contemplated in BP 129 refers to a
judgment in a civil action, does it mean to say that the judgment of an RTC
acting as a criminal court cannot be subject to annulment of judgment by the
CA under Rule 47?
No. If the judgment of the RTC is a judgment in a criminal case, we cannot use
Rule 47 as it is specifically stated in the said rule that annulment of judgment is
availing only to civil cases decided by the RTC. Rule 47 is not a remedy to annul
decisions or judgments rendered by the RTC as a criminal court. A decision of
an RTC in a criminal case can be annulled by filing a case for habeas corpus.
Petition for habeas corpus is the equivalent in criminal cases of petition for
annulment of judgments in civil cases.
An RTC could act as a civil and criminal court. It exercises original actions over
both actions. RTC decisions in civil actions could be the subject of annulment by
CA under rule 47, but Rule 47 does not apply if the decision is one rendered
from criminal cases. The remedy in order to annul a judgment in criminal cases
is by filing a petition for habeas corpus. BP 129 is very clear under Rule 47.
What can be annulled under Rule 47 are judgments in civil cases only.
Is there a difference between Rule 47 (petition for annulment of judgment
rendered by an RTC in a civil case) and petition for habeas corpus?
There are substantial differences. Annulment under Rule 47 is a direct attack of
a final and executory judgment, the only purpose of which is to nullify and set
aside a court decision in a civil case. But in a criminal case where the decision of
the RTC may not be valid due to lack of jurisdiction or extrinsic fraud, the
remedy is petition for habeas corpus, which is an indirect attack on the
judgment of an RTC in the criminal case. When a habeas corpus petition is filed
in order to nullify a decision on a criminal case, the principal relief which the
petitioner seeks is to declare the petitioner has been deprived of his liberty
unlawfully. It is not principally to set aside the judgment rendered by the RTC in
a criminal case.
The remedy of petition for habeas corpus in criminal case are more
advantageous than that of an annulment of judgment in civil cases. This is
because an annulment of judgment in civil cases is a direct attack against the
judgment in the civil case, while in the criminal cases, the detainee can
challenge the validity of the judgment of conviction, although he is not
attacking directly the validity of the said judgment of conviction. He is attacking
the validity of the deprivation of his liberty.
What is a collateral attack on judgment?
A: It is made in another action to obtain a different relief; an attack on the
judgment is made as an incident in said action. This is proper only when the
judgment, on its face is null and void, as where it is patent that the court
which rendered such judgment has no jurisdiction(Co vs. Court of Appeals, 196
SCRA 705).
Note that Rule 47 is inserted in between the rules governing appeals. The
procedure for appeal starts with Rule 40 up to 56. Annulment of judgment has
nothing to do with appeals as it is a civil action. Annulment of judgment is an
original action that can be filed in the RTC and CA. And, in Rule 47, when
particularly applied to a petition for annulment commenced before the CA, you
will notice that some of the features of a special civil action are carried by a
petition to annul the judgment filed with the CA. For instance, if a petition to
annul a judgment of an RTC in a civil case is filed in the CA, the CA has the
authority to outrightly dismiss the petition for lack of merit. This is similar to
Rule 65, where the petition for certiorari, prohibition or mandamus can be
outrightly dismissed if it is not meritorious on its face.
What if the decision in the RTC was already final and executory, can the
petition to annul judgment filed in the CA stop the execution of the said
judgment?
No. The petition will not stop the prevailing party from moving for the
execution of the final and executory judgment in the civil case, notwithstanding
the commencement of the petition to have the judgment in the civil case
annulled. The only remedies available to a petitioner for annulment of
judgment of an RTC in the CA is to apply for the provisional remedy of PI or TRO
to stop the RTC from proceeding with the execution of the said judgment.
Under Rule 47 in relation to BP 129 in the case of annulment of judgments of
an RTC filed in the CA, is it correct that only the litigants thereto can file the
petition to annul a judgment in a civil case?
No. As held in the case of Islamic Da'wah vs. CA, the petition for annulment of
judgment in BP 129 and Rule 47 does not prohibit a stranger from filing a
petition to annul judgment. He can do so, so long as he can show he will be
prejudiced by the judgment sought to be annulled.
1. absence of jurisdiction over the subject matter
2. absence of jurisdiction over the person of the accused
3. Extrinsic fraud (this encompasses collusion as found under Rule 132)
Thus, there is no conflict between Rule 132 and Rule 47.
JURISDICTION OF THE RTC
Factors determining jurisdiction:
1. Whether or not action is capable of pecuniary estimation
2. whether or not the action is a real action
3. if the amount is known, whether the amount is within the ambit of the
jurisdictional amount
Incapable of pecuniary estimation – not all actions incapable of pecuniary
estimation are cognizable by RTC
Note: Ex.
Under BP 129, these actions are not exclusively cognizable by an RTC:
1. Annulment of judgment rendered by RTC – not capable of pecuniary
estimation, cognizable only by the CA
2. Annulment of arbitral award by barangay court acting as arbitral body –
cognizable by MTC, as provided by LGC, although incapable of pecuniary
estimation.
3. Certiorari, prohibition and mandamus – not exclusively cognizable by
RTC, although incapable of pecuniary estimation.

Requirements: JURISDICTIN IN REAL ACTIONS – TITLE TO OR POSSESSION OF PROPERTY

1. All other Remedies of motion for new trial, petition for relief, appeal and This area is qualified by BP 129 as amended as it has expanded the jurisdiction
other remedies are no longer available or to do so will not redound to his of MTCs.
benefit.
2. Through no fault of petitioner, remedies were unavailing What are the possessory actions on real property?
3. Petitioner is a stranger to the case (Islamic Da’wah case) A:
Accion Interdictal Accion Publiciana Accion Reinvindicatoria
In Islamic Da’wah, in allowing a stranger to file annul a judgment, then he Summary action for the A plenary action for the An action for the
need not seek other remedies since the stranger to a case cannot possibly recovery of physical recovery of the real recovery of ownership,
avail of remedies that are available only to a litigant in a case. possession where the right of possession which necessarily
dispossession has not when the dispossession includes the recovery
While CA has authority to outrightly dismiss annulment of judgment, RTC lasted for more than 1 has lasted for more of possession.
cannot. Insofar as RTC is concerned, petition to annulment of a judgment by an year. than 1 year.
MTC should be treated as any normal civil case. All cases of forcible RTC has jurisdiction if RTC has jurisdiction if
entry and unlawful the value of the the value of the
In Rule 47, if the judgment is annulled, it is declared void by the court. It is detainer irrespective of property exceeds property exceeds
unenforceable, or if already enforced, CA can order restitution if that is still the amount of damages P20,000 or P50,000 in P20,000 or P50,000 in
possible. or unpaid rentals Metro Manila. Metro Manila.
sought to be recovered MTC has jurisdiction if MTC has jurisdiction if
should be brought to the value of the the value of the
Rule 47 in relation to BP 129 and Rule 132: the MTC. property does not property does not
There are no grounds for annulment mentioned in BP 129. exceed the above exceed the above
amounts. amounts.
Rule 47 Sec. 2. Grounds for annulment.
The annulment may be based only on the grounds of Accion reinvindicatoria and accion publiciana – RTC exercising original
extrinsic fraud and lack of jurisdiction. jurisdiction if property is worth above 20k/50k, as the case may be.
Extrinsic fraud shall not be a valid ground if it was availed
of, or could have been availed of, in a motion for new Is it possible a real action is at the same time one incapable of pecuniary
trial or petition for relief. estimation?
Yes. A good example of a real action that is incapable of pecuniary estimation is
Judicial record must be discredited. Judgment of the foreclosure of real estate mortgage. It is not capable of pecuniary estimation
court must be discredited by such impeachment. In BP as the determinative issue here is the right of the mortgagee to foreclose, not
129, there are no grounds for annulment mentioned at the value of the property.
all. They are mentioned in Rule 47 and Rule 132.
What do we do in determining jurisdiction of an action is a real action but is
Rule 132 Sec. 29 . How judicial record impeached. — Any incapable of pecuniary estimation? What factor will be determinative to
judicial record may be impeached by evidence of: (a) determine jurisdiction of the court?
want of jurisdiction in the court or judicial officer, (b) SC held that if the action carries the feature of real action and one incapable of
collusion between the parties, or (c) fraud in the party pecuniary estimation, then the determinative factor is the feature of incapable
offering the record, in respect to the proceedings. of pecuniary estimation. Thus, RTC has exclusive jurisdiction of foreclosure
actions, even if the assessed value of the property involved is less than the
3 grounds under Rule 132 to impeach judgment: jurisdictional amount of the RTC. As long as the action is foreclosure of
1. lack of jurisdiction mortgage, the RTC has jurisdiction.
2. extrinsic fraud
3. collusion The feature of foreclosure of mortgage as a real action will only be important in
determining the venue, not the jurisdiction.
Grounds under Rule 47to impeach judgment:
A similar action which applies the same principle is expropriation. Expropriation
of a piece of land is one involving real action, but it does not take into account
the assessed value of the land in determining jurisdiction. Thus, it is real action,
although incapable of pecuniary estimation, as the right to expropriate is the
main issue, not the value of the land involved.
JURISDICTION IN MONEY CLAIMS
When it comes to personal actions, under BP 129, the determining factor will
be the amount sought to be recovered if it is a claim for money, or if it is
recovery of personal property, it is the value of the personal property as
alleged in the complaint.
The determining factor for jurisdiction in a pure collection suit is the principal
sought to be recovered, exclusive of charges interest, attorney’s fees, damages
etc. If the amount sought to be recovered by the plaintiff is 1M, it may be
cognizable by the RTC if it represents the aggregate amount of the claim, the
principal amount being within the jurisdictional value of the MTC. If the
principal is only 200k and the rest are charges, damages, interest, etc., then the
MTC has jurisdiction over the case.
What if the plaintiff seeks only recovery of damages inclusive of actual,
moral, nominal, etc.?
Ex. Plaintiff sought 100K actual, 500K moral and 500k exemplary damages.
How do we determine jurisdiction here?
Complaints purely for damages = the aggregate (total) amount of damages will
determine jurisdiction, not the specific amounts claimed. Thus, in the example,
the RTC has jurisdiction. Even if the complaint specified the amount of damages
for each aspect, the aggregate amount shall determine the jurisdiction.
JURISDICTION OVER RECOVERY OF PERSONAL PROPERTY
BP 129 as amended takes into account the assessed value only in the case of
real properties. Personal property values have no bearing in jurisdiction. The
value as stated in the complaint shall be determinative (whether the figure is
true or not).
Ex. Plaintiff sought recovery (replevin) of the car, claiming that is worth 800k
(even if it is not true).If defendant challenges the value, stating the car is 30
years old, and willing to submit evidence to show true value, will the court
entertain the defendant’s motion?
No. The court shall rely only on the allegations in the complaint. Once the court
acquires jurisdiction, it cannot be ousted; the court proceeds with the case
until finally adjudicated.
What if it is found during trial that the car is actually worth far less than the
value claimed? Will the court remand the case to the lower court?
No. It will continue to hear until final judgment. There will be adherence of
jurisdiction of the court over the case. The court will continue trying the case
until it is finally adjudicated.
The only way to oust jurisdiction in this regard is if Congress files a law
abandoning the principle of adherence of jurisdiction over a particular case.
Dean Jara
With respect to MTCs, notwithstanding the expanded jurisdiction thereof,
practically all cases decided by the RTC pertaining to personal property can also
be decided by the MTC, depending only on the value of the property involved.
Ex. Estate proceedings, accion reinvindicatoria, accion publiciana
Note: MTC is still a court of limited jurisdiction despite the expanded
jurisdiction under BP 129 as amended. It can try only the cases given to it
under substantive law. The provision in BP 129 making the RTCs courts of
general jurisdiction is not given to MTCs. BP 129 stated explicitly that the RTC
shall have exclusive original jurisdiction over all actions that are not specially
assigned to any other court. This is not contained in the allocation of
jurisdiction of MTCs.
Vesting of authority to MTCs – Sec. 33, the Totality test, is used in determining
jurisdiction
Totality test is a proviso for ascertainment of jurisdiction, more encompassing
than that provided in the Rules.
Difference in Totality Test in the Rules vs. Totality Test in BP 129:
RoC – totality test in Rule 2 concerns causes of action for money, as to the
amount. The totality of the money claims shall be determinative of
jurisdiction of courts.
BP 129 – the totality test refers to of all claims or causes of actions in a
complaint, whether they refer to the same or different parties or arising out
of the same or differing transactions. This is more encompassing in scope.
BP 129 has contained therein the provision on delegation of jurisdiction to
the MTC and also the special jurisdiction of the MTC.
The MTC, in its delegated jurisdiction, acts as if it were an RTC.
Ex. MTC acts as if it was a cadastral court (usually done by RTC). If the land
registration or cadastral case is contested, the assessed value of the contested
property is determinative of jurisdiction. If uncontested, MTC acts as a
cadastral as if it were an RTC, there being no limitation as to jurisdiction. But BP
129 clearly states that if MTC acts as a cadastral court the MTC’s decisions on
cadastral cases shall be appealable in the CA, not to the RTC (hierarchy of
courts is not followed).
Habeas Corpus proceedings can be heard in the MTC, but only in situations
where petition was filed in the RTC, but no judges are available in the RTC, so
the petition is transferred to an MTC wherein a judge is available. The MTC
gains jurisdiction as habeas corpus cases are urgent. In fact, habeas corpus
cases are always given special preference by the courts; and thus, if no RTC
judges are available to hear the petition, the clerk of court in the RTC must
transfer the case to the MTC, and MTC must hear the petition promptly. BP 129
does not authorize the filing of the habeas corpus case directly in the MTC.
Petition for habeas corpus filed in the MTC can be challenged on jurisdictional
grounds because BP 129 does not vest unto an MTC an authority to entertain a
petition for habeas corpus. It is only under circumstances where there are no
RTC judges available to entertain a petition for habeas corpus when an MTC
judge can now analyze and study the propriety the issuing of the writ of habeas
corpus.
SPECIAL JURISDICTION OF MTCS.
Take note that the trial court still has residual jurisdiction to act on certain
matters even if the case is already on appeal. See
Rules 41 RoC. It is not correct to assume that if a case has been decided by the
trial court. After an appeal is perfected, the case is now under the jurisdiction
of the appellate court. Do not assume that the case is entirely divested from
the jurisdiction of the trial court, even if there is a perfected appeal. The trial
court continues to exercise jurisdiction over certain matters for a limited period
of time in its residual jurisdiction. After the expiration of that period, absolute
jurisdiction will now be exercised by the appellate court.
In Primary Jurisdiction, this involves quasi-judicial bodies. What happens in
primary jurisdiction is that Congress enacts a law which vests jurisdiction unto a
quasi-judicial body to try and decide cases which are cognizable by regular
courts under BP 129. The reason why Congress enacts these laws is that
Congress feels that the quasi-judicial body is better equipped to decide
disputes of litigants in certain cases than the regular courts.
Ex. HLURB – has exclusive original jurisdiction to adjudicate disputes between
subdivision buyer/s vs. subdivision developers. In cases of breach of contract
under the NCC on matters pertaining to the jurisdiction of quasi-judicial bodies,
the trial court cannot take cognizance of these matters, although BP 129 gives
jurisdiction to regular courts over such matters, given the fact that there is a
substantive law vesting jurisdiction to the HLURB to decide on such disputes.
This is because it is presumed that the HLURB is better equipped than a regular
court to decide on such cases due to its expertise.
What if the subdivision developer filed in the MTC a complaint for ejectment
of a subdivision buyer who allegedly violated the terms of the contract? The
subdivision developer sought to recover the property from the buyer, among
other prayers. The subdivision buyer challenged that MTC has no jurisdiction
over the case, and that it is HLURB which is the proper body to take
cognizance of the complaint. Does HLURB have jurisdiction over the
ejectment case?
SC held that the primary jurisdiction of the HLURB does not extend to
complaints of ejectment filed by one party against the other. In the case of
primary jurisdiction vested by substantive law to quasi-judicial bodies, the
authority of the quasi-judicial body is interpreted strictly. Ejectment could
really be a dispute between developer and buyer, but since the complaint was
for recovery of physical possession of the property (or even accion publiciana),
SC held that regular courts should take cognizance.
Note: Complaint for ejectment by subdivision developer vs. subdivision buyer
was actually a suit for recovery of possession of property.
Residual Jurisdiction – found in appeal cases (Rules 41 and 42); jurisdiction
enjoyed by the trial court to act on certain matters for a very limited period,
even if the case is on appeal.
Constitutional limits provided in the Constitution limiting SC’s authority in
promulgating rules:
1. uniformity in all courts of the same grade
2. speedy and inexpensive determination of the case
3. does not modify, increase or decrease substantive rights
Any rule on procedure violating any one of the limitations given in the
Constitution, the rule can be properly challenged as to its validity and
applicability.
A litigant challenged a rule on criminal procedure (Rule 115 Rights of the
Accused). Litigant stated that Rule 115 is not procedural, and modified
substantive rights as espoused in the Constitution, and should be deleted in
the RoC.
SC denied the petition. SC said that while the authority of the SC is to
promulgate rules on proceedings, practice and procedure, and that substantive
rights should not be covered by the provisions of the Rules, SC said that it is
practically impossible for rules of procedure to be devised without
incorporating certain provisions that are dealing substantive law. The standard
is that we take the Rules as a whole, and determine whether it is procedural in
character. If the answer is yes, and there are certain provisions speaking about
substantive rights, that should not be a justification of deleting these provisions
in the RoC.
Also, SC noted that the NCC, a substantive law, contains procedural articles
concerning court processes such as those concerning unlawful detainer and
forcible entry, but NCC still remain a substantive law.
The civil code provisions shall not be affected by the procedural provision in the
Rules concerning the filing of claims (Recovery of creditor of the whole debt
from surviving solidary debtors). According to the Rules, the Rules of Court
should be interpreted liberally. But the interpretation is one not in favor of the
plaintiff or defendant. The meaning of liberal interpretation is to promote the
ends of justice, to carry out the duty of the SC under the limitations given
under the Constitution.
PLEADINGS
COMPLAINT
General Rule: A civil action is always commenced with the filing of a
complaint. This is the general rule. Some cases are commenced by a petition,
most notably in special civil actions. The filing of a complaint has given rise to
the action that when the case is filed, the court acquires jurisdiction over the
action. The court will then have to gain jurisdiction over the person of the
defendant. Service of summons will gain jurisdiction over the defendant. A
recent decision of the SC held that if the person filing the case is not authorized
to file the case, then the court does not acquire jurisdiction over the person of
the plaintiff, and will not acquire even the jurisdiction to decide the case. The
court can examine whether or not the person who filed the case is authorized.
If not so authorized, the court will not acquire jurisdiction over the person of
the accused and it will not acquire the authority to decide the case. The court
will be absolutely without jurisdiction to try and decide the case.
Amendment of the Complaint
In Complaints properly filed by the plaintiff, the plaintiff can amend the
complaint as a matter of right under Rule 10, provided an answer has not yet
been filed. (Amendment as a matter of right). If amendment is to implead a
new defendant, the court will accept such amended complaint as it is a matter
of right. As to the new defendant, the period to file an answer will relate to the
filing of the original complaint (Relating Back Doctrine).
But, if a new cause of action is introduced along with the new defendant, it is
not an amendment, as a new cause of action is being included.
The classification of actions
Civil Actions
Criminal Actions
Special Civil Actions
Special proceedings
In the definition of a civil actions it is very clear that we do not necessarily
follow the definition of a cause of action as defined in Rule 2. A cause of action
is a violation of a right belonging to the plaintiff by a defendant. For a cause of
action to accrue, the plaintiff must allege he has a right, and then allege that
the defendant had violated that right.
Elements:
Plaintiff must allege he has a right.
Plaintiff must allege the defendant has violated for that right.
The implication of given by the definition of a cause of action is that the right
holder must wait for a violation of his right before he can have a cause of
action against such person who violated his right and have a reason to go to
court. That cause of action should always be related to the definition of a civil
action found in Section 3(a) Rule 1.
A civil action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
Rule 2 SEC. 2. Cause of action, defined.—A cause of
action is the act or omission by which a party violates a
right of another.
Civil action does not require prior violation of a right before right holder can
proceed to court. A plaintiff need not have his right actually violated before a
case can be filed. Even a threat to violate a right gives rise to a cause of
action.
The Rules of Procedure becomes more complicated if there are several rights
that are violated by one and the same wrongful act. If there is just one
wrongful act and there are several rights violated, how will the causes of
action accrue?
The standard given by the SC: In order to determine whether several causes of
actions will arise, if there is one wrongful act and there are several rights that
are violated, is to determine whether these rights belong to the same person
or to different persons.
Common Standard: Determine whether these rights belong to the same
person or to different persons.
Several rights of one person violated by one and the same act = 1 cause of
action = 1 complaint.
Several rights of several persons violated by one and the same act = several
causes of action = separate complaints.
If a person drives his car negligently, and causes damage or wrecks 3 cars,
how many causes of action accrue against him using the standard given by
the court?
Using the standard, determine whether the three cars belong to one person
only or the cars belong to three different persons. If the 3 cars belong to only
one person, only one cause of action will accrue. The owner of the cars can
only file one case against the negligent driver. Otherwise, that will be splitting
of causes of action. The owner had only one right that was violated by the
negligent driver. But if these 3 cars belong to 3 different owners, there are 3
separate causes of action. Because there are 3 causes of action that arise, they
can file separate complaints, and they don’t have to be joined. Conceivably,
one owner can file his case in the RTC if he claims the damages suffered by him
amounted to more than 500k. Another owner can file his case in the MTC if he
claims that his car incurred damages amounting to 200k. The filing of these
complaints by 3 different owners will depend on the amount of damages each
will respectively claim in their respective complaints. The fact that there are 3
different causes of action does not mean that they should go to the same court
in order to recover the damages suffered by them.
In the first example where the 3 damaged cars were owned by one owner,
there is only one cause of action. The owner of the 3 cars can only file one
complaint for recovery of damages. Can he properly and rightfully go to court
right away?
No. If we rely solely on substantive law alone, it would seemingly be yes. But if
we apply other procedural principles, the owner may be precluded from filing a
complaint right away. The owner has to first satisfy certain conditions
precedent before cause of action could accrue. If these conditions precedent
are not satisfied, the filing of the complaint shall be premature and shall cause
the dismissal of his complaint.
Conditions precedent given under procedural rules and substantive law are as
follows:
1. prior barangay conciliation
2. arbitration clause
3. certification on non-forum shopping
4. exhaustion of administrative remedies
5. earnest efforts towards a compromise
Even if a right has been violated and a cause of action indeed accrued, if the
action is covered under the circular on prior barangay conciliation, the trial
court can dismiss or not entertain the case and order the parties to undergo
barangay conciliation first.
Arbitration clause – invariably provides that in case of breach of contract, the
parties must first undergo arbitration before a complaint can be filed by the
innocent party.
Rule 7 – Certification on Non-Forum Shopping
The complaint/initiatory pleading must have Certification on Non-Forum
Shopping. The effect of a complaint/initiatory pleading without Certification on
Non-Forum Shopping is that the court acquires jurisdiction over the case, but
the court can order the dismissal of the case for non-observance of
Certification on Non-Forum Shopping as a condition precedent.
Effects of complaint filed without certification of non-forum shopping:
1. court obtains jurisdiction of the case
2. court can dismiss the case for noncompliance of condition precedent
Exhaustion of administrative procedures is another condition precedent to the
accrual of a cause of action.
In the NCC, in disputes between members of the same family, it must be shown
that earnest efforts to reconcile or compromise have been attempted but was
unsuccessful.
Thus, the definition of a cause of action under the Rules is now qualified by
certain conditions precedent before the injured party can go to court. He must
see to it that these conditions precedent, if applicable, must first be observed.
The risk of not doing so is that the court, although competent and may have
jurisdiction over the case, may refuse to file the case and issue an order
directing the plaintiff to undergo or comply with these conditions precedent.
If the conditions precedent have been met, the general rule that we follow is
for every cause of action, the plaintiff/right holder can file one complaint.
Splitting a cause of action – abhorred by the court.
Ex. Creditor filed separate actions for recovery of the principal and the interest
earned by the principal. Even if there are 2 different courts where these
complaints are filed, there is still splitting cause of actions.
Rule 2 SEC. 4. Splitting a single cause of action; effect
of.—If two or more suits are instituted on the basis of
the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for
the dismissal of the others.
Rule 7 SEC. 5. Certification against forum shopping. —
The plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading asserting a
claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a) that he
has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge,
no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or
claim has been filed or is pending, he shall report that
fact within five (5) days therefrom to the court wherein
his aforesaid complaint or initiatory pleading has been
filed.
Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or
other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing.
The submission, of a false certification or non-compliance
with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the
acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground
for summary dismissal with prejudice and shall constitute
direct contempt, as well as a cause for administrative
sanctions.
Sanctions for splitting causes of action:
1. filing of one could be used to dismiss the other due to litis pendencia
2. if one of the case has been decided, the other case can be dismissed due to
res judicata
3. if there are 2 concurrent cases, the cases can be dismissed on ground of
forum shopping.
It is now settled that if the party is guilty of splitting his cause of action, he is
also guilty of forum shopping. There is no need to elaborate as to whether
there is forum shopping as long as it can be shown that there is splitting
causes of action.
Why does the Rules prohibit splitting?
It is because, the effect of splitting a cause of action could be harmful to our
courts. If splitting is allowed, and one case each will be filed for example in the
RTC and MTC, there is the possibility that one court will decide differently from
the other and would result in the courts looking funny, even if the same facts,
the same parties and the same pieces of evidence were presented therein. The
rule on splitting is designed more for protecting the integrity of our courts. The
likelihood that different courts will render conflicting decisions involving the
same issue, the same parties and the same pieces of evidence and thus destroy
the credibility of the judicial system is sought to be prevented.
Consequences of splitting:
Suppose the plaintiff filed 2 complaints arising from the same cause of action,
but the defendant ignores this. Defendant did not act on the fact. Can the
court motu propio dismiss the cases?
Yes. Res judicata and litis pendencia are both non-waivable offenses under Rule
9. Even if the defendant did not waive these, the court motu propio can order
dismissal of these cases once these becomes clear during trial. But if the
ground for dismissal is litis pendencia, only one of the cases will be dismissed.
If the ground for dismissal is res judicata, all cases filed will be dismissed.
In litis pendencia, movant cannot move for dismissal of all cases, only one can
be dismissed.
Rule 9SECTION 1. Defenses and objections not
pleaded.—Defenses and objections not pleaded either in
a motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction
over the subject matter, that there is another action
pending between the same parties for the same cause,
 or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.
(Note: If you are counsel for the defendant, if cases are filed in 2 different
courts [RTC and MTC], move for the dismissal of the case in the RTC, as the
amount involved in the MTC is smaller. Hence, if the amount involved in total
should have been 2.2M, and the amount involved in the MTC is only 200k, only
200k will be extent of liability that your client will have in case of judgment
against him.)
Can we have the defendant have the remedy of dismissal of both cases filed
in RTC and MTC?
Yes, on the ground of forum shopping. If a plaintiff is guilty of forum shopping,
the court shall order the dismissal of all cases. But the qualification is that the
dismissal is without prejudice, not an adjudication on the merits. Exception to
the dismissal being without prejudice is that if the forum shopping was
DELIBERATE, then dismissal is with prejudice.
SUMMARY:
If the wish of the defendant is the dismissal of all cases, move for dismissal
under Rule 7 on the ground of forum shopping. Anyway, if the party is guilty
of splitting of a cause of action, he violates the rule on forum shopping.
But if one of the cases has been decided, the ground of dismissal should be
res judicata, as long as the decision in that previous case has become FINAL
AND EXECUTORY.
Litis pendencia and res judicata are NON-WAIVABLE defenses. Courts can
motu propio dismiss the case on these grounds under Rule 9.
On Cases of Collection of Payments Payable on Installments
Larena vs. Villanueva – old case but still applicable
Each installment = different maturity dates.
The rule of thumb is that for each installment that becomes due and unpaid,
one cause of action arises for that particular installment.
If the installment becomes due and unpaid, the creditor has one cause of
action against the debtor for recovery of money. But his cause of action
against the debtor is only for the recovery of the installment that was
overdue.
Can the creditor insist on recovery of the entire amount instead of
installments?
Generally, no. Each installment must be due so that right of recovery can be
had.
Exception: The contract has an acceleration clause. It is a clause in
contracts payable in installments where parties stipulate that in
case of default in the payment of a certain number of installments
(or even just one), the entire obligation becomes due.
So if there was an acceleration clause in the contract wherein the whole
obligation becomes due after default of the first installment, the creditor will
have one cause of action only to recover the entire amount. Suppose the
creditor indeed filed one case only, and later a judgment was decided in his
favor and the has become final, and later the second installment has become
due, he cannot file another case for the recovery of the second installment by
virtue of the acceleration clause. Only one cause of action shall arise.
But without an acceleration clause, the rule of thumb is each installment that is
unpaid shall give rise to a different cause of action when they become due and
unpaid. There will be as many cases as there are installments filed by the
creditor against the same debtor, but each case corresponding to a different
installment.
The qualification given in Larena is that if two installments are already due,
then they should be the subject of one complaint. If the other installments are
not yet due, they cannot yet be subject to a complaint.
RULE ON ANTICIPATORY BREACH
Blossom vs. Manila Gas (Rule on Anticipatory Breach)
Even if the obligations are not yet due according to the contract, but the
debtor has expressed formally his desire not to pay, then that is an
anticipatory breach of contract from which creditor can file a case against the
debtor to collect the entire obligation. This anticipatory breach should be
formally pleaded in the complaint.
SWAGMAN RULE
If such anticipatory breach was not pleaded in the complaint filed, and
defendant failed to file an answer, the court will set the case for pre-trial. By
the time the pre-trial was conducted, the first installment had become due.
The trial was scheduled, but by that time, the whole obligation became due
and unpaid. Can the court properly decide the case in favor of the plaintiff?
No.
Swagman Hotel vs. CA
If a plaintiff files a complaint in court although he has no cause of action at
all, and the claim of the plaintiff matures at the time the case is tried, the
court still does not have any authority to decide the case. This is because at
the time of the filing of the complaint, the plaintiff did not have a cause of
action.
Can we not apply Rule 10 (Amendment to conform to evidence)?
SC held that we don’t apply amendment to conform to evidence, if in the first
place the plaintiff does not have a cause of action at the time of the filing of the
complaint. It is essential under the Swagman Rule that a complaint should be
filed after the cause of action has accrued. If there is no cause of action that
has accrued and a complaint is filed, the court will have no authority to
decide the case, even if that obligation matures and becomes defaulted
during the trial of the case. We apply Rule 10 only if there is a cause of action
at the time of the filing of the complaint.
Swagman Hotel vs. CA
Facts: Sometime in 1996 and 1997, Swagman through
Atty. Infante and Hegerty, its president and vice-
president, respectively, obtained from Christian loans
evidenced by three promissory notes dated 7 August
1996, 14 March 1997, and 14 July 1997. Each of the
promissory notes is in the amount of US$50,000 payable
after three years from its date with an interest of 15%
per annum payable every three months. In a letter dated
16 December 1998, Christian informed the petitioner
corporation that he was terminating the loans and
demanded from the latter payment of said loans.
On 2 February 1999, Christian filed with the RTC a
complaint for a sum of money and damages against the
petitioner corporation, Hegerty, and Atty. Infante.
The petitioner corporation, together with its president
and vice-president, filed an Answer raising as defenses
lack of cause of action. According to them, Christian had
no cause of action because the three promissory notes
were not yet due and demandable.
The trial court ruled that under Section 5 of Rule 10 of
the 1997 Rules of Civil Procedure, a complaint which
states no cause of action may be cured by evidence
presented without objection. Thus, even if the plaintiff
had no cause of action at the time he filed the instant
complaint, as defendants’ obligation are not yet due and
demandable then, he may nevertheless recover on the
first two promissory notes in view of the introduction of
evidence showing that the obligations covered by the
two promissory notes are now due and demandable.
When the instant case was filed on February 2, 1999,
none of the promissory notes was due and demandable,
but , the first and the second promissory notes have
already matured during the course of the proceeding.
Hence, payment is already due.
This finding was affirmed in toto by the CA.
 Issue: Whether or not a complaint that lacks a cause of
action at the time it was filed be cured by the accrual of a
cause of action during the pendency of the case.
Held: No. Cause of action, as defined in Section 2, Rule 2
of the 1997 Rules of Civil Procedure, is the act or
omission by which a party violates the right of another.
Its essential elements are as follows:
1. A right in favor of the plaintiff by
whatever means and under
whatever law it arises or is
created;
2. An obligation on the part of the
named defendant to respect or not
to violate such right; and
3. Act or omission on the part of
such defendant in violation of the
right of the plaintiff or constituting
a breach of the obligation of the
defendant to the plaintiff for which
the latter may maintain an action
for recovery of damages or other
appropriate relief.
It is, thus, only upon the occurrence of the last element
that a cause of action arises, giving the plaintiff the right
to maintain an action in court for recovery of damages or
other appropriate relief.
Such interpretation by the trial court and CA of Section 5,
Rule 10 of the 1997 Rules of Civil Procedure is erroneous.
The curing effect under Section 5 is applicable only if a
cause of action in fact exists at the time the complaint is
filed, but the complaint is defective for failure to allege
the essential facts. Amendments of pleadings are
allowed under Rule 10 of the 1997 Rules of Civil
Procedure in order that the actual merits of a case may
be determined in the most expeditious and inexpensive
manner without regard to technicalities, and that all
other matters included in the case may be determined in
a single proceeding, thereby avoiding multiplicity of suits.
SWAGMAN RULE: At the time of the filing of the complaint, the plaintiff must
have a cause of action. He must be able to show that his right was violated by
the time the complaint was filed. Otherwise, he cannot make use of
amendment to conform to evidence.
SPLITTING VS JOINDER OF CAUSES OF ACTIONS
Splitting is prohibited, joinder is encouraged by the Rules.
The Rules encourages a plaintiff to incorporate as many causes of action he
may have against the same defendant, although his causes of action are totally
unrelated to one another. This is allowed so long as the parties remain the
same.
A plaintiff can file a complaint against a defendant for accion reinvindicatoria,
for recovery of money arising from the loan, recovery of damages arising from
a quasi-delict committed by the defendant, although arising out of different
transactions. There is nothing wrong if the plaintiff sets up three different
causes of action in a complaint that arose of different transactions.
The limitations to joinder of causes of action:
1. Jurisdiction
2. Venue
3. Joinder of parties
According to Rule 2, there could be joinder causes of actions which is valid as
long as the plaintiff
SEC. 5. Joinder of causes of action.—A party may in one
pleading assert, in the alternative or otherwise, as many
causes of action as he may have against an opposing
party, subject to the following conditions:
(a) The party joining the causes of
action shall comply with the rules
on joinder of parties;
(b) The joinder shall not include
special civil actions or actions
governed by special rules;
(c) Where the causes of action are
between the same parties but
pertain to different venues or
jurisdictions, the joinder may be
allowed in the Regional Trial Court
provided one of the causes of
action falls within the jurisdiction
of said court and the venue lies
therein; and
(d) Where the claims in all the
causes of action are principally for
recovery of money, the aggregate
amount claimed shall be the test of
jurisdiction.
If the plaintiff files a complaint against the defendant for accion
reinvindicatoria, and the assessed value of the property is 1k only, and the
second cause of action is the recovery of money, obviously the actions are
misjoined. This is because accion reinvindicatoria, the property being only 1k, is
cognizable only by the MTC.
SC decided a case where one of the parties contended joinder when there
was actually misjoinder of causes of action. The complaint filed by the
plaintiff against the defendant, the first cause of action was for partition, and
second cause of action was for rescission of a donation. Both causes of action
were cognizable by the RTC.
If we rely solely on Sec. 5 Rule 2, is there misjoinder of actions? Why?
Yes. This is because a complaint for Partition is a special civil action while
rescission is an ordinary civil action. They are governed by different procedures,
and thus there is misjoinder of causes of action under Rule 2 Sec. 5(b).
On the same facts above, the defendant did not notice the misjoinder and did
nothing, whereas the court did nothing also. The judge most likely waited for
the defendant to move to split the misjoinder causes. But since nothing was
done by defendant, the judge proceeded to try the two misjoined cases.
Under the rules, can a court, motu propio, order the severance of one of the
misjoined causes of action?
Yes. The court can do so. Under the Rules, there is no need for a motion from
the defendant if the court finds out that causes of action are misjoined . It can
motu propio order the severance of cases. This is done for the benefit of the
court, because if the court will wait for the defendant to make a motion, to
raise the misjoinder of causes, the court will find himself confused with the
procedure he will follow. This is because partition will involve a different
procedure from ordinary civil actions. In fact, under our Rules now, partition is
a multi-stage proceedings. Rescission is an ordinary civil actions.
The court went ahead and tried the case, until a decision was finally issued by
the court. Only then did the defendant raised, on appeal to the SC, the
misjoinder of causes of action.
If nobody objected, the court may proceed in the disposition of the case. If the
court decided on the case, the decision will still be valid. SC made a
qualification that these misjoined causes should be within the jurisdiction of
the trial court under BP 129. In other words, this rule on misjoined causes could
be a ground for severance of these causes. But it if it is not raised timely, and
the court decided on the case, the court’s decision is valid as long as the trial
court has jurisdiction over the misjoined causes.
Does the RTC have jurisdiction over a complaint for Partition? Does the RTC
have jurisdiction over rescission of a donation?
Note that a case for partition is one incapable of pecuniary estimation. So even
if there are misjoined causes in one complaint, but this misjoinder is not raised
before the trial court, the parties are deemed to have waived this issue of
misjoinder of causes of action, the judgment rendered by the court is valid and
the same can be executed if it is duly entered.
If the court does not motu propio order the severance, the defendant cannot
blame the court for it. It is the burden of the defendant to raise this as an issue
before the trial court.
As long as one of the misjoined causes falls within the jurisdiction of the trial
court, there is nothing wrong if the trial court will eventually decide the case
although there is misjoined causes of action.
Can a complaint be filed where these two causes of action are set up, first,
petition for certiorari, and then, as a second cause, petition for habeas
corpus?
Yes, the petition is allowed, by way of exception, according to SC.
A complaint was filed in the MTC. The first cause of action was for accion
reinvindicatoria, the assessed value of the land was 1k. The other cause of
action unlawful detainer of a condominium unit, with value of back rentals
being 2M. Can an MTC have jurisdiction over the action?
Yes. The value of the land in the accion reinvindicatoria where the assessed
value was only 1K. The recovery of possession by a MTC will be by a summary
proceeding, regardless of the back rentals sought to be recovered..
Are the causes properly joined?
No. There is still misjoinder, although both causes are cognizable by an MTC.
This is because accion reinvindicatoria, although cognizable by the MTC, shall
be governed by ordinary proceedings while unlawful detainer will be governed
by summary procedure. We cannot join causes of action which are governed by
different Rules of Procedure, although they may fall within the jurisdiction of
that same court.
New case
Baylon Case. – Even if there is misjoinder, if it is not raised as an issue, and the
court has decided upon the case, the decision rendered thereafter is still valid
so long as the court has jurisdiction over all causes of action that are
misjoined in the same complaint.
Limitations to the prerogative
Unlike joinder of parties, there is a rule against misjoinder of causes of action,
in the same way there is a rule on misjoinder of parties. There is no rule on
non-joinder of causes of action, while there is non-joinder and misjoinder of
parties. The reason why there is no rule on non-joinder of causes is because it
is permissive, it is always at the option of the plaintiff. The plaintiff can join as
many causes of action as he may have. The court cannot force him to do so. But
there is a rule against MISJOINDER of parties.
Misjoinder of causes occurs when the joinder of two or more causes violates
the rules. Ex. Joinder of special and ordinary causes of action in one complaint,
it is prohibited for being in violation of the rule that actions covered by
different rules of procedure cannot be joined, although both may be cognizable
by the same court.
But the latest jurisprudence of the court is to the effect that even if causes
are misjoined, if that issue is not raised on appeal, the CA and SC will ignore
the violation of the rule on misjoinder. Judgment will not be disturbed, so
long as the court deciding has jurisdiction on all causes that have been
misjoined.
Limitations:
1. Sec. 6, Rule 3, Permissive Joinder of Parties
- It envisions a situation where there are 2 or more plaintiffs, 2 or more
defendants, or both, where there is a series of transactions, with common
questions of fact concerning the same parties.
Rule 3 SEC. 6. Permissive joinder of parties.—All persons in whom or against
whom any right to relief in respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether jointly, severally, or in the
alternative, may except as otherwise provided in these Rules, join as plaintiffs
or be joined as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the action;
but the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest.
The owner of a land discovered that his property has been occupied forcibly
by 11 informal settlers and they retained physical possession thereof. The
informal settlers had constructed houses therein. The owner wanted to
recover the possession thereof. Should the owner file 11 cases of forcible
entry or just one against the 11, or one complaint wherein there is a joinder
of parties?
SC said that the owner has the option of choosing any one of these remedies.
Plaintiff can file 11 separate complaints impleading only one defendant in each
complaint. If plaintiff chooses to file just one action, in that complaint, he must
allege 11 causes of action (First Cause of Action, etc.). The last recourse will
involve joinder of parties.
Why?
Sec. 6 Rule 3 is permissive in character. (use of the word ‘may’)
2. Compulsory joinder of indispensible parties – party must be joined so that
final adjudication of the issue can be had.
- even if the court tries a case without impleading an indispensible party, such
non-joinder will render the proceedings void. The decision is void and will
never be entered, and thus cannot be made final and executory.
Indispensible party–parties in interest without whom no final determination
can be had.
Rule 3, SEC. 7. Compulsory joinder of indispensable
parties.—Parties in interest without whom no final
determination can be had of an action shall be joined
either s plaintiffs or defendants.
If there are 2 parties to the contract of sale, one vendor and one vendee. If in
case there is a violation of the contract of sale, the vendor and vendee are of
course indispensible parties.
Necessary party–the joinder of such party is not compulsory.
Rule 3 SEC. 8. Necessary party.—A necessary party is
one who is not indispensable but who ought to be
joined as a party if complete relief is to be accorded as
to those already parties, or for a complete
determination or settlement of the claim subject of the
action.
What is the sanction if the complaint is filed without impleading indispensible
party?
It is not per se a ground for dismissal as very clearly stated in Section 11, Rule 3;
but if the defendant uses another ground used, specifically failure to state a
cause of action, then the complaint will be dismissed.
Rule 3 SEC. 11. Misjoinder and non-joinder of
parties.—Neither misjoinder nor non-joinder of parties
is ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action
and on such terms as are just. Any claim against a
misjoined party may be severed and proceeded with
separately.
SC held differently in several cases:
It held that failure to state a cause of action is evident when an indispensable
party is not impleaded. A cause of action envisions the existence of a right
violated and a wrongdoer who did such violation. The proceedings taken by the
court are considered void in terms of those who were not impleaded, being
indispensable parties. Even if the court decided the case, the judgment
therein will be unenforceable since such decision will be subject to question
by those parties not impleaded.
There were also decisions stating otherwise. SC stated than non- Indispensable Parties Necessary Parties
joinder/misjoinder is not a ground for dismissal. If a motion to dismiss is filed, Parties in interest without whom no A necessary party is one who is not
SC stated that the court should order amendment of the complaint instead of final determination can be indispensable but who ought to be
dismissing it. In Rule 16 on alternatives of a court on ruling a motion to had of an action shall be joined either joined as a party if complete relief is
dismiss, SC says a trial court has 3 options: deny, dismiss or to order as plaintiffs or defendants. (Sec.7, to be accorded as to those already
amendment of the complaint. Thus, trial court can order denial of a motion to Rule 3) parties, or for a complete
dismiss by ordering amendment. determination or settlement of the
Must be joined under any and all claim subject of the action. (Sec.8,
4 alternatives to resolve misjoinder/non-joinder of indispensable parties: conditions because the court cannot Rule 3)
1. Grant motion proceed without him (Riano, Civil
2. Deny motion Procedure: A Restatement for the Bar, Note: Should be joined whenever
3. Order amendment to the pleading p. 224, 2009 ed.) possible, the action can proceed even
4. Refer the matter to arbitration or prior barangay conciliation in their absence because his interest
is separable from that of
Hence, if a defendant moves for the dismissal of the case of non-joinder of indispensable party (Ibid p.224)
indispensible parties, the court can order amendment of that complaint to No valid judgment if they are not The case may be determined in court
implead the indispensible party. Plaintiff also has a choice; he can either joined but the judgment therein will not
ignore or comply with the order. If he complied, the defect is cured. resolve the entire controversy if a
Note: In the absence of an necessary party is not joined
But if plaintiff disobeys the order directing him to implead an indispensible indispensable party renders all
party, can the court do something about it? subsequent actions of the court null Note: Whenever in any pleading in
SC held that the case can be dismissed under Rule 17. If the dismissal was and void for want of authority to act, which a claim is asserted a necessary
ordered by the court due to disobedience of a lawful order, it shall be a not only as to the absent parties but party is not joined, the pleader shall
dismissal with prejudice, an adjudication upon the merits. even as to those present (Riano, Civil set forth his name, if known, and shall
Procedure: A Restatement for the Bar, state why he is omitted. Should the
Adopt the 2nd set. Order amendment. If amendment order is not complied p. 221, 2009 ed.) court find the reason for the omission
with, court will order dismissal under Rule 17, unless the court orders unmeritorious, it may order the
otherwise. inclusion of the omitted necessary
party if jurisdiction over his person
What is the difference of a dismissal under Rule 16 and Rule 17? may be obtained. The failure to
If a complaint is dismissed under Rule 16 due to failure to state a cause of comply with the order for his
action from failure to implead, dismissal is without prejudice. inclusion, without justifiable cause,
shall be deemed a waiver of the claim
If dismissal is by reason of Rule 17, for failure to obey lawful orders of the against such party.
court, it is a dismissal with prejudice unless the court orders otherwise. The non-joinder of an indispensable or a necessary party is not by itself ipso
facto a ground for the dismissal of the action. The court should order the
NECESSARY AND INDISPENSABLE PARTIES joinder of such party and non-compliance with the said order would be a
How do we distinguish whether a party is necessary or indispensable? ground for the dismissal of the action (Feria, Civil Procedure Annotated, Vol. I,
The rule to guide us in this fact is the NCC on liability of debtors. p. 239, 2001 ed.)

In the case of debtor/creditor relations where there are 2 debtors to the same
debt:
Plaintiff should evaluate liability, whether debtors’ liabilities are solidary or
joint. In the NCC, in absence of any other stipulations/factors, when there are
two debtors of the same indebtedness, the assumption will be that they are
joint creditors. If there are stipulations referring to the debt as solidary, then
they are solidary debtors. The provisions of the NCC will be the guide in this
situation.
Note: Parties may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action and on such terms as are
just. Any claim against a misjoined party may be severed and proceeded with
separately. (Sec. 11, Rule 3)
The presence of a necessary party is not determinant to the resolution of the
action, but can be impleaded if only to satisfy completely the issue.

If we apply the provisions of the NCC, and the creditor filed a case to recover
the entire debt, and debtor A and B are joint debtors, do we consider both
debtors to be indispensible parties?
Yes. If the purpose of the creditor is to recover the entire obligation, then both
debtors should be impleaded in the complaint.
Can the creditor file a case against only debtor A?
Yes, applying the provisions of the NCC, the creditor can go after A, but
recovery can be had only to the extent of the amount owed by A. In this
example, debtor A is an indispensible party.
How about debtor B, is he a necessary party?
Yes. His presence in the case against debtor A is not indispensible. The court
may require B be impleaded to complete the determination the subject matter.
There is another presumption in the NCC that if there is no indication as to the
extent of the debt of two joint debtor’s the presumption will be that both shall
share equal obligations to the creditor. Hence, if the creditor loaned Debtors A
and B 1M, there being no other stipulation, it is presumed that Debtors A and B
are joint debtors with individual liabilities of 500K each.
The duty of the plaintiff is only to tell the court that he has left out a necessary
party, he is not compelled to include such party. The court will have to
determine if it is essential for the court to order requiring that necessary party
to be impleaded.
If plaintiff ignored the court order to implead the necessary party, is Rule 17
applicable?
No, Rule 3 should apply, which provides for the sanction if plaintiff refuses to
obey an order to implead necessary party. The case will continue. But, the
plaintiff would be deemed to have waived any right of action against necessary
party. If later on, the plaintiff decides to file a complaint against such necessary
party, the complaint will not prosper, as the necessary party can claim that the
right to file a claim against him has been paid, waived, abandoned or otherwise
extinguished under Rule 16.
THE RULE ON ASSIGNMENT/TRANSFER OF INTEREST (RULE 3, LAST SECTION)
Ex.
There is a creditor who lent 1M to the debtor. The debtor defaults in payment.
But before the creditor filed a complaint, the creditor felt the need for money.
He assigned his claim to another for a certain value. Such person now stands in
the shoes of the creditor, and may file a claim against the debtor. The creditor
sold his rights to X for 700K.
Can the assignor/original creditor, file a claim for 1M against creditor?
No, he is no longer a real party in interest, as he has assigned his rights to
another.
What if assignee files a complaint against debtor?
Assignee is the proper party to file a complaint against debtor, so the case will
prosper.
How much can assignee recover?
He is entitled to recover 1M. The assignee steps into the shoes of the creditor
who sold his right to the assignor for 1M.
What if the original creditor has not assigned his credit for 1M. He files a case
against debtor. While the case was pending in the RTC, the plaintiff/creditor
assigned his claim. The assignment was in pendente lite, for 700K. Will the
assignee be considered as indispensable party?
No. Under Rule 3, assignee pendente lite is not considered an indispensable
party and the court may ignore such party.
The creditor assigned his rights to assignee. The assignor pendente
lite/creditor stipulated that the case should be dismissed in consideration for
the payment of the 700k. Is this allowed?
Yes. This is allowed under Art. 1634 NCC.
Husband and wife should sue or be sued jointly.
SC Held that the law contemplated in the exemption is the Family Code or NCC
as the case may be. This is pertinent on the rule of partnership and co-
ownership in case of husband and wife. It is impertinent to compel a husband
to implead the wife as co-plaintiff.
In case of co-owner, a partner can file a complaint without impleading the co-
owners. The same would be applicable to husband and wife. The wife may file
a case without impleading her husband.
There is a caveat: If the husband as a co-owner files a complaint against
another, he should indicate in the complaint that he is filing such case as co-
owner. But if he claims sole ownership, he should implead the wife. The law
authorizes either spouse alone to file a complaint. The spouse left behind is not
considered a necessary party as a complete determination of the case could be
had even with just one spouse as a party.
Exceptions: (See Art. 113 NCC)
Husband and wife are judicially declared legally separated from each other, the
other party must be impleaded.
If the husband and wife are separated in fact for at least one year.
(See also Arts. 25 to 35 NCC)
CLASS SUIT
There is a common interest among persons so numerous that it would be
impracticable to bring them all to court. It is not required that all be presented
in court, but only enough to represent the rest of those who are party to the
same suit.
Ex. Oposa vs. Factoran is now enshrined in the Writ of Kalikasan via the
Citizen’s Suit on behalf of persons yet unborn. This is effectively a class suit.
Do we consider the class as indispensable or necessary parties?
SC held that all in the class involved in the litigation are considered
indispensable parties.
Should they all be identified?
SC held that there is no need. Only a representative number can be impleaded
as they represent all of the class. Determination made on such representative
class is tantamount to determination for all of the members of the class.
Why did SC hold that all such members of the class are deemed
indispensable?
SC stated that the last sentence of Sec. 12 Rule 3 states that “Any party in
interest shall have the right to intervene to protect his individual interest.” A
member of a class in a class suit has a right to intervene.
Note:
Intervention – a matter that is subject to the discretion (allow or disallow) of
the trial court. Exception, court cannot deny intervention of a member of the
class in a class suit.
Deceased Litigant
SEC. 16. Death of party; duty of counsel.—Whenever a
party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel
to inform the court within thirty (30) days after such
death of the fact thereof, and to give the name and
address of his legal representative or representatives.
Failure of counsel to comply with this duty shall be a
ground for disciplinary action.
The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the
appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative
or representatives to appear and be substituted within a
period of thirty (30) days from notice.
If no legal representative is named by the counsel for the
deceased party or if the one so named shall fail to appear
within the specified period, the court may order the
opposing party, within a specified time, to procure the
appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately
appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs.
A contract of agency is present when a lawyer is engaged by his client, an
agency which exists until the client dies. The lawyer has to inform the court
about the death of his client. The court may then cause substitution of the
representatives of the estate of the deceased.
Rules on death of the plaintiff in marriage-related cases :
Dismissal – death occurred before entry of judgment
Substitution of parties – death occurred after entry of judgment
Plaintiff dies – the court would require the lawyer to submit the names of the
heirs in order to act as substitute plaintiff.
Refusal of all heirs to act as substitute parties, court can require the defendant
to seek the appointment of an administrator or executor of the estate (in the
settlement court for probate of a will or intestacy).
Settlement court – either RTC or MTC depending on the value of the estate.
If the executor or administrator has been chosen, he will be tasked to
represent the estate until final judgment.
If there is an appeal on the decision of the trial court, the
executor/administrator shall represent the estate. Their representative
capacity ends upon final entry of judgment.
Death of a debtor will not extinguish an obligation, there being transfer of the
interest from debtor to his estate. There will have to be proper substitution of
parties.
If there is a decision against debtor that was final and executory, can the
substituted party ask for motion for writ of execution for satisfaction of the
deceased’s claim?
No. It cannot be subject to execution under Rule 39. Creditor must file a claim,
attaching the said judgment as evidence of a valid claim.
Rule 4 VENUE OF ACTIONS
One court that can disregard rules on venue – SC
All other courts cannot disregard the rules on venue.
Trial courts can incorporate in their decision an advisory to the defeated party
to appeal the matter to the SC.
Venue can be subject to stipulation of parties.
Elements:
1. Stipulation has the feature of exclusivity
2. Written, and
3. It must have been entered into before the commencement of the action
Caveat: If the stipulation will cause undue inconvenience to parties, then such
stipulation can be dispensed with by parties.
In a real action, the venue, in absence of any stipulation designating a specific
venue, is the place where the property or a part thereof is located.
Mixed action – action is both real and personal – the venue in absence of
stipulation is the same as that of the rule in personal actions. (Whether Action
in-rem – real; Quasi in rem or In personam– personal)
Analyze the actions whether they are real or personal. For purposes of venue,
we follow its classification as a real action.
Accion reinvindicatoria and publiciana – recovery of title or ownership – a real
action that at the same time an in personam action.
Settlement of estate involving personal properties of the deceased – personal
action
Sweet Lines case(on venue)
The place where the principal office was located would cause undue
inconvenience for the complainants, hence the agreement stipulating that
cases should be filed in Cebu is void. Rule 4 is designed for the convenience of
complaining parties, not for the benefit of defendants.
The rule on venue does not apply to CA, CTA and SC. It is only applicable to trial
courts and other lower courts.
Procedure before Barangay Courts
Prior barangay conciliation – a condition precedent to accrual of cause of
action.
2 requisites:
1. the parties must be natural persons
2. they reside in the same city or municipality
As long as these 2 requisites are present, prior barangay conciliation is a MUST
regardless of the nature of the action; if claim is for collection of money,
regardless of the amount involved.
If case is filed directly in court in violation of the LGC, will the court acquire
jurisdiction?
Yes, under BP 129.
What are the remedies of defendant and the court if prior barangay
conciliation was not done?
~Defendant can file a motion for dismissal for lack of cause of action.
~Court can compel plaintiff to submit to barangay conciliation while being held
in suspension.
~Court can hold case in abeyance until conciliation was had or had failed.
(Court will dismiss the case, and await result of the barangay conciliation.)
Note: Barangay Court is not part of the judiciary, but part of the executive.
Inherently, barangay courts are not allowed to adjudicate, only to mediate, to
conciliate, and convince parties to arrive into a compromise agreement and
settle amicably. They act as an arbitration court; that is, if parties have mutually
agreed in writing to constitute the barangay court as an arbitration court for
their dispute.
The barangay courts follow procedurally the same rules as that of court cases.
The pleadings could be verbal, although the barangay court usually asks for
pleadings to be written. They also require payment of minimal docket fees,
regardless of the amount of claim.
If the complainant fails to appear repeatedly during the conferences called by
the Barangay Court, the Barangay Court can order the dismissal of the
complaint, and that dismissal is with prejudice. The complainant loses his right
to recover against the respondent.
Rule of venue is different from Rule 4 RoC. The venue is the residence of the
respondent. If the complainant and respondent resides in different barangay,
the complaint should be filed in the barangay where the respondent resides.
This applies to civil actions, as well as special civil actions in appropriate cases.
Ex. Complaint for interpleader
Complaint for forcible entry and unlawful detainer, although these are special
civil actions
This does not apply to:
~Rule 65 cases, nor in petition for relief cases.
~Cases that involve public officers or LGUs.
~Certiorari, Prohibition, Mandamus – usually involves exercise of public duties
(especially of a judge)
~It does not apply to expropriation or quo warranto.
If they are unable to settle, the barangay court issues a certification that no
compromise was entered into. This enables the plaintiff to file a case in court.
But if a compromise agreement was filed, that agreement will be considered a
final and executory judgment, subject to repudiation by any party within 10
days from execution of the agreement. Grounds are any of the vices of
consent. If there is repudiation, the barangay court will issue certification
allowing plaintiff to file the case in court.
If parties agreed in writing that a barangay court shall be the arbitration court,
this can be repudiated within 5 days from filing said agreement.
The Barangay Court, as an arbitration court, can make arbitral awards. A party
can cause annulment of said award based on vices of consent. No other ground
need be presented (such as lack of jurisdiction, etc.)
There is no need for the barangay court to ask for confirmation of the
compromise agreement. After the lapse of the 10-day period, it becomes final
and executory. It can become subject to execution by the barangay court. If the
terms of the agreement are not complied with, the barangay court can execute
the judgment, provided such judgment should be executed within six months
from signing of compromise agreement.
Execution of the barangay court.
While it can make a levy on execution, it is limited to personal properties
belonging to respondents. It cannot levy on real properties owned by
respondents. It can also sell these levied personal properties at public auction
to satisfy the compromise agreement. If there is no satisfaction of the claim,
the remedy is for the judgment creditor to file a case of collection in the MTC
to satisfy the compromise agreement.
Montañez vs. Miguel – enforcement of compromise agreement by barangay
courts (2012)
The case substantially has the following facts:
The claim of the creditor was 500k. Both parties submitted the matter for
conciliation in the barangay court. The claim of 500k was reduced substantially
in the proceedings, 250k paid in installments. The debtor failed to comply. The
agreement was not repudiated. The creditor filed a complaint in the regular
court for recovery of the 500k. CA held that the only recourse of the creditor
was to enforce the compromise agreement as provided in LGC and the
implementing circulars, the creditor having lost the right to claim the 500k.
SC HELD that the barangay court approved compromise agreement being final
and executory, if the debtor fails to comply, the failure to comply is considered
as a repudiation of that compromise agreement. SC cited Art. 2041 of the NCC
which states that when a party fails to comply with the compromise
agreement, the agreement is rescinded by operation of law, and thus the
creditor is entitled to recover the original claim in the courts of justice.
There is no need to file rescission of the compromise agreement in this
instance. The effect is that the creditor who has agreed to the compromise
agreement will be reverted to his original position as a creditor claiming the
amount in his original claim before the compromise agreement.
Mere refusal or failure to comply with compromise agreement is tantamount
to repudiation of the compromise agreement.
Note: Judgment based upon a compromise is immediately executory. A party
can sought execution thereof immediately. Failure to comply can lead to
rescission of that compromise agreement.
SUMMARY PROCEEDINGS
It refers to the summary procedure followed by lower courts in unlawful
detainer, forcible entry and money claims up to 200k, exclusive of interest, etc.
Note:
Small claims proceedings – involve claims up to 100k.
There are cases which follow summary procedure that is cognizable by RTC.
However, these cases involve family-related cases. They are not civil actions
involving summary procedures under the rules.
Summary proceedings prohibit filing of certain pleadings and motions.
The only Pleadings allowed:
Complaint
Answer
Compulsory Counterclaim/crossclaim
Motion to dismiss under Rule 16 is prohibited, unless the ground is absence
of jurisdiction over the subject matter and absence of prior barangay
conciliation (failure to follow condition precedent).Although prohibited, what
is prohibited is a motion to dismiss filed by the defendant.
Summary Dismissal is allowed given, by the court itself, no motion being given.
The court itself will examine the contents of the complaint. If the court finds
the case should be dismissed under Rule 16, it can do so motu propio, without
a correlative motion to dismiss filed by the defendant.
Ordinarily, under ordinary procedures, a court cannot simply dismiss the case
without a correlative motion to dismiss.
The defendant is given time to file a responsive pleading for a shorter period
than in ordinary procedure. Period is non-extendible (10 days). If defendant
ignores the period, but files a motion for extension of 5 days to file an answer,
the court can ignore it, considering it as if it was not filed. If such a motion was
filed, and there was failure of the defendant to file an answer within 10 days,
plaintiff can move for judgment on the pleadings.
If the defendant is prohibited from filing a motion to dismiss, but the
defendant, after evaluating the complaint that the case should be dismissed
based on any ground in Rule 16, can he still make use of these grounds to
cause dismissal eventually?
Yes. The defendant should follow Rule 16 by making use of the grounds as an
affirmative defense in his answer, and later on raise these issues.
Motion to declare defendant in default – a prohibited pleading in summary
procedure.
If defendant failed to answer on time, the plaintiff can move for judgment on
the pleadings.
In ordinary proceedings, a motion to declare defendant in default must be
initiated by plaintiff before the court can declare defendant in default. Unless
such motion is made, the court can do nothing.
The reason why the rules on summary proceedings does not allow the court to
declare defendant in default, it is because the rules under Rule 9 cannot be
allowed in summary proceedings. It will be tantamount to allowing a defendant
in default to ask for lifting the order of default, defeating the purpose of the
rule on summary proceedings.
Motion for new trial, motion for reconsideration and petition for relief from
judgment are prohibited in summary proceedings. This does not mean the
defendant has no remedy after judgment. The only remedy available for a
defendant is to appeal the judgment. Annulment of judgment under Rule 47
can also be had under these proceedings. But, before he can avail of Rule 47,
the rules are strict insofar as the requirements for annulment of judgment are
concerned. Such must be complied with before it can be availed.
Preliminary conference – identical to pre-trial in ordinary proceedings.
Submission of affidavits and position papers, no presentation of evidence.
A trial is not absolutely prohibited in summary proceedings, as certain criminal
cases are governed by summary proceedings. A trial has to be conducted. The
court cannot deprive defendant/accused from cross-examining the witnesses.
Why did not the SC adopt a common summary procedure for civil and
criminal cases? Why disallow trial in civil cases under summary proceedings?
This is because SC cannot violate the rights of an accused in a criminal case. The
same right is not availing to a defendant in a civil case under summary
procedures.
Small Claims Proceedings
It contains prohibition against counsels appearing in court.
The scheme in Small Claims proceedings is that they are not required to
prepare their own pleadings. In Metro Manila, the MTC assigned to entertain
these claims have ready forms for complaints or answer to be filed in court.
Minimal docket fee is paid.
Joinder of causes of action is allowed, so long as the aggregate should not go
beyond 100k exclusive of interest, damages, etc.
Prohibited pleadings and motions : similar to summary proceedings.
Judicial dispute resolution – MTC encourage parties as much as possible to
enter into a compromise agreement.
Small claims procedure has nothing to do with criminal cases, only civil
collection cases.
In small claims procedure, the judgment is immediately final and executory,
no appeal available. Motion for new trial, motion for reconsideration and
petition for relief from judgment are not available. The only remedy available
to an aggrieved party is under Rule 65, Certiorari. Thus, there is no appeal,
plain, speedy or adequate remedy available.
Does it mean that the aggrieved party in small claims procedure is treated
more kindly than in summary procedure?
No. The availability of Rule 65 in Small Claims procedure is not really a benefit.
A petition under Rule 65 does not stop the respondent court from carrying
out its decision.
Unlike in an appeal, usually, execution is not allowed, except in forcible entry
and unlawful detainer. In case of unlawful detainer, payment of supersideas
bond and the payment of current rate of rentals can stop enforcement of the
summary proceedings judgment.
The only way Rule 65 can prevent immediate execution in small claims is that
the court taking cognizance of Rule 65 will issue a TRO or writ of preliminary
injunction upon application of appellant. There is a need to post an injunction
bond to avail of the TRO or writ of preliminary injunction.
Back to pleadings….
PLEADINGS AND CONTENTS OF PLEADINGS
Rule 6 and Rule 10 (Take them as one set, as they refer to the same thing,
pleadings and content of pleadings)
Pleadings should always be in writing.
The rules now allow a parties/litigants to make use of 9 pleadings, but
numerous motions.
Classes of pleadings:
1. Claim pleading (7 kinds)
2. Responsive pleading (2 kinds)

Claim Pleadings:
1. Complaint
2. Counter-claim
3. Cross-claim
4. Third-party complaint
5. Amended pleading
6. Supplemental pleading
7. Petition
Responsive Pleading:
1. Answer
2. Reply
Defendant may make use of certain claim pleadings under appropriate
circumstances. Ex. Answer with counterclaim and cross-claim.
RULE 7 CERTIFICATION OF NON-FORUM SHOPPING
Classification of pleadings under Rule 7:
1. Initiatory Pleadings – there should be a certification on non-forum shopping,
the violation thereof could lead to adverse consequences such as dismissal with
or without prejudice; the court imposes docket fees, violation thereof will
render the case to be that which does not fall under the court’s jurisdiction;
payment of docket fees required.
2. Non-initiatory Pleadings – needs no certification of non-forum shopping; no
docket fees required.
The classification under Rule 7 is made for the purpose of determining whether
such pleading will require the inclusion of a certification of non-forum
shopping.
General Rule: If an initiatory pleading is filed in court without the payment of
the requisite docket fees, the court does not acquire jurisdiction over the
initiatory pleading. Payment of docket fees carries with it the authority of the
court to entertain the complaint.
With respect to a compulsory counterclaim, courts do not consider it an
initiatory pleading, which will necessitate the payment of docket fees.
In 2010, SC decided that if the defendant files an answer with permissive
counterclaims, and fails to pay docket fees, the court has neglected to collect
docket fees thereto, and the court tries the case resulting in its dismissal and
granting the permissive counterclaim (the defendant won), the decision (even
if already entered) over the permissive counter-claim is void due to lack of
jurisdiction, there being no showing that the court acquired jurisdiction over
the counter-claim. The defendant has the duty to remind the clerk of court
that docket fees should be collected against the defendant so as to enable the
execution of a decision in favor of the defendant.
COMPLAINT
Ultimate facts – In ordinary civil cases, ultimate facts should be alleged in the
complaint. But plaintiff is not sanctioned in case evidentiary facts are included
therein, wherein the plaintiff also presents evidence he intends to present in
court.
In several circulars, in certain proceedings, a complaint need not state just
ultimate facts. In a complaint filed under summary proceedings, plaintiff is
encouraged to include in his complaint evidentiary facts and to attach his
evidence in the document. In Kalikasan proceedings, the plaintiff is required to
attach to his complaints all the evidence that are in the possession of the
plaintiff (documentary, testamentary or object). In Kalikasan cases, the
defendant should include his evidence in the answer, aside from specific
denials.
Take Note: Even Rule 6 does not prohibit alleging evidentiary facts along with
ultimate facts. Rule 6 does not impose sanctions if evidentiary facts are
included in the pleadings. But the inclusion in the complaint of ultimate facts
alone is sufficient.
The ultimate facts are those that constitute the cause of action, an allegation
that the plaintiff has a right, an allegation that the defendant has violated
that right, or an allegation of compliance with conditions precedent that gave
rise to accrual of the cause of action.
Insofar as the answer is concerned, it is the pleading in response to a
complaint. It may contain positive or negative defenses or both along with
evidentiary facts. The defendant, however, cannot move for the court to order
the plaintiff to present evidentiary facts in his complaint as the statement of
the ultimate facts alone in the complaint are sufficient.
Problems arise when an answer interposes a negative defense.
Negative Defense
In civil cases, a negative defense is always an important part of the answer.
(Specific denial)
What is the standard to follow that a denial is specific?
It is found in Sec. 10 Rule 8 (Relate Rule 6 with this).
3 modes where a specific denial can be had:
1. Total denial of the allegations in the complaint with accompanying
statements in which he will have to rely his defenses on
2. Part denial and part admission
3. Just a statement by defendant that he has no knowledge or information
about the truth of the allegation and therefore defendant specifically denies
the allegation
Theoretically, the defendant can make use of any mode of denial right away.
The court has in several cases discouraged the 3rd mode of specific denial, and
imposed some sanctions if a defendant insists in using the 3rd mode as the only
mode contained in his answer. SC has given sanctions in several cases. SC held
that if the defendant had no knowledge or information on the matter,
defendant should explain why. Failure to do so, such denial will not be
considered a specific denial. A general denial will be treated as a judicial
admission to the allegations contained in the complaint. Thus, a judgment on
the pleadings can be had upon motion of the plaintiff.
Another form of denial frowned upon by jurisprudence are the following: “I
specifically deny paragraph_ because I had not dealt with the plaintiff” or “I
specifically deny paragraph _ of the complaint.” They are considered as
negative pregnant. They are specific denials that contain no ground relied
upon in support of the denial, and thus are considered as general denial. The
remedy of the defendant is to amend the answer as a matter of right as
provided in Rule 10.
Rule 10 Amendment as a matter of right
Done before a responsive pleading is filed or before expiration of the period to
file such responsive pleadings.
Note: A general denial is allowed in Habeas Corpus cases, but expressly
prohibited in Writ of Amparo and Habeas Data cases.
Counter-claim
It is a claim made by a defendant against a plaintiff.
Permissive vs. Compulsory counterclaim.
Study Compulsory Counterclaim as discussed in the Rules.
Compulsory Counterclaim Permissive Counterclaim
One which arises out of or is It does not arise out of nor is it
necessarily connected with the necessarily connected with the
transaction or occurrence that is the subject matter of the opposing
subject matter of the opposing party’s claim
party’s claim (Sec.7, Rule 6)
It does not require for its adjudication It may require for its adjudication the
the presence of third parties of whom presence of third parties over whom
the court cannot acquire jurisdiction the court cannot acquire jurisdiction
Barred if not set up in the action (Sec. Not barred even if not set up in the
2, Rule 9) action
Need not be answered; No default Must be answered,: Otherwise,
default
Not an initiatory pleading. Initiatory pleading. (Riano, Civil
Procedure: A Restatement for the Bar,
p. 336, 2009 ed.)
Need not be accompanied by a Must be accompanied by a
certification against forum shopping certification against forum shopping
and certificate to file action by the and whenever required by law, also a
Lupong Tagapamayapa. certificate to file action by the Lupong
Tagapamayapa (Santo Tomas
University v. Surla, G.R. No. 129718,
Aug. 17, 1998) (2007 Bar Question).
The court has jurisdiction to entertain Must be within the jurisdiction of the
both as to the amount and nature court where the case is pending and
(Sec. 7, Rule 6; Ibid p.331) cognizable by regular courts of justice
otherwise, defendant will have to file
it in separate proceeding which
requires payment of docket fee
Compulsory Counterclaim filed in the RTC vs. that filed in the MTC
A compulsory counterclaim filed in RTC cannot be a compulsory counterclaim
filed in the MTC.
Ex. Counterclaim filed in the RTC states that the case filed was unjust and
defendant claimed legal expenses amounting to 200k. This is considered to be a
compulsory counterclaim in the RTC even if such amount is below the
threshold for claims in the RTC. We cannot challenge the RTC’s jurisdiction by
the amounts claimed in the counterclaim.
If the counter claim filed in the MTC by defendant was claiming 500k in moral
damages. Under the rules, this is no longer a compulsory counterclaim, and
treated as a permissive counterclaim. The MTC can order dismissal of the
counterclaim, as the counterclaim is outside the jurisdiction of the MTC.
If the amount to be recovered is beyond the jurisdictional amount of the MTC,
the compulsory counterclaim is converted to a permissive counterclaim. If the
amount to be recovered is below the jurisdictional amount of the RTC, the
counterclaim is still treated as a compulsory counterclaim.
Reply
The filing of a reply is generally not necessary. It is in fact next to useless.
Note: If a party does not file such reply. All the new matters that were alleged
in the answer are deemed controverted (Sec. 10, Rule 6) (not deemed
admitted).
The matters not answered in the reply are deemed controverted (not
admitted). In a complaint, if the allegations therein are not specifically denied
or were not dealt with in the answer, they are deemed admitted. If the
defendant does not specifically deny or does not set up proper affirmative
defenses in the answer, the defendant is sanctioned by law. This will lead the
court to conclude that the defendant has admitted all allegations in the
complaint, and thus will lead to a judgment on the pleadings.
But if the defendant filed an answer properly crafted, introducing a new
matter. The new matter asserts a positive defense of extinguishment, for
example, which is a ground for a motion to dismiss. The plaintiff does not file
a reply. Is the plaintiff deemed to have admitted the new matter?
No. The new matter alleged in the answer is deemed controverted even
without a reply. Plaintiff need not submit a reply as the law itself that the new
allegation or matter is deemed controverted to be subjected to trial in the
court.
Under Rule 16, the defendant can now ask for a preliminary hearing to
determine whether there was extinguishment or not. But for purposes of a
reply, there is no need for the plaintiff to controvert the new matters. The
second sentence of the definition of a reply is the most important. All matters
alleged in the answer are deemed controverted, and a reply need not be filed.
EXCEPTIONS:
1. Where the answer alleges the defense of usury in which case a reply under
oath should be made. Otherwise, the allegation of usurious interest shall be
deemed admitted. (NO LONGER APPLICABLE)
2. Where the defense in the answer is based on an actionable document, a
reply under oath pursuant to Sec. 8 of Rule 8 must be made. Otherwise, the
genuineness and due execution of the document shall be deemed admitted.
Under our present rules, allegations of usury MUST be contained in a
complaint or similar pleadings. The law is not specific, but given the liberal
interpretation of the rules, it leads to the conclusion that as long as the
allegations of usury are contained in a complaint or similar pleading like
counter-claim or cross-claim, there is a need for specific denial. The
responsive pleading would be an answer, not a reply. If the allegation of usury
is contained in a counterclaim/cross-claim, the responsive pleading is an
answer to the counterclaim/cross-claim. If the allegation of usury is contained
in an answer, there is no need to specifically deny in the reply.
The only exception applicable is when the answer is founded on an actionable
document. The law says that when the defense is founded on an actionable
document, the plaintiff, if he wants to make a denial of the actionable
document, must do so specifically and under oath. Otherwise, the
genuineness and due execution of that actionable document will be deemed
admitted (a judicial admission).
What is an actionable document?
A: Referred to as the document relied upon by either the plaintiff and the
defendant. (Araneta, Inc. vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A
promissory note in an action for collection of a sum of money. (Riano, Civil
Procedure: A Restatement for the Bar, p. 101, 2009 ed.)
Note: This manner of pleading a document applies only to an actionable
document, i.e., one which is the basis of an action or a defense. Hence, if a
document does not have the character of an actionable document, it need not
be pleaded strictly in the manner prescribed by the rules (Ibid p.102)
How are actionable documents pleaded?
A: By setting forth:
1. The substance of such document in the pleading and attaching said
document thereto as an exhibit
2. Include the contents of the document verbatim in the pleading (Sec. 7, Rule
8).
Note: A variance in the substance of the document set forth in the pleading
and the document annexed thereto does not warrant the dismissal of the
action (Convets, Inc. v. National Development Co., G.R. No. L-10232, Feb. 28,
1958). However, the contents of the document annexed are controlling.
For example, the defendant alleges payment in his answer supported by a
receipt issued by the plaintiff, acknowledging full liquidation of the indemnity.
Under law, if the claim or demand is based on an actionable document, it is
imperative upon the impleader to allege on the pleading the actionable
document.
Can the plaintiff simply file an affidavit in opposing the actionable document?
The only way that a plaintiff can make a specific denial under oath against the
actionable document alleged in an answer is by way of a reply. This is because,
this is the only pleading that is available that responds to an answer. If the
plaintiff makes a reply setting up a specific denial, he should also see to it that
the specific denial is under oath. If he did not do so, the genuineness and due
execution of the actionable document is deemed admitted.
Take note of the exceptions in the Rules as to non-availability of the judicial
admission of the genuineness and due execution of an actionable document if
there is no specific denial under oath. There are 2 exceptions:
1. When the adverse party does not admit being a party to that document, or
2. Even if such party is a party to the document, there being an order issued
by the court for the inspection of the original document, the said party does
not comply with that order.
The mode of impleading an actionable document was held by the SC to be
mandatory. If the party impleading such did not follow the modes provided in
the Rules for impleading of an actionable document, the party will not be
allowed to present proof of his cause of action or defense as the case may be,
as the attachment of the actionable document or adding of the contents of
that actionable document in the allegations of the pleadings will adversely
affect the other party.

Third/Fourth Party Complaint, Etc.
There can potentially be no end to the number of parties in the complaint as
long as the allegations in the pleadings have something to do with the claim of
the plaintiff in his complaint. If you would notice among the pleadings, it is only
the third/fourth party complaint, etc. that would require leave of court. The
third/fourth party complaint, etc. must allege that the third/fourth party
defendant is liable to the said third/fourth party plaintiff, by reason of
contribution, subrogation or any other relief in relation to the subject matter of
the claim in the complaint. The third/fourth party complaint is always
connected to the subject matter of the complaint.
If a complaint for instance is for the recovery of an unpaid loan, a third party
complaint cannot contain a claim for the recovery of ownership of a piece of
land. The subject of the third party complaint should always be related to the
subject of the complaint.
Why do we need leave of court in order to file a third party complaint?
This is because a third party complaint will forcibly bring into the action a
stranger to the case. The third party defendant is a stranger to the case. This is
why the rules require that the court should be given discretion whether to
allow or not to allow the third party complaint to see if there is a need to bring
a stranger to the case or even if there may be a need, the claim is unrelated to
the subject to the case. If the court denies the motion for admission of a third
party complaint, the remedy of the defendant is to file a separate complaint
against the third party defendant.
It is in third party complaints that will best illustrate the meaning of ancillary
jurisdiction of a trial court.
Q: What is a third (fourth, etc.) party complaint?
A: A third (fourth, etc.) party complaint is a claim that a defending party may,
with leave of court, file against a person not a party to the action, called the
third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or
any other relief, in respect of his opponent's claim. (Sec.11, Rule 6)
Q: Distinguish a third-party complaint from the rules on bringing in new
parties.
A: A third-party complaint is proper when not one of the third-party
defendants therein is a party to the main action. Whereas in bringing in new
parties, if one or more of the defendants in a counterclaim or cross-claim is
already a party to the action, then the other necessary parties may be brought
in under the rules on bringing in new parties
Q: Why is leave of court necessary in third (fourth, etc.) -party complaint?
A: To obviate delay in the resolution of the complaint such as when the third-
party defendant cannot be located; or unnecessary issues may be introduced;
or the introduction of a new and separate controversy. (Herrera, Vol. I, p. 705,
2007 ed.)
Q: What are the tests to determine whether the third-party complaint is in
respect of plaintiff’s claim?
A:
1. Whether it arises out of the same transaction on which the plaintiff’s claim is
based, or, although arising out of another or different transaction, is connected
with the plaintiff’s claim;
2. Whether the third-party defendant would be liable to the plaintiff or to the
defendant for all or part of the plaintiff’s claim against the original defendant;
and
3. Whether the third-party defendant may assert any defenses which the third-
party plaintiff has or may have to the plaintiff’s claim.
Note: Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third party complaint, regardless of the amount involved
as a third-party complaint is merely auxiliary to and is a continuation of the
main action (Republic v. Central Surety & Insurance Co., G.R. No. L-27802, Oct.
26, 1968).
A third party complaint is not proper in an action for declaratory relief.
(Commissioner of Customs v. Cloribel, G.R. No. L-21036, June 30, 1977).
Note: The court is vested with the discretion to allow or disallow a party to an
action to implead an additional party. Thus, a defendant has no vested right to
file a third party complaint (China Banking Corporation vs. Padilla, G.R no.
143490, Feb. 2, 2007; Riano, p. 342, 2009 ed.).
Q: Abby obtained a favorable judgment against UNICAP for a sum of money.
For failure to get full payment, Abby went after UNICAP’s debtor Ben. Ben is a
policy holder of Insular. The court’s sheriff then served a notice of
garnishment to Insular over several account receivables due to Ben. Insular
refused to comply with the order alleging adverse claims over the garnished
amounts. The trial court ordered Insular to release to Abby the said account
receivables of Ben under the policies. Insular then filed a petition for
certiorari with the CA alleging that the trial judge gravely abused his
discretion when he issued the garnishment order despite its adverse claim on
the garnished amounts. The CA gave due course to the petition and annulled
the order of the trial court. Is the Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari is the proper remedy from
the denial of a third-party claim. Since the third-party claimant is not one of the
parties to the action, he could not, strictly speaking, appeal from the order
denying its claim, but should file a separate reinvindicatory action against the
execution creditor or a complaint for damages against the bond filed by the
judgment creditor in favor of the sheriff. The rights of a third-party claimant
should be decided in a separate action to be instituted by the third person
(Solidum v. CA, G.R. No. 161647, June 22, 2006).
Q: What is Doctrine of Ancillary Jurisdiction?
A: It involves the inherent or implied powers of the court to determine issues
incidental to the exercise of its primary jurisdiction.
Note: Under its ancillary jurisdiction, a court may determine all questions
relative to the matters brought before it, regulate the manner in which a trial
shall be conducted, determine the hours at which the witnesses and lawyers
may be heard, and grant an injunction, attachment or garnishment.
Let us say that the subject of the complaint is the recovery of 1M unpaid loan.
The competent court is an RTC. The defendant asks the court for permission
to file an answer with a third party complaint. In the third party complaint,
the defendant asserts that Juan de la Cruz is bound to pay defendant the sum
of 200K by reason of contribution, indemnity, subrogation or any other relief.
With respect to the complaint, there is no question as to jurisdiction as the
competent court is really an RTC. It is with respect to the third party
complaint where a jurisdictional issue is present. The third party complaint is
effectively a complaint filed by the defendant against a stranger to the case,
and the amount sought to be recovered is 200k, which is an amount not
within the jurisdiction of the RTC. Can the court, upon motion by the third
party defendant, order the dismissal of that third party complaint on the
ground of lack of jurisdiction over the subject matter of the case?
No. We apply rule of ancillary jurisdiction of a trial court. If the trial court has
jurisdiction over the principal complaint filed by the plaintiff against the
defendant, the same court will exercise ancillary jurisdiction over all collateral
pleadings, incidental pleadings that are related to the complaint. Thus, the
third party complaint to recover 200k is still cognizable by the same court.
Is it correct to say that third party complaint or fourth party complaint would
be the only pleadings which will enable a litigant to bring in a stranger to the
case? Can a litigant bring in a stranger without a third or fourth party
complaint?
No. The Rule does not say that it is the only means/pleading available to bring
in a stranger to the case.
Can the defendant compel a stranger to be a party to the case by filing a
counterclaim or cross-claim?
The law authorizes the defendant to bring in a stranger by filing a permissive or
compulsory counter-claim. The law authorizes the defendant to bring in a
stranger to the case through the filing of a cross-claim. Although the Rules
defines a cross-claim as a claim by a defendant against his co-defendant, the
Rules does not say that in filing a cross-claim against a co-defendant that a
third person can be impleaded in the cross-claim.
In the definition of a counterclaim, the defendant could set up the
counterclaim against the plaintiff or against any party or person who is not yet
a party to the case, as long as the court can acquire jurisdiction over the person
of the said person.
Why do we allow a defendant to bring in a stranger to the case by not using a
third-party complaint but by cross-claim or counterclaim, especially when
such is compulsory?
Because there is another provision in the Rules which say that if there is a
compulsory counterclaim or cross-claim not set up in the answer, that
compulsory counterclaim or cross-claim are barred. If there is a need to
implead a stranger, he should be allowed to implead a stranger, although not
via a third party complaint.
Sec. 11 Rule 6 provides a cross-claim or counterclaim could be the basis for the
court to bring in a stranger to the case for the complete determination of the
issues.
FORMS OF A PLEADING
A pleading must always be signed. An unsigned pleading will be treated as a
sham pleading. You cannot submit an unsigned pleading. The court motu
propio can order the striking out of the pleading.
Who will sign the pleading?
The litigant can sign the pleading. Or, his counsel can sign for him. Either or
both can sign the pleading.
Are there pleadings that are inadmissible by the court if the only signature is
that of the lawyer’s?
1. Petition for relief from judgment
2. Petition for review from the RTCs to the CA
3. Petition for review from the CTA and quasi-judicial agencies to the CA
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or final orders and resolutions
6. Complaint for injunction
7. Application for appointment of receiver
8. Application for support pendente lite
9. Petition for certiorari against the judgments, final orders or resolutions of
constitutional commissions
10. Petition for certiorari, prohibition, mandamus, quo warranto
(1996 Bar Question)
Q: What are the effects of lack of verification?
A:
1. A pleading required to be verified but lacks the proper verification shall be
treated as an unsigned pleading (Sec. 4 as amended by A.M. 00-2-10, May 1,
2000). Hence, it produces no legal effect (Sec. 3, Rule 7)
2. It does not necessarily render the pleading defective. It is only a formal and
not a jurisdictional requirement. The requirement is a condition affecting only
the form of the pleading (Benguet Corp. v. Cordillera Caraballo Mission, Inc.,
G.R. No. 155343, Sept. 2, 2005) and non-compliance therewith does not
necessarily render it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471,
Feb. 5, 2007)
3. The absence of verification may be corrected by requiring an oath. The rule
is in keeping with the principle that rules of procedure are established to
secure substantial justice and that technical requirements may be dispensed
with in meritorious cases (Pampanga Sugar Development Co., Inc. v. NLRC, G.R.
No. 112650, May 29, 1997)
If the law requires a pleading to be verified, but the pleading is not verified or
there is insufficient verification, the absence or insufficiency would mean that
the pleading is effectively an unsigned pleading. Therefore it produces no
legal effect.
With respect to verification, the general rule is we do not require that
pleadings should be verified. It is only in instances where the law requires
verification that the pleading should be verified. Also, take note that Rule 7 is
very emphatic as to how to verify a pleading.
Q: How are pleadings verified?
A: It is verified by an affidavit. This affidavit declares that the:
1. Affiant has read the pleading; and
By way of exception, yes, in case of marriage annulment cases, according to the
SC Circular, the complaint and the answer must be signed also by the party
himself. If signed only by the lawyer alone, the court will not accept the
pleading.
But generally, the signature of the counsel is enough for a pleading to be
accepted by the court.
Q: What is the effect of lawyer’s signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the pleadings;
2. That to the best of his knowledge, information and belief there is good
ground to support it; and
3. That it is not interposed for delay. (Sec. 3, Rule 7)
VERIFICATION
Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required by law or rule, pleadings
need not be under oath, verified or accompanied by affidavit. (Sec. 4, Rule 7)
Q: What is the significance of verification?
A: it is intended to secure an assurance that the allegations in a pleading are
true and correct and not the product of the imagination or a matter of
speculation, and that the pleading is filed in good faith. The absence of a
proper verification is cause to treat the pleading as unsigned and dismissible
(Chua vs. Torres, 468 SCRA 358; Riano, Civil Procedure: A Restatement for the
Bar, p. 60, 2009 ed.)
Q: What are the pleadings that should be verified?
A: The following should be verified:
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful detainer
13. Petition for indirect contempt
14. Petition for appointment of general guardian
15. Petition for leave to sell or encumber property of an estate by a guardian
16. Petition for the declaration of competency of a ward
17. Petition for habeas corpus
18. Petition for change of name
19. Petition for voluntary judicial dissolution of a corporation;
20. Petition for correction or cancellation of entries in Civil Registry.
2. Allegations therein are true and correct of his personal knowledge or based
on authentic records (Sec. 4, Rule 7)
If the verification is not according to the tone given in the Rules, that will be an
inadequate or insufficient verification. And under Rule 7, the absence or
inadequacy of the verification shall result in an effectively unsigned pleading.
But the SC keeps on ignoring the Rules on verification. Although it would
appear in Rule 7 that absence of verification could be a fatal defect, the SC
keeps on ruling that the absence of verification is only a formal defect. If you
come across a question concerning the need to verify a pleading or
determining the adequacy of a verification in a pleading, and you are asked
what is the effect, based on rulings by the SC, in instances required by law for
submission of a pleading with an inadequate verification is only a formal
defect.
A complaint, a permissive counterclaim, cross-claim, a third/fourth party
complaint, all of these being initiatory pleadings, must have a certification of
non-forum shopping. Does it mean to say that Verification of a pleading is
now the general rule, given that in Rule 7, initiatory pleadings must carry with
them a certification of non-forum shopping?
No. Certification of Non-forum shopping is different from verification of a
pleading.
Verification of a pleading refers to the allegations in the pleading. The
verification states that one has read the pleading and that it is correct based on
his personal knowledge or based on authentic records. The contents of
certification of non-forum shopping does not have anything to do with the
contents of an initiatory pleading, as it simply certifies that no similar case
had been filed in any other court, tribunal or body, and to notify the court
right away if one should come to know of such fact.
In the case of a Certification of Non-Forum Shopping, the SC appears to have
adapted the rule of substantial compliance as to the requirements of the
certification’s contents. Take note that the Rules say that all principal plaintiffs
should sign the certification. Otherwise, the certification will be ineffective.
This defect is not curable by amendment under Rule 7.
There was a recent case wherein the complaint had 5 principal plaintiffs and
only two of them signed. The defendant challenged the authority of the court
receive the case as the certification was ineffective. The court refused to
dismiss the case. The court said that it will go ahead with the case but will drop
the claims where the non-signing plaintiffs are concerned. In effect, the court
said the signature of the two plaintiffs will of substantial compliance with the
requirement.
As to the issue of a lawyer signing the certification of non-forum shopping, the
general rule being that a party himself must sign, if the lawyer sign for the
plaintiff, the lawyer must be able to show his authority to do so via a special
power of attorney authorizing him to sign in the stead of his client.
REQUIREMENTS OF A CORPORATION EXECUTING THE
VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING
Q: What is the rule when the plaintiff is a juridical person?
A: The certification against forum shopping where the plaintiff is a juridical
entity like a corporation, may be executed by properly authorized person. This
person may be a lawyer of a corporation. As long as he is duly authorized by
the corporation and has personal knowledge of the facts required to be
disclosed in the certification, such may be signed by the authorized lawyer
(National Steel Corporation vs. CA, 388 SCRA 85; Riano, Civil Procedure: A
Restatement for the Bar, p. 70, 2009 ed.)
Q: Corporation XYZ is the petitioner in a civil case. Alexander, president of
corporation XYZ, signed the certification against forum shopping in behalf of
said corporation without presenting any proof of authority from the
corporation. Is the certification against forum shopping valid? If not, how may
it be cured?
A: No. When the petitioner in a case is a corporation, the certification against
forum shopping should be signed by its duly authorized director or
representative. The authorized director or representative of the corporation
should be vested with authority by a valid board resolution. A proof of said
authority must be attached with the certification (PAL v. FASAP, G.R. No.
143088, Jan. 24, 2006).
RULE 9 (Effect of Failure to Plead) and Omnibus Motion Rule
Basic Principles contained in Rule 9:
Non-waivable defenses in civil procedure
Res judicata
Prescription
Lack of jurisdiction over the subject matter
Litis pendencia
Note: A previous decision or judgment will bar the filing of another case similar
or tackling the same issues, having the same parties, and the same or related
reliefs. In a civil case, it is called res judicata, while in a criminal case, it is called
double jeopardy.
In the case of criminal cases, there is the defense that the information does not
charge an offense. In civil cases, this is equivalent to Rule 16, failure to state a
cause of action. In civil cases, if the complaint does not properly allege a cause
of action and the complaint was not amended at all, where the defendant does
not file a motion to dismiss, the case went to trial, and the plaintiff showed in
the trial that he indeed has cause of action, the complaint is deemed amended.
This is called amendment to pleadings to conform to evidence.
Thus, in civil cases, the failure to state a cause of action or to improperly allege
such is waivable, the remedy being an amendment to conform to evidence. The
court may order such amendment be made.
PRINCIPLE OF AMENDMENT OF PLEADINGS TO CONFORM TO EVIDENCE
Amendment to pleadings may be made to conform to presented evidence.
1. Omnibus Motion Rule – all objections that are not included are deemed
waived if not set up in the motion to dismiss.
2. Because of the rules in joinder of causes and joinder of parties, there could
be several causes actions that can be alleged in the complaint either joined or
in the alternative; there could be several defenses set up in the answer, also
either jointly or in the alternative. Rule 3 in relation to Rule 9 also says that
since there could be alternative causes or defenses, we can also have joined
and/or alternative defendants.
Omnibus Motion Rule a defense is waived if not set in defenses in the
pleadings.
Q: What is the Omnibus Motion Rule?
A:
GR: All available grounds for objection in attacking a pleading, order, judgment,
or proceeding should be invoked at one time; otherwise, they shall be deemed
waived (Sec. 8, Rule 15).
XPN: The court may dismiss the case motu propio based on:
1. Lack of jurisdiction over the subject matter;
2. Litis pendencia;
3. Res judicata; and
4. Barred by statute of limitations (Sec. 1, Rule 9)
Can there be a judgment in the alternative?
Yes. Note: Under Rule 60 (Replevin), in its Section 9, alternative judgment
may be had for either the delivery of the personal property or the value
thereof in case delivery cannot be had or made, plus damages the party may
be able to prove and costs.
Nothing is mentioned in the rules about the propriety of a complaint with
plaintiffs named in the alternative, as plaintiffs are named jointly. But if we
follow the general rule that pleadings should be liberally interpreted to provide
for a fast, speedy and inexpensive determination of the case, the SC might
allow a complaint where the plaintiffs are named in the alternative, which is
followed in the federal rules of procedure in the US where plaintiffs can be
named in the alternative, causes of action, as well as defenses alleged in the
alternative. Unfortunately, one of the rules not incorporated in our Rules was
that of plaintiffs named in the alternative. By express provision in the rules, we
have defendants named in the alternative, causes and defenses alleged in the
alternative. We can even have judgments in the alternative form.
With respect to the non-waivable defenses given in Rule 9, it sounds better to
compare the non-waivable defenses in civil actions and non-waivable defenses
in criminal cases.
Non-waivable defenses in criminal procedure
Double jeopardy
Prescription of the penalty imposed
Lack of jurisdiction over the subject matter
When may amendment be made to conform to or authorize presentation of
evidence?
A:
1. When issues not raised by the pleadings are tried with the express or implied
consent of the parties.
Note: Failure to amend does not affect the result of the
trial of said issue.
2. Amendment may also be made to authorize presentation of evidence if
evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, if the presentation of the merits of the action and the
ends of substantial justice will be subserved thereby (Sec. 5, Rule 10).
The information submitted by the prosecutor did not really allege a crime was
committed. But the prosecutor was able to show in court by the evidence
presented that indeed a crime was committed. Can amendment of pleadings
to conform to evidence be allowed in this case?
No, it cannot be allowed. It will violate the constitutional right of the accused to
be informed of the charges against him. We can apply amendment of pleadings
to conform to evidence in a criminal case so long as the constitutional right of
the defendant is not violated.

DEFAULT
Q: When is a declaration of default proper?
A: If the defending party fails to answer within the time allowed therefor, the
court shall upon motion of the claiming party with notice to the defending
party, and proof of such failure, declare the defending party in default (Sec. 3,
Rule 9, Rules of Court). (Riano, p. 507, 2005 ed.)
Q: In what situations where declaration of default is proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or responsive pleading despite valid
service of summons;
2. Defendant filed an answer or responsive pleading but beyond the
reglementary period; and
3. Defendant filed an answer to the court but failed to serve the plaintiff a copy
as required by the Rules.
EFFECT OF AN ORDER OF DEFAULT
Q: What are the effects of an order of default?
A:
1. The party declared in default loses his standing in court. The loss of such
standing prevents him from taking part in the trial [Sec. 3(a), Rule 9];
2. While the defendant can no longer take part in the trial, he is nevertheless
entitled to notices of subsequent proceedings [Sec. 3 (a), Rule 9]. It is
submitted that he may participate in the trial, not as a party but as a witness;
and
3. A declaration of default is not an admission of the truth or the validity of the
plaintiff’s claims (Monarch Insurance v. CA, G.R. No. 92735, June 8, 2000).
RELIEF FROM AN ORDER OF DEFAULT
Q: What are the reliefs from an order of default?
A:
1. After notice of order and before judgment – The defendant must file a
verified motion to set aside the order of default upon proper showing that:
a. His failure to answer was due to fraud, accident, mistake or
excusable negligence; and
b. That he has a meritorious defense. [Sec. 3(b), Rule 9] (2000 &
1999 Bar Question)
2. After judgment and before judgment becomes final and executory – He may
file a motion for new trial under Rule 37. He may also appeal from the
judgment as being contrary to the evidence or the law (Talsan Enterprises, Inc.
v. Baliwag Transit, Inc., G.R. No. 169919, Sept. 11, 2009)
3. After the judgment becomes final and executory – he may file a petition for
relief from judgment under Rule 38 (Balangcad v. Justices of the CA, G.R. No.
83888, Feb. 12, 1992) (2006, 1998 Bar Question)
4. Where the defendant has however, been wrongly or improvidently declared
in default, the court can be considered to have acted with grave abuse of
discretion amounting to lack or excess of jurisdiction and when the lack of
jurisdiction is patent in the face of the judgment or from the judicial records, he
may avail of the special civil action of certiorari under Rule 65 (Balangcad v.
Justices of the CA, G.R. No. 83888, Feb. 12, 1992)
EFFECT OF A PARTIAL DEFAULT
Q: What is the effect of partial default?
A:
GR: The court will try the case against all defendants upon the answer of some.
XPN: Where the defense is personal to the one who answered, in which case, it
will not benefit those who did not answer e.g. forgery. (1995 Bar Question)
EXTENT OF RELIEF
Q: What is the extent of relief?
A: The judgment shall not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages [Sec. 3(d), Rule 9]. However, if the
court orders submission of evidence, unliquidated damages may be awarded
based on such.
ACTIONS WHERE DEFAULT ARE NOT ALLOWED
Q: When is default not allowed?
A:
1. Actions for annulment;
2. Declaration of nullity of marriage and legal separation [Sec. 3(e), Rule 9]; and
3. In special civil actions of certiorari, prohibition and mandamus where
comment instead of an answer is required to be filed.
There are several instances where declaration of default is prohibited like
mortgage, the rules on summary procedures, Writ of Amparo, Writ of Habeas
Data, and marriage related cases. It is not correct to say that it is absolute in
civil actions that if a defendant does not file his responsive pleading, he can be
declared in default. What is clear is the general rule: If a complaint is filed,
summons is served upon the defendant, but defendant does file an answer
within the reglementary period, the defendant can be declared to be in default
upon motion of the plaintiff.
The court cannot motu propio declare the defendant in default. Motion must
be made by the plaintiff before declaration of default can be had. Failure to file
the motion for declaration of default by the plaintiff can result to the complaint
being dismissed for failure to prosecute for an unreasonable length of time
under Rule 17. It is a dismissal with prejudice.
Suppose Plaintiff files a motion for declaration of defendant in default, but
the motion was for that of an ex-parte motion to declare defendant in
default. The reasoning is that since the defendant had not bothered to file an
answer, there is no use of serving notice to the defendant. This is for the
plaintiff to prevent the defendant from entertaining the idea that he must file
an answer to prevent being declared in default. Is plaintiff correct?
No. Rule 9 is very clear that a copy of the motion to declare defendant in
default should be served upon the defendant. If such copy is not served upon
the defendant, that motion will not be acted upon by the court.
What if the defendant filed an answer after receiving a copy of the motion to
declare him in default, can the court still declare him in default?
Yes, if the court follows strictly Rule 9. But, as a matter of policy, an answer
filed out of time will not result in the defendant in being declared in default. SC
held repeatedly that as much as possible the technical aspects of default
should not be applied strictly in the interest of furtherance of justice. Even if
the period to answer has already expired, but an answer is filed out of time, the
courts will still admit that answer and deny the motion to declare the
defendant in default. The reason why SC adopted this policy is because at
present, under Rule 9, if defendant is declared in default, the court can right
away render a judgment in default against defendant without conducting a
trial. Under Rule 9, the court is given 2 choices: to render a judgment of default
based on the complaint (judgment on the pleadings), or to order the
complainant to present evidence ex-parte in support of his allegations. At least
in the second option, there can be presentation of evidence, unlike in the first
option where only the pleadings will be the basis of the judgment. And if there
is a trial ex-parte on default ordered by the court, the defendant will not be
allowed to participate in the proceedings, unless he is able to secure an order
to lift the default.
Rule 9 is very explicit in stating that the award in default judgments cannot be
greater than that prayed for in the complaint, even if there is an ex-parte
presentation of evidence showing evidence thereto. This limiting of award is
only allowed in default cases where plaintiff is allowed to present evidence ex-
parte.
Default Under Rule 18 Pre-Trial
Plaintiff does not appear during pre-trial or failed to submit pre-trial brief =
dismissal of the complaint.
Defendant does not appear during pre-trial or non-submission of pre-trial brief
on time = ex parte presentation of evidence by plaintiff and court can render
judgment based thereon.
Comparison between Rule 9 and Rule 18 Default
Rule 9 Rule 18
In Rule 9, defendant shall be declared Under Rule 18, a plaintiff shall be
in default for not filing an answer. declared in default for not appearing
during pre-trial or failure to submit a
pre-trial brief, while a defendant shall
be declared in default for not
appearing or submitting a pre-trial
brief on time.
The court cannot grant a relief more The court can grant a relief more
than that alleged in the complaint. than that alleged, based on what the
 plaintiff can prove based on his
evidence presented.
In Rule 9, the defendant in default has In Rule 18, the defendant already
not filed an answer at all. The court is filed an answered. The defendant’s
considered to have been taking pity failure to comply with attending a
on a defendant who had surrendered. pre-trial conference or file a pre-trial
brief is meted with severe sanction.
Also, the fact that the court gives the
plaintiff the opportunity to present
his evidence, what the plaintiff
proves on evidence shall be the basis
of the judgment of the court.
During ex parte presentation during pre-trial, the plaintiff was able to prove
damages of 2M. However, the complaint alleges only 1M. The court awarded
2M. Is the court correct? Why?
Yes, the court is correct. This is because the defendant has failed to comply
with a court order to either appear in pre-trial or to submit a pre-trial brief, and
thus the court can sanction defendant at default. Also, since the court allows
the plaintiff, as provided under Rule 18, to present evidence to prove his
allegations, what the plaintiff was able to prove shall be the basis of the court’s
judgment.
PARTIAL DEFAULT
Partial default – one of several defendants, sued under a common cause of
action, is declared in default, while the others can still participate in the case.
Default is founded on the premise that the defendant has been served with
summons but chose not to response within the reglementary period.
Can there be a judgment in default against the non-answering defendants?
No, the court cannot do that. In case of several defendants, of which some
have filed an answer, the most that the court can do is to declare the non-
answering defendants in default. The court cannot declare the answering
defendants in default as there is no reason to do that. Insofar as the non-
answering defendant is concerned, they shall be declared in default but there
could be a separate judgment that will be rendered.
Can the answering defendant call the defendants in default as witnesses?
Yes. Defendants declared in default can be witnesses, although he will not be
allowed to participate as a litigant.
If the court finds for the answering defendant, will that decision also affect
the defendants declared in default?
Yes. Whatever happens to the case, the defendants in default shall be subject
to the decisions rendered. Thus, if the answering defendant wins, the decision
shall also be in favor of the defendants in default. This is one situation where a
defaulting defendant can prevail in the case. The reason is that the non-
answering defendants are sued under a common cause of action with
answering defendants.
In one case, the creditor who sued 2 defendants where one had answered
and other failed to answer, and subsequently ordered by the court to be
declared in default, his counsel most likely told him about this principle in
default. The plaintiff moved for the dismissal of the complaint against the
answering defendant. The answering defendant did not object to the
dismissal. The case caption was then changed to plaintiff versus the
defendant in default. Can the court now ask for presentation of evidence ex-
parte?
SC held that it is not necessary. Even if the answering defendant has been
dropped from the case upon the initiative of the plaintiff, what the trial should
examine is whether or not the answering defendant is an indispensable party
to the case. If answering defendant is an indispensable party, then the court
should require the inclusion of such party. What the court should do is to order
the plaintiff to amend his pleadings and include the indispensable party. Failure
to do so will be dismissal of the complaint with prejudice under Rule 17. This is
because if answering defendant is an indispensable party but he is not around,
the proceedings of the court could be void, it would be useless for the court to
try the case. And under the new doctrines enunciated by the SC, if an
indispensable party has not been included or has been dropped from the case,
the court should compel the indispensable party to be impleaded via an
amendment to the complaint. Failure of plaintiff to do so will allow the court to
dismiss the case with prejudice under Rule 17 for refusal to obey a lawful court
order.
Since it is disadvantageous for a non-answering defendant to be declared in
default, what are the remedies given by law to the defaulting defendant?
To file a motion to lift the order of default at any time before judgment, the
motion, filed with an affidavit of merit along with his proposed answer, alleging
the reasons of why he defaulted and alleging that he has a good defense as
stated in the proposed answer.
If the motion to lift the order of default is denied, it is inappealable, being an
interlocutory decision.
Denial to lift order of default – Rule 65 can be had, but appellant must show
that the court acted with lack or in excess of jurisdiction
If the court has already rendered judgment by default (after motion to life
order of default has been denied), defendant can appeal. A judgment by
default is an adjudication on the merits, hence appealable, Rule 65 is
automatically non-available as a rule.
If court lifted order of default, the defendant should file the answer as soon as
possible. The court, as a matter of public policy, should allow the defendant
who had been in default to file his answer. The court should not deprive
defendant the right to present his side before the court.
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS
Plaintiff filed a case for accion reinvindicatoria. The assessed value of the
property determined jurisdiction. It was filed in the RTC. No allegation was
included as to the value of the property. Can RTC dismiss the case?
Yes. If the court is unable to determine that it has jurisdiction over the case, as
in this instant, it may dismiss the case for lack of jurisdiction over the subject
matter of the case.
Plaintiff failed to make the necessary jurisdictional averment. Having
discovered it, he amended the complaint and submitted it prior to an answer
made. Is the plaintiff correct?
Yes. The amendment was an amendment as a matter of right. The plaintiff has
the right amend his complaint once before a responsive pleading is filed, even
to the extent of amending the averment to confer jurisdiction. Thus, the
plaintiff is correct to amend his pleading to include the jurisdictional averment.
This is applicable for example in unlawful detainer, wherein the plaintiff failed
to allege in his complaint that a final demand had been made. Plaintiff may
amend his complaint as a matter of right to include the said allegation.
The plaintiff made a change in the cause of action in the complaint, and the
amendment was as a matter of right. Is this allowed? What if an answer was
already filed?
If amendment is a matter of right, the plaintiff can change his pleading’s cause
of action.
If amendment is not a matter of right, the plaintiff must be authorized by the
court (given leave) to amend the pleading to include another cause of action or
change a cause of action.
All pleadings can be amended as a matter of right or with prior leave of court.
Philippine Ports Authority vs. Gothong 2008 (Change from a complaint for
specific performance to one for injunction.)
If amendment is a matter of right, the plaintiff can change his pleading’s cause
of action.
If amendment is not a matter of right, the plaintiff must be authorized by the
court (given leave) to amend the pleading to include another cause of action or
change a cause of action.
Change in the cause of action in the complaint is a matter of discretion upon
the court once an answer had already been filed. As long as the amendment
gives the parties the opportunity to tell the court what is the true dispute
between the parties, and as long as it does not involve prejudice to substantial
justice. Hence, if the complaint was amended not as a matter of right, the
defendant can also amend his answer, if needed, to properly respond to the
amended complaint. In the Gothong Case, the SC encouraged trial courts to
liberally the Rule on amendment of pleadings, whether as a matter of right or
as a matter of discretion.
Defendant can change his denials in his answer from general to specific by filing
an amended answer as a matter of right. 2nd, 3rd etc. amendment must be
with leave of court.
Amendment as a matter of right can only be availed of once, and it can be
availed of only before an answer has been filed.
Can we amend pleadings if the case has already been decided and is on
appeal either in the CA or SC?
Yes. Amendments can be done if it is only formal in nature. But if the
amendment is substantial, appellate courts will hesitate as such amendment
will injure the rights of parties who had not appealed. What can be brought on
appeal are issues that have been raised from the trial court.
AMENDMENT TO CONFORM TO EVIDENCE UNDER RULE 10
AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE
Q: When may amendment be made to conform to or authorize presentation
of evidence?
A:
1. When issues not raised by the pleadings are tried with the express or implied
consent of the parties.
Note: Failure to amend does not affect the result of the trial of said
issue.
2. Amendment may also be made to authorize presentation of evidence if
evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, if the presentation of the merits of the action and the
ends of substantial justice will be subserved thereby (Sec. 5, Rule 10).
If the evidence presented by the plaintiff is not material to the allegations in his
complaint, and there is an objection by the defendant, that objection should be
sustained. But if the presentation of evidence that is not material to the
complaint is not objected to, the court can motu propio tell the plaintiff not to
continue the presentation of that evidence. For instance, the case if for accion
reinvindicatoria, where the issue is title to or possession of the real property.
During the trial, the plaintiff presented evidence that the defendant owed him
3M, but not any evidence pertaining to the right of possession of the real
property. If you are the lawyer of the defendant in this case, you will have to
object that the evidence presented is not material to the allegations of the case
for recovery of ownership and possession of real property. If there is an
objection raised by the defendant, the court will sustain that objection, the
plaintiff will not be allowed to present his evidence concerning the 3M liability.
But if the defendant did not object, the court cannot refuse to admit the
evidence. The court cannot refuse to admit any evidence not objected to by the
other side.
When the time comes for the court to decide on the case, can court will
simply award the plaintiff 3M, although the plaintiff has not alleged this fact
at all in his complaint?
Yes. The reason is that rule in amendment to conform to evidence under Rule
10. There is no need for the plaintiff to formally amend his pleadings, it takes
place by operation of law in order to conform with the evidenced submitted by
the plaintiff.
Q: Distinguish an amended pleading from a supplemental pleading.
A:
Amended Pleading Supplemental Pleading
Refer to the facts existing at the time Refers to facts occurring after the
of filing of original pleading filing of the original pleading.
Supersedes the original, causes of Merely supplements the original
action may be changed pleading.
May be amended without leave of Always with leave of court
court before a responsive pleading is
filed.
Amendment must be appropriately There is no such requirement in
marked. supplemental pleadings (Herrera, Vol.
I, p. 854, 2007 ed.)
EFFECT OF AMENDED PLEADING
Q: What is the effect of an amended pleading?
A: An amended pleading supersedes the pleading it amends. However,
admissions in the superseded pleading can still be received in evidence against
the pleader. Claims or defenses alleged therein but not incorporated or
reiterated in the amended pleading are deemed waived (Sec. 8, Rule 10).
An amended pleading takes the place of the original pleading. Will the court
discard the original pleading?
No, the court will retain the pleading for court record purposes. Admissions
made in superseded pleadings are considered extra-judicial admissions. They
can be rebutted.
Admissions made in the original pleadings are still admissions, but cannot be
considered as judicial admissions. They are mere extra-judicial admission by the
person making it.
A judicial admission is always conclusive. It cannot be subject to rebuttal by
evidence.
PERIOD TO FILE PLEADINGS
In the periods for filing of pleadings, there is nothing mentioned as to the
period as to when a complaint should be filed. Nothing is fixed in the rules. The
reason is that the filing of the complaint is solely dependent upon the whim of
the plaintiff. If SC does so fix such period, it will be invading the turf of
substantive law. If there is a period fixed as to when that complaint should be
filed, it is determined by substantive law so long as the complaint is filed within
the period of prescription. Prescription is a matter of substantive law. With
respect to counterclaim, cross-claim or third party complaint, there is a period
fixed in the Rules. Of particular is the period for filing a cross-claim and a
compulsory counter-claim. They must be filed within the period as that for the
filing of an answer.
Why?
Because even if the cross-claim, counter-claim or third-party complaint are
claim pleadings, the rules do not allow the defending party to file an answer
separately from a counterclaim, cross-claim or a third-party complaint. Such
pleading must be included in his answer. Thus a defendant must file an answer
with a counterclaim, cross-claim or a third-party complaint. Otherwise,
defendant may file a motion for leave to file an amended answer with cross-
claim, counterclaim, etc. With respect to a third-party complaint, defendant
would have to first file a motion for leave to file a third-party complaint along
with the amended answer, attaching the amended answer to the motion.
Because of this rule, the filing of a compulsory counterclaim should be the
same as that provided for the filing of an answer (15-30-60, as the case may
be). If there is an answer filed, but the defendant feels he should file a
counterclaim, he will have to file a motion for leave to file an amended answer
with counterclaim (with a copy of the amended answer attached).
BILL OF PARTICULARS
Motion for leave to file bill of particulars – there is inadequacy of the
allegations contained in the complaint.
As a rule, Rule 16, as to a bill of particulars, the inadequacy of the allegations in
a complaint is not a ground for the filing of a motion to dismiss the complaint.
Can there be an instance when a trial court may dismiss a case on ground of
inadequacy or vagueness in the allegations in the complaint?
Yes, by way of exception. The only instance when a defendant may file motion
to dismiss due to vagueness or inadequacy of the allegations in the complaint,
instead of filing motion for bill of particulars, is when the RTC is sitting as a
commercial court. In this case, where there is indefiniteness or vagueness in
the allegations of the complaint, defendant may file a motion to dismiss. This is
because, in commercial courts, a motion for bill of particulars is forbidden as
outlined in the circular for commercial courts.
In ordinary civil cases, motion for bill of particulars is available to both sides.
They should be in the form of a motion.
While a motion for bill of particulars should comply with the requisites of a
motion, so as not to be deemed as a useless piece of paper, when the motion is
submitted to the court, the court can act upon the motion right away, without
waiting for the hearing set for the motion, either granting or denying such
motion.
By its very nature, a motion for a bill of particulars should be filed by a
defendant before submitting an answer, or in case of a plaintiff, a reply. It is
useless if a defendant files a motion for bill of particulars after he has already
filed his answer. It is understood that if a defendant has filed an answer, it
would mean that he has understood fully the allegations stated in the
complaint.
What is a bill of particulars and when can it be availed of?
A: Before responding to a pleading, a party may move for a definite statement
or for a bill of particulars of any matter which is not averred with sufficient
definiteness or particularity to enable him properly to prepare his responsive
pleading. If the pleading is a reply, the motion must be filed within 10 days
from service thereof(Sec. 1, Rule12). (2003 Bar Question)
Note: Its purpose is to aid in the preparation of a responsive pleading. An
action cannot be dismissed on the ground that the complaint is vague or
definite. (Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973).
If denied, the movant should file the required pleading in the remaining period,
which should not be more or less than 5 days.
But if the motion is granted, in case of a defendant, the court will order the
submission of an amended complaint or a bill of particulars, which will form
part of the allegations contained in the complaint.
If the plaintiff does not obey the order of the court to submit a bill of
particulars, what is the remedy of the defendant?
The remedy is either to strike out the parts of the pleading that are vague. Or,
the more practical move, the defendant move to strike out the entire pleading,
wherein the case is dismissed.
The remedy if pleading still remains vague after bill was approved and
particulars were provided for:
1. Striking out parts still vague
2. Striking out the entire pleading (if it is a complaint, the case is dismissed. If it
is the answer stricken, motion for declaration of defendant in default.)
If the defendant disobeyed the court order to amend his answer or to supply
bill of particulars, the situation will be as if the defendant has not filed an
answer at all. The next recourse of the plaintiff is to file a motion to declare the
defendant in default. This is one instance where the defendant can be declared
in default even though he had filed an answer on time. Therefore, if the
defendant did not amend his answer or file a bill of particulars, the court can
order the striking out of the answer and thereafter, upon motion, the
defendant can be declared in default. This Rule is found under Rule 29 (Refusal
To Comply With Modes of Discovery).
SUBSTITUTE SERVICE OF PLEADINGS AND MOTIONS VS. SUBSTITUTE SERVICE
OF SUMMONS
Filing and service of pleadings, motions and other papers in the court:
Substitute service of pleadings, motions and other papers:
Motion/pleading/other papers cannot be served in person or by registered
mail. Movant should submit the motion and the pleadings with the clerk of
court with proof that personal and mail service failed. Upon receipt of court,
substituted service is now completed.
Substitute service of summons: This is resorted to when there is failure on the
part of sheriff to serve summons in person upon the defendant after several
attempts and despite diligent efforts. Sheriff then can serve the summons at
the resident of the defendant upon a person of sufficient age of discretion, or
instead of the residence, at his place of business, upon a competent person in
charge. The reason for resorting to such substituted service must be explained.
If a movant files a motion against an adverse party, but chooses a mode of
service other than personal service, he must explain the reason why. Recently
this has been relaxed by the court, depending on the nature of the case or
depending on the nature of the motion to be served or the pleading filed in the
court.
But in case of a motion to dismiss, the courts are very strict, personal service is
a must. If it was served by mail, the court requires submission of proof of actual
delivery/receipt by mail (the registry return card). If such proof is not
presented, the court will not act on the motion to dismiss for failure to observe
the requirements concerning service of this important motion.
SUMMONS
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the action brought against
him (Gomez vs. Court of Appeals, G.R. No. 127692, March 10, 2004). An
important part of that notice is a direction to the defendant that he must
answer the complaint within a specified period, and that unless he so answers,
plaintiff will take judgment by default and may be granted the relief applied for
(Sec. 2, Rule 14). (Riano, p. 411 , 2005 ed.)
Q: What are the purposes of summons?
A:
1. Actions in personam
a. To acquire jurisdiction over the person of the defendant; and
b. To give notice to the defendant that an action has been
commenced against him (Umandap v. Sabio, Jr., G.R. No. 140244,
Aug. 29, 2000)
2. Actions in rem and quasi in rem – not to acquire jurisdiction over the
defendant but mainly to satisfy the constitutional requirement of due process
(Gomez v. CA, G.R. No. 127692, Mar. 10, 2004).
What is the effect of voluntary appearance before the court? Explain.
A:
GR: The defendant’s voluntary appearance shall be equivalent to service of
summons and the consequent submission of one’s person to the jurisdiction of
the court (Sec. 20, Rule 14).
Note: Voluntary appearance cures the defect in the service of summons.
XPN: Special appearance in court to challenge its jurisdiction over the person of
the defendant and the inclusion in a motion to dismiss of other grounds shall
not be deemed a voluntary appearance (Sec. 20, Rule 14; La Naval Drug Corp. v.
CA, G.R. No. 103200, Aug. 31, 1994).
Sec. 20, Rule 14, RoC
Instances when appearance of defendant is not tantamount to voluntary
submission to the jurisdiction of the court:
(a) when defendant files the necessary pleading;
(b) when defendant files a motion for reconsideration of the judgment by
default;
(c) when defendant files a petition to set aside the judgment of default;
(d) when the parties jointly submit a compromise agreement for approval of
the court;
(e) when defendant files an answer to the contempt charge;
(f) when defendant files a petition for certiorari without questioning the court‘s
jurisdiction over his person.
PERSONAL SERVICE
Q: When is personal service of summons proper?
A: Only if the suit is one strictly in personam. The service of summons must be
made by service in person on the defendant. This is effected by handing a copy
of the summons to the defendant in person, or if he refuses to receive it, by
tendering the copy of the summons to him (Sec. 6, Rule 14). (Riano, p. 423 ,
2005 ed.)
SUBSTITUTED SERVICE
Q: When is substituted service of summons proper?
A: In our jurisdiction, for substituted service of summons to be valid, it is
necessary to establish the following:
1. The impossibility of service of summons in person within a reasonable time;
2. The efforts exerted to locate the person to be served; and
3. Service upon a person of sufficient age and discretion in the same place as
the defendant or some competent person in charge of his office or regular
place of business (Sabio, Jr., 339 SCRA 243 [2000]; Hamilton vs. Levy, G.R. No.
139283, November 15, 2000). (Riano, p. 427 , 2005 ed.)
CONSTRUCTIVE SERVICE (BY PUBLICATION) corporation notice of the filing of
Q: Is leave of court required in constructive service of summons? the action.’ x x x.
A: This service always requires permission of the court.
The liberal construction rule
Summons is the writ available to a trial court to enable the court to acquire
cannot be invoked and utilized as
jurisdiction over the person of the defendant. Although not the only writ
a substitute for the plain legal
available for the court to acquire jurisdiction over the person of the defendant,
requirements as to the manner in
it is the usual writ used. The court can acquire jurisdiction over a defendant by
which summons should be served
compulsion, even though it has not issued a summons. An example is in the
on a domestic corporation. x x x.”
case of a special civil action under Rule 65, certiorari, prohibition and
(underscoring supplied).
mandamus.
Service of summons upon persons other than
Certiorari, prohibition and mandamus are special civil actions. They are distinct those mentioned in Section 13 of Rule 14 (old rule) has
from the case from which that order or decision has originated. But in Rule 65, been held as improper. Even under the old rule, service
the Rules do not allow the certiorari court or prohibition court to issue upon a general manager of a firm’s branch office has
summons to the defendant. What Rule 65 authorizes is to issue a notice to been held as improper as summons should have been
defendant/respondent requiring him to submit a comment before the court. served at the firm’s principal office. In First Integrated
That comment will enable the court to acquire jurisdiction over the person of Bonding & Ins. Co., Inc. vs. Dizon, it was held that the
the respondent. service of summons on the general manager of the
insurance firm’s Cebu branch was improper; default
There is even that mode of acquisition where the court need not do anything, order could have been obviated had the summons been
wherein a party makes a voluntary appearance in court. served at the firm’s principal office.

And in the case of Solar Team Entertainment, Inc.

Service of Summons upon a unregistered/unlicensed foreign corporation with vs. Hon. Helen Bautista Ricafort, et al. the Court
no resident agent that transacted in RP: succinctly clarified that, for the guidance of the Bench
In a 2011 Circular, summons upon a foreign private corporation can be served and Bar, “strictest” compliance with Section 11 of Rule
in four ways, with leave of court: 13 of the 1997 Rules of Civil Procedure (on Priorities in
1. Personal service of summons upon a foreign private corporation not doing modes of service and filing) is mandated and the Court
business in RP, with assistance of DFA and the court of the country where the cannot rule otherwise, lest we allow circumvention of
foreign corporation’s main office is located; the innovation by the 1997 Rules in order to obviate
2. Publication of the summons in the country where the foreign corporation delay in the administration of justice.
has its office
3. By facsimile message or by any electronic device authorized by the trial court Accordingly, we rule that the service of summons
4. A combination of any one of the three as authorized by the court. upon the branch manager of petitioner at its branch
office at Cagayan de Oro, instead of upon the general
With respect to domestic private corporations, service of summons must be manager at its principal office at Davao City is
effected as stated in the Villarosa vs. Benito case. It must be served upon the improper. Consequently, the trial court did not acquire
officers of the corporation stated specifically in the RoC (President, Managing jurisdiction over the person of the petitioner.
Partner, GM, Treasurer, Corporate Secretary or in-house counsel of the The fact that defendant filed a belated motion to
corporation).In the Villarosa case, the branch manager was the one served dismiss did not operate to confer jurisdiction upon its
with summons, which is not among those officers listed in the Rules. Thus, person. There is no question that the defendant’s
the trial court did not acquire jurisdiction over the corporation. This is still the voluntary appearance in the action is equivalent to
rule observed. service of summons. Before, the rule was that a party
may challenge the jurisdiction of the court over his
EB Villarosa & Partner Co. Ltd. Vs. Benito person by making a special appearance through a motion
It should be noted that even prior to the effectivity to dismiss and if in the same motion, the movant raised
of the 1997 Rules of Civil Procedure, strict compliance other grounds or invoked affirmative relief which
with the rules has been enjoined. In the case of Delta necessarily involves the exercise of the jurisdiction of the
Motor Sales Corporation vs. Mangosing, the Court held: court, the party is deemed to have submitted himself to
the jurisdiction of the court. This doctrine has been
abandoned in the case of La Naval Drug Corporation vs.
“A strict compliance with the Court of Appeals, et al., which became the basis of the
mode of service is necessary to adoption of a new provision in the former Section 23,
confer jurisdiction of the court which is now Section 20 of Rule 14 of the 1997
over a corporation. The officer Rules. Section 20 now provides that “the inclusion in a
upon whom service is made must motion to dismiss of other grounds aside from lack of
be one who is named in the jurisdiction over the person of the defendant shall not
statute; otherwise the service is be deemed a voluntary appearance.” The emplacement
insufficient. x x x. of this rule clearly underscores the purpose to enforce
strict enforcement of the rules on
The purpose is to render it summons. Accordingly, the filing of a motion to dismiss,
reasonably certain that the whether or not belatedly filed by the defendant, his
corporation will receive prompt authorized agent or attorney, precisely objecting to the
and proper notice in an action jurisdiction of the court over the person of the
against it or to insure that the defendant can by no means be deemed a submission to
summons be served on a the jurisdiction of the court. There being no proper
representative so integrated with service of summons, the trial court cannot take
the corporation that such person cognizance of a case for lack of jurisdiction over the
will know what to do with the person of the defendant. Any proceeding undertaken by
legal papers served on him. In the trial court will consequently be null and void.
other words, ‘to bring home to the
Service of summons in case of a partnership:
What the rules require is that summons must be made upon a GM or
managing partner as the case may be.
If there are 4 partners in the partnership, service upon any of the partners
will be a valid service of summons. All partners under the NCC are considered
as managing partners. Since all partners under the NCC are presumed to be
managing partners, service upon anyone will be a valid service of summons.
It is in the acquisition of jurisdiction over natural persons that there is conflict
in jurisprudence.
2006 case
Defendant owed money to a corporation. Defendant lived in a gated
subdivision. The sheriff was not allowed inside the subdivision. What the
sheriff did was to leave a copy of the summons, together with the complaint,
with the guards. Is there valid service of summons?
To be literal, no, there was no valid substituted service of summons. If the
summons and the complaint were left only with the security guard, it did not
comply with leaving at the place of residence of the defendant with some
person of suitable age and discretion then residing therein. The guards do not
actually reside in the place of residence of the defendant.
The SC stated that the meaning of sufficient age and discretion does not mean
that the person to be served could be a minor. This person means that this
person should mean a person at least 18 years of age with a relationship
involving confidence with the defendant. So, if the service of summons was
given to a person who was only a visitor of the defendant, that will not comply
with this requirement.
SEC. 16. Residents temporarily out of the Philippines.—
When any action is commenced against a defendant who
ordinarily resides within the Philippines, but who is
temporarily out of it, service may, by leave of court, be
also effected out of the Philippines, as under the
preceding section.
Former Procedure
Citizen’s Surety vs. Herrera (Service of summons for an Action in personam –
publication of summons with preliminary attachment of properties)
Sheriff stated that the summons could not be served personally or by
substituted service. The plaintiff filed an ex parte motion to issue a summons
by publication. The court granted it. Plaintiff caused the publication of the
summons. After 60 days, there was no responsive pleading. Plaintiff filed a
motion to declare defendant in default. During the hearing of the motion,
plaintiff presented the court the order authorizing publication and affidavit of
the publisher. Plaintiff expected the court to grant his motion. The court did
not, but instead asked the plaintiff to explain why the complaint should not be
dismissed. The court stated that publication did not enable the court to acquire
jurisdiction of the court. The requirement left out was a constitutional
requirement of due process, that the action was converted from one in
personam to that one in rem or quasi-in rem. This could be done, after causing
the publication of the service of summons, by applying with the court for an
order for preliminary attachment of defendant’s personal properties in order to
acquire jurisdiction over the person over the defendant.
This conclusion by the plaintiff, aside from Rule 14 Sec. 15, this is supported by
Rule 57 Sec. 1.

Rule 57 SECTION 1. Grounds upon which attachment

In this 2006 case, the SC became very liberal. Although it was clear sheriff did may issue.—At the commencement of the action or at
not satisfy the requirements of a valid service of summons, the SC ruled that any time before entry of judgment, a plaintiff or any
the trial court did acquire jurisdiction over the person of the defendant. proper party may have the property of the adverse
party attached as security for the satisfaction of any
However, in 2009, the SC decided a case involving the validity of a substituted judgment that may be recovered in the following cases:
service of summons not in accordance with the Rules. If substitute service of
summons is not in accordance with Sec. 7 of Rule 14, the service is invalid, the (a) In an action for the recovery of
court does not acquire jurisdiction over the defendant. Any proceedings taken a specified amount of money or
by the court are invalidated. damages, other than moral and
exemplary, on a cause of action
Concentrate on Sec. 14, 15 and 16 Rule 14 arising from law, contract, quasi-
contract, delict or quasi-delict
SEC. 14. Service upon defendant whose identity or against a party who is about to
whereabouts are unknown.—In any action where the depart from the Philippines with
defendant is designated as an unknown owner, or the intent to defraud his creditors;
like, or whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service may, by (b) In an action for money or
leave of court, be effected upon him by publication in a property embezzled or
newspaper of general circulation and in such places and fraudulently misapplied or
for such time as the court may order. (16a) converted to his own use by a
public officer, or an officer of a
SEC. 15. Extraterritorial service.—When the defendant corporation, or an attorney, factor,
does not reside and is not found in the Philippines, and broker, agent, or clerk, in the
the action affects the personal status of the plaintiff or course of his employment as such,
relates to, or the subject of which is, property within the or by any other person in a
Philippines, in which the defendant has or claims a lien or fiduciary capacity, or for a willful
interest, actual or contingent; or in which the relief violation of duty;
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of (c) In an action to recover the
the defendant has been attached within the Philippines, possession of property unjustly or
service may, by leave of court, be effected out of the fraudulently taken, detained or
Philippines by personal service as under section 6; or by converted, when the property, or
publication in a newspaper of general circulation in such any part thereof, has been
places and for such time as the court may order, in which concealed, removed, or disposed
case a copy of the summons and order of the court shall of to prevent its being found or
be sent by registered mail to the last known address of taken by the applicant or an
the defendant, or in any other manner the court may authorized person;
deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than (d) In an action against a party who
sixty (60) days after notice, within which the defendant has been guilty of a fraud in
must answer. (17a) contracting the debt or incurring
the obligation upon which the
 action is brought, or in the
performance thereof;
(e) In an action against a party who
has removed or disposed of his
property, or is about to do so, with
intent to defraud his creditors; or
(f) In an action against a party
who does not reside and is not
found in the Philippines, or on
whom summons may be served
by publication. (1a)
The court interpreted these provisions to mean that if there is publication of
the summons, there should be a proceeding accompanying preliminary
attachment over the personal properties of the defendant. Otherwise, the
court will be unable to acquire jurisdiction over the person of the defendant. If
we are not able to convert the action in personam to that in rem, the court will
not be able to acquire jurisdiction over the person of the defendant, and
therefore, the court will not have authority at all to entertain the case.
Note: If the court still did not still acquire jurisdiction over the defendant
despite the attachment of the personal properties of the defendant, then the
case will be archived. There can be no dismissal of the case. No prescription
will run, since the complaint is archived.
Citizen’s Surety vs. Herrera Digest :
Facts:
Citizens Surety and Insurance Co (Citizens) alleged that at
the request of Santiago Dacanay, it issued 2 surety bonds
to guarantee payment of P5K promissory notes in favor
Gregorio Fajardo and Manufacturers Bank & Trust Co
respectively. As security, the Santiago and Josefina
Dacanay executed an Indemnity Agreement to jointly
indemnify Citizens for losses, costs and expenses (with
12% annual interest) and a REM over a parcel of land in
Baguio. The Dacanays failed to pay the promissory notes
compelling Citizens to pay. The Dacanays failed to
reimburse Citizens however, forcing the latter to cause
the extra-judicial foreclosure of the mortgage and file a
case to recover the unsatisfied balance.
At petitioner’s request, the respondent Judge caused
summons to be made by publication in the Philippines
Herald. But despite such publication and deposit of copy
with the Manila post office, the defendant did not
appear within 60 days from the last publication.
Plaintiff sought the defendants to be declared in default,
but the Judge eventually dismissed the case, the suit
being in personam and the defendants not having
appeared.
Issue:
W/N summons made by publication is sufficient for the
court to acquire jurisdiction
Held:
No. In an action strictly in personam, personal service of
summons, within the forum, is essential to the
acquisition of jurisdiction over the person of the
defendant, who does not voluntarily submit himself to
the authority of the court. In other words, summons by
publication cannot – consistently with the due process
clause in the Bill of Rights – confer upon the court
jurisdiction over said defendants.
The proper recourse for the creditor is to locate
properties, real or personal, of the resident defendant
debtor with unknown address and cause them to be
attached, in which case, the attachment converts the
action into a proceeding in rem or quasi in rem and the
summons by publication may be valid.
Given the skill of debtors to conceal their properties
however, the decision of the respondent Judge should
be set aside and held pending in the archives until
petitioner tracks down the whereabouts of the
defendant’s person or properties.
In 2008, Santos vs. PNOC was decided, which changed the principles held
under Citizen’s Surety vs. Herrera.
Santos vs. PNOC Defendant in an Action in personam can be subject to
court’s jurisdiction (2008)
The defendant did not file an answer within the reglementary period. The
lawyer of the plaintiff did not move for publication of summons, but filed only a
motion to allow him to present evidence ex parte. The judge rendered a
decision in favor of the plaintiff. When defendant learned of the decision, he
moved for reconsideration thereof. The Court then gained jurisdiction over the
person of the defendant mad a voluntary appearance when the defendant filed
his motion for reconsideration.
Santos vs. PNOC Digest
Facts: PNOC Exploration Corporation, respondent, filed a
complaint for a sum of money against petitioner Pedro
Santos Jr. in the RTC of Pasig. The amount sought to be
collected was the petitioner’s unpaid balance of the car
loan advanced to him by respondent when he was still a
member of its board of directors.
Personal service of summons were made to petitioner
but failed because the latter cannot be located in his last
known address despite earnest efforts to do so.
Subsequently, on respondent’s motion, the trial court
allowed service of summons by publication. Respondent
caused the publication of the summons in Remate, a
newspaper of general circulation in the Philippines.
Thereafter, respondent submitted the affidavit of
publication and the affidavit of service of respondent’s
employee to the effect that he sent a copy of the
summons by registered mail to petitioner’s last known
address.
Petitioner still failed to answer within the prescribed
period despite the publication of summons. Hence,
respondent filed a motion for the reception of its
evidence ex parte. Trial court granted said motion and
proceeded with the ex parte presentation and formal
offer of its evidence.
Petitioner filed an Omnibus Motion for Reconsideration
and to Admit Attached Answer, alleging that the affidavit
of service submitted by respondent failed to comply with
Section 19, Rule 14 of the Rules of Court as it was not
executed by the clerk of court. Trial court denied the said
motion and held that the rules did not require such
execution with the clerk of court. It also denied the
motion to admit petitioner’s answer because the same
was filed way beyond the reglementary period.
Petitioner appeals to the CA via a petition for certiorari
but failed and even sustained the trial court’s decision
and ordered the former to pay the amount plus legal
interest and cost of suit. Hence, this petition.
Issues:
(1) Whether or not there is lack of jurisdiction over the
petitioner due to improper service of summons.
 (2) Whether or not the rule on service by publication Now on the merits, the issue for resolution is whether
under Section 14, Rule 14 of the Rules of Court applies there was a valid service of summons on private
only to actions in rem, not actions in personam. respondent.

(3) Whether or not the affidavit of service of the copy of In civil cases, the trial court acquires jurisdiction
the summons should have been prepared by the clerk of over the person of the defendant either by the service of
court and not respondent’s messenger. summons or by the latter’s voluntary appearance and
submission to the authority of the former. Private
Held: respondent was a Filipino resident who was temporarily
out of the Philippines at the time of the service of
(1) Section 14, Rule 14 provides that in any action where summons; thus, service of summons on her is governed
the defendant is designated as an unknown owner or by Section 16, Rule 14 of the Rules of Court, which
the like or when his whereabouts are unknown and provides:
cannot be ascertained by diligent inquiry, service may,
by leave of court, be effected upon him by publication Sec. 16. Residents
in a newspaper of general circulation and in such places temporarily out of the Philippines.
and for such times as the court may order. Since – When an action is commenced
petitioner could not be personally served with summons against a defendant who ordinarily
despite diligent efforts to locate his whereabouts, resides within the Philippines, but
respondent sought and was granted leave of court to who is temporarily out of it,
effect the service of summons upon him by publication in service may, by leave of court,
a newspaper of general circulation. Thus, petitioner was be also effected out of
proper served with summons by publication and that the Philippines, as under the
there is jurisdiction over his person. preceding section. (Emphasis
supplied)
(2) The in rem/in personam distinction was significant
under the old rule because it was silent as to the kind of The preceding section referred to in the
action to which the rule was applicable but this has above provision is Section 15, which speaks of
been changed, it now applies to any action. The present extraterritorial service, thus:
rule expressly states that it applies “in any action where
the defendant is designated as an unknown owner, or SEC. 15. Extraterritorial
the like, or whenever his whereabouts are unknown service. ─ When the defendant
and cannot be ascertained by diligent inquiry.” Hence, does not reside and is not found in
the petitioner’s contention that the complaint filed the Philippines, and the action
against him is not covered by the said rule because the affects the personal status of the
action for recovery of sum of money is an action in plaintiff or relates to, or the
personam is not applicable anymore. subject of which is, property within
the Philippines, in which the
(3) The service of summons by publication is defendant has or claims a lien or
complemented by service of summons by registered interest, actual or contingent, or in
mail to defendant’s last known address. This which the relief demanded
complementary service is evidenced by an affidavit consists, wholly or in part, in
“showing the deposit of a copy of the summons and excluding the defendant from any
order for publication in the post office, postage for interest therein, or the property of
prepaid, directed to the defendant by registered mail to the defendant has been attached
his last known address”. The rules, however, do not within the Philippines, service may,
require that the affidavit of complementary service be by leave of court, be effected out
executed by the clerk of court. While the trial court of the Philippines by personal
ordinarily does the mailing of copies of its orders and service as under section 6; or by
processes, the duty to make the complementary service publication in a newspaper of
by registered mail is imposed on the party who resorts general circulation in such places
to service by publication. and for such time as the court may
order, in which case a copy of the
summons and order of the court
Since 2008, the lawyers have made use of Santos vs. PNOC as the authority to shall be sent by registered mail to
convince a trial court that there is no need for a publication of summons for the the last known address of the
issuance of a writ of preliminary attachment before the court could acquire defendant, or in any other manner
jurisdiction over the person of the defendant. the court may deem sufficient.
Any order granting such leave
In 2010, SC resolved another case, Palma vs. Galvez. In the case of Palma vs. shall specify a reasonable time,
Galvez, the SC held that we should literally apply what the Rules provides, which shall not be less than sixty
particularly Section 16 of Rule 14. If you read Section 16, the defendant is a (60) days after notice, within which
resident of RP temporarily out of RP. In relation to Section 14, if the the defendant must answer.
whereabouts of the defendant is unknown, there could be publication of
summons, and that would enable the court to acquire jurisdiction over the The RTC found that since private respondent
person of the defendant. was abroad at the time of the service of summons, she
was a resident who was temporarily out of the country;
Palma vs. Galvez (When the whereabouts of defendant is unknown, there is thus, service of summons may be made only by
no need for publication of summons.) publication.
Reiterates Santos vs. PNOC – there is no need , under Sections 14 to 16 in Rule
14, for the conversion of an action in personam to that in rem before a court We do not agree.
could acquire jurisdiction over the person of the defendant.
 In Montefalcon v. Vasquez, we said that
because Section 16 of Rule 14 uses the words “may”
and “also,” it is not mandatory. Other methods of
service of summons allowed under the Rules may also
be availed of by the serving officer on a defendant-
resident who is temporarily out of
the Philippines. Thus, if a resident defendant is
temporarily out of the country, any of the following
modes of service may be resorted to: (1) substituted
service set forth in section 7 ( formerly Section 8), Rule
14; (2) personal service outside the country, with leave
of court; (3) service by publication, also with leave of
court; or (4) in any other manner the court may deem
sufficient.
In Montalban v. Maximo, we held that
substituted service of summons under the present
Section 7, Rule 14 of the Rules of Court in a suit in
personam against residents of
the Philippines temporarily absent therefrom is the
normal method of service of summons that will confer
jurisdiction on the court over such defendant. In the
same case, we expounded on the rationale in providing
for substituted service as the normal mode of service for
residents temporarily out of the Philippines.
x x x A man temporarily absent
from this country leaves a definite
place of residence, a dwelling
where he lives, a local base, so to
speak, to which any inquiry about
him may be directed and where he
is bound to return. Where one
temporarily absents himself, he
leaves his affairs in the hands of
one who may be reasonably
expected to act in his place and
stead; to do all that is necessary
to protect his interests; and to
communicate with him from time
to time any incident of
importance that may affect him or
his business or his affairs. It is
usual for such a man to leave at his
home or with his business
associates information as to where
he may be contacted in the event a
question that affects him crops
up. If he does not do what is
expected of him, and a case comes
up in court against him, he cannot
just raise his voice and say that he
is not subject to the processes of
our courts. He cannot stop a suit
from being filed against him upon
a claim that he cannot be
summoned at his dwelling house
or residence or his office or regular
place of business.
Not that he cannot be
reached within a reasonable time
to enable him to contest a suit
against him. There are now
advanced facilities of
communication. Long distance
telephone calls and cablegrams
make it easy for one he left behind
to communicate with him.
Considering that private respondent was
temporarily out of the country, the summons and
complaint may be validly served on her through
substituted service under Section 7, Rule 14 of the Rules
of Court which reads:
SEC. 7. Substituted
service. — If, for justifiable causes,
the defendant cannot be served
within a reasonable time as
provided in the preceding section,
service may be effected (a) by
leaving copies of the summons at
the defendant’s residence with
some person of suitable age and
discretion then residing therein, or
(b) by leaving the copies at
defendant’s office or regular place
of business with some competent
person in charge thereof.
We have held that a dwelling, house or residence
refers to the place where the person named in the
summons is living at the time when the service is made,
even though he may be temporarily out of the country
at the time. It is, thus, the service of the summons
intended for the defendant that must be left with the
person of suitable age and discretion residing in the
house of the defendant. Compliance with the rules
regarding the service of summons is as important as the
issue of due process as that of jurisdiction.
Section 7 also designates the persons with whom
copies of the process may be left. The rule presupposes
that such a relation of confidence exists between the
person with whom the copy is left and the defendant
and, therefore, assumes that such person will deliver
the process to defendant or in some way give him
notice thereof.
In this case, the Sheriff's Return stated that private
respondent was out of the country; thus, the service of
summons was made at her residence with her husband,
Alfredo P. Agudo, acknowledging receipt thereof. Alfredo
was presumably of suitable age and discretion, who was
residing in that place and, therefore, was competent to
receive the summons on private respondent's behalf.
Notably, private respondent makes no issue as to
the fact that the place where the summons was served
was her residence, though she was temporarily out of
the country at that time, and that Alfredo is her
husband. In fact, in the notice of appearance and
motion for extension of time to file answer submitted
by private respondent's counsel, he confirmed the
Sheriff's Return by stating that private respondent was
out of the country and that his service was engaged by
respondent's husband. In his motion for another
extension of time to file answer, private respondent's
counsel stated that a draft of the answer had already
been prepared, which would be submitted to private
respondent, who was in Ireland for her clarification
and/or verification before the Philippine Consulate
there. These statements establish the fact that private
respondent had knowledge of the case filed against her,
and that her husband had told her about the case as
Alfredo even engaged the services of her counsel.
In addition, we agree with petitioner that the RTC
had indeed acquired jurisdiction over the person of
private respondent when the latter's counsel entered
his appearance on private respondent's behalf, without
qualification and without questioning the propriety of
the service of summons, and even filed two Motions for
Extension of Time to File Answer. In effect, private
respondent, through counsel, had already invoked the
 RTC’s jurisdiction over her person by praying that the
motions for extension of time to file answer be granted.
We have held that the filing of motions seeking
affirmative relief, such as, to admit answer, for
additional time to file answer, for reconsideration of a
default judgment, and to lift order of default with
motion for reconsideration, are considered voluntary
submission to the jurisdiction of the court. When
private respondent earlier invoked the jurisdiction of the
RTC to secure affirmative relief in her motions for
additional time to file answer, she voluntarily submitted
to the jurisdiction of the RTC and is thereby estopped
from asserting otherwise.
Considering the foregoing, we find that the RTC
committed a grave abuse of discretion amounting to
excess of jurisdiction in issuing its assailed Orders.
NOTE:
It would seem that the principle adhered to for a long time since Citizen’s
Surety vs. Herrera is no longer binding upon plaintiffs. They can ignore the
requirement of prior attachment of personal properties of the defendant
before availing of a publication of summons to enable a court to acquire
jurisdiction over the person of the defendant. Read over Sections 14, 15 and
16, correlating them with the cases of Palma vs. Sanchez. There is really no
need for an action in personam to be converted to an action in rem or quasi
in rem, via a writ of preliminary attachment, in order for a court to be able to
acquire jurisdiction over the person of the defendant.
What is the advantage of using these principle in Citizen’s Surety vs. Herrera?
(Actions in rem that is in personam at the same time)
The advantage is that if the plaintiff first moves for preliminary attachment
over properties of the defendant and then later ask the court for publication of
summons, when compared to just the plaintiff asking for publication of
summons without asking for preliminary attachment, is that there is a security
enjoyed by the plaintiff when the property of the defendant is attached
through a writ preliminary attachment. If you read Rule 57, that is precisely the
purpose of preliminary attachment over the property of the defendant, to
provide security to the applicant to whatever judgment rendered in favor of
the plaintiff.
But the present tendency of the court is not to apply anymore the principle in
Citizen’s Surety vs. Herrera insofar as publication of summons is concerned.
There is no more need for converting an action in personam to an action in
rem or quasi-in rem.
If there is a preliminary attachment of a property belonging to the defendant,
the act of actual attachment of the property is the act which converts the case
from in personam to that of in rem or quasi-in rem. This is because the
property is now within the jurisdiction of the trial court.
MOTIONS
Q: What is a motion?
A: It is an application for relief other than by a pleading. (Sec. 1, Rule 15)
Q: What shall the notice of hearing specify?
A: It shall specify the time and date of the hearing which shall not be later than
ten (10) days after the filing of the motion and it shall be addressed to the
parties concerned (Sec. 5, Rule 15).
Note: Failure to comply with the mandatory requirements of the rule regarding
notice of hearing is pro forma and presents no question which merits the
attention of the court (Bacelonia v. CA, G.R. No. 143440, Feb. 11, 2003).
Q: What is the rule on hearing of motions?
A:
GR: Every written motion shall be set for hearing by the applicant.
XPN: Motions which the court may act upon without prejudicing the rights of
the adverse party (Sec. 4, Rule 15).
General Rule: If not made in open court, it must be reduced into writing. It
must satisfy all the requirements in the Rules concerning motions.
Requirements of a written motion:
1. service upon the adverse party
2. must be set for hearing
Notice of Hearing is usually addressed by lawyers to the branch clerk of court.
This is an error. The notice of hearing MUST be addressed to the adverse party
or the counsel thereof. Remember that the SC has emphasized that a motion
that does not comply with the requirements set down in the Rules shall be
treated as a scrap of paper.
OMNIBUS MOTION RULE
Omnibus Motion Rule – all objections that are not included are deemed
waived if not set up in the motion to dismiss.
Correlate with:
Non-waivable defenses: Res judicata; Prescription; Lack of jurisdiction over the
subject matter and Litis pendencia
In any civil proceeding, if there is an objection to any claim contained in the
motion or in another pleading, and these objections are not set up in a motion
or in another pleading, these objections are deemed waived, except for non-
waivable defenses.
MOTION TO DISMISS
Motion to dismiss is prohibited in certain proceedings, as set down by the Rules
or based on circulars issued by the SC.
Summary Procedure and some special proceedings prohibit the filing of a
motion to dismiss. But in regular procedure, a motion to dismiss is allowed in
civil cases. Motion to Dismiss under Rule 16 should be filed as a matter of
general practice before an answer can be filed by defendant.
Can the defendant properly file an answer and a motion to dismiss at the
same time?
Under Rule 16, it is allowed that the grounds for a motion to dismiss to be
simply incorporated in the answer. Under Rule 16, if the defendant does
submit his responsive pleading right away, he can incorporate in his answer the
grounds in Rule as affirmative defenses. If a defendant files his answer with
affirmative defenses enumerated under Rule 16 as grounds to dismiss, he being
allowed to do that, once the answer is filed with the court, the defendant can
ask to court to conduct a preliminary hearing on his affirmative defenses. The
court can grant it as if the defendant has filed previously a motion to dismiss.
If the defenses are those that are non-waivable grounds for dismissal, it is
possible for the defendant to file motions to dismiss one after another without
violation of the Omnibus Motion Rule.
Theoretically:
If the first motion to dismiss based on prescription is denied, the defendant is
allowed to file a second motion to dismiss based on litis pendencia. If that is
again denied, the defendant files his 3rd motion dismiss founded on lack of
jurisdiction over the person of the defendant. If it is again denied, the
defendant can file a motion to dismiss based on res judicata.
Because of the application of these non-waivable defenses, it is conceivable
and it is proper for the defendant to successively file motions to dismiss
containing these non-waivable defenses. A motion to dismiss founded on a
waivable defense shall preclude the filing of another motion to dismiss based
on other grounds under Rule 16, except those non-waivable defenses. There
will be waiver of the other grounds because of the Omnibus Motion Rule, but
not those defenses which are non-waivable.
In the resolution of a motion to dismiss, Rule 16 gives to the court three
choices: grant the motion, deny the motion, or order an amendment to the
pleading.
Currently, there are now 4 options for the court to resolve a motion to dismiss.
The fourth option is by virtue of the law on alternative disputes resolution.
4 options of the court:
1. grant
 2. deny
3. order the amendment of the pleadings
4. refer the matter to conciliation or mediation or arbitration, as the
case may be, and suspend further hearings
Is there any procedural advantage if the defendant simply files an answer
setting up as affirmative defenses those enumerated in Rule 16?
Yes there is. If the defendant files an answer with affirmative defenses based
on grounds under Rule 16, and after preliminary hearing of the affirmative
defenses, the court orders the dismissal of the case, the defendant will be
given an opportunity to recover his claim for damages based on any
counterclaims (compulsory or permissive) or whatever relief he may have
sought in his answer (answer with affirmative defenses, permissive and
compulsory counterclaims, and other relief). You will note that in Rule 16, the
dismissal will not affect any counterclaim or cross-claim or any other claim
submitted by the defendant in his answer. The defendant cannot file a Motion
to Dismiss with a counterclaim or cross-claim or any other claim submitted by
the defendant before the court. A motion to dismiss is not a pleading. It is only
in an answer where we can have a cross-claim against a co-defendant or
counterclaim against the plaintiff.
In a motion to dismiss, we can use of any grounds under Rule 16. But if the
motion is found on a ground that is waivable, the other grounds not cited are
deemed waived, with exception to those non-waivable grounds. Thus, if the
defendant filed a motion to dismiss solely on the ground of lack of jurisdiction
over the person of the defendant, which is a waivable defense, and the motion
was denied, the defendant is precluded from filing a motion to dismiss based
on the ground of improper venue. What will be allowed would be the
succeeding motions to dismiss are grounded on non-waivable defenses.
With respect to lack of jurisdiction over the subject matter or over the nature
of the case, this ground is dealt with in Tijam vs. Sibonghanoy.
TIJAM vs. SIBONGHANOY Digest
January 08, 1963 – 5 days after the surety received
notice of the decision, it filed a motion asking for
extension of time within which to file a motion for
reconsideration. Appellee’s action was filed in the Court
of First Instance of Cebu, July 19, 1948 for the recovery
of 1,908.00 Pesos.
RA 296, Judiciary Act 1948 – Section 88 of which placed
within the jurisdiction of MTC all civil actions where the
value of the subject matter or the amount of demand
does not go beyond 2,000 Pesos, exclusive of interest
and costs that the Court of First Instance of Cebu has no
Jurisdiction.
The Court is in Opinion that Surety is now barred by
laches from invoking the plea at this late hour for the
purpose of annulling everything done heretofore in the
case with its active participation.
Definition of Laches:
Failure of neglect, for an unreasonable and unexplained
length of time, to do that which, by exercising due
diligence, could or should have been earlier, it is
negligence or commission to assert a right within a
reasonable time, warranting a presumption that the
party entitle to assert it has abandoned it or declines to
assert it.
Tijam vs. Sibonghanoy
In this case, the trial court did not have jurisdiction over the subject matter of
the case, but the defendant kept silent about the issue of absence of
jurisdiction, and allowed the case to proceed up to the CA. Upon receipt of the
adverse decision in the CA, the appellee challenged the validity of the decision
of the RTC and the CA, stating that the court had lacked jurisdiction from the
start. SC held that there was estoppel by laches. The case has been pending
for 15 years up to the appeal, the defendant appearing in the case for all
those years. SC said that although the decision may be challenged by lack of
jurisdiction over the subject matter even for the first time on appeal, the
defendant is guilty of estoppel by laches, by his negligence to raise this issue
as promptly as possible. He can no longer challenge the decision of the court.
In Rule 9, there is no exception at all to non-waivable defenses, including lack
of jurisdiction over the subject matter.
In Rule 47 (Annulment of Judgment), the Tijam Doctrine was incorporated
therein. Lack of jurisdiction over the subject matter is excepted by estoppel
by laches as a defense.
Rule 47 SEC. 3. Period for filing action.—If based on
extrinsic fraud, the action must be filed within four (4)
years from its discovery; and if based on lack of
jurisdiction, before it is barred by laches or estoppel.
This is an application of the Tijam Doctrine in our present Rules. So, we still
have laches or estoppel as a defense against the non-waivable defense of lack
of jurisdiction over the subject matter.
In other cases, the SC also used another kind of estoppel in order to bar the
party from raising the issue of jurisdiction, although the trial court REALLY DID
NOT HAVE jurisdiction over the subject matter.
Soliven vs. Fast Forms 2004(Estoppel in pais is a good defense although there
is lack of jurisdiction over the subject matter)
The aggregate sum to be recovered was 800k. A complaint for collection of
money was filed in the RTC. The amount to be actually collected was less than
the jurisdictional amount of the RTC based on BP 129 (exclude interest,
damages, cost and Attorney’s fees). There was an answer by defendant with a
counterclaim. The court, unaware it lacked jurisdiction over the case, as
nobody brought it up. The court rendered a judgment in favor of the plaintiff.
The counsel for the defendant found that the court had no jurisdiction. The
defendant filed motion for reconsideration and raised lack of jurisdiction,
praying for dismissal of the case. RTC denied the motion, as the defendant was
in estoppel to challenge the court’s jurisdiction just because an adverse result
was had. It reached the SC. SC held that the defendant cannot challenge any
more the jurisdiction of the court. SC stated that there is estoppel in pais, the
act of the defendant in actively participating in the case and seeking affirmative
relief via a counterclaim renders defendant in estoppel to contest the
jurisdiction of the RTC, although the court may not really have jurisdiction over
the subject matter.
Facts: Marie Antoinette R. Soliven, petitioner, filed a
complaint for sum of money with damages against Fast-
Forms Philippines, Inc., respondent. The complaint
alleges that respondent, through its president Dr.
Eduardo Escobar, obtained a loan from petitioner in the
amount of PhP 170,000.00 payable within a period of 21
days, with an interest of 3%. On the same day,
respondent issued a post-dated check in favor of
petitioner in the amount of PhP 175,000.00. About three
weeks later, respondent, through Dr. Escobar, advised
petitioner not to deposit the postdated check as the
account from where it was drawn has insufficient funds.
Instead, respondent proposed to petitioner that the PhP
175,000.00 be “rolled-over,” with a monthly interest of
5% which petitioner agreed. Subsequently, respondent
issued several checks in the total of PhP 76,250.00 in
favor of petitioner as payment for interests
corresponding to the months of June, August,
September, October and December. Later, despite
petitioner’s repeated demands, respondent refused to
pay its principal obligation and interests due.
Respondent, in its answer with counterclaim, denied that
it obtained a loan from petitioner, and that it did not
authorize its then president, Dr. Eduardo Escobar, to
 secure any loan from petitioner or issue various checks
as payment for interests.
After trial on the merits, the court a quo rendered a
decision in favor of petitioner.
Respondent then filed a motion for reconsideration
questioning for the first time the trial court’s jurisdiction.
It alleged that since the amount of petitioner’s principal
demand (PhP 195,155.00) does not exceed PhP
200,000.00, the complaint should have been filed with
the MTC pursuant to R.A. 7691.
Issue: Whether the trial court has jurisdiction over the
case
Held: YES. While it is true that jurisdiction may be raised
at any time, “this rule presupposes that estoppel has
not supervened.” The Court has constantly upheld the
doctrine that while jurisdiction may be assailed at any
stage, a litigant’s participation in all stages of the case
before the trial court, including the invocation of its
authority in asking for affirmative relief, bars such party
from challenging the court’s jurisdiction. A party cannot
invoke the jurisdiction of a court to secure affirmative
relief against his opponent and after obtaining or failing
to obtain such relief, repudiate or question that same
jurisdiction. The Court frowns upon the undesirable
practice of a party participating in the proceedings and
submitting his case for decision and then accepting
judgment, only if favorable, and attacking it for lack of
jurisdiction, when adverse.
Is the Soliven case applicable to criminal cases?
No.
Figueroa vs. People 2009
The accused was arraigned for reckless imprudence resulting to homicide. This
was filed in the RTC instead of MTC. The prosecutor was not aware of the RTC’s
lack of jurisdiction. The counsel of the accused also assumed the same. Nobody
raised the issue of jurisdiction in the RTC, so the case went on. Trial was had,
where both parties presented their respective evidence. The accused was
found guilty. On appeal, the accused interposed the defense of lack of
jurisdiction. The solicitor general cited Soliven vs. Fast Forms as defense. Active
participation means that the litigant is in estoppel from challenging the validity
of the proceedings. The CA agreed with the solicitor general.
SC held that the judgment is void as estoppel in pais is inapplicable in a
criminal case. Lack of jurisdiction in a criminal case can be cited as a defense
even on appeal. The rights of the accused being at stake, estoppel in pais is
inapplicable.
When is a litigant estopped by laches from assailing the
jurisdiction of a tribunal? This is the paramount issue
raised in this petition for review of the February 28, 2001
Decision of the Court of Appeals (CA) in CA-G.R. CR No.
22697.
*******
On July 8, 1994, an information for reckless imprudence
resulting in homicide was filed against the petitioner
before the Regional Trial Court (RTC) of Bulacan, Branch
18. The case was docketed as Criminal Case No. 2235-M-
94. Trial on the merits ensued and on August 19, 1998,
the trial court convicted the petitioner as charged. In his
appeal before the CA, the petitioner questioned, among
others, for the first time, the trial court’s jurisdiction.
The appellate court, however, in the challenged decision,
considered the petitioner to have actively participated in
the trial and to have belatedly attacked the jurisdiction of
the RTC; thus, he was already estopped by laches from
asserting the trial court’s lack of jurisdiction. Finding no
other ground to reverse the trial court’s decision, the CA
affirmed the petitioner’s conviction but modified the
penalty imposed and the damages awarded.
**********
The ruling in People v. Regalario that was based on the
landmark doctrine enunciated in Tijam v. Sibonghanoy on
the matter of jurisdiction by estoppel is the exception
rather than the rule. Estoppel by laches may be invoked
to bar the issue of lack of jurisdiction only in cases in
which the factual milieu is analogous to that in the cited
case. In such controversies, laches should have been
clearly present; that is, lack of jurisdiction must have
been raised so belatedly as to warrant the presumption
that the party entitled to assert it had abandoned or
declined to assert it.
In Sibonghanoy, the defense of lack of jurisdiction was
raised for the first time in a motion to dismiss filed by the
Surety almost 15 years after the questioned ruling had
been rendered. At several stages of the proceedings, in
the court a quo as well as in the Court of Appeals, the
Surety invoked the jurisdiction of the said courts to
obtain affirmative relief and submitted its case for final
adjudication on the merits. It was only when the adverse
decision was rendered by the Court of Appeals that it
finally woke up to raise the question of jurisdiction.
Clearly, the factual settings attendant in Sibonghanoy
are not present in the case at bar. Petitioner Atty.
Regalado, after the receipt of the Court of Appeals
resolution finding her guilty of contempt, promptly filed
a Motion for Reconsideration assailing the said court’s
jurisdiction based on procedural infirmity in initiating
the action. Her compliance with the appellate court’s
directive to show cause why she should not be cited for
contempt and filing a single piece of pleading to that
effect could not be considered as an active participation
in the judicial proceedings so as to take the case within
the milieu of Sibonghanoy. Rather, it is the natural fear
to disobey the mandate of the court that could lead to
dire consequences that impelled her to comply.
The Court, thus, wavered on when to apply the
exceptional circumstance in Sibonghanoy and on when to
apply the general rule enunciated as early as in De La
Santa and expounded at length in Calimlim. The general
rule should, however, be, as it has always been, that the
issue of jurisdiction may be raised at any stage of the
proceedings, even on appeal, and is not lost by waiver or
by estoppel. Estoppel by laches, to bar a litigant from
asserting the court’s absence or lack of jurisdiction, only
supervenes in exceptional cases similar to the factual
milieu of Tijam v. Sibonghanoy. Indeed, the fact that a
person attempts to invoke unauthorized jurisdiction of
a court does not estop him from thereafter challenging
its jurisdiction over the subject matter, since such
jurisdiction must arise by law and not by mere consent
of the parties. This is especially true where the person
seeking to invoke unauthorized jurisdiction of the court
does not thereby secure any advantage or the adverse
party does not suffer any harm.
Applying the said doctrine to the instant case, the
petitioner is in no way estopped by laches in assailing
the jurisdiction of the RTC, considering that he raised
the lack thereof in his appeal before the appellate
court. At that time, no considerable period had yet
elapsed for laches to attach. True, delay alone, though
unreasonable, will not sustain the defense of "estoppel
by laches" unless it further appears that the party,
knowing his rights, has not sought to enforce them until
 the condition of the party pleading laches has in good
faith become so changed that he cannot be restored to
his former state, if the rights be then enforced, due to
loss of evidence, change of title, intervention of
equities, and other causes. In applying the principle of
estoppel by laches in the exceptional case of
Sibonghanoy, the Court therein considered the patent
and revolting inequity and unfairness of having the
judgment creditors go up their Calvary once more after
more or less 15 years. The same, however, does not
obtain in the instant case.
We note at this point that estoppel, being in the nature
of a forfeiture, is not favored by law. It is to be applied
rarely—only from necessity, and only in extraordinary
circumstances. The doctrine must be applied with great
care and the equity must be strong in its favor. When
misapplied, the doctrine of estoppel may be a most
effective weapon for the accomplishment of injustice.
Moreover, a judgment rendered without jurisdiction
over the subject matter is void. Hence, the Revised
Rules of Court provides for remedies in attacking
judgments rendered by courts or tribunals that have no
jurisdiction over the concerned cases. No laches will
even attach when the judgment is null and void for
want of jurisdiction. As we have stated in Heirs of Julian
Dela Cruz and Leonora Talaro v. Heirs of Alberto Cruz,
It is axiomatic that the jurisdiction
of a tribunal, including a quasi-
judicial officer or government
agency, over the nature and
subject matter of a petition or
complaint is determined by the
material allegations therein and
the character of the relief prayed
for, irrespective of whether the
petitioner or complainant is
entitled to any or all such reliefs.
Jurisdiction over the nature and
subject matter of an action is
conferred by the Constitution and
the law, and not by the consent or
waiver of the parties where the
court otherwise would have no
jurisdiction over the nature or
subject matter of the action. Nor
can it be acquired through, or
waived by, any act or omission of
the parties. Moreover, estoppel
does not apply to confer
jurisdiction to a tribunal that has
none over the cause of action. x x
x should be considered as a special appearance only for the purpose of telling
Indeed, the jurisdiction of the court or tribunal is not
affected by the defenses or theories set up by the
defendant or respondent in his answer or motion to
dismiss. Jurisdiction should be determined by
considering not only the status or the relationship of
the parties but also the nature of the issues or
questions that is the subject of the controversy. x x x x
The proceedings before a court or tribunal without
jurisdiction, including its decision, are null and void,
hence, susceptible to direct and collateral attacks.
Note from Dean Jara:
If you are confronted with a problem on lack of jurisdiction in a civil case,
apply Soliven case. If it is a criminal case, adopt Figueroa.
NAPOCOR vs. Province of Quezon 2010 reiterated the validity of Soliven in
civil cases.
The NPC is estopped from
questioning the CBAA’s jurisdiction
The assailed CTA en banc decision brushed
aside the NPC’s sin perjuicio arguments by declaring that:
The court finds merit in [NPC’s] claim that the
Order of the LBAA of the Province of Quezon is a sin
perjuicio decision. A perusal thereof shows that the
assailed Order does not contain findings of facts in
support of the dismissal of the case. It merely stated a
finding of merit in the contention of
the Municipality of Pagbilao xxx.
However, on appeal before the CBAA, [NPC]
assigned several errors, both in fact and in law,
pertaining to the LBAA’s decision. Thus, petitioner is
bound by the appellate jurisdiction of the CBAA under
the principle of equitable estoppel. In this regard,
[NPC] is in no position to question the appellate
jurisdiction of the CBAA as it is the same party which
sought its jurisdiction and participated in the
proceedings therein. [Emphasis supplied.]
We agree that the NPC can no longer divest the
CBAA of the power to decide the appeal after invoking
and submitting itself to the board’s jurisdiction. We
note that even the NPC itself found nothing
objectionable in the LBAA’s sin perjuicio decision when
it filed its appeal before the CBAA; the NPC did not cite
this ground as basis for its appeal. What it cited were
grounds that went into the merits of its case. In fact, its
appeal contained no prayer for the remand of the case to
the LBAA.
A basic jurisdictional rule, essentially based on
fairness, is that a party cannot invoke a court’s
jurisdiction to secure affirmative relief and, after failing
to obtain the requested relief, repudiate or question
that same jurisdiction. Moreover, a remand would be
unnecessary, as we find the CBAA’s and the CTA en
banc’s denial of NPC’s claims entirely in accord with the
law and with jurisprudence.
The defendant has a problem when a court issues a service of summons in
violation of Rule 14. The defendant must file a Motion to Dismiss on ground
of lack of jurisdiction over person of the defendant. If he does file such
motion, does not the defendant admit that the court has jurisdiction over his
person?
No. The filing of a motion to dismiss on that ground is the only remedy
available to him to tell the court that the court had not acquired jurisdiction
over his person. In court cases, what the defendant can do is to tell that court
right away that his appearance before the court in filing the motion to dismiss
the court that the court has no jurisdiction over his person.
Problem: Defendant must file a motion to tell the court of this defense.
Solution: Inform the court that his appearance is a Special appearance only.
This Special Appearance Rule stems from another principle in the past that
when a defendant files a motion to dismiss on ground that the court did not
acquire jurisdiction over his person, when he adds another ground found in
Rule 16 by virtue of the application of the Omnibus Motion Rule, the decisions
of the SC then was then when another ground is added in the motion to dismiss
aside from lack of jurisdiction over the person of the defendant, he waives the
ground of lack of jurisdiction over his person. This has been changed in the
present Rules.
Under Omnibus Motion Rule, defendant who files motion to dismiss plus any
other ground in rule 16 is NOW deemed not to be a person over whom the
court did not acquire jurisdiction over his person. A defendant is free to file a
motion to dismiss, citing as one of his grounds lack of jurisdiction over his
person, he is not deemed to have waived his argument that the court has not
gained jurisdiction over his person.
Let us say that the defendant who claims that the court has not acquired
jurisdiction over his person does not respond to the summons, as filing of an
answer is a waiver of his defense of lack of jurisdiction over his person. He
received a copy of the order of the court, and then following the Rules, the
defaulting defendant files a motion to lift the order of default. The filing of a
motion to lift the order of default is acceptance by the defendant of jurisdiction
of the court over his person. In another instance, the defendant receives the
copy of the judgment of default, the defendant files a motion for
reconsideration and a motion for new trial. The motion for reconsideration or
new trial is a submission of the defendant to the jurisdiction of the court over
his person. This is the reason why in Palma vs. Galvez, the defendant claims
that the court did not acquire jurisdiction over his person, and filed a motion
for new trial, he must qualify the motion must not be treated as a voluntary
submission of the defendant to the jurisdiction of the court over his person. He
must always qualify his motion with that ground.
FAILURE TO STATE A CAUSE OF ACTION
SC in recent cases has emphasize the difference of lack of a cause of action
and failure to state a cause of action:
Failure to state cause of action Lack of cause of action
Insufficiency in the allegations of the Failure to prove or establish by
complaint evidence one’s stated cause of action
As a ground for dismissal
Raised in a motion to dismiss under Raised in a demurrer to evidence
Rule 16 before a responsive pleading under Rule 33 after the plaintiff has
is filed rested his case
Determination
Determined only from the allegations Resolved only on the basis of the
of the pleading and not from evidence he has presented in support
evidentiary matters of his claim
Failure to state a cause of action will be a ground to dismiss because of
immaturity. It assumes that the plaintiff really has a cause of action, and the
fault will be due to the lawyer who crafted the complaint.
If there is an accion reinvindicatoria filed in the RTC, but there is no stated
assessed value of the property involved, then the defendant may file motion
to dismiss for lack of jurisdiction for failure to state a cause of action. A
hearing was had. The plaintiff’s attorney failed to see what the motion was
about. The court will resolve the motion purely on the allegations in the
complaint. (There is no need to present evidence in this case, as no factual
matter is in issue.) The court granted the motion. The plaintiff’s lawyer
received the order of dismissal, and then he finally understood what was
wrong with his complaint. Can the lawyer for the plaintiff amend his
complaint?
Yes. The plaintiff can still amend his complaint in order to incorporate the
allegation the assessed value of the property. This is because the order of
dismissal will not be entered until after the lapse of 15 days, and the plaintiff
can still amend and rectify the error committed by inserting the assessed
value of the property. He can do so as a matter of right, because, according to
SC, a motion to dismiss is not a responsive pleading, and as long as the
amendment is the first amendment, under Rule 10, it is an amendment is a
matter of right. The defendant will have to file an answer to the amended
complaint.
Note:
In a hearing of a motion to dismiss grounded to lack of jurisdiction over the
subject matter, the court will not allow presentation of evidence by the
defendant. The reason is because lack of jurisdiction over the subject matter is
a purely legal question and the only evidence to be taken into account is the
complaint itself, applying the principle that the court acquires jurisdiction,
under BP 129, based on the allegations contained in the complaint. In the
hearing of a motion, the court will allow presentation of evidence ONLY if the
question that will be raised is a factual issue like the obligation has been paid,
waived or otherwise extinguished. Thus, in a motion to dismiss on the ground
of lack of jurisdiction over the subject matter, the court will resolve the motion
based on the complaint itself. The court can easily resolve the said motion
based on the allegations in the pleading itself.
Based on the above problem, if the dismissal became final and executory,
what can the plaintiff do?
Under Sec. 5 Rule 16, the rule makes a distinction of an Order of Dismissal
under Rule 16 under letters f, h and i (in addition to laches under the NCC)
compared to other grounds, the dismissal is subject to the right of appeal. The
remedy of the plaintiff is to appeal the order of dismissal.
If the case was dismissed on grounds not on letters f, h and I, it means that we
should not treat Rule 16 alone, but consult other Rules to arrive at the correct
remedy. We consult Sec. 1 under Rule 41. The dismissal is without prejudice.
Therefore, the dismissal should not be appealed.
Rule 16, SECTION 1. Grounds.—Within the time for but
before filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be made on
any of the following grounds:
(a) That the court has no jurisdiction over the
person of the defending party;
(b) That the court has no jurisdiction over the
subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to
sue;
(e) That there is another action pending
between the same parties for the same cause;
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(g) That the pleading asserting the claim
states no cause of action;
(h) That the claim or demand set forth in the
plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds; and
(j) That a condition precedent for filing the
claim has not been complied with.
SEC. 5. Effect of dismissal.—Subject to the right of
appeal, an order granting a motion to dismiss based on
paragraphs (f), (h) and (i) of section 1 hereof shall bar the
refiling of the same action or claim.
Grounds recognized under the law that will render
dismissal with prejudice under Sec. 5, Rule 16:
Rule 16, f. Res judicata/statute of limitations
Rule 16, h. paid, waived, abandoned, or otherwise
extinguished
Rule 16, i. unenforceable under statute of frauds
(NCC) laches (Should be included here. Dean Jara)
In analyzing Rule 16, 17, 18 and 33, we should always read these
Rules in relation with Section 1 of Rule 41.
Rule 41, SECTION 1. Subject of appeal.—An appeal may
be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or compromise on
the ground of fraud, mistake or duress, or any other
ground vitiating consent.
(f) An order of execution;
 (g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
(i) Laches and any other means recognized under
the NCC (Dean Jara)
In all the above instances where the judgment or final
order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
Why is it necessary to relate a motion to dismiss under Rule 16
with Rule 41, which is a rule on appeal?
If you read Section 1 of Rule 41, there is an enumeration of orders
where no appeal can be had, although they are final in character.
In the enumeration under Section 1 of Rule 41, the last item is closely related
to Rule 16, that it is a dismissal is without prejudice. In Rule 16, what the Rule
tells us is that under items f, h and i of Sec. 5 Rule 16 are subject to appeal.
That means the dismissal is with prejudice as the remedy thereof is to appeal.
But when the dismissal on other grounds other than items f, h and i under Sec.
5 Rule 16, they are without prejudice. And Section 1(h)Rule 41 tells the plaintiff
that one of the recourses available to him when the dismissal is without
prejudice. Appeal is not a remedy available to him.
The court issued an order of dismissal. What should the plaintiff do?
The remedy available to the plaintiff is found under Sec. 1 of rule 41 in order to
challenge the order of dismissal that are still appealable based on Sections 1
and 5 of Rule 16 (those not under items f, h and i). Since an order of dismissal is
not appealable, then the plaintiff must file an appropriate petition under Rule
65. The plaintiff may file a petition for certiorari or prohibition with the CA or
SC as the case may be.
Why do we allow the plaintiff to file a petition under Rule 65 challenging the
dismissal of his complaint for lack of jurisdiction, although the order of
dismissal has already been entered after the lapse of 15 day period?
Because under Rule 65, the period for filing the petition under this rule is 60
days, not 15 days. So if the 15-day period for entry of judgment has lapsed, the
plaintiff has 45 days more to file a petition under Rule 65.
But because the dismissal is without prejudice, the plaintiff can forget about
going to a higher court. Because if the dismissal of his complaint was without
prejudice, he has another alternative: he can just file a new complaint in the
same court involving the same party with the complaint impleading the
necessary allegations.
If we compare this dismissal under Rule 16 based on lack of jurisdiction on the
ground of f, h and i, we can understand why they are not appealable. The order
of dismissal based on these items will be a judgment on the merits. If the claim
of the plaintiff alleged in the complaint has really been paid, waived,
abandoned or otherwise extinguished as provided in the NCC, then it would
seem that he really has no claim at all with the defendant, and thus the
complaint is dismissed with prejudice. If the allegation of the defendant is that
the claim has been paid, waived, abandoned or otherwise extinguished, that
motion presents a factual issue. During the hearing of that motion, the
defendant will be given an opportunity to prove that the claim has really been
paid, waived, abandoned or otherwise extinguished. The hearing will be as if
the court was actually trying the case, the defendant being allowed to present
witnesses, or present evidence of his allegation that the claim has been paid,
waived, abandoned or otherwise extinguished based on grounds recognized
under substantive law(enumerated in the NCC).
In fact, the court said that the results enumerated under Section 16 is not
exclusive. We should include laches. Under the NCC, laches could extinguish an
obligation.
Remember that procedurally, in a hearing on a motion to dismiss based on a
question of law to a motion to dismiss founded on factual issue. If founded on a
legal issue, the court will not allow presentation of evidence. The court will
simply read the allegations in the complaint. If the issue is factual, the court will
be forced to conduct a hearing for presentation of evidence therein.
Let us say that the defendant’s motion is founded on letter h. During the
hearing, the defendant presents evidence. Then, the motion was submitted
for resolution. The court denies the motion. What is the next move for the
defendant if the motion is denied?
The defendant should file an answer during the remaining period to file, which
should not be less than 5 days from the receipt of the order of denial.
The defendant files an answer. Can he incorporate the ground in the motion
to dismiss that was denied as an affirmative defense?
Yes, the defendant is allowed to do that. Under our rules, if there are
objections or grounds not raised in the PLEADINGS, these grounds are deemed
waived.
Can the defendant, after filing his answer with his affirmative defense move
for a preliminary hearing on his affirmative defense?
No, the court will not allow such a hearing anymore as there had been a prior
hearing for the same issue in the prior motion to dismiss that was denied. Thus,
although a defendant is allowed to use his ground under Rule 16 in a motion to
dismiss that was denied as an affirmative defense, he is not allowed to have
another preliminary hearing as the said defenses had been already subject to a
hearing when the said defenses were contained as a ground for dismissal in the
prior motion that was denied.
So, during the trial of the case, the defendant may be able to present to the
court additional evidence in order to prove such ground under Rule 16 that he
has relied upon.
RULE 41 SEC. 1 IN RELATION TO RULE 16 (DISMISSAL WITH OR WITHOUT
PREJUDICE)
Determine whether his dismissal is appropriate for remedy under Rule 65 or
an appeal.
Any dismissal by a court is a final order. But what matters is to find out if the
dismissal is with or without prejudice so as to ascertain the remedy available. In
dismissals under Rule 16, if the grounds are letter f, h or i, then the dismissal is
with prejudice. The remedy of the plaintiff is to appeal from the judgment.
Supposing the plaintiff commits an error in ascertaining the dismissal, the
dismissal actually being that with prejudice, and plaintiff opts for Rule 65. The
judgment became final after 15 days. 40 days after the judgment for dismissal
was made, he files a petition for certiorari. The petition for certiorari will be
dismissed as the proper remedy was to appeal. At this time, he cannot appeal
anymore as the time to appeal was 15 days from receipt of the order of
dismissal, it has long expired, and the judgment has been entered and had
become final. Also, he cannot file another complaint, as the dismissal is with
prejudice.
If a dismissal is found under Rule 17, we follow the same principle. Rule 17 also
states about a dismissal with and without prejudice. We follow the principle of
dismissal under Rule 41 in relation to Rule 16.
A dismissal under Rule 18 (failure to attend pre-trial or to file pre-trial brief,
tantamount to disobedience of court orders) is with prejudice, and thus
plaintiff must appeal.
A dismissal under Rule 33 (judgment on demurrer to evidence) is a dismissal
with prejudice as this is an adjudication on the merits, and the remedy is to file
an appeal from the order of dismissal.
But if the dismissal is without prejudice, the plaintiff has not much to worry. He
can forget about Rule 41. He can file a second complaint, but he must make
sure it is properly crafted. If the plaintiff files a second complaint, but it was
again dismissed, there is the probability under Rule 17 Section 1 that it will be
a dismissal with prejudice under the two-dismissal rule. Thus, if a complaint has
been dismissed twice, the second dismissal may operate as an adjudication of
the merits.
Rule 17 SECTION 1. Dismissal upon notice by plaintiff.—A
complaint may be dismissed by the plaintiff by filing a
 notice of dismissal at any time before service of the
answer or of a motion for summary judgment. Upon such
notice being filed, the court shall issue an order
confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a
notice operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in a
competent court an action based on or including the
same claim.
Does it mean that a second dismissal is ALWAYS a dismissal with prejudice?
No. The second dismissal will still be without prejudice as provided for in Rule
17, unless there is a statement of such dismissal being with prejudice in the
notice of dismissal.
Dismissal under Rule 17, Sections 1, 2 and 3.
Indispensable party has not been impleaded = Dismissal for failure to state a
cause of action.
The theory behind is that a complaint must implead an indispensable party at
all times so as the court can have a final determination of the case. This will be
resolved by the court under Rule 16, but availing of other modes of curing the
defect aside from dismissing the case. In the resolution of a motion to dismiss,
Rule 16 gives to the court three choices: grant the motion, deny the motion, or
order an amendment to the pleading.
If an indispensable party has not been impleaded, the court may simply order
the plaintiff to amend his complaint to include the indispensable party. The
plaintiff can then just file an amended complaint, and then the case can
proceed until the final determination of the case.
If the court ordered the amendment of the complaint to include the
indispensible party, the plaintiff failed to do so, can the court dismiss the
case?
Yes, the court may do so under Rule 17, and the dismissal is with prejudice,
under Section 3 of Rule 17, for failure to obey a lawful order of the court. The
remedy is to appeal.
Generally, the court is given discretion to state whether a dismissal is with or
without prejudice. But if the dismissal is not qualified at all, Section 3 of Rule 17
is very clear, that dismissal is with prejudice. Therefore, the remedy is to appeal
not to file a petition under Rule 65.
Note: Grounds for dismissal under Section 3 of Rule 17:
1. the plaintiff fails to appear on the date of the presentation of his evidence in
chief on the complaint,
2. failure to prosecute his action for an unreasonable length of time,
3. failure to comply with these Rules,
4. failure to comply with any order of the court
Sections 1, 2 and 3 of Rule 17 provides grounds for dismissal, and these
sections also provides for the consequences of the grounds of dismissal.
Section 1 Rule 17 provides for a plaintiff to dismiss his own complaint.
Rule 17 SECTION 1. Dismissal upon notice by plaintiff.—
A complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the
answer or of a motion for summary judgment. Upon such
notice being filed, the court shall issue an order
confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a
notice operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in a
competent court an action based on or including the
same claim.
If Plaintiff files complaint today. Plaintiff changed his mind and moved to
dismiss the case. The summons had not been sent. What if the plaintiff
dismissed his own complaint via a motion?
The court will have the discretion whether to grant or deny the motion.
The plaintiff should not dismiss his case via a motion. The means for a plaintiff
to dismiss his case is provided for under Section 1, Rule 17.
What if a notice of dismissal was given instead?
The court is left without discretion as to what to do with the complaint but to
dismiss it. Filing of a timely notice of dismissal will result in the dismissal of the
case. The dismissal is without prejudice, unless plaintiff tells the court that the
notice of dismissal is to be considered an adjudication on the merits.
The case had been dismissed by the court because of the plaintiff’s notice of
dismissal. What if plaintiff changed his mind after the order of dismissal?
What can he do?
He needs to wait 15 days after the order of dismissal and ask for revival of the
case. No new complaint need be filed, and no docket fees need be paid again.
Supposing the defendant filed motion to dismiss, and subsequently the
plaintiff filed notice of dismissal. How can this be resolved?
SC held that the court should confirm the notice of dismissal by the plaintiff.
The plaintiff’s notice of dismissal prevails over the motion to dismiss filed by
defendant.
TWO-DISMISSAL RULE
Plaintiff files a collection case for 500k against defendant. Defendant visits
the plaintiff and asked the plaintiff for the dismissal of the case, promising
payment. Plaintiff acquiesced and files notice of dismissal. Court dismisses
the case. The defendant failed to pay. Can the plaintiff file another case
against defendant?
Yes, as the case was dismissed without prejudice.
The defendant again approached plaintiff, asking again for time. Plaintiff
again agrees, and files another notice of dismissal. It is again dismissed. What
will be the effect?
The dismissal is with prejudice this time. If plaintiff files a case for the same
defendant for the same cause as the defendant again failed to pay, the case
will be dismissed as the second dismissal is one with prejudice, and res judicata
will lie.
What if the defendant files motion to dismiss, but failed to allege res judicata,
can the court proceed to dismiss?
Yes, the court can do so, even if the defendant failed to allege it. It is a non-
waivable ground of dismissal, and anytime the court discovers such fact, it will
dismiss the case.
Can the court say in its decision of dismissal that the second dismissal is
without prejudice?
No. The court cannot say the second dismissal is without prejudice as the law
itself dictates that such dismissal is with prejudice, and the court will have no
discretion as to such dismissal being with or without prejudice. As long as it is
the second dismissal of the same case, it will always be with prejudice due to
res judicata.
When can second dismissal is without prejudice under Section 1 Rule 17?
There can be two situations where dismissal under Section 1 Rule 17 is
without prejudice?
1.If the first case was filed in a court which lacked jurisdiction thereto, then the
2nd one was filed in the competent court and there was a 2nd dismissal, the
2nd dismissal is not res judicata. The two-dismissal rule will be considered if the
case had been filed in a court competent to hear it.
2. In Section 2 Rule 17, a plaintiff may dismiss his complaint via a motion to
dismiss. Here, the defendant had already filed an answer. If the plaintiff seeks
to dismiss the complaint, he must file a motion to dismiss his complaint, copy
furnished to the defendant. The likelihood is that the defendant will not object.
If the defendant does not object, and the court dismisses the case without
prejudice, the plaintiff is allowed to file another case against the same
defendant based on the same cause.
The defendant, however, is given under Section 2 a chance to object. The
defendant can insist that the dismissal be one with prejudice. This is allowed as
the dismissal is upon the initiative of the plaintiff, and the defendant is given
the opportunity to object. If you were the defendant’s counsel, advise the
defendant to object, and state that the dismissal should be one with prejudice.
(I have no opposition to the dismissal initiated by the plaintiff, as long as the
dismissal is with prejudice.) If that is the tenor of the dismissal, that is res
judicata. It will preclude the plaintiff from filing another case with the same
claims against the same defendant.
What if the defendant has a compulsory counterclaim?
There can be a dismissal, but defendant can ask that the court should continue
hearing on the counterclaim set up by defendant in his answer. In the
alternative, the defendant can ask the court to try the compulsory
counterclaim in a separate case. This is one of the rare instances wherein a
compulsory counterclaim could survive without the principal action.
The general rule is that if the complaint is dismissed, the compulsory
counterclaim is also dismissed. But not in Section 2 Rule 17. The complaint
could be dismissed, but the compulsory counterclaim could survive. In fact the
survival of the compulsory counterclaim can even be threshed out in a separate
complaint, wherein there can be another complaint filed by the former
defendant against the former plaintiff. But this will be an independent action.
The other alternative is that the plaintiff can ask the court for the dismissal of
the complaint but the court will continue to exercise jurisdiction so that the
court will continue to try the compulsory counterclaim.
Rule 17, Section 3, Grounds of dismissal
~the plaintiff fails to appear on the date of the presentation of his evidence in
chief on the complaint,
~fails to prosecute his action for an unreasonable length of time (nolle
prosequi),
~fails to comply with these Rules
~ fails to comply with any order of the court,
Under this section, the initiative for the dismissal of the case comes from the
defendant or the court itself.
How can the court order a dismissal under Section 3 of Rule 17 upon the
ground that the plaintiff failed to obey the provisions of the Rules of Court?
A good example can be had under Rule 18 on Pre-Trial. In Rule 18, it is provided
expressly that after the last pleading is filed, it is the duty of the plaintiff to set
his complaint for pre-trial. He must file a motion to have the complaint set for
pre-trial. When the plaintiff fails to set the hearing for pre-trial for, let us say,
one year ago up to the present, and there is a finding that the plaintiff failed to
do so, the court can dismiss the case on the ground that the plaintiff failed to
follow the provision set upon in the Rules. This has been affirmed by the SC. So,
if it is the duty of the plaintiff to set the case for pre-trial, and he neglects to do
so for an unreasonable length of time, there is every reason for the court to
make use of Rule 17, to order the dismissal of the case under Section 3 thereof.
This is a dismissal with prejudice unless the court makes the necessary
qualification that it is a dismissal without prejudice.
In most courts (RTC or MTC), if the court calls the case for trial on the merits,
and plaintiff does not appear during trial, the lawyer for the defendant may ask
for the dismissal under Section 3, Rule 17 for failure of the plaintiff to
prosecute for an unreasonable length of time or for failure of the plaintiff to
appear on the date of the presentation of his evidence in chief on the
complaint. And usually, the trial court accommodates the defendant’s move
because if a trial court dismisses the case, that is one case where the judge can
present that he has been resolving speedily the cases that are assigned to him.
Last year, the SC came out with a resolution concerning this particular provision
in relation to Shimizu vs. Magsalin. Study this case as it would be a good
problem in the bar.
Shimizu vs. Magsalin 2008 – revolutionary decision concerning dismissals with
prejudice under Section 17
Order of dismissal with prejudice should comply with Rule 36 and the
Constitution. Otherwise, it shall be open to collateral and direct attack. (A
trial court should always specify the reasons for a complaint’s dismissal so
that on appeal, the reviewing court can readily determine the prima
facie justification for the dismissal)
The Dismissal Order is Void
The nullity of the dismissal order is patent on its
face. It simply states its conclusion that the case should
be dismissed for non prosequitur, a legal conclusion, but
does not state the facts on which this conclusion is
based.
Dismissals of actions for failure of the plaintiff to
prosecute is authorized under Section 3, Rule 17 of the
Rules of Court. A plain examination of the December 16,
2003 dismissal order shows that it is an unqualified order
and, as such, is deemed to be a dismissal with prejudice.
“Dismissals of actions (under Section 3) which do not
expressly state whether they are with or without
prejudice are held to be with prejudice[.]” As a
prejudicial dismissal, the December 16,
2003 dismissal order is also deemed to be a judgment on
the merits so that the petitioner’s complaint in Civil Case
No. 02-488 can no longer be refiled on the principle
of res judicata. Procedurally, when a complaint is
dismissed for failure to prosecute and the dismissal is
unqualified, the dismissal has the effect of an
adjudication on the merits.
As an adjudication on the merits, it is
imperative that the dismissal order conform with Section
1, Rule 36 of the Rules of Court on the writing of valid
judgments and final orders. The rule states:
RULE 36
Judgments, Final Orders and Entry
Thereof
Section 1. Rendition of
judgments and final orders. — A
judgment or final order
determining the merits of the case
shall be in writing personally and
directly prepared by the judge,
stating clearly and distinctly the
facts and the law on which it is
based, signed by him, and filed
with the clerk of the court.
The December
16, 2003 dismissal order clearly violates this rule for its
failure to disclose how and why the petitioner failed to
prosecute its complaint. Thus, neither the petitioner nor
the reviewing court is able to know the particular facts
that had prompted the prejudicial dismissal. Had the
petitioner perhaps failed to appear at a scheduled trial
date? Had it failed to take appropriate actions for the
active prosecution of its complaint for an unreasonable
length of time? Had it failed to comply with the rules or
any order of the trial court? The December 16, 2003
dismissal order does not say.
We have in the past admonished trial courts
against issuing dismissal orders similar to that appealed
in CA-G.R. CV No. 83096. A trial court should always
specify the reasons for a complaint’s dismissal so that
on appeal, the reviewing court can readily determine
the prima facie justification for the dismissal. A decision
that does not clearly and distinctly state the facts and the
law on which it is based leaves the parties in the dark and
is especially prejudicial to the losing party who is unable
to point the assigned error in seeking a review by a
higher tribunal.
We thus agree with the petitioner that the
dismissal of Civil Case No. 02-488 constituted a denial of
due process. Elementary due process demands that the
parties to a litigation be given information on how the
case was decided, as well as an explanation of the
factual and legal reasons that led to the conclusions of
the court. Where the reasons are absent, a decision
(such as the December 16, 2003 dismissal order)
has absolutely nothing to support it and is thus a nullity.
For this same reason, we are not moved by
respondent FGU Insurance’s statement that the
disposition of the present petition must be limited to the
issue of whether the CA had correctly dismissed the
appeal in CA-G.R. CV No. 83096. This statement implies
 that we cannot properly look into the validity of
the December 16, 2003 dismissal order in this Rule 45
petition. A void decision, however, is open to collateral
attack. While we note that the validity of the dismissal
order with respect to Section 1, Rule 36 of the Rules of
Court was never raised by the petitioner as an issue in
the present petition, the Supreme Court is vested with
ample authority to review an unassigned error if it finds
that consideration and resolution are indispensable or
necessary in arriving at a just decision in an appeal. In
this case, the interests of substantial justice warrant the
review of an obviously void dismissal order.
A valid judgment must contain factual findings, it must have conclusions as to
the law available. If the court simply says that the dismissal was for failure to
prosecute for an unreasonable length of time, that is not a factual finding nor
conclusion based on law, it is just a conclusion of the court. The SC said that
for a trial court to render a valid judgment, the court should explain why and
how the court came to the conclusion that the plaintiff is guilty of nolle
prosequi. The court should give instances pertaining to the records of the case
that enabled the court to conclude that the plaintiff has failed to prosecute for
an unreasonable length of time. Without such explanation, even if the
judgment is entered, it can be subjected to direct or collateral attack.
If there is an adjudication upon the merits, when the order is simply an order of
dismissal, under Rule 17 or even under Rule 16, for the validity of that final
order of dismissal, there should be an explanation of how and why there is a
dismissal of the case, the dismissal being a final adjudication of the case.
An order of dismissal with prejudice under Rules 16, 17, 33 or even under any
rule allowing dismissal of the action, the order of dismissal, if it is going to be
considered an adjudication of the merits, must comply with the requirements
of Section 1, Rule 36. Non-compliance thereto, the dismissal is an void
judgment which can be subjected to direct or collateral attack.
RULE 18 PRE-TRIAL
Mandatory in all cases, even in summary procedure, where it is called a
preliminary conference. It is present even in small claims procedure, where
there is a semblance of pre-trial in the preliminary conference under the
Judicial Dispute Rule.
It is the duty of the plaintiff to schedule his complaint for pre-trial after the last
pleading has been filed. Failure to do so, the case may be dismissed with
prejudice. But again, the order of dismissal should order why and how the
court has arrived at the conclusion that the plaintiff has waived or not obeyed
the RoC. This rule on pre-trial has been modified by the SC, applying the rules
of mediation and conciliation.
The Trial Court calls the parties to pre-trial. The parties are told to attend a
mediation/conciliation process by accredited mediators/conciliators. The case
might be terminated while in this process. The mediator/conciliator usually
issues notices to the parties as to the schedule of the mediation/conciliation
conference. If the plaintiff does not appear for mediation/conciliation, he
repeatedly ignores such notices sent as to the schedule of the
mediation/conciliation conference, the mediator/conciliator will submit a
report thereof to the trial court. It can be a ground of dismissal with prejudice,
according to SC Circulars. If a court orders that the parties should attend a
mediation/conciliation conference, such conference is deemed part of the pre-
trial process. It is tantamount to the plaintiff absenting himself from a hearing
in the trial, and thus a violation of an order of the court. Thus, such
disobedience by the plaintiff shall be a ground for dismissal with prejudice.
If mediator/conciliator fails in the attempt to settle, they will file a report and
recommend proceeding to a pre-trial proper. Parties will be ordered to submit
pre-trial brief and attend the pre-trial conference.
There are now several layers that the SC Circulars introduced that will enable a
trial court to enforce the state policy in the NCC which encourages the parties
to settle their case amicably, one of which is the mediation/conciliation
conference as part of the pre-trial conference.
Basing on Rule 18, the parties have a common duty for purposes of pre-trial:
1. submission of a pre-trial brief
2. attend the pre-trial conference
If any one of them fails to submit a pre-trial brief, there are serious sanctions
imposed. Even if they have timely submitted their pre-trial brief but if one
party was absent in the pre-trial conference, there are serious consequences.
Sanctions for failure to attend pre-trial conference or to file brief:
Plaintiff = dismissal of complaint with prejudice;
Defendant = plaintiff is allowed to present his evidence ex parte.
We do not observe anymore the principle that if the defendant was unable to
attend the pre-trial conference, or he fails to submit a pre-trial brief on time,
the court can no longer issue an order declaring the defendant in default. What
the court will do is order the plaintiff to present evidence ex-parte. The
decision of the court will be based on such evidence.
EX-PARTE PRESENTATION OF EVIDENCE UNDER RULE 18 VS. EX PARTE
EVIDENCE UNDER RULE 9
Ex Parte Evidence under Rule 18 – Defendant has filed an answer but fails to
submit pre-trial brief or did not attend pre-trial conference, plaintiff can be
ordered to present evidence ex parte, court will make an award according with
the evidence presented by plaintiff (application of amendment to pleadings in
order to conform to evidence).
Ex Parte Evidence under Rule 9 – Defendant is in default, ex parte evidence can
be presented, and the court will only award those reliefs prayed for in the
complaint.
Note: Amendment of pleading to conform to evidence is not applied in an ex-
parte presentation of evidence under Rule 9 when the defendant is in default.
Rules applicable to pre-trial conference in a civil vs. criminal case = usual Bar
Q source
Effect of pre-trial in civil case and criminal case about stipulations of facts.
Civil case – stipulations of facts can be had; joint stipulation of facts can be
had; in pre-trial conferences, parties are encouraged to agree on existence of
certain facts, making them part of the records of the case; Verbal stipulations
of facts can be allowed and considered valid. These stipulations need not be
presented in evidence, as the court will take judicial notice of these
stipulations, and will be considered as judicial admissions.
Criminal case – stipulation of facts should be reduced into writing, signed by
the counsel of the accused and accused himself, and approved in court.
Otherwise, it will be inadmissible in court.
Pre-trial Order – court are required to issues such order after the termination
of the pre-trial conference, stating therein the matters to be taken up and will
serve to control the proceedings in trial proper. The court is required to specify
the issues that have not been stipulated upon and what should be the object of
the trial whenever the court finds it necessary to conduct a trial. This is an
important document in a civil case insofar as the triable issues are concerned.
If we follow the decisions of the SC, the issues that are specified in a pre-trial
order in a civil case, since they control the proceedings to be taken thereafter
by the court, the court can even disregard the pleadings submitted by the
parties after the pre-trial.
Facts:
The complaint was for collection of sums of money amounting to 1M. During
pre-trial, the parties agree that the real issue is to recover possession and
ownership from defendant a piece of land, instead of collection of 1M as
stated in the complaint. That is the issue embodied in the pre-trial order. Is
the pre-trial order valid?
Yes. Although it is in conflict with pleadings, Rule 18 is very clear that it is the
pre-trial order that will govern the proceedings, not the pleadings.
Although we learn in Evidence that the issues are those found in the pleadings
in a civil case, the triable issues for the purposes of a civil case are those found
in the pre-trial order. There is nothing wrong in a civil case if we start with a
collection of money case that is converted to a recovery of property case in
pre-trial, even without amending the complaint. This is because what governs
the course of the proceedings is the triable issue that is specified in the pre-trial
order, as specified under the last section of Rule 18. Thus, in our last example,
the court will simply ignore the issue as to the claim for a sum of money, as the
issue to be tried will be the issue on the recovery of possession and ownership
of a piece of land, the issue found in the pre-trial order.
Why do we allow the trial court to change the issues without changing the
pleadings?
This is because, during the pre-trial hearings, the parties are present therein.
And if they both agreed to the change of issues in open court, such as changing
the issues of the complaint from collection for sums of money to that of
recovery of possession and ownership of property, then the court will be
simply following the desire of the litigants as to what issue to be tried during
the trial.
This is allowed in civil cases only. It is inapplicable in a criminal case.
Let us say the court strictly follows the pre-trial order, and then reminds the
parties that the issue in the trial will be the recovery by the plaintiff of
possession and ownership of the property from the defendant. And during the
trial, the plaintiff was able to show that he was indeed entitled to recover, then
there is nothing wrong with that as the evidence is relevant and material.
What if during the trial, the plaintiff also presented evidence that he is also
entitled to recover 1M along with the property, will it be allowed?
He cannot, if the defendant objects. But, if the defendant failed to object to
such evidence, the plaintiff will be able to present evidence on an issue not
raised in the pre-trial order.
Why do we allow the plaintiff to present evidence on an issue not raised in
the pre-trial order, about his entitlement to recover from the defendant the
amount of 1M?
This is because of the rule of amendment to conform to evidence. In a civil
case, we can jump from one issue to another so long as parties agree. The issue
in the pre-trial order could be different from that raised in the pleadings, and
even issue tried during trial could be different from that raised in the pre-trial
order. The parties are given much flexibility and allowance in a civil case to
present evidence on any issue they so desire. The only limitation is that the
other party might object to evidence presented that is not related to the issue
found in the pre-trial order, that the evidence is irrelevant and immaterial. If
evidence is allowed, the court shall issue judgment based on evidence
presented, based on the rule of amendment to conform to evidence.
ALTERNATIVE DISPUTE RESOLUTION
NCC – Compromises and Arbitration
NCC expresses the policy of the state that the courts should encourage litigants
to settle disputes amicably or to submit to arbitration if they cannot voluntarily
agree to settle the dispute by themselves.
Domestic Arbitration Act –RA 876
Law on ADR – gave autonomy to contracting parties in submitting their
disputes to alternative modes of dispute resolution, including prerogative to
agree on the procedure to be followed in case they enter into any mode of
ADR.
There are 3 recent cases dealing with ADR. The principles formed in these 3
cases formed the circular on arbitration.
Gonzales vs. RTC(2007 case)
Thus, the main issue raised in the Petition for Certiorari
is whether it was proper for the RTC, in the proceeding
to compel arbitration under R.A. No. 876, to order the
parties to arbitrate even though the defendant therein
has raised the twin issues of validity and nullity of the
Addendum Contract and, consequently, of the
arbitration clause therein as well. The resolution of
both Climax-Arimco’s Motion for Partial Reconsideration
and/or Clarification in G.R. No. 161957 and Gonzales’s
Petition for Certiorari in G.R. No. 167994 essentially turns
on whether the question of validity of the Addendum
Contract bears upon the applicability or enforceability of
the arbitration clause contained therein. The two
pending matters shall thus be jointly resolved.
***
We address the Rule 65 petition in G.R. No. 167994 first
from the remedial law perspective. It deserves to be
dismissed on procedural grounds, as it was filed in lieu
of appeal which is the prescribed remedy and at that far
beyond the reglementary period. It is elementary in
remedial law that the use of an erroneous mode of
appeal is cause for dismissal of the petition for certiorari
and it has been repeatedly stressed that a petition for
certiorari is not a substitute for a lost appeal. As its
nature, a petition for certiorari lies only where there is
“no appeal,” and “no plain, speedy and adequate remedy
in the ordinary course of law.” The Arbitration Law
specifically provides for an appeal by certiorari, i.e., a
petition for review under certiorari under Rule 45 of the
Rules of Court that raises pure questions of law. There
is no merit to Gonzales’s argument that the use of the
permissive term “may” in Sec. 29, R.A. No. 876 in the
filing of appeals does not prohibit nor discount the filing
of a petition for certiorari under Rule 65. Proper
interpretation of the aforesaid provision of law shows
that the term “may” refers only to the filing of an appeal,
not to the mode of review to be employed. Indeed, the
use of “may” merely reiterates the principle that the
right to appeal is not part of due process of law but is a
mere statutory privilege to be exercised only in the
manner and in accordance with law.
***
The situation in B.F. Corporation is not availing in the
present petition. The disquisition in B.F. Corporation
led to the conclusion that in order that the question of
jurisdiction may be resolved, the appellate court had to
deal first with a question of law which could be
addressed in a certiorari proceeding. In the present
case, Gonzales’s petition raises a question of law, but
not a question of jurisdiction. Judge Pimentel acted in
accordance with the procedure prescribed in R.A. No.
876 when he ordered Gonzales to proceed with
arbitration and appointed a sole arbitrator after making
the determination that there was indeed an arbitration
agreement. It has been held that as long as a court acts
within its jurisdiction and does not gravely abuse its
discretion in the exercise thereof, any supposed error
committed by it will amount to nothing more than an
error of judgment reviewable by a timely appeal and
not assailable by a special civil action of certiorari. Even
if we overlook the employment of the wrong remedy in
the broader interests of justice, the petition would
nevertheless be dismissed for failure of Gonzalez to
show grave abuse of discretion.
***
Thus, we held in Manila Electric Co. v. Pasay
Transportation Co. that a submission to arbitration is a
contract. A clause in a contract providing that all matters
in dispute between the parties shall be referred to
arbitration is a contract, and in Del Monte Corporation-
USA v. Court of Appeals that “[t]he provision to submit
to arbitration any dispute arising therefrom and the
relationship of the parties is part of that contract and is
itself a contract. As a rule, contracts are respected as
the law between the contracting parties and produce
effect as between them, their assigns and heirs.”
The special proceeding under Sec. 6 of R.A. No. 876
recognizes the contractual nature of arbitration clauses
or agreements. It provides:
SEC. 6. Hearing by court.—A party
aggrieved by the failure, neglect or
 refusal of another to perform
under an agreement in writing
providing for arbitration may
petition the court for an order
directing that such arbitration
proceed in the manner provided
for in such agreement. Five days’
notice in writing of the hearing of
such application shall be served
either personally or by registered
mail upon the party in default. The
court shall hear the parties, and
upon being satisfied that the
making of the agreement or such
failure to comply therewith is not
in issue, shall make an order
directing the parties to proceed to
arbitration in accordance with the
terms of the agreement. If the
making of the agreement or
default be in issue the court shall
proceed to summarily hear such
issue. If the finding be that no
agreement in writing providing for
arbitration was made, or that
there is no default in the
proceeding thereunder, the
proceeding shall be dismissed. If
the finding be that a written
provision for arbitration was made
and there is a default in
proceeding thereunder, an order
shall be made summarily directing
the parties to proceed with the
arbitration in accordance with the
terms thereof.
The court shall decide all motions,
petitions or applications filed
under the provisions of this Act,
within ten days after such motions,
petitions, or applications have
been heard by it. [Emphasis
added.]
***
Implicit in the summary nature of the judicial
proceedings is the separable or independent character of
the arbitration clause or agreement. This was
highlighted in the cases of Manila Electric Co.
v. Pasay Trans. Co. and Del Monte Corporation-USA v.
Court of Appeals.
The doctrine of separability, or severability
as other writers call it, enunciates that an arbitration
agreement is independent of the main contract. The
arbitration agreement is to be treated as a separate
agreement and the arbitration agreement does not
automatically terminate when the contract of which it is
part comes to an end.
The separability of the arbitration agreement
is especially significant to the determination of whether
the invalidity of the main contract also nullifies the
arbitration clause. Indeed, the doctrine denotes that
the invalidity of the main contract, also referred to as
the “container” contract, does not affect the validity of
the arbitration agreement. Irrespective of the fact that
the main contract is invalid, the arbitration
clause/agreement still remains valid and enforceable.
The separability of the arbitration clause is
confirmed in Art. 16(1) of the UNCITRAL Model Law and
Art. 21(2) of the UNCITRAL Arbitration Rules.
The separability doctrine was dwelt upon at length in the
U.S. case of Prima Paint Corp. v. Flood & Conklin
Manufacturing Co. In that case, Prima Paint and Flood
and Conklin (F & C) entered into a consulting agreement
whereby F & C undertook to act as consultant to Prima
Paint for six years, sold to Prima Paint a list of its
customers and promised not to sell paint to these
customers during the same period. XXX
XXX The parties should be ordered to arbitration if, and
only if, they have contracted to submit to arbitration.
Prima Paint was not entitled to trial on the question of
whether an arbitration agreement was made because
its allegations of fraudulent inducement were not
directed to the arbitration clause itself, but only to the
consulting agreement which contained the arbitration
agreement. Prima Paint held that “arbitration clauses
are ‘separable’ from the contracts in which they are
embedded, and that where no claim is made that fraud
was directed to the arbitration clause itself, a broad
arbitration clause will be held to encompass arbitration
of the claim that the contract itself was induced by
fraud.”
There is reason, therefore, to rule against Gonzales when
he alleges that Judge Pimentel acted with grave abuse of
discretion in ordering the parties to proceed with
arbitration. Gonzales’s argument that the Addendum
Contract is null and void and, therefore the arbitration
clause therein is void as well, is not tenable. First, the
proceeding in a petition for arbitration under R.A. No.
876 is limited only to the resolution of the question of
whether the arbitration agreement exists. Second, the
separability of the arbitration clause from the
Addendum Contract means that validity or invalidity of
the Addendum Contract will not affect the
enforceability of the agreement to arbitrate. Thus,
Gonzales’s petition for certiorari should be dismissed.
DOCTRINE OF SEPARABILITY OR SEVERABILITY
The invalidity of the main contract, also referred to as the “container”
contract, does not affect the validity of the arbitration
agreement. Irrespective of the fact that the main contract is invalid, the
arbitration clause/agreement still remains valid and enforceable.
2008 cases
ABS-CBN Broadcasting Corporation v. World Interactive
Network Systems (WINS) Japan Co., Ltd. (G.R. No.
169332)
11 February 2008
ABS-CBN Broadcasting Corporation (ABS-CBN), a
domestic corporation, entered into a licensing
agreement (Agreement) with World Interactive Network
Systems (WINS) Japan Co., Ltd. (WINS), a foreign
corporation licensed under the laws of Japan. Under the
Agreement, ABS-CBN granted WINS an exclusive license
to distribute and sublicense the television service known
as “The Filipino Channel” (TFC) in Japan.
Arbitration proceedings were commenced by WINS after
ABS-CBN threatened to terminate the Agreement on the
ground that WINS allegedly inserted, without authority,
several episodes of “WINS Weekly”, a weekly 35-minute
community news program for Filipinos in Japan, into the
TFC programming. The arbitrator ruled in favor of WINS,
finding that ABS-CBN had in fact given its approval for
the airing of WINS Weekly and that it threatened to
terminate the Agreement merely as a strategy to re-
negotiate for higher fees.
WINS filed a petition for the confirmation of the award
before the Philippine trial court.
ABS-CBN, on the other hand, questioned the arbitral
award by filing with the Court of Appeals a petition for
review under Rule 43 of the Rules of Court (a mode of
appeal to question errors of fact and/or law) or, in the
alternative, a petition for certiorari under Rule 65 (an
original action based on grave abuse of discretion
amounting to lack or excess of jurisdiction).
The Court of Appeals dismissed ABS-CBN’s petition for
lack of jurisdiction, holding that it is the trial court which
has jurisdiction “over questions relating to arbitration”.
The Court of Appeals held that the only instance it can
exercise jurisdiction over an arbitral award is an appeal
from the trial court's decision confirming, vacating or
modifying the arbitral award.
On Appeal, the Supreme Court affirmed the Court of
Appeals’ ruling but for a different reason. On the
procedural issue, the Supreme Court ruled that ABS-CBN
cannot simultaneously avail of the alternative remedies
under Rule 43 and Rule 65.
On the issue of the scope of judicial review, the
Supreme Court disagreed with the Court of Appeals’
position that an aggrieved party cannot seek recourse
against an arbitral award directly with the Court of
Appeals.
According to the Supreme Court, a party aggrieved by
an arbitral award has three (3) remedies, to wit: (a) a
petition in the proper trial court to issue an order to
vacate the award under Republic Act No. 876 (which
applies to domestic arbitration); (b) a petition for
review with the Court of Appeals under Rule 43 of the
Rules of Court on questions of fact, of law, or mixed
questions of fact and law; and (c) a petition for
certiorari with the Court of Appeals under Rule 65 of
the Rules of Court if the arbitrator acted without or in
excess of his jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Section 24 of R.A. No. 876
The grounds to vacate under Section 24 are:
(a) The award was procured by corruption, fraud, or
other undue means; or
(b) That there was evident partiality or corruption in the
arbitrators or any of them; or
(c) That the arbitrators were guilty of misconduct in
refusing to postpone the hearing upon sufficient cause
shown, or in refusing to hear evidence pertinent and
material to the controversy; that one or more of the
arbitrators was disqualified to act as such under section
nine hereof, and willfully refrained from disclosing such
disqualifications or of any other misbehavior by which
the rights of any party have been materially prejudiced;
or
(d) That the arbitrators exceeded their powers, or so
imperfectly executed them, that a mutual, final and
definite award upon the subject matter submitted to
them was not made.
Rule 43
The Supreme Court noted that Rule 43 of the Rules of
Court expressly applies to awards, judgments, final
orders or resolutions of quasi-judicial agencies, including
voluntary arbitrators authorized by law.
Rule 65
As for the remedy under Rule 65, the Supreme Court
stressed that it will not hesitate to review a voluntary
arbitrator’s award where there is a showing of grave
abuse of authority or discretion amounting to lack or
excess of jurisdiction, and there is no appeal, nor any
plain, speedy remedy in the course of law.
It should be noted that the Philippine Alternative Dispute
Resolution Act of 2004 (“ADR Law”) adopted and
incorporated the provisions of the UNCITRAL Model Law
on International Commercial Arbitration (“Model Law”),
which limits recourse against an international arbitral
award only to the grounds specified under Section 34 of
the Model Law (e.g., incapacity of a party to the
arbitration agreement or the invalidity of the arbitration
agreement under the applicable law). Neither the Model
Law, nor the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, to which
the Philippines acceded in 1967, recognize the setting
aside of international/foreign on the broader grounds of
errors of law and/or fact or grave abuse of discretion.
Notably, the ruling in ABS-CBN treated the case as a
“domestic” arbitration even though one of the parties,
i.e., WINS, was a Japanese corporation and a substantial
portion of the obligation, i.e., the distribution and
sublicensing of the “The Filipino Channel”, was
performed in Japan. Perhaps this may be explained by
the fact that the arbitral award in this case was
rendered prior to the enactment of the ADR Law. It was
only under the ADR Law that a distinction was made
between domestic arbitration and international
arbitration. Under the ADR Law, international
arbitration shall be governed by the Model Law, while
domestic arbitration shall be governed by R.A. No, 876.
The ADR Law adopts the definition of international
arbitration under Article 1(3) of the Model Law.
Domestic arbitration, on the other hand, defines
domestic arbitration as arbitration that is not
international.
Koreatec vs. Lerma January2008
Korea Technologies Co., Ltd., v. Hon. Alberto A. Lerma, et al. (G.R. No. 143581, 7
January 2008), the Supreme Court held that the ADR Law, being a procedural
law, may be given retroactive effective. Hence, there appears to be a conflict
in this respect between ABS-CBN and Korea Technologies.
For domestic arbitration proceedings, we have particular
agencies to arbitrate disputes arising from contractual
relations. In case a foreign arbitral body is chosen by
the parties, the arbitration rules of our domestic
arbitration bodies would not be applied. As signatory to
the Arbitration Rules of the UNCITRAL Model Law on
International Commercial Arbitration[41] of the United
Nations Commission on International Trade Law
(UNCITRAL) in the New York Convention on June 21,
1985, the Philippines committed itself to be bound by
the Model Law. We have even incorporated the Model
Law in Republic Act No. (RA) 9285, otherwise known as
the Alternative Dispute Resolution Act of 2004 entitled
An Act to Institutionalize the Use of an Alternative
Dispute Resolution System in the Philippines and to
Establish the Office for Alternative Dispute Resolution,
and for Other Purposes, promulgated on April 2, 2004.
Secs. 19 and 20 of Chapter 4 of the Model Law are the
pertinent provisions:
CHAPTER 4 - INTERNATIONAL COMMERCIAL
ARBITRATION
 SEC. 19. Adoption of the Model
Law on International Commercial
Arbitration.––International
commercial arbitration shall be
governed by the Model Law on
International Commercial
Arbitration (the “Model Law”)
adopted by the United Nations
Commission on International Trade
Law on June 21, 1985 (United
Nations Document A/40/17) and
recommended for enactment by
the General Assembly in
Resolution No. 40/72 approved on
December 11, 1985, copy of which
is hereto attached as Appendix
“A”.
SEC. 20. Interpretation of Model
Law.––In interpreting the Model
Law, regard shall be had to its
international origin and to the
need for uniformity in its
interpretation and resort may be
made to the travaux preparatories
and the report of the Secretary
General of the United Nations
Commission on International Trade
Law dated March 25, 1985
entitled, “International
Commercial Arbitration: Analytical
Commentary on Draft Trade
identified by reference number
A/CN. 9/264.”
While RA 9285 was passed only in 2004, it nonetheless
applies in the instant case since it is a procedural law
which has a retroactive effect. Likewise, KOGIES filed
its application for arbitration before the KCAB on July 1,
1998 and it is still pending because no arbitral award
has yet been rendered. Thus, RA 9285 is applicable to
the instant case. Well-settled is the rule that
procedural laws are construed to be applicable to
actions pending and undetermined at the time of their
passage, and are deemed retroactive in that sense and
to that extent. As a general rule, the retroactive
application of procedural laws does not violate any
personal rights because no vested right has yet attached
nor arisen from them.
There are certain principles to keep in mind concerning arbitration
proceedings:
1. Domestic arbitration or a foreign arbitral body
Domestic arbitration – following RA 876
Foreign arbitration/commercial arbitration – RA 9285, the ADR Law
The parties submit to a panel of/an arbitrator/s.
There is a need for an arbitration clause.
Parties may agree later on to submit to arbitration if there is no
arbitration clause in the contract.
2. Container Contract - the principal contract where we incorporate an
arbitration clause.
Some Principles to familiarize in ADR:
~Principle of Separability – emphasizes that whenever there is a container
contract with an arbitration clause, from a legal viewpoint, the parties entered
into two different contracts.
~Principle of Judicial Restraint
~Competence- Competence
Principle of Separability
Arbitration clause is treated as an agreement
independent of the other terms of the contract of which
it forms part. A decision that the contract is null and void
shall not entail ipso jure the invalidity of the arbitration
clause. (Uncitral Model Law, Sec. 16(1); Special ADR
Rules 2.2)
If there is a judgment by a court that the container contract is unenforceable,
that will not affect the arbitration clause as it is a separate contract by itself.
This clause will still govern the relationship of parties concerning the filing of
cases in court or arbitration board as the case may be.
If the arbitration clause is still valid, and one of the parties filed a case in
court, allegedly for the enforcement of his right, then the court, confronted
with the arbitration clause/contract, will have to either dismiss the complaint
or suspend the proceedings and compel the parties to go into arbitration.
Under the decisions of the 3 cases, the court also emphasize that there could
be a complaint to declare the unenforceability of or to declare void the
arbitration contract. It is an RTC that has jurisdiction to do so. But even if there
is a pendency of such a case to declare unenforceability of or to declare void
the arbitration contract, it shall not serve to prevent the parties from
proceeding to arbitration. In fact, these cases came out with a principle which
the court called the Principle of Anti-Suit Injunction.
The Principle of Anti-Suit Injunction means that the court has no authority to
issue a writ of injunction to prevent an arbitration from proceeding or an
arbitration board to be constituted for the purpose of enforcing the
arbitration clause.
Competence-Competence.
What is the “Competence-Competence Principle”?
Power of arbitral tribunal to initially rule on the question of its jurisdiction
over a dispute including any objections with respect to the existence or
validity of the arbitration agreement or any condition precedent to the filing
of a request of arbitration.
“The Special ADR Rules recognize the principle of
competence-competence, which means that the arbitral
tribunal may initially rule on its own jurisdiction,
including any objections with respect to the existence
or validity of the arbitration agreement or any condition
precedent to the filing of a request for arbitration.”
A.M. No. 07-11-08-SC Special Rules on ADR
Restatement of the Rule:
Before the arbitral tribunal is constituted, the regular courts have jurisdiction
to determine the issue of competence of a tribunal. The moment the arbitral
tribunal is constituted, the arbitral tribunal has jurisdiction.
There arises a policy of judicial restraint, such that the finding of the court on
the jurisdiction of the arbitral tribunal is at best prima facie.
Note:
There is a before Arbitration Tribunal, after Arbitration Tribunal’s finding, and
after-after.
Competence-competence – means that the arbitral body has the authority to
rule on the issue as to whether or not it has jurisdiction over the case and the
enforceability and validity of its decisions. IT IS NOT EXCLUSIVELY GIVEN TO A
COURT. There could be a situation that an RTC will declare that the arbitration
clause is unenforceable, but the arbitration board declared such clause
enforceable, the decision of the board will prevail.
The RTC may have the authority to entertain a petition to declare void or
unenforceable an arbitration clause. But the decision of the RTC is merely
prima facie. We will rely the findings later on of the arbitral tribunal. This is the
principle of competence-competence. (Dean Jara)
Does the “prima facie finding” of the court mean that the arbitral tribunal can
still be formed?
Yes. If the court finds that the arbitration agreement is null and void,
inoperative or incapable of being performed, a party may nevertheless
commence arbitration and constitute the arbitral tribunal.
So where does “prima facie finding” of the court come in? How is it prima
facie?
This means that the same issue may be passed upon by the arbitral tribunal,
which has the effect of superseding the previous of the court. (This is the
“AFTER” ruling.)
What about the “after-after” ruling?
The same issue may be passed upon in an action to vacate or set aside the
arbitral award (Rule 3.11) In this case, it is no longer a prima facie
determination of such issue or issues, but shall be a FULL REVIEW of such issue
or issues with due regard, however, to the standard of review for arbitral
awards.
But how may arbitration commence if it the court has made a prima facie
finding that the arbitration agreement is found null and void, inoperative or
incapable of being performed? Will the other party who got the favorable
ruling of the court participate / cooperate?
Get an appointment of arbitrator - sole arbitrator, ad-hoc, institutional.
Principle of Judicial Restraint – there should be least intervention by courts of
courts of justice insofar as arbitration proceedings are concerned. So, if there
is an ongoing arbitration, or even if there is a pending case there is a right to
compel one of the parties to submit to arbitration, the court should not
interfere in the constitution of the arbitral board. The reasoning behind is that
when the parties crafted the arbitration clause, there is an implicit
understanding between the parties is that an arbitral board, and not a court of
justice, should resolve their dispute. The court deems this as a valid contract as
it is the policy is to give autonomy to the parties in choosing the manner to
adjudicate their disputes. They do not need to go to a court of justice. They can
go to an arbitration body, which is a faster and practical means of settling their
disputes.
Rule 2.4. Policy implementing competence-competence
principle.—The arbitral tribunal shall be accorded the
first opportunity or competence to rule on the issue of
whether or not it has the competence or jurisdiction to
decide a dispute submitted to it for decision, including
any objection with respect to the existence or validity of
the arbitration agreement. When a court is asked to
rule upon issue/s affecting the competence or
jurisdiction of an arbitral tribunal in a dispute brought
before it, either before or after the arbitral tribunal is
constituted, the court must exercise judicial restraint
and defer to the competence or jurisdiction of the
arbitral tribunal by allowing the arbitral tribunal the
first opportunity to rule upon such issues.
Where the court is asked to make a determination of
whether the arbitration agreement is null and void,
inoperative or incapable of being performed, under this
policy of judicial restraint, the court must make no
more than a prima facie determination of that issue.
Unless the court, pursuant to such prima facie
determination, concludes that the arbitration
agreement is null and void, inoperative or incapable of
being performed, the court must suspend the action
before it and refer the parties to arbitration pursuant to
the arbitration agreement.
A.M. No. 07-11-08-SC Special Rules on ADR
Can an arbitral body or arbitrator grant provisional remedies?
The circular on arbitration as well as jurisprudence states that yes, arbitration
board can be allowed to grant provisional remedies or interim relief. Art. 17 J of
UNCITRAL Model Law on ICA also grants courts power and jurisdiction to issue
interim measures. Thus, a panel of arbitrators can issue a writ of preliminary
injunction, a writ of preliminary attachment, they can appoint a receiver, and
even can issue a protection order so that the property in dispute may be
preserved.
If a court of justice grants interim relief or provisional relief that is in conflict
with the relief granted by the arbitral body, it is the relief granted by the
arbitral body that shall prevail. This emanates from the principle of Anti-Suit
Injunction and Principle of Judicial Restraint.
Principle of Anti-Suit Injunction
~The remedial device available in common law systems
to restrain a party from instituting or continuing with
proceedings in a foreign court.
~Refers to an extraordinary procedure where a court
issues an order to the effect that proceedings in a second
jurisdiction should not precede. It is necessary to prevent
an irreparable miscarriage of justice.
The Complaint in the arbitration board must contain the evidence
(attachments) and the legal brief, an argument supporting the party’s stand as
to why his claim must be given weight and granted. Defendant must file a
response of similar composition to such complaint (with legal brief). The legal
brief is similar to a memorandum (In ordinary civil procedure, when there is an
appeal, then we require filing of a brief in the court.).In short, this is a short cut
of the civil procedure.
There is no summons issued by the arbitration board, just a notice for filing a
response. Service thereof can be had by private courier.
Because of the requirement of prior submission of evidence together with the
filing of pleadings and legal brief, it is easy to appreciate how the arbitration
board can easily grasp what the issues are all about and they can right away
render an arbitral award. But it can require the submission of additional
evidence if needed. There is a provision in the ADR rules which states that the
technical rules of evidence will not govern proceedings therein.
Let us say that the winning party wants the arbitral award to be treated like a
judgment of the court, he simply files with the RTC to confirm arbitral award.
He can do it at any time. If arbitral award is confirmed by the RTC, the arbitral
award ceases to be such and is now a judgment that can be executed under
Rule 39. Violation thereof can cause winning party to file motion for execution
of judgment. In arbitration, an arbitral award is final and executory, especially
if confirmed by the RTC.
The losing party can file a petition with the same RTC which has authority to
confirm the award for purpose of vacating, correcting or modifying said award.
Supposing the RTC vacates award, setting it aside. Can the RTC make its own
decision concerning the merits of the decision?
Not possible. Although a court of justice can vacate, modify or correct an
arbitral award, it has no authority to render its own judgment on the merits.
The domestic arbitration law and the SC Circular said that if the court decides
to vacate the award, the court does not have the authority to change the
conclusions of law of the arbiter. The principle is a court cannot render its
own decision on a case already submitted for arbitration. While it can vacate,
modify or correct the award, and it does so, the court should return the
decision to the arbitration panel for further study, or the parties can opt to
have a new arbitration panel constituted. The court cannot impose its own
judgment on the merits of the case. The court can review the case, and modify,
vacate or correct the AWARD, but it cannot reverse the findings of facts and
conclusions of the arbiter.
Supposing the RTC affirms the arbitral award, does the losing party still have
a recourse?
The recourse of the losing party is to appeal in the CA via Petition for Review
under Rule 43. The justification for this remedy is that in the enumeration of
quasi-judicial bodies whose decision can be reviewed by the CA, it includes the
review of an award made by arbitrators. From Rule 43, there can be an appeal
to the SC via a Petition for Review under Rule 45.
There is a judicial review for reviewing arbitration cases. But the reviewing
courts will have limited authority concerning the manner by which the
judgment could be held. The court cannot change the factual findings of an
arbitral body. In case of a review brought to the RTC, CA or SC involving arbitral
award, there are few grounds mentioned. We cannot raise Questions of law or
fact. We have to follow the grounds mentioned in RA 876.
Grounds for justifying a court of justice in issuing an order to vacate the
award:
1. arbitrator engages in corrupt practices
2. arbitrator resolved issues not brought before him
3. arbitrator exceeded his authority
4. failure to disclose his relationship to one of the parties within 6 degrees.
Note :These are not the usual grounds of appeal in civil cases. The courts
should see to it that causes should be founded on these grounds for granting
the vacation of an award.
With respect to International Commercial Arbitration, which can be held in RP
or outside. A foreign arbitral award will be treated like a domestic arbitral
award, not a foreign award. It is not considered a judgment rendered in a
court of justice. Even if confirmed by a foreign court, the prevailing party must
petition for the recognition of the award in the RTC. It can be enforced in RP by
filing in RTC for a petition of recognition and enforcement of the arbitral award.
Its execution will fall under RTC jurisdiction, under Rule 39. The last section of
Rule 39 talks about the judgment rendered by the foreign court.
Rule 39, SEC. 48. Effect of foreign judgments or final
orders.—The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction to
render the judgment or final order, is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive upon the
title of the thing; and
(b) In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence of a
right as between the parties and their successors in
interest by a subsequent title.
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact.
The remedy of a winning party in a case decided by a foreign court, for the
enforcement thereof in RP, is to file a petition for the enforcement of the
foreign judgment. There is no need to file a petition for recognition of a foreign
judgment. Our laws do not recognize a foreign arbitral award as a judgment of
a foreign court, it is just an arbitral award. Thus, the prevailing party in an
arbitral award cannot make use of Section 48 under Rule 39. He must avail of
another remedy provided by the SC Circular, which is a petition for recognition
and enforcement of foreign arbitral award in the RTC.
The court can refuse to resolve a petition for recognition and enforcement of a
foreign arbitral award; unlike in the case of a foreign judgment rendered by a
foreign court, where the decision is conclusive upon our courts, subject to the
last paragraph of Sec. 48, Rule 39. But we do not apply Section 48, Rule 39 to a
foreign arbitral award, as it is not a judgment rendered by a foreign court.
Supreme Court has inserted in the rules remedies made available to the parties
in ordinary cases. If a local court or an arbitral body makes a finding that the
arbitration clause is valid and binding, it is inappealable. But if the arbitral body
makes a finding that the clause is invalid, the decision is appealable to a trial
court. If there is a finding that the arbitrator is qualified, the motion for
reconsideration, appeal, or a petition under Rule 65 against such finding are all
prohibited. This is to emphasize the policy of judicial restraint insofar as
arbitration proceedings are concerned.
If there is an appeal in the higher court for a petition for review of an arbitral
award, the ADR law also provides that the appellant should file a bond equal
to the award given by the panel of arbitrators; whereas in ordinary appeal,
there is no need to file an appeal bond. In ordinary court procedure, there is no
need to file an appeal bond as it has been done away by BP 129 (requiring only
the filing of the mode of appeal and docket fees).
Read the SC Circular and the cases.
Intervention
4 kinds of intervention expressly recognized by the court:
1. Intervention upon court’s discretion
Rule 19 – intervention upon court’s discretion; a stranger to a case voluntarily
introduces himself as a party, but must seek court permission to do so via
Motion for Intervention.
Motion for intervention should show:
1. intervenor had direct interest, or
2. he has a grievance against both parties in the pending case, or
3. he wants to side with one of the parties, or
4. is situated in a very unfortunate position wherein the judgment of the court
could adversely affect his properties.
In this situation, intervention is not a matter of right as he is required to file a
motion subject to the court’s decision. In the resolution of the motion, the
court has the discretion to grant or deny the motion. If the motion is denied,
the intervenor can file a separate case against any one, or both, parties. If his
case is already filed, he can seek to have the cases consolidated, in the instance
that consolidation is proper. If there is a consolidation, then the intervenor’s
desire is also satisfied, as he can no participate in the proceedings.
If motion is granted, intervenor is required to file a pleading (either a
complaint- or an answer-in intervention).
Complaint-in-intervention – filed if the intervenor either wants to side with the
complainant or is filing a complaint against both complainant and defendant in
the main complaint.
Answer-in-intervention – filed if the intervenor wants to side with the
defendant.
The filing of these pleadings do not preclude the intervenor from availing of the
other pleadings allowed in a civil case (counter-claim, cross-claim, third-party
complaint, etc.).
Do we recognize a motion to intervene as a matter of right on the part of the
intervenor, wherein the intervenor can insist or compel the court to allow his
intervention?
Yes, this is found in a class suit, where any member of the class has the right to
intervene, and can ask the court for the authority to intervene. The court has
no option but to grant the intervention.
2. Court-mandated intervention – court itself directly induces the party to
intervene in an existing or pending litigation. (Rule 9, in marriage-related cases)
In marriage related cases in Rule 9, if the defendant in a marriage-related case
does not answer, the court has no authority to declare a non-answering
defendant in default, but can direct the prosecutor to intervene in order to
determine that there is no collusion between parties.
3. Forced intervention – a person becomes an intervenor by operation of law,
Rule 57 and Rule 39.
Rule 39 – when the court issues writ of execution and the properties of the
losing party have been levied upon, and sheriff also issues the ancillary writ of
garnishment. When the properties of a judgment debtor in the possession of a
3rd person are subjected to a writ of garnishment, that 3rd person becomes a
forced intervenor in the proceedings. That person will have to obey the orders
of the court issued in relation to the execution, whether the 3rd person likes it
or not, he will be forced to act as an intervenor to the case.
Rule 57 – Preliminary attachment – forced intervention; if there is a writ of
preliminary attachment issued by the court, a supplemental writ of
garnishment is issued, and the writs were enforced by the sheriff upon a 3rd
person, that 3rd person becomes a forced intervenor in the proceedings.
4. Court-encouraged intervention
Writ of Kalikasan cases – it is a court-encouraged intervention for NGOs and
other parties to intervene whenever there is a petition filed under Kalikasan
laws.. The court cannot compel the intervention of these bodies, only to
encourage them.
There are some cases whose positions it appears to be in conflict with one
another in reference to the intervention under Rule 19.
Before the court grants a motion for intervention, the principal case was
dismissed with the motion unresolved. What happens to the motion for
intervention?
It will render the motion academic. The motion presupposes the presence of a
principal action. Absent thereof, there can be no intervention allowed.
Intervention is always ancillary to a principal action.
Metrobank vs. CA (Dismissal of the main action will not render intervention
moot and academic)
A motion for intervention was filed while the case was pending. The court
granted the intervention. After receipt of the order allowing him to intervene,
the party filed a complaint-in-intervention against all the parties in the case.
Intervenor did not realize that the parties of the case were settling. The parties
did arrive at an amicable settlement. The parties sought for the dismissal of the
case, which was allowed. The intervenor objected to idea of having his petition
dismissed. The principal parties told the court that it is axiomatic in
intervention that once the principal action has been terminated, the subsidiary
action is dismissed also.
SC Held that the intervention was already allowed. The principle that the
contention of the parties was applicable only in the instance the motion to
intervene was not yet granted. In this case, the court has already granted the
motion to intervene. The interest of intervenor was not common with the
interest against the other parties, having filed a complaint-in-intervention
against both parties. Thus, the intervention should be allowed to stand, the
standing of which, the intervention is considered a separate case against the
parties. Here, the intervention survived.
The MetroBank case involves a situation where in the intervention will survive
the dismissal of the main complaint. But, for the intervention to survive, the
pleading to be filed must be a complaint-in-intervention against both parties to
the case. This will not be applicable if the intervention was in the form of a
complaint-in-intervention where the intervenor sides with the plaintiff or if the
intervention was via an answer in intervention.
Although the rule provides a time frame for an intervenor to be allowed to
intervene, the SC has allowed intervention to take place, even if there is
already a pending appeal before the CA. The Rule is very clear that intervention
should be allowed before judgment is rendered by the trial court. After
judgment is rendered by the trial court, intervention should be no longer
allowed. But, the SC recognized the propriety of an intervention even if the
case was already pending appeal in the CA or the SC.
In the first instance where the court will allow an intervention, even on appeal,
is when the intervenor is an indispensible party. If an intervenor attempts to
intervene if the case is already on appeal, that will save the trial court, CA and
SC from another procedural problem. We learned that if the trial court renders
a decision in a case where an indispensable party is not impleaded, that
decision will never be final and executory. So, if on appeal, if the indispensable
party intervenes, then he should be allowed to do so, because if he is allowed,
that will cure all the procedural effects that will be present in this particular
case. That will solve the problem of whether or not there could be a final
determination of the case or whether or not the decision can be finally be
executed under the provisions of Rule 39.
Another situation that the SC allowed an intervention to happen even if the
case is already is on appeal is when the Republic of the Philippines intervenes
in the case. If the Republic of the Philippines, via the Solicitor General,
intervenes in a case that is already on appeal, the SC said that the intervention
of the Solicitor General must be of national importance, since the Solicitor
General intervenes only when the case is of paramount interest to the Republic
of the Philippines.
MODES OF DISCOVERY
The modes of appeal that we have in a civil procedure are also available in a
criminal case.
The SC in the WEBB CASE came out with the principle that the Modes of
Discovery available in civil cases are also available in criminal cases. The only
difference is that the use of the mode of discovery should not violate or
derogate the constitutional right of the accused.
For instance, in a civil case, there is nothing wrong if the plaintiff takes the
deposition of the defendant, or the other way around. But in a criminal case,
there is something wrong if the prosecutor takes the deposition of the accused.
The prosecutor cannot take the deposition of the accused in a criminal case as
this is a violation of the constitutional right of the accused. But prosecutor can
takes the deposition of a witness whom the accused wants to present in
court, so long as the witness is not the spouse of the accused (due to marital
privilege; the rule on evidence precludes a spouse being a witness against the
other spouse).
But in a civil case, there is nothing irregular about either the plaintiff or
defendant being subject to deposition. This is even encouraged by the rules
found in civil procedure.
Do the rules compel litigants to avail modes of discovery?
Refer to Rule 18 first on Pre-Trial –
In Rule 18, the plaintiff is asked to indicate if he desires to make use modes of
discovery or use ADR. They are required to manifest that to the court.
Let us say that Plaintiff asked for leave to use modes of discovery, but he
failed to do so. Can the court compel the plaintiff to avail it?
No, the court cannot compel, merely encourage the use of modes of discovery.
Indirectly, the Rules to have instances where the law indirectly compels litigant
to use modes of discovery. Otherwise he will suffer some sanctions given in the
Rules.
Examples of these Rules would be those under Rule 25 and Rule 26.
Admission or interrogatories to parties. – sanction under Rule 25 and 26
Whether admissions or interrogatories to parties, there are practically identical
sanctions imposed by the Rules.
In interrogatories to parties, the last section of Rule 25 (Section 6) provides that
while a plaintiff can compel the defendant to testify during the trial of the case
as a witness for the plaintiff, and also, the defendant can compel the defendant
to testify as a witness during the trial, this cannot be done unless the plaintiff
or defendant has previously served upon the party concerned an interrogatory.
If the plaintiff serves a subpoena ad testificandum to the defendant, requiring
the defendant to appear and testify in court on behalf of the plaintiff, the
defendant can ask for that subpoena to be quashed for failure of the plaintiff to
comply with requirements contained in Rule 25 Section 6. For the plaintiff can
compel the defendant to testify, the plaintiff must have served a written
interrogatories upon the defendant. If plaintiff cannot show that he was able to
serve such written interrogatories, the defendant can move for the quashal of
the subpoena, and defendant cannot be compelled to be a witness in the case.
Rule 25 SEC. 6. Effect of failure to serve written
interrogatories.— Unless thereafter allowed by the court
for good cause shown and to prevent a failure of justice,
a party not served with written interrogatories may not
be compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal.
Admission – last section of Rule 26 –
The same rule on Rule 25 Section 6 is practically the same for admissions. In
fact, these provisions of Sec. 5 Rule 26 and Sec. 6 Rule 25 pertain to
competency of certain evidence. If an evidence is relevant, the general rule is
that the evidence should be admissible, unless it is not competent under the
provisions of our law or certain rules. In Sec. 5 Rule 26 and Sec. 6 Rule 25,
certain relevant evidence may be rendered INADMISSIBLE or INCOMPETENT for
failure of the party to follow the requirements given in these modes of
discovery. Certain matters may not be proven by a party unless that party
complied with the requirements given under Sec. 5 Rule 26 or Sec. 6 Rule 25.
So the sanction that the Rules imposes so the party will be compelled to avail
of the modes of discovery is that the evidence that the evidence sought to be
presented by the proponent could become inadmissible, the otherwise
relevant evidence will become incompetent by reason of the provisions of
these Rules. That will compel the party to avail of the modes of discovery.
Rule 26 SEC. 5. Effect of failure to file and serve request
for admission.—Unless otherwise allowed by the court
for good cause shown and to prevent a failure of justice,
a party who fails to file and serve a request for
admission on the adverse party of material and relevant
facts at issue which are, or ought to be, within the
personal knowledge of the latter, shall not be permitted
to present evidence on such facts.
Other than these, there is nothing in our Rules that requires a party to avail of
the modes of discovery. Availment of a mode of discovery, as a general rule, is
purely voluntary on the part of an interested party.
Another basic principle in discovery measures is that after an answer is filed by
the defendant, availment of the modes of discovery does not require
permission of the court. The plaintiff or defendant is given the prerogative to
avail of the modes of discoveries like taking of depositions or interrogatories to
parties or admissions to parties. The other modes of discovery will ALWAYS
require leave of court. Thus production and inspection of documents or things
in court will always require leave of court, as does physical and mental
examination of a person. But in the case of depositions pending trial,
interrogatories or admissions, we do not need leave of court so long as the
defendant has already filed an answer.
DEPOSITION BEFORE AN ACTION OR ON APPEAL.
Deposition before action – called in the past as perpetration of testimonies.
Strictly, it is not a mode of discovery, as modes of discovery assumes that there
is a pending case in court. A deposition before action does not require an
action to be pending, and is thus treated as an independent action by itself.
This is availed of by filing a Petition for Perpetration of Testimony, as there is
no action filed yet.
Since this is an independent proceeding, with what court should we file the
petition?
Petition to Perpetuate Testimony – RTC. If we follow BP 129, that petition
would be cognizable under the RTC since it is an independent action incapable
of pecuniary estimation. Regardless of the contemplated action to which we
are going to file, a Petition to Perpetuate Testimony is always cognizable by an
RTC.
If there is already a complaint that is filed and an answer has been filed by the
defendant, the court will allow the use of the modes of discovery that will not
require leave of court, such as the taking of a deposition. The court has allowed
the use of these modes of discovery as a fishing expedition. Practically there is
no limitation as to what matters can be inquired into insofar as availment of
discovery measures are concerned. It is not required that the matters sought
be discovered are relevant right away to the issues presented in the case.
When the law says that the statutes of discovery allow a fishing expedition, it
does not mean to say that the statutes of discovery are intended only to gather
evidence on behalf of the interested party. He may want to obtain information
only for tactical advantage during the course of the case. He does not have to
present evidence in court information that is gathered by him via these modes
of discovery.
But, even if the party is allowed to gather information through the modes of
discovery what the law limits is the use of evidence gathered. So, if the plaintiff
was able to gather information, let us say, from a witness who, according to the
pre-trial brief of the defendant, would be principal witness for the defendant, it
does not mean that the deposition given by such witness will readily be
admissible in court in view of the testimony of this defendant’s witness. The
fact that a party has taken the deposition of a potential witness does not mean
to say that this potential witness will now be excused from going to court to
give his testimony. The giving of deposition is different from the giving
testimony in open court. A party may give his deposition, but it does not mean
that he is excused from testifying in court. In fact, the Rules require that if the
party has already given his deposition, he is still required to testify in court. His
deposition will not take the place of his the testimony in court. This is because
the taking of his deposition is only a discovery measure. The deponent does not
appear before the trial court to testify. He gives his deposition not before a trial
judge, but before another person who is simply authorized to administer oaths.
For instance, if the case is pending here in Manila, and there is a potential
witness whose deposition is required by the plaintiff, and this witness is also
a resident of Manila, can the plaintiff require this potential witness to give his
deposition?
Yes.
After the potential witness has given his deposition, and later on, this witness
receives a subpoena requiring him to give testimony in open court, can the
potential witness file a motion to quash subpoena as he had given a
deposition of his testimony?
No, as the giving of a deposition cannot take the place of giving testimony in
open court. The deponent can always be compelled to give his testimony in
open court. Though his testimony may be a repetition of his deposition, it still
does not matter. He still has to give his testimony in open court.
If the witness has given testimony in open court, what is the use of the
deposition he had previously given?
Deposition previously given can be used to impeach the witness or
corroborate the witness’ statements in the testimony. This is the principle of
evidence called Laying The Predicate.
Laying the Predicate: Refer to statements, oral or documentary, made by the
witness sought to be impeached on occasions other than the trial in which he is
testifying
Q: What are the elements of laying the predicate?
A:
1. The alleged statements must be related to the witness including
the circumstances of the times and places and the persons present.
If the statements are in writing they must be shown to him;
2. He must be asked whether he made such statements and also to
explain them if he admits making those statements (Riano, p. 327).
Q: When is the rule on laying the predicate inapplicable?
A: It is inapplicable if the prior inconsistent statement appears in a
deposition of the adverse party, and not a mere witness, that
adverse party who testifies may be impeached without laying the
predicate as such prior statements are in the nature of admissions
of said adverse party. (Regalado, Vol. II, p. 852, 2008 ed.)
Q: What is the purpose of laying the predicate?
A: The purpose of which is to allow the witness to admit or deny the
prior statement and afford him an opportunity to explain the same.
Non-compliance with the foundational elements for this mode of
impeachment will be a ground for an objection based on “improper
impeachment.” Over a timely objection, extrinsic evidence of a prior
inconsistent statement without the required foundation is not
admissible. (ibid)
Is it possible the deposition can be the testimony of the witness?
Yes, if the witness is more than 100 km from the court, and the
witness invokes his viatory right, the deposition is allowed to take
the deposition and the court can consider the deposition the
testimony of the witness.
If a deposition has already been given, is it possible that his deposition will be
treated as his testimony in open court?
That is also possible. If the deponent, if called upon by the court to testify, will
invoke his Viatory Right.
Where the witness resides more than one hundred (100) kilometers from his
residence to the place where he is to testify by the ordinary course of travel,
the witness may invoke that he be not allowed to testify (Viatory Right). The
witness can ask the court that he be excused from giving his testimony in open
court. Even if the court issues a subpoena, the witness may ignore such
subpoena. He cannot be cited in contempt for disobedience thereof. The
remedy of the court is to allow the taking of the deposition, and the court can
then consider the deposition taken as his testimony. In other words, the fact
that a deposition has already been taken from a person does not mean that the
said person will be excused thereafter from going to court in order to be a
witness. That is possible only in exceptional cases mentioned in Rules, one of
them being when the witness invokes his Viatory right. Or even if there is no
viatory right, if the witness/deponent is physically incapable of going to court in
order to testify, the court can consider the deposition previously given as his
testimony in court.
TRIAL
Can a trial court decide a case properly and validly if the court does not
conduct a pre-trial or a trial for that matter?
Yes. Although pre-trial is mandatory and though trial must be had due to triable
issues, the court can just skip these stages and render judgment. Ex. Judgment
by default, judgment on the pleadings.
Judgment by default – it is a judgment on the merits, no trial and pre-trial is
conducted. Under Rule 9, if the court declares defendant in default since he did
not file an answer, one of the options is to immediately render a judgment
without requiring plaintiff to present his evidence ex parte.
Supposedly the defendant filed his answer, can we still do away with the trial?
Yes, we follow the special kinds of judgments whenever an answer is filed as
found under the rules.
Special judgments where an answer is filed by defendant
There can be a judgment on the pleadings if the answer does not raise any
issue at all, or even admits the allegations in the pleadings. There need to be
no pre-trial and trial. The plaintiff can move right away for a judgment on the
pleadings.
Judgment based upon a compromise. Parties entered into a compromise
agreement during pre-trial, the court concurs the validity of the compromise
agreement, the court will render a judgment based upon compromise.
If you will notice that in the deliberation of the Rules on certain special kinds of
judgments, like judgment on the pleadings, demurrer to evidence or summary
judgment, the core element of these special kinds of judgments is that if there
is a trial conducted by the court, it is not a full blown trial.
Summary Judgment– not a full-blown trial
Demurrer to Evidence– not a full-blown trial, only ½ of the trial contemplated
under Rule 30. Defendant does not present evidence.
But in instances where there are genuine triable issues, and the parties cannot
agreed to the facts that should be given to the court so it can decide the case
properly, the court will have to conduct a trial. The parties are then given the
opportunity to make use of evidentiary rules, which is not required before trial.
There is no offer of evidence during pre-trial. At most, if there is evidence
presented during pre-trial, it is only for marking them as exhibits. In a pre-trial
brief, the parties just identify the documental evidence, the real evidence and
testimonial evidence in the form of affidavits. What the parties doe in pre-trial
is to mark these as exhibits.
The trial of the case shall govern the pre-trial order. Only the issues specified in
the pre-trial order will be the order of trial. But this Rule is not strict as the
Rules allow amendment to conform to evidence. If we follow strictly the Rules
and we do not allow amendment to conform to evidence, then the only issues
specified in the pre-trial order will be tried.
If there are genuine triable issues, can the court do away with the trial?
Yes. The parties can help the court avoid a trial if the parties stipulates on facts
that are in dispute. If the parties submit to the court complete stipulation of
facts, that the court need only review the law applicable, then the court can
render a decision on the case. The court need not conduct a trial. Trial is only a
trial of factual issues. It cannot be a trial of legal issues. This is because the
court is presumed to know the law applicable to a given state of facts. The trial
contemplated under Rule 30 is a trial of facts in dispute. But if the parties
decide that these facts are no longer disputed, and they manifested to the
court that they agree fully to the existence of these facts, then the trial may be
avoided. The next stage will just be the rendition of judgment.
In civil procedure, although there is a section in Rule 30 on written stipulation
on facts, the court liberally allows verbal stipulations. Example, during the pre-
trial conference, everything stipulated upon may be done verbally.But since the
pre-trial conference is part of the court proceedings, everything is recorded by
the court stenographer. The stenographer will transcribe the records and what
the court will readily decide that there has been a stipulation of facts between
the parties.
The order of trial in Rule 30 is the general rule. The order of trial follows the
sequence of argumentation of pleadings. The affirmative side, the plaintiff, will
first present his side, and then the negative side, the defendant, will set forth
his defenses. Once the defendant is done presenting his evidence, then the
court may allow parties to submit rebuttal evidence or even sur-rebuttal
evidence. But the court does not allow the presentation of rebuttal evidence or
sur-rebuttal evidence, the trial will end after the defendant has rest his case.
Can the court terminate the case after the defendant rests?
Rule 30 gives an option to the judge, to require the parties to submit their
respective memoranda to help the court in arriving at a decision.
Does failure to submit memoranda when required to do so result in dismissal
of the case?
Yes, under Rule 17, for failure to obey lawful court orders.
The order of trial can be changed. If the court requires defendant to present
evidence ahead, then the reversal of the order is had. If the defendant had set
up the affirmative defense of, for example payment, then the order is reversed.
Why is this only issue to be decided by the court? Should not the court first
decide on whether or not the loan has really been extended by the plaintiff to
the defendant? In our Rules, if the defendant sets up only an affirmative
defense, that constitutes a hypothetical admission to the allegations contained
in the complaint. That is found in Rule 6. So if the defendant hypothetically, for
purposes of trial, that the defendant incurred a loan, then there really is no
need for the plaintiff to prove the existence of the loan. It is now the duty of
the defendant to show that the loan had been paid, so the order of trial is
changed. Thus, the defendant is allowed to present his evidence first.
Thereafter, the plaintiff does not find it necessary to file rebuttal evidence, the
court will consider the case as submitted for decision.
Generally, when a trial is conducted by the court, it is the judge appointed in
that sala that should sit in the proceedings. But, there are certain instances
under Rule 30 when the judge may excuse himself from presiding the case.
They are all mentioned in the rules.
One is when the parties so agree, when the parties appoints a commissioner
for presentation of evidence. Another is, when the branch clerk of court, upon
delegation of the judge, may sit when the parties agree to an ex parte
presentation of evidence. However, in these instances, it is still the judge who
will have to write and sign the decision.
There are 2 rules concerned with how a court in a civil case will conduct a trial.
1. Rule on consolidation and severance of cases
2. Trial by commissioner
Distinguish consolidation from severance.
A:
Consolidation Severance
Involves several actions having a Contemplates a single action having a
common question of law or fact number of claims, counterclaims,
which may be jointly tried (Sec.1, Rule cross-claims, third-party complaints,
31). or issues which may be separately
tried.
Consolidation:
1. several cases
2. similar issues, common question of fact
3. pending in the same court
What are the requisites for consolidation?
A:
1. Actions involving a common question of law or fact; and 3. Rule 39, Sec. 36 and 37 When the judgment was not executed fully or no
2. There must be at least 2 actions pending before the same court (Sec.1, Rule execution was had
31). SEC. 36. Examination of judgment obligor when judgment
unsatisfied
Q: What are the ways of consolidating cases? SEC. 37. Examination of obligor of judgment obligor. (in case partial
A: satisfaction was had)
Recasting the Cases Consolidation Proper Test-Case Method 4. Settlement of estates of deceased persons, in statute of non-claims, money
Reshaping of the cases It is a joint trial with By hearing only the claims will have to be submitted to the settlement court within the statute of
by amending the joint decision, the cases principal case and non-claims, and will have to be responded to by the executor or administrator.
pleading, dismissing retaining their original suspending the hearing If administrator of the estate can contest the validity of these claims, these
some cases and docket numbers. on the other cases until claims will become contested claims, then the court may appoint a
retaining only one case. judgment has been commissioner to determine these contested claims.
There must be joinder rendered in the
of causes of action and principal case. The
of parties. cases retain their Q: What is the statute of non-claims?
original docket numbers A: It is a period fixed by the courts for the filing of claims against the estate for
(Riano, Civil Procedure, examination and allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.)
p. 96, 2009 ed.).
Q: When should claims be filed?
Q: What is the rule on consolidation of cases? A:
A: GR: Within the time fixed in the notice which shall not be more than 12 months
GR: Consolidation is discretionary upon the court to avoid multiplicity of suits, nor less than 6 months after the date of the first publication. Such period once
guard against oppression or abuse, prevent delay, clear congested dockets, and fixed by the court is mandatory. Otherwise, the claims are barred forever.
simplify the work of the trial court and save unnecessary costs and expenses.
Note: Where an executor or administrator commences an action, or prosecutes
XPNs: Consolidation becomes a matter of duty when: an action already commenced by the deceased in his lifetime, the debtor may
1. If two or more cases are pending before the same judge; or set forth by answer the claims he has against the decedent, and mutual claims
2. If filed with the different branches of the same RTC and one of may be set off against each other in such action. (Sec. 5, Rule 86)
such cases has not been partially tried. (Raymundo v. Felipe, G.R. XPN: Belated claims.
No. L-30887, Dec. 24, 1971)
Q: What is the rule on Belated Claims?
Q: When may civil actions be suspended? A: Belated claims may be filed even beyond the period fixed by the court:
A: 1. On application of a creditor who has failed to file his claim within the time
1. If willingness to discuss a possible compromise is expressed by one or both previously limited, at any time before an order of distribution is entered, the
parties; or court may, for just causes, allow such claim to be filed not exceeding 1 month
2. If it appears that one of the parties, before the commencement of the action from the order allowing belated claims; or (Sec. 2 , Rule 86)
or proceeding, offered to discuss a possible compromise but the other party 2. Where the estate filed a claim against the creditor or claimant who failed to
refused the offer (Sec. 8, Rule 30; Art. 2030, NCC). present his claim against the estate within the period fixed by the probate
court for the settlement of such claims, the creditor will be allowed to set up
Let us say there are 3 cases involving different parties, but all involve a the same as a counterclaim to the action filed by the estate against him.
common question of fact or law, pending in the same court, the court can issue
an order of consolidation of the cases. Note: Statute of non-claims supersedes the Statute of Limitations insofar as
the debts of deceased persons are concerned because if a creditor fails to file
Consolidation of cases in different salas in a multi-sala court such as the his claim within the time fixed by the court in the notice, then the claim is
Regional Trial Court of Manila: The internal rules of RTCs will be followed. The barred forever. However, both statute of non-claims and statute of
judge in one branch cannot issue an order directing the other judges to agree limitations must concur in order for a creditor to collect.
to the consolidation of cases, as there is a need to coordinate with each branch
first. One judge cannot simply issue an order to be obeyed by another judge of
the same level. The internal rules of the RTC, where there are cases to be JUDGMENTS
consolidated but which are assigned to different branches, is that if there is a Rule 36, Sec. 1 – Formal Requisites of a valid judgment or final order:
consolidation consented by the judges, it will be tried by the sala with the 1. written personally and directly by the judge
lowest docket number. 2. signed by the judge
3. given to the branch clerk of court
If one case is in Manila RTC, the other in Bulacan RTC, both cases being those 4. includes basis from factual findings and conclusions of law
that can be validly consolidated, then the Supreme Court may order
consolidation. Shimizu vs. Magsalin
A final order of dismissal under Rule 17, a dismissal with prejudice, is void if
The opposite of consolidation is severance of several issues contained in one there is no explanation how and why the case was dismissed by failure to
complaint. A trial court is also given the authority to tell the parties that the prosecute.
trial to be conducted only for the purpose for hearing either a 3rd party
complaint, a counterclaim or a crossclaim, depending upon the discretion of
the court Q: What are the requisites of a valid judgment?
A:
1. Authority of the court to hear and determine the case.
Trial by Commissioners 2. Jurisdiction – over the parties and the subject matter
The language used in the Rule is not mandatory. This is upon discretion of the 3. The parties must have been given an opportunity to adduce evidence.
court. 4. The evidence must have been considered by the tribunal in deciding the
case.
Exceptional circumstances where there is mandatory appointment of 5. The judgment must be in writing, personally and directly prepared by the
commissioner: judge.
1. expropriation proceedings, for determining just compensation 6. The judgment must state clearly the facts and the law on which it is based,
2. partition cases, where there is a need to determine how the property will be signed by the judge and filed with the clerk of court.
divided between co-owners
NOTE: Only for decisions and final orders on merits and does not apply to those
resolved through incidental matters.
Final order – there should a adjudication upon the merits.
A case is pending in RTC Bulacan under Judge A. He presided during the
presentation of evidence by both parties. After presentation of evidence,
Judge A retires. Who will decide the case?
The successor judge takes over and decides the case.
If the former judge makes the decision and turned it over to the clerk of court,
who then promulgates it and sends the said decision by mail, that judgment is
void.
What if Judge A is transferred from RTC Bulacan to RTC Manila, can he pen
the decision and send it to his former sala?
Under the old judiciary act, that is a valid judgment. Under the old judiciary act,
if the judge who fully tried the case is subsequently transferred, he retains
authority to try the case and render a valid judgment thereon.
What if Judge A is promoted to become a justice of the CA, can he validly pen
the judgment?
No. He can no longer decide the case. It is only when the trial judge who has
heard the case is given a new assignment to a coordinate court shall the
Judiciary Act of 1948 will give him authority to render a valid decision.
Entry of judgment takes place by operation of law. Rule 36.
This is a very important rule insofar as judgments are concerned. Now, we have
a new concept of entry of judgment. Under Rule 36, Entry of Judgment takes
place by operation of law. Even if there is no physical or actual entry of
judgment, under Rule 36, the judgment is deemed entered upon the expiration
of the period to appeal if no appeal is perfected. Hence, if no appeal is
perfected, right after the expiration of the 15/30-day period, that judgment is
AUTOMATICALLY entered, and becomes final and executory. Even if the clerk of
court enters that in the records a year later, it is not the physical entry on the
record by the clerk of court that will reckon the entry of judgment.
Why do we consider entry of judgment as a very important procedural
principle?
The term entry of judgment is a role if we follow Rule 39, Execution of
Judgments. In Rule 39, if a judgment has become final and executory, then the
court has the ministerial duty to grant a motion for execution and to order
execution of the judgment. In Rule 39 also, there is a period fixed for that
judgment to be executed. The first five years from entry is the period to
execute the judgment via a motion, and the second 5-year period is for the
revival of the judgment. We are more interested in the first 5-year period
within which to execute the judgment through a motion.
If we reckon period under Rule 39, insofar as the first 5-year period is
concerned, it is 5 years from entry of judgment. This is why the principle of
entry of judgment is very important in implementing the succeeding procedural
principles relating to execution of judgment, and also in determining if a
particular remedy has been availed of on time.
For instance, under Rule 38, Relief from Judgment. If you recall, relief of
judgments has 2 periods to be taken into account, 60 days from notice and 6
months from ENTRY of judgment. The period speaks of availment of certain
remedies they are all reckoned from entry of judgment.
So, do not forget that entry of judgment under our present rules takes place by
operation of law, upon the expiration of the period to appeal, if no appeal is
perfected. The judgment is automatically entered under the provisions of Rule
36.
Q: What are those which are not considered as decisions?
A:
1. Resolutions of Supreme Court denying the petitions to review decisions of
Court of Appeals.
2. Minute Resolutions – if issued by SC denying or dismissing a petition or a
motion for reconsideration for lack of merit, it is understood that the
challenged decision or order is deemed sustained.
3. Interlocutory Orders– those that determine incidental matters that do not
touch on the merits of the case or put an end to the proceedings. E.g. Order
denying a motion to dismiss, granting an extension of time or authorizing an
amendment.
Note: Appeal is not proper to question an interlocutory order. The proper
remedy to question an interlocutory order is a petition for certiorari under Rule
65.
Q: What is a judgment without trial?
A: The theory of summary judgment is that although an answer may on its face
appear to tender issues—requiring trial—yet if it is demonstrated by
affidavits, depositions, or admissions that those issues are not genuine, but
sham or fictitious, the Court is justified in dispensing with the trial and
rendering summary judgment for plaintiff. The court is expected to act chiefly
on the basis of the affidavits, depositions, admissions submitted by the
movants, and those of the other party in opposition thereto. The hearing
contemplated (with 10-day notice) is for the purpose of determining whether
the issues are genuine or not, not to receive evidence on the issues set up in
the pleadings. A hearing is not thus de rigueur. The matter may be resolved,
and usually is, on the basis of affidavits, depositions, admissions. Under the
circumstances of the case, a hearing would serve no purpose, and clearly
unnecessary. The summary judgment here was justified, considering the
absence of opposing affidavits to contradict the affidavits (Galicia vs. Polo, L-
49668, Nov. 14, 1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17, 1989).
The other sections of Rule 36 give us the certain classifications of judgments;
summary judgment and several judgment.
Separate judgment(Sec. 5, Rule 36) – It is one rendered disposing of a claim
among several others presented in a case, after a determination of the issues
material to a particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of said claim.
Several judgment(Sec. 4, Rule 36) – It is one rendered by a court against one or
more defendants and not against all of them, leaving the action to proceed
against the others.
The need for this classification of judgment stems from the principle of civil
actions that encourage joinder of courses of action. If there are several causes
of action embodied in a complaint, it is proper for the court that after the trial
of a particular cause of action, it should render a judgment for that particular
cause of action. If there is joinder of parties, the court has also the prerogative
to render a separate decision concerning a particular party if his claim has
already been terminated when the presentation of evidence on his claim is
finished. And what the court does is only to wait for the presentation of
evidence concerning the claim of other parties, the court can also render a
decision separately.
These are decisions that are exceptional, in the sense that we expect a trial
court to make only one judgment in one particular case. It is unusual for the
court to render several decisions involving one particular case. That is why,
even if Rule 36 authorizes the court to promulgate separate or several
decisions, if you will go to Rule 41, Appeal From The RTCs, in Section 2, it is
mentioned that if the court renders separate or several judgments, although
we call these as judgments, they are not appealable. The parties will have to
wait until the principal action is finally resolved before they can even think of
appealing the case. So, although Rule 36 designates these as judgments, they
are not appealable. The court will have to render a principal decision later on,
after everything is concluded.
So, if that is a separate judgment involving once cause of action, the winning
party or losing party cannot appeal. These parties will have to wait until the
court finally decides the case in its entirety, unless the court allows an appeal if
the party is entitled. Usually, the court does not allow it, because that will lead
to a situation where several appeals emanate from one case, which is also
frowned upon by the SC. There should only be one decision in a particular case,
and there should be one appeal if a party decides to appeal.
This is also the reason why the decisions that are classified in Rule 36, Separate
Judgments and Several Judgments, are sometimes referred to as interlocutory
judgments, because they cannot be appealed by express provision of Rule 41,
although they can be rendered validly by the court.
Interlocutory Orders – those that determine incidental
matters that do not touch on the merits of the case or
 put an end to the proceedings. E.g. Order denying a
motion to dismiss, granting an extension of time or
authorizing an amendment.
So if you come across that term in your examinations, interlocutory judgments,
and you find the use of ‘interlocutory’ and ‘judgment’ to be in conflict with one
another, you apply the following view: Because a judgment cannot be
interlocutory. A judgment by the very term should be a judgment of the merits.
But if you characterize a judgment as interlocutory, that is only to emphasize
that the judgment, although it resolves the merits of the case, cannot be
appealed without the permission of the trial judge.
Rule 33
Rule 33 begins with an enumeration of special kinds of judgments: Judgment
on Demurrer to Evidence, Judgment on the Pleadings and Summary Judgments.
There are other kinds of judgments not found under Rules 33, 34 and 35.
Several are mentioned in Rule 41, Section 1:
Judgment by Consent, Judgment upon a Compromise, Judgment by Confession.
There is another one in Rule 51, a Memorandum Decision.
Memorandum decision is one in which the appellate court may adopt by
reference, the findings of facts and conclusions of law contained in the decision
appealed from.
There are judgments by virtue of jurisprudence: Judgment nunc pro tunc,
provisional judgment, etc.
Q: What are the kinds of judgment?
A:
1. Judgment upon compromise – It is one conferred on the basis of a
compromise agreement entered into between the parties.
2. Judgment by confession – It is one rendered by the court when a party
expressly agrees to the other party’s claim or acknowledges the validity of
the claim against him.
3. Judgment upon the merits – It is one that is rendered after consideration of
the evidence submitted by the parties during the trial of the case.
4. Clarificatory judgment – It is rendered to clarify an ambiguous judgment or
one difficult to comply with.
5. Judgment nunc pro tunc (Now for then) – A judgment intended to enter into
the record the acts which had already been done, but which do not appear in
the records. Its only function is to record some act of the court which was done
at a former time, but which was not then recorded, in order to make the
record speak the truth, without any changes in substance or any material
respect.
6. Judgment sin perjuicio – Judgment without a statement of the facts in
support of its conclusion to be later supplemented by the final judgment. This
is not allowed.
7. Judgment by default (Sec. 3, Rule 9) – Rendered by the court following a
default order or after it received, ex parte, plaintiff’s evidence.
8. Judgment on the pleadings (Rule 34) – Proper when an answer fails to
tender an issue because of a general or insufficient denial of the material
allegations of the complaint or when the answer admits the material
allegations of the adverse party's pleading.
9. Summary judgment (Rule 35) – One granted by the court for the prompt
disposition of civil actions wherein it clearly appears that there exists no
genuine issue or controversy as to any material fact.
10. Several judgment (Sec. 4, Rule 36) – It is one rendered by a court against
one or more defendants and not against all of them, leaving the action to
proceed against the others.
11. Separate judgment (Sec. 5, Rule 36) – It is one rendered disposing of a
claim among several others presented in a case, after a determination of the
issues material to a particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of said claim.
12. Special judgment (Sec. 11, Rule 39) – One which can only be complied with
by the judgment obligor because of his personal qualifications or
circumstances or one that requires the performance of an act other than:
a. Payment of money; and
b. Sale of real and personal property.
13. Judgment for specific acts (Sec. 10, Rule 39) – Applicable in cases of:
1. Conveyance, delivery of deeds, or other specific acts, vesting
title;
2. Sale of real or personal property;
3. Delivery or restitution of real property;
4. Removal of improvements on property subject of execution; or
5. Delivery of personal property.
14. Judgment on demurrer to evidence (Rule 33) – A judgment rendered by the
court dismissing a case upon motion of the defendant, made after plaintiff has
rested his case, on the ground that upon the facts presented by the plaintiff
and the law on the matter, plaintiff has not shown any right to relief.
15. Conditional judgment – It is one the effectivity of which depends upon the
occurrence or non-occurrence of an event.
16. Final judgment – One which disposes of the whole subject matter or
terminates the particular proceedings or action, leaving nothing to be done
by the court but to enforce by execution what has been determined.
But the principal classification of judgments is the one given in the Rules,
particularly these Rules which speak about Special Judgments.
What is so special about these three decisions of the court?
As we said earlier, they are special as they are rendered by the court without
having conducted a full blown trial as conceived in Rule 30.
DEMURRER TO EVIDENCE IN CIVIL CASES
Judgment on Demurrer to evidence – only plaintiff presented evidence.
(judgment of dismissal based on insufficiency of evidence to support the claim)
If motion for demurrer to evidence is denied, defendant must present his
evidence, judgment thereon will be an ordinary judgment.
When the Plaintiff rests his case, the Defendant, instead of presenting his
evidence, files a Motion for Judgment on Demurrer to Evidence. The defendant
asks the court for an order to dismiss the case based only on the ground of
failure of the plaintiff to show right of relief, that there is insufficiency of the
plaintiff’s evidence. There is no preponderance of evidence to support the
plaintiff’s claim.
The court will have to resolve the motion. The court will either grant or deny
the motion. If the court denies the motion, the court in effect tells the
defendant that the plaintiff’s evidence is adequate. What the defendant has to
do now is not to appeal, because the denial of a motion for judgment on
demurrer to evidence is interlocutory. No appeal is allowed.
Can the defendant resort to Rule 65 on the ground that the court has gravely
abused its discretion amounting to lack or excess of jurisdiction?
He can try.
Under the Rules, if the defendant’s motion for judgment on demurrer to
evidence is denied, it is the duty of the defendant to present now his own
evidence. He cannot appeal it, he cannot even think about appealing, he just
have to present his own evidence.
Demurrer to Evidence (Rule
33)
When After the plaintiff rests its case
to file or after the completion of the
 presentation of evidence If Judgment on the merits; The Judgment on the merits; The
granted Plaintiff may appeal from the Plaintiff cannot make an appeal
order of dismissal of the case from the order of dismissal due
Grounds That upon the facts and the to the constitutional
law, the plaintiff has shown no prohibition against double
right to relief jeopardy
If The defendant may present his If denied The Defendant may proceed to The Defendant may adduce his
denied evidence. adduce his evidence evidence only if the demurrer
If The complaint may NOT be is filed with leave of court.
granted filed. The remedy of the If there was no leave of court,
plaintiff is to appeal from the accused can no longer present
dismissal. his evidence and submits the
case for decision based on the
prosecution’s evidence
Remember the rules of demurrer to evidence and the other principles that If the If the court finds plaintiff’s If the court finds the
derive from the granting of demurrer to evidence in a civil case. You always plaintiff evidence insufficient, it will prosecution’s evidence
compare them to demurrer in a criminal case. These topics are usually involved appeals grant the demurrer by insufficient, it will grant the
in Bar examination. from the dismissing the complaint. The demurrer by rendering
order of judgment of dismissal is judgment acquitting the
dismissal appealable by the plaintiff. If accused. Judgment of acquittal
In a civil case, if a defendant files a motion for the dismissal of the complaint plaintiff appeals and judgment is not appealable; double
based on insufficiency of evidence, and that motion is denied, what the is reversed by the appellate jeopardy sets in
defendant will do is to go ahead with the trial and present his evidence. And court, it will decide the case on
after the defendant has rested, the court will render the decision. The decision, the basis of the plaintiff’s
if the order for demurrer to evidence is denied, is just an ordinary judgment on evidence with the consequence
the merits of the case under Rule 36. It is no longer a special type of a that the defendant already
judgment. loses his right to present
evidence. No res judicata in
But if the trial court grants the motion, it means it will order the dismissal of dismissal due to demurrer
the case. The dismissal is a final order, in fact a judgment on the merits of the How can The plaintiff files a motion to The court may motu propio
case. The winning party is the defendant. The plaintiff can appeal the dismissal. demurrer deny motion to demurrer to deny the motion.
be evidence.
Usually, the if the trial court is the RTC, it will be brought to the CA. So, it is denied?
brought to the CA. The CA will have to review the case based solely on the
records transferred to it by the RTC. The records will show that the defendant
has not presented any evidence at all. Right away, the defendant will be at a After the prosecution has rested, the accused can also file a motion for
disadvantage when the case is reviewed by an appellate court. The court will
judgment on demurrer to evidence. But there is one requirement in a criminal
review only the evidence presented by the plaintiff. There is a great possibility
case not found in a civil case: the accused should get leave of court if the
that the CA will not agree with the trial court, and will reverse the dismissal of accused wants to preserve his right to present evidence once the motion is
the case.
denied by the trial court. Failure to get leave of court before filing of the
motion, and the motion is subsequently denied, then the accused has waived
If the CA reverses the order of dismissal by demurrer to evidence and the CA his right to present his evidence in the trial court. The trial court will not allow
tells the parties that the evidence submitted is adequate, CA simply render its
the accused to present his evidence, and the next phase will be a judgment of
own decision on the merits of the case, relying solely on the evidence conviction, meaning that the evidence presented by the prosecution is
submitted by the plaintiff.
adequate to convict the accused, that the evidence has met the quantum of
evidence, which is proof beyond reasonable doubt. No leave of court is
The defendant cannot ask the CA to present his evidence. It is not proper since required in demurrer to evidence in civil cases.
the evidence should have been presented in the trial court. The CA, as a
reviewing court, will only rely on the records transmitted to it by the RTC. In a criminal case, demurrer can be initiated either by the accused or the court
itself motu propio. The idea of demurrer to evidence can come from the court.
The defendant cannot argue that the CA is authorized to receive evidence
So if the prosecution has rested, the court can even tell the accused to file a
under the provisions of BP 129. Under BP 129, the CA is allowed to receive motion for judgment on demurrer to evidence. If the idea comes from the
evidence if it acts in exercise of its original jurisdiction, which is not the case in
court, the accused should file because it is the court who already encourages
this instance as the CA is acting under is appellate jurisdiction. Although B.P.
you to file the motion. That means to say, even to the court, the prosecution’s
129 also confers authority on the CA to receive evidence even in appeal of evidence failed to meet the quantum of evidence required to convict the
cases from the lower court, the conferment of authority while acting as an
accused. In a civil case, the court cannot initiate the idea as to demurrer to
appellate court is only on one instance, only on grant of motion for new trial evidence. It should come from the mind of the defendant’s counsel.
based on NDE. It will not apply to demurrer to evidence. The evidence the
defendant will present is hardly NDE as the defendant had these pieces of
If in a criminal case, the demurrer to evidence is granted, the information will
evidence during the trial in the RTC. This is why in demurrer to evidence in civil be dismissed, which is tantamount to acquittal of the accused. The prosecution
cases, the defendant waives his right to present his evidence when the trial
can no longer appeal, nor can Rule 65 be availing, both being due to prohibition
court grants his motion and the case is dismissed but the dismissal is reversed
against double jeopardy. Take note, there can be no appeal as to the dismissal
on appeal. of the information, but there can be an appeal as to the civil aspect of the case.
In a civil case, if the court dismissed the civil action, the plaintiff may appeal the
Compare this to the demurrer to evidence present in a criminal case. dismissal.

If we allow the civil aspect of the criminal case already dismissed to be

Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence appealed, there is a chance that the appellate court will find merit in the appeal
in criminal cases.
of the private complainant, and therefore the appellate court will allow
A: damages to be awarded to the private complainant. The satisfaction of these
Civil Case Criminal Case damages will be directed against the accused, who has been acquitted from the
Leave of Not required With or Without crime. In a criminal case, an accused may be acquitted of the crime, but may be
court found civilly liable for any injury resulting therefrom. This is because, the
conviction of the accused requires a higher degree of proof to be met (proof
beyond reasonable doubt), whereas a lower degree of proof is required for
proving liability for civil damages (mere preponderance of evidence).
JUDGMENT ON THE PLEADINGS
Q: When is there a judgment based on pleadings?
A: Where an answer fails to tender an issue, or otherwise admits the material
allegations of the adverse party’s pleading, the court may, on motion of that
party, direct judgment on such pleading.
Note: Judgment must be on motion of the claimant. It cannot be rendered by
the court motu propio.
Q: What are cases where judgment on the pleadings will not apply?
A:
1. Actions for the declaration of nullity of a marriage
2. Actions for annulment of marriage
3. Actions for legal separation
Note: in the above cases, the material facts alleged in the complaint shall
always be proved (Sec. 1, Rule 34)
Judgment on the pleadings
Judgment on the pleadings (Rule 34) – Proper when an answer fails to tender
an issue because of a general or insufficient denial of the material allegations of
the complaint or when the answer admits the material allegations of the
adverse party's pleading.
SUMMARY JUDGMENTS
Q: What is a summary judgment?
A: A summary judgment or accelerated judgment is a procedural technique to
promptly dispose of cases where the facts appear undisputed and certain from
the pleadings, depositions, admissions and affidavits on record, of for weeding
out sham claims or defenses at an early stage of the litigation to avoid the
expense and loss of time involved in a trial. Its object is to separate what is
formal or pretended denial or averment from what is genuine and substantial
so that only the latter may subject a party-in-interest to the burden of trial.
Moreover, said summary judgment must be premised on the absence of any
other triable genuine issues of fact. Otherwise, the movants cannot be allowed
to obtain immediate relief. A genuine issue is such issue of fact which requires
presentation of evidence as distinguished from a sham, fictitious, contrived or
false claim (Monterey Foods Corp. vs. Eserjose, GR 153126, Sept. 11, 2003).
Q: What are the requisites of summary judgments?
A:
1. There must be no genuine issue as to any material fact, except for the
amount of damages; and
2. The party presenting the motion for summary judgment must be entitled to
a judgment as a matter of law.
Q: When is a claimant allowed to file for summary judgment?
A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to
obtain a declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon all or any part thereof
(Sec. 1, Rule 35).

Defendant filed a motion for judgment of the pleadings, although the answer
was one without a counterclaim with meritorious defenses. What will be the
effect thereof?
SC held that if the movant defendant is asking for judgment on the pleadings,
he is deemed to be admitting all the allegations in the complaint.
Q: When is a defendant allowed to file for summary judgment?
A: A party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor as to all or any
part thereof (Sec. 2, Rule 35).

JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS

In Judgment on the pleadings, there is an answer filed by the defendant. But Judgment on the Summary judgments
that answer admits the allegations in the complaint. Or, even if the answer in pleadings
form denies the allegations in the complaint, the denial is not specific as Movant Plaintiff only Either plaintiff or defendant
required in the Rules. We are made familiar again with the principle in a civil Answer Answer does not tender There is an issue tendered in the
case that when a general denial is made, that is deemed to be an admission, an issue answer, but it is not genuine or
which is the reason why a court need not conduct a pre-trial nor a trial. real issue as may be shown by
affidavits and depositions that
If the plaintiff receives a copy of the answer which does not set up any there is no real issue and that the
defenses at all, but instead admits all the allegations in the complaint, what the party is entitled to judgment as a
plaintiff needs to do is to file a motion for a judgment on the pleadings. matter of right
Notice Movants must give a 3- Opposing party is given 10 days’
In other words, if we follow the inherent nature of a judgment of the pleadings, day notice of hearing notice
the movant should be the plaintiff in a complaint or a permissive counterclaim Termination Entire case may be May only be partial
or cross-claim. There should be a motion initiated by the plaintiff asking the terminated
court for a judgment on the pleadings. Who can Only the plaintiff or the Either the plaintiff or the
file defendants as far as the defendant may file it
Is there any prohibition against the defendant who has filed an answer to counterclaim, cross-claim
also move for judgment on the pleadings? or third-party complaint is
There is really nothing said in the Rules that says about a defendant, upon filing concerned can file the
of his answer, being prohibited to file a motion for a judgment on the same
pleadings. But it seems to be a crazy idea for a defendant to himself move for a
Basis of the Based only on the Based on the pleadings,
judgment on the pleadings. In a case brought to the SC where it was the judgment pleadings alone, hence, supporting affidavits, depositions
defendant himself who moved for a judgment on the pleadings, although the only on the complaint and or admissions ( see Sec. 1, Rule
answer was purely an answer without any counterclaim, cross-claim or third
the answer 35).
party complaint, but containing several meritorious defenses, the SC ruled that
if a defendant is a movant for a judgment on the pleadings, the defendant is
deemed to have admitted the allegations contained in the complaint. So it is
If you compare the provisions of a judgment on the pleadings to that of a
really very risky for a defendant to be a movant for a judgment on the
summary judgment, as contained in Rule 34, we will immediately notice that
pleadings. Even if his answer is properly crafted, even if there is a specific
there is a section which talks about a Summary judgment by plaintiff and a
denial, if it was the defendant that filed a motion for a judgment on the
Summary judgment by defendant. Unlike in judgment on the pleadings, where
pleadings, the defendant will be considered to have admitted all the allegations
we expect the movant to be a plaintiff, in a summary judgment, the law gives
in the complaint. So, the court will render a judgment in favor of the plaintiff.
either parties the option to file a motion for summary judgment. This motions
are expressly recognized in the rules.
A judgment on the pleadings is also a judgment on the merits. It should comply
with the essentials of a valid judgment under Rule 36.
Q: When is a claimant allowed to file for summary judgment?
A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to
obtain a declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon all or any part thereof
(Sec. 1, Rule 35).
Q: When is a defendant allowed to file for summary judgment?
A: A party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor as to all or any
part thereof (Sec. 2, Rule 35).
Another term for summary judgment under American Rules is an accelerated
judgment. It seems to be similar to that in acceleration clause.
Why will the court render a summary judgment?
The court will not conduct a full blown trial envisioned in Rule 30. In a summary
judgment designed not to conduct full-blown trial, according to jurisprudence,
there is an issue in the answer submitted by the defendant, but it turns out to
be a sham issue. Therefore, there is no need for the court to conduct a full-
blown trial on a sham issue. Whether or not the issue is genuine will depend
upon the circumstances of the case.
An instant example of a summary judgment rendered by a court is that where
the court found that the issue is not really genuine although there is really an
issue raised in the answer. A complaint was filed by the plaintiff for an unpaid
loan. The complaint carried with it an actionable document attached to the
complaint, a printed promissory note. The promissory note contained a blank
as to the date of the maturity of the loan, which was unfortunately not
accomplished. So, the promissory note is indeterminate as to the date of
maturity. The defendant filed an answer and set up the defense that the filing
of the complaint was premature because the debt has not matured, and the
defendant pointed out that the blank wherein the date of maturity was
supposed to be indicated has no entry. The defendant interposed that the
court should first fix the maturity date of the complaint before the plaintiff can
file a complaint for recovery of the loan. The plaintiff filed a motion for
summary judgment. And the court agreed with the plaintiff that the defense
set up by the defendant, that the maturity of the loan has not yet happened, is
really a sham issue, as the issue is in conflict with the provisions of substantive
law. The SC said that if that is a promissory note without a date fixed as to
maturity, that is a note payable on demand, as provided in the NCC. If there is
already a demand made by the creditor, and the debtor failed to comply with
that demand, it means there is already a breach of the obligation by the
debtor.
In as similar case where the plaintiff moved for summary judgment because the
answer of the defendant does not raise any issue, the court found merit in the
motion. But when the court prepared the order granting the motion for
summary judgment, the court mentioned that the motion is one that is asking
for a judgment on the pleadings. The dispositive portion of the order called the
judgment as on for judgment on the pleadings in favor of the plaintiff, directing
the defendant to pay.
The defendant challenged the validity of the judgment, saying that what the
court should have rendered should be a summary judgment, because the court
made a finding that the issue is not genuine, and yet the court issued a
judgment on the pleadings, and therefore the judgment is void. SC held that
whether it is called a summary judgment or judgment on the pleadings, it does
not really matter at all, as there is an adjudication on the merits. The error was
purely formal. SC said that the error in the determination whether the
judgment was a summary judgment or a judgment on the pleadings will not
prejudice the defendant, and therefore cannot be declared as void. After all, it
is a judgment that complies with the requirements of Rule 36. There is a
determination of the rights and obligations of the parties involved in the cause
of action.
There is a summary judgment that is similar to separate judgment and several
judgment as it is interlocutory. If you read the Rule on summary judgment,
there is such a thing as partial summary judgment. If the summary judgment is
a partial summary judgment, that is an interlocutory order, as it does not
dispose of the case completely. It disposes only of the issue that was raised
before the court. It cannot be appealed.
In a summary judgment, unlike in a judgment on the pleadings, the court will
conduct a summary hearing. In judgment on the pleadings, the court will not
conduct a hearing at all, as the court will simply rely on the contents of the
complaint and the answer. Since there is an issue raised by the defendant in
summary judgment, the court will need to conduct a summary hearing in order
to determine whether that is a sham issue or a genuine issue. There is need by
the parties to present evidence in order to support their respective issues. The
parties could present affidavits, depositions, or any other document that the
parties may present. What the court will not allow is a full-blown hearing on
the matter as to whether the issue is genuine or not. This issue will have to be
proven only by documentary evidence, affidavits or evidence taken under
modes of discovery.
The SC has abandoned the old doctrine that summary judgments cannot be
available in actions for recovery of property. SC has decided several cases
which affirmed the availability of summary judgments involving recovery of
title to or possession of real property. It is available in real or personal civil
actions as long as the requisite that the issue is not a genuine issue is present.
JUDGMENT BASED ON COMPROMISE
Aside from the special kinds of judgments provided for in the Rules, there is a
special kind of judgment provided for in the NCC. There are several provisions
in the NCC which encourage the parties to enter into an amicable settlement or
compromise. The NCC considers a compromise as a contract between the
parties, and therefore, if the parties entered into a contract where they signed
a compromise agreement, they do not have to submit that agreement to a
court for approval. According the SC, if there is a compromise agreement
signed by the parties, since that is a contract, then that is the law binding
between the parties. There is no need for court approval to validate the
compromise agreement. For purposes of validity, we follow the provisions of
the NCC, it will be treated just like any other contract. As long as the parties
give their consent freely, their consent is not vitiated, their signatures appear in
the agreement, that will be the contract between them, that will be the law
between the parties.
Approval by the court is not necessary for the validity of the compromise
agreement. Approval of the court is necessary only for the execution of the
compromise agreement.
For instance, there is a case for recovery of 2M loan filed by the creditor
against the debtor. They both agreed to settle their differences. They signed a
compromise agreement to the effect that the debtor fully recognizes his
obligation to the creditor, but they convert the payment of the loan to that of
payment in installments every quarter, fixing the amount of installments. They
do not submit the compromise agreement for approval. The parties jointly
moved for the dismissal of the case, which the court complied. The debtor
subsequently commits a breach in the payment of installments.
After the breach, can the creditor go back to the court and ask for revival of
the case?
No.
Can the creditor file a new case for collection against the debtor for recovery
of the installment or of the whole account if in case there is an accelerator
clause?
Yes. It is not barred, as the cause of action of the creditor is now different from
the previous case filed. His claim is now based on a compromise agreement,
not a loan.
In order to enforce payment as provided in the written compromise
agreement, the creditor has to file a complaint against the defendant debtor.
They will have to undergo the same process when the first case was filed
concerning the loan. But that is one case of a compromise agreement which
does not carry with it the approval of the court.
The opposite is when there is a compromise agreement signed by the parties,
but this time, the parties do not jointly move for the dismissal of the complaint,
but instead they submit the compromise agreement to the court for approval.
The court renders a decision based on the compromise agreement. If the
debtor commits a breach in the payment as agreed upon, what the creditor
can do is to simply file a motion for execution in the court. The judgment based
upon a compromise is a judgment on the merits. And under the NCC, a
judgment based upon a compromise is immediately executory. There is no
appeal. A judgment by the court based on a compromise agreement cannot be
appealed.
Does it mean to say that a party of a compromise agreement has no recourse
at all to challenge the validity of the judgment based upon a compromise
agreement?
There is a remedy under Sec. 1 Rule 41. The defendant may file a motion to set
aside the compromise agreement based on the ground of vitiated consent.
That is the remedy in order a judgment based upon a compromise.
Supposing the court does not set aside the judgment notwithstanding the
motion, can the defendant appeal?
No. Under the Rules, a judgment based upon a compromise agreement is
inappealable. Also, the order denying the motion is in the nature of an
interlocutory order which is inappealable.
Q: What is the remedy in cases where appeal is not allowed?
A:
GR: In those instances where the judgment or final order is not appealable, the
aggrieved party may file the appropriate special civil action under Rule 65 (Sec.
1 Rule 41).
There is a remedy given for such an order denying the motion to set aside the
judgment under a compromise. Among those orders not appealable found
under Section 1 of Rule 41 is an “Order denying a motion to set aside a
judgment by consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent,” which can avail of
the remedy provided in this section. Thus, what Rule 41 says is that there must
be a Motion to Set Aside the Judgment of Compromise and there must be a
denial of the motion before a Rule 65 petition can be availed of. If the
proponent immediately files a Rule 65 petition assailing the validity of the
judgment based on a compromise agreement as well as the compromise
agreement itself, that petition will be dismissed for noncompliance with the
requirement under Rule 65. There is still a plain, speedy and adequate remedy
that can be had in the form of a Motion to Set Aside the Judgment of
Compromise and the Compromise Agreement founded on vitiated consent.
REMEDIES TO ASSAIL A JUDGMENT
Q: What are the available remedies to the aggrieved party after rendition of
judgment?
A: The remedies against a judgment may refer to those remedies before a
judgment becomes final and executory and those remedies after the same
becomes executory.
1. Before a judgment becomes final and executory, the aggrieved party may
avail of the following remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal
2. After the judgment becomes executory, the losing party may avail of the
following:
a. Petition for relief from judgment;
b. Action to annul judgment;
c. Certiorari; and
d. Collateral attack of a judgment.
Compare the remedies available to a party in a civil case to that in a criminal
case. The consequences of availing a remedy in a civil case might be different in
criminal cases. Also, there are remedies which are applicable in civil cases
which might not be applicable in a criminal case.
Remedies in a Civil Case:
The remedies would depend primarily on whether the judgment has been or
has not been entered.
If judgment has not been entered, the period to appeal has not yet expired
(15-30 days)
Remedies available :
Rule 37:
~Motion for New Trial
~Motion for Reconsideration
~Appeal
If judgment has been entered:
~Rule 38 Motion for Relief From Judgment
~Rule 47 Motion for Annulment of judgment
~Rule 65 Certiorari, Prohibition and Mandamus (in certain instances)
Remedies in a Criminal Case
Before judgment of conviction becomes final
~Motion for New Trial
~Motion for Reconsideration
~Appeal
~Reopening of a case due to NDE
Note: Reopening of a civil case is available but before judgment is
rendered. If judgment is rendered, it is not available in a civil case.
Jurisprudence requires no judgment yet handed down by the court,
the time frame for availment of this remedy is dependent upon the
termination of the trial. The termination of the trial starts the period
to move for this remedy. As long as the judgment has not been
rendered, any party can move for reopening of the case.
Grounds for reopening civil cases: There are no grounds given
specifically in the rules. It is not expressly recognized, it is just an
accepted remedy in jurisprudence. It is a remedy availed of after
trial has ended but before the judgment is rendered. The purpose is
for allowing the movant to offer in evidence those that he may have
forgotten to present during the trial, or additional evidence as the
case may be.
Reopening of a case in criminal cases: This is expressly recognized
in criminal procedure. It can be had even after the judgment has
been rendered, so long as judgment has not become final and
executory.
After judgment of conviction becomes final:
Habeas Corpus
Petition for Certiorari under Rule 65 in exercise of judiciary under its
equity jurisdiction
If the convict feels that his detention in prison, although supported by a
judgment of final conviction, is unlawful, the remedy he may avail of is Habeas
Corpus, not a petition to annul judgment. The SC has made this very clear. Rule
47 applies only to a civil case, it cannot apply to a criminal case. The equivalent
remedy in a criminal case is a petition for habeas corpus. The SC in the exercise
of its equity jurisdiction cold also entertain a Petition for Certiorari under Rule
65 even if the judgment of conviction has become final and executory
When can a petition for certiorari be had once the judgment had become
final and executory long before?
It can be had when the petition is applied in order for the judiciary to rectify a
wrong under its equity jurisdiction. A situation that calls for a special remedy
will always be answered by a petition for certiorari. A certiorari will always be
entertained as part of its equity jurisdiction. Certiorari is a remedy in both a
civil or criminal case in order to challenge a final and executory judgment if the
situation calls for the SC to exercise its equity jurisdiction. That is why in the
enumeration of remedies, in either criminal or civil case, we also include
Certiorari under Rule 65.
RULE 37 – NEW TRIAL OR RECONSIDERATION
In criminal procedure, nothing is mentioned about a pro-forma motion for
new trial or reconsideration.
Q: What is a pro- forma motion?
A: A pro- forma motion is one which does not satisfy the requirements of the
rules and one which will be treated as a motion intended to delay the
proceedings (Marikina Development Corporation v. Flojo, 251 SCRA 87).
In Rule 37, for civil cases, a motion for new trial or reconsideration must strictly
comply with the requirements of a motion so that such motion will not fall
under the concept of a pro-forma motion.
Pro-forma motion for reconsideration in civil cases is almost always denied; it
could result to an instance where a losing party moving that all remedies
available will be unavailable as sanction. A pro-forma motion for
reconsideration does not stop the running of the reglementary period to
appeal, and if the denial of such motion comes after the expiration of the
period to file an appeal, remember that entry of judgment takes place by
operation of law under Rule 36. Upon entry of judgment, movant/losing party
loses the remedy of appeal and is left only with the after judgment remedies of
petition for relief from judgment, annulment from judgment or a petition
under Rule 65 as remedies.
A motion for new trial or motion for reconsideration in civil cases is always
initiated by the losing party.
There is no pro forma motion for new trial or reconsideration in a criminal
case. The court cannot simply discard the motion for new trial or
reconsideration for non-compliance, even if the motion does not comply with
the requirements of a motion. The motion for reconsideration or new trial will
always stop the running of the period to appeal. The idea for the accused to
file motion for new trial or reconsideration could come from the court. The
court can even initiate a new trial or reconsideration as long as the accused
gives his consent.
(Rule 37)Grounds for motion for new trial is completely different from
grounds for reconsideration. This is the reason why these motions are distinct
and different from one another.
New Trial
1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which
ordinary prudence could not have guarded against and by reason of which the
rights of the aggrieved party was impaired; or
2. Newly discovered evidence, which could not with reasonable diligence, have
been discovered and produced at the trial, and which if presented, would
probably alter the result (Sec. 1, Rule 37).
Reconsideration
1. The damages awarded are excessive;
2. The evidence is insufficient to satisfy the decision or final order; or
3. The decision or final order is contrary to law (Sec. 1, Rule 37).
Let us say that a losing defendant/accused is advised by his counsel that they
have 3 remedies while the period of appeal was running, motion for
reconsideration, motion for new trial and appeal. The defendant/accused
told the counsel to avail of all three. Thus, the counsel filed a motion for new
trial, a motion for reconsideration and lastly, an appeal. The trial court
received all three. The appeal was duly perfected. What remedy will the court
entertain?
SC had held that if the aggrieved party files or perfects an appeal during the
pendency of his motions for new trial and reconsideration, the motions shall be
deemed abandoned.
It is really inconsistent for an aggrieved party to file a motion for new trial or
reconsideration, and while waiting for the resolution of his motion he perfects
an appeal. It will render the motions academic. The court, upon perfection of
the appeal and upon payment of the docket fee, will lose jurisdiction over the
case, and what will remain with the court is residual jurisdiction.
The winning party, after receiving a copy of the decision, moved for the
execution pending appeal. It is a matter of discretion to the court founded on
special circumstances. The losing party filed a motion for new trial while the
former motion was pending. Can the court grant the motion for execution
pending appeal?
No. The trial court should resolve the motion for new trial first before the
motion pending appeal is resolved, even if the motion pending execution is for
special reasons. Motion for reconsideration or motion for new trial of the
aggrieved party should be given preference over any other motion by the
prevailing party.
Motion for new trial on ground of FAMEN.
There must be an affidavit of merit. FAMEN must be the reason for which the
motion for new trial is bound. Affidavits should show FAMEN. The affidavit
should be executed by persons with personal knowledge surrounding the
circumstances of FAMEN.
It is not correct to say that in a motion for new trial, we always need an
affidavit of merit. We need affidavit of merit only if the ground relied upon is
FAMEN. Motion for new trial on ground of NDE will not need Affidavit of Merit,
merely the affidavit of the new witness will give testimony, or an authentic
copy of document or object evidence to be presented.
Extrinsic fraud vs. Intrinsic Fraud in Motion for New Trial
EXTRINSIC FRAUD INTRINSIC FRAUD
Connotes any fraudulent scheme Refers to the acts of party during trial
executed by the prevailing party which does not affect the
outside trial against the losing party presentation of the case
who because of such fraud was
prevented from presenting his side of
the case
The principle in new trial in the case of fraud, the fraud committed must always
be EXTRINSIC FRAUD. It cannot be intrinsic fraud. In Rule 37, there is a basis for
the court to determine extrinsic fraud from intrinsic fraud for the trial to be
properly resolved. If the fraud alleged in the motion is intrinsic, that motion will
be denied. What should be proven should be an extrinsic fraud.
Rule 37 could give a good basis for making a distinction between the two
frauds.. There are 2 clauses to justify extrinsic fraud as a ground for new trial
compared to extrinsic fraud:
“which ordinary prudence could not have guarded against” and “by reason of
which such aggrieved party has probably been impaired in his rights.”
If we rely solely on Rule 37, in court cases, the court has allowed lawyers to
‘cheat’ one another, so long as ‘cheating’ is limited only of intrinsic fraud,
which could be prevented through the use of ordinary diligence.
For instance, the court has ruled that if a party wins the case because his cause
of action is supported by a document which could serve as preponderant
evidence which could show his title to recover from the defendant. But later
on, the aggrieved party is able to prove that the document presented by the
plaintiff, and which is the basis for the judgment in his favor, is a forged
document. Forging a document is a crime. But in a trial, the admission of a
forged document will not be a ground for a new trial, or even as NDE. This is
because the presentation of a forged document by the plaintiff could easily be
avoided by the defendant through the exercise of ordinary diligence. If
confronted with such document, and the defendant is not sure as to its
authenticity, the defendant could have called upon witnesses, such as an
expert witness, to prove that such document was forged. His failure to do so is
a waiver of this fact.
Another instance of ‘cheating’ duly proven by the movant in a motion for new
trial based on extrinsic fraud which the SC did not consider as extrinsic is when
the prevailing party presented witnesses who had perjured. But if the
aggrieved party relies solely on the allegation that all the witnesses presented
by the party all committed perjury, that is not a ground for new trial, that it is
only intrinsic fraud. What the SC is telling the defendant is that he should also
have ‘cheated,’ that he should also have been dishonest. If the plaintiff
presented 2 perjured witnesses, the defendant should have called 5. So the
message given with respect to extrinsic and intrinsic fraud is that litigants,
through their lawyers, can be dishonest during the course of a litigation. But
they should see to it that the ;cheating’ will not amount to extrinsic fraud, that
which will not deprive the other party of his day in court, that the other party
will have the opportunity to present his side in court.
That is the life of a lawyer, he is encouraged to be dishonest, he should be
deceptive in his relationship with others lawyers. Anyway, lawyers will not go
to heaven, that is a given fact. It is found in the Bible. But that is only a part of a
passage in the Bible. The additional passage is that lawyers do not go to hell.
But that does not make the life of a lawyer less worthwhile. If a lawyer cannot
go to heaven or to hell, where will the lawyer go after death? The implication is
that a lawyer does not have a soul.
That is how the SC looks at the situation. In fact the S in several cases said we
should expect dishonesty in the course of a litigation. We cannot avoid that.
The SC said that if they allow every act of dishonesty to be a ground for new
trial, there will never be an end to a litigation, because a lawyer will always be
able to point out to the court certain acts of dishonesty or ‘cheating’ in a
motion for new trial.
Mistake
The mistake of a lawyer is the mistake of the client. If the aggrieved party lost
the case due to a serious mistake of the lawyer, the said party fires his lawyer
and gets a new one, the new lawyer cannot capitalize on the mistake
committed by the former lawyer. The is just applying the rule on agency. The
act of the agent is the act of the principal.
But, there is one situation where the SC relaxed the application of this
principle. The SC said that while it is true the mistake of the lawyer will always
be considered the mistake of the client. But if the mistake of the lawyer was
tantamount to bad faith, there is an insinuation that the lawyer deliberately
caused the loss of the case of the client, then that is a ground for new trial. The
client’s rights should be protected in this situation.
But the general rule is that the mistake of a lawyer is the mistake of the client,
and it cannot be a ground for new trial under FAMEN.
Newly Discovered Evidence
This is an adaptation of an American principle called the Berry Rule : “Newly
discovered evidence, which he could not, with reasonable diligence, have
discovered and produced at the trial, and which if presented would probably
alter the result.”
Q: What are the requisites of newly discovered evidence as a ground for New
Trial?
A:
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and produced at the trial with
reasonable diligence; and
3. Such evidence is material, not merely cumulative, corroborative or
impeaching, and is of such weight that if admitted would probably change the
judgment (BERRY RULE) (CIR v. A. Soriano Corporation, GR No. 113703 January
31, 1997).
Because of the requirement, that the result of the case would probably be
altered, we cannot consider cumulative, corroborative or impeaching evidence
as NDE, as these cannot alter the result of the case. The recantation of a
witness is not NDE. In fact, the SC has been emphatic in its ruling continuously
that if a witness recants, the recantation should not even be given any
attention at all. Because if we give attention to the recantation of a witness,
you can expect lawyers to produce recantations by witnesses who already
testified in court. So, the stand of the court is that the testimony of a witness
given in open court reflects the truth, not the recantation. The recantation shall
not be treated as NDE.
In a motion for reconsideration under Rule 37, there are 3 grounds:
damages awarded are excessive,
the evidence is insufficient to justify the decision or final order,
the decision or final order is contrary to law
There is also a rule under Rule 37 allowing only one motion for reconsideration
by the same party, either prevailing or aggrieved party. If that is denied, a
second motion for reconsideration will not be allowed, even if the second
motion for reconsideration is founded on a different ground. The rule against
the filing of a second motion for reconsideration is almost absolute.
Unlike in a motion for new trial, Rule 37 allows a movant to file second motion
for new trial if founded on a ground different from the one used in the first
motion for new trial.
But whether it is a motion for new trial or motion for reconsideration, there is
another rule contained in other provisions where the court will not allow an
extension of time to file motion for new trial or reconsideration (15-30 day
period). The party must observe the 15/30-day period.
If motion for reconsideration is favorably acted upon, the court will simply
render an amended judgment. If the court feels that the judgment is contrary
to law or the evidence does not fully support the judgment, the motion for
reconsideration should be granted to reduce the liability of the aggrieved party,
but the court will only amend the previous judgment in order to reduce the
liability of the party aggrieved.
If the motion for new trial in a civil case is granted, and such is not a partial
motion for new trial, the judgment will be vacated. But the evidence presented
during the trial will not be disturbed. There is no need for the witnesses who
had testified in the trial to give their testimony again.
If the Motion for new trial granted was that in a criminal case, the judgment
will also be vacated, and all evidence taken during the trial need to be retaken
and witnesses who testified will be recalled. The grounds for new trial in a
criminal case are serious irregularities or errors committed by the trial court,
not FAMEN. Even if the evidence taken in court will not be retaken, there will
be a recalling of the witnesses who had testified during the trial.
In Rule 37, it is clearly provided that if a motion for new trial or reconsideration
is denied, the denial cannot be appealed or be subject to Rule 65 as the order
of denial is interlocutory. What is to be appealed is the judgment rendered on
the merits, not the order of denial. Note that Rule 65 is now unavailing in the
amended Rules in Rule 41. The only remedy is an appeal from the judgment on
the merits that is the subject of new trial or reconsideration. SC said that in
appealing the judgment, the aggrieved party can assign as an error the denial
of the trial court of the motion for new trial or motion for reconsideration. But,
he is no longer allowed to file a petition under Rule 65 to challenge the denial
of the motion and appeal at the same time, which was allowed prior to the
amendment of Section1 of Rule 41.
MNT or MR in Criminal Cases MNT or MR in Civil Cases
Either on motion of accused, or the Must be upon motion of a party,
court motu propio with consent of the cannot be motu propio
accused
Grounds for MNT – errors of law or Grounds for MNT – FAME, or newly
irregularities committed during the discovered evidence
trial, or newly discovered evidence
Ground for MR – error of law or fact Grounds for MR – Excessive
damages, insufficient evidence, or
decision is contrary to law
Filed any time before judgment of Filed within the period for taking an
conviction becomes final appeal. Should include all the
grounds then available and those not
so included shall be deemed waived.
When granted, the original judgment There may be partial grant
is always set aside or vacated and a
new judgment rendered.
RULE 38 RELIEF FROM JUDGMENT
This is a remedy available to the aggrieved party after the entry of judgment.
There are 2 periods to be reckoned with:
~60 days from receipt of copy of judgment/notice thereof
~6 months from entry of judgment.
There was one case when the aggrieved party, before entry, filed before the
trial court a petition for relief from judgment founded on FAMEN. The filing of
the petition was irregular because the judgment has not yet been entered. SC
held that the trial court should not have simply denied and dismissed the
motion. What the trial court should have done was to treat the motion for
relief from judgment as a motion for new trial, because the grounds of both
motions are similar. Even if a lawyer commits an error, and files a petition for
relief from judgment founded on FAMEN before the judgment was entered,
the court will consider the petition for relief as a motion for new trial, provided
of course, that the petition will carry with it the requirements needed under
Rule 37, an affidavit of merit that will prove the presence of FAMEN. The SC
has taken a liberal attitude on this kind of error by a lawyer. The court will
ignore the error and just have to rule on the merits of that motion.
Grounds for a motion for new trial is similar to a motion for relief from
judgment. (FAMEN)
1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which
ordinary prudence could not have guarded against and by reason of which the
rights of the aggrieved party was impaired; or
2. Newly discovered evidence, which could not with reasonable diligence, have
been discovered and produced at the trial, and which if presented, would
probably alter the result (Sec. 1, Rule 37).
Is a petition for relief considered as one that is similar to that of an
annulment of judgment?
It is not so. A petition for relief is not an independent action. In fact, it is just a
continuation of the original case. If we consider petition for relief a separate
action from the original case, a petition for relief should be filed before an RTC
because it is incapable of pecuniary estimation. But since it is not so, Rule 38
provides that it should be filed in the same court which issued the judgment
deciding the case. So if the court that decided the case is an MTC, a petition for
relief could be filed in the same court. If the respondent of a petition for relief
challenged the jurisdiction of an MTC in deciding the petition for relief on the
ground that such petition is incapable of pecuniary estimation, the reply to that
argument is that a petition for relief is just a continuation of the original case,
not an independent and separate action. Note that the old docket number is
used in the title of the case in a petition for relief. We also do not pay docket
fees.
What is important is the timeframe in which to file a petition for relief from
judgment. The SC has been very strict. Time to file should be observed. SC has
been very strict the time frame because the judgment has been entered and
has become final and executory. There is the likelihood that the winning party
may already file a motion for execution under Rule 39 as a matter of right.
It could happen that the aggrieved party filed a petition for relief from
judgment and the prevailing party also file a motion for execution of the
judgment. Should the court grant the motion for execution?
Yes. The court has a ministerial duty to execute the judgment once the
judgment has been entered and has become final and executory. Motion to
execute should be granted once made. The prevailing party has the right to
have the judgment in his favor enforced.
If the court grants the motion for execution of judgment because it is a
matter of right on the part of the prevailing party, will it not render academic
the relief from judgment filed by the aggrieved party?
Rule 38 will not result to making the petition for relief academic simply because
of the granting a motion for execution as a matter of right. Rule 38 says that
the executing court that granted motion for execution and subsequently
entertained a petition for relief from judgment can issue a TRO or a preliminary
injunction order to stop the enforcement of the writ of execution.
You might say that in the rule on injunction, an injunctive relief should be
granted by a court higher than the court which rendered the decision. In this
case the court which decided the case and then subsequently granted the
motion for execution of its judgment shall also issue the injunctive relief
against the carrying out of the writ of execution. That is one of the peculiarities
of Rule 38. The court which grants the execution of its judgment, as it really has
no choice as it is a matter of right, is the same court which will issue an
injunctive relief against the writ of execution it has previously issued. If there is
no injunctive relief issued by the said court, its decision will be carried out until
fully satisfied. This is an exception to the principle in injunction where the
injunctive relief should come from a higher court. Here, the same court which
decided the case shall be the one who will issue an injunctive relief against its
own officer from executing the writ of execution the court has previously
issued. That is allowed in Rule 38.
If the petition for relief is granted, can the prevailing party appeal the order?
No. The order granting relief is interlocutory, hence unappealable.
If a petition for relief is denied, the order denying petition for relief is a final
order. Can it be appealed? If not, what is the remedy?
No, it is a final order which is not appealable under Section 1 of Rule 41. The
remedy of the aggrieved party is to file a petition under Rule 65, a petition for
certiorari or prohibition as the case may be.
APPEAL
It could be a matter of right or a matter of discretion.
Q: What is the remedy if the motion is denied?
A: The remedy is to appeal from the judgment or final order itself subject of the
motion for reconsideration or new trial (Sec. 9, Rule 37, Rules of Court). The
movant has a fresh period of fifteen days from receipt or notice of the order
denying or dismissing the motion for reconsideration within which to file a
notice of appeal. It is no longer assailable by certiorari. (Sec.9, Rule 37, A.M. No.
07-7-12-SC).
Q: When does the fresh period rule apply?
A: It applies to:
1. Rule 40 – MTC to RTC
2. Rule 41 – Appeals from RTC
3. Rule 42 – Petition for Review from RTC to CA
4. Rule 43 – Appeals from quasi-judicial agencies to CA
5. Rule 45 – Appeals by certiorari to the SC
Note: The “fresh period rule” does not refer to the period within which to
appeal from the order denying the motion for reconsideration, but to the
period within which to appeal from the judgment itself because an order
denying a motion for reconsideration is not appealable.
The aggrieved party has a right to appeal. It means when he has perfected the
appeal within the period to do so, the appellate court has no other choice but
entertain the appeal, review the decision and render its own decision.
When we say that appeal is a matter of discretion wherein the appellate court
will determine whether it should be entertained or not. If that discretion is
given to the appellate court, it simply denies to the party the right to appeal to
that court.
In civil cases, there are 3 modes of appeal given under Rule 41:
Ordinary appeal
Petition for Review in the CA
Petition for Review on Certiorari under Rule 45
If the origin of the case is the MTC, the only mode of appeal is an ordinary
appeal. Even if the only issue raised is a question of law, the appeal should be
an ordinary appeal brought to the RTC. Note that the Rules does not divest the
RTC or even the CA to hear appeals based purely on questions of law. In fact,
the Rules expressly say that an appeal to the RTC from the MTC could either
involve both questions of fact and law or just purely questions of law.
The procedure of appeal from the MTC to the RTC is given under Rule 40.
Rule 40 – procedure of appeal from MTC to appellate court (RTC)
The party appealing in a civil case will need to file a Notice of Appeal and
payment of appellate court docket fee. Cases involving special proceedings and
other cases of multiple or separate appeals will also require submission of a
Record on Appeal. Docket fee is a jurisdictional requirement. Hence, if not paid
on time, SC said the appellate court does not acquire jurisdiction over the case.
Let us say a case for Unlawful Detainer was filed. A Motion to dismiss was filed
by defendant on the ground of lack of jurisdiction over the subject matter,
which was granted. The order of dismissal, without prejudice, is not
appealable, as provided for under Rule 41. He cannot appeal, but he can file
petition under Rule 65. (Note that UD is a special proceeding covered by Rule
70, although cognizable by the MTC)
So, should we follow Rule 41 in appeals from the MTC to the RTC?
No. Rule 40 does not follow Rule 41. In Section 3, Rule 40, when an MTC
dismisses a case cognizable by it for lack of jurisdiction over the subject matter,
even if the dismissal is without prejudice, the remedy of the plaintiff is to
appeal, via an ordinary appeal, the order of dismissal rendered by the MTC.
Why cannot we just follow Rule 41? It says that if a dismissal is without
prejudice, the order is not appealable, and the remedy is a petition under Rule
65.
Insofar as the MTC and the RTC are concerned, there is a good reason why Rule
40 says that the remedy of the plaintiff is to appeal via ordinary appeal, that is
to file a notice of appeal in the appellate court and pay docket fees. This is
because there is a provision under Rule 40 which says that if the matter is
brought to the RTC, and the RTC affirms the decision of the MTC, it is the duty
of the RTC to assume jurisdiction over the case as if that case originated with
the RTC.
If we tell the plaintiff to observe Rule 41, and then the plaintiff files a petition
under Rule 65, the RTC will not have any authority to assume jurisdiction over
the case, unlike when the remedy availed of by the plaintiff is an ordinary
appeal. This is because an appeal is not a separate proceeding, it is just a
continuation of the old case. A petition under Rule 65 is an independent
proceeding, and not a continuation of the original case that has been resolved
by the MTC.
In cases of Unlawful Detainer decided by the MTC, there could be an appeal
in the RTC involving factual and legal questions. Insofar as the RTC and insofar
as the prevailing party, is the appeal by the losing party a matter of right?
Yes. Whenever the mode of appeal is ordinary appeal, the appeal is one of a
matter of right. The court has no discretion to outrightly dismiss the appeal. It
has the duty to review the case and render its own decision. The RTC as an
appellate court from a decision of an MTC in ID has no discretion to tell the
appellant that an appeal is not given due course, which is allowed in petition
for review and petition for review on certiorari.
Since the appeal of the losing party in the RTC is a matter of right, can the RTC
also order the dismissal of the appeal even without rendering its own
decision as an appellate court because the appellant violated certain orders
or provisions of the Rules?
Yes. Although it is the right of the losing party to appeal to the RTC, the losing
party, as an appellant, should also obey the orders that could be issued by the
RTC in relation to the appeal.
One such order is given in Rule 41 (Section 7[b]), the RTC acting as an appellate
court can require the appellant/appellee to submit an appeal memorandum. If
plaintiff does not submit an appeal memorandum as ordered, that will be a
ground for the dismissal of the appeal by the RTC. Although appeal is a matter
of right, it is still the duty of the appellant to obey the orders of the appellate
court issued in relation to his appeal taken to the RTC.
In Rule 41, the RTC can also order the dismissal on appeal if it can be shown
that the docket fees have not been paid or that the appeal was taken out of
time. If the appeal was taken out of time, the appellate court has no
jurisdiction at all to review the judgment.
If the RTC renders its own decision (affirm or reverse), can there be a second
appeal?
Yes, to the CA via a petition for review. The rule of thumb in the case of second
appeals is that the appeal is a matter of discretion. The first appeal generally is
a matter of right as to the appellant, as long as the mode of appeal is an
ordinary appeal. But even if the appeal is a first appeal, but the mode is the one
under Rule 45, that is a matter of discretion on the part of the SC. The second
appeal from the RTC to the CA is a matter of discretion. The CA can either
refuse or allow the appeal. In that appeal to the CA from the RTC in the
exercise of its appellate jurisdiction, purely questions of law can only be raised
before the CA.
Before the CA, could there be a 3rd appeal?
Yes, we can go to the SC under Rule 45, always a matter of discretion in the civil
case. The SC enjoys the prerogative whether to entertain or not to entertain
that appeal.
Final order vs. interlocutory order
Final Order – an order that completely disposes a case or a particular matter
therein. (Remedy is an appeal.)
Interlocutory Orders – those that determine incidental matters that do not
touch on the merits of the case or put an end to the proceedings. (Remedy is a
petition for certiorari under Rule 65)
Question of fact vs. Question of law
There is a question of law when the doubt or difference arises as to what the
law is on a certain set of facts.
A question of fact on the other hand is when the doubt or difference arises as
to the truth or falsehood of the facts alleged.
Memorandum decision on appeal (Rule 51)
Memorandum decision is one in which the appellate court may adopt by
reference, the findings of facts and conclusions of law contained in the decision
appealed from (Sec. 24, Interim Rules and Guidelines)
Rule on harmless error (Rule 51)
SEC. 6. Harmless error.—No error in either the
admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or
defect which does not affect the substantial rights of the
parties.
Harmful error – that error or defect which affected the substantial rights of
parties, being inconsistent with substantial justice.
Material data rule – an essential component for any mode of appeal whether
an ordinary appeal, petition for review or petition for review on certiorari ; it
simply tells appellant that regardless of mode of appeal chosen, he should see
to it that he informs the court about the date he received the decision, the
date of filing motion, and the date of denial by the court of motion for
reconsideration/new trial, in order to help the court determine the timeliness
of appeal, which is determinant of the jurisdiction of the appellate court. If an
appeal is not perfected on time, the appellate court does not gain jurisdiction
over the matter on appeal.
Erroneous appeal vs. improper appeal
Improper appeal – the mode of appeal used is the correct mode, but the
questions raised in the appeal should not be raised in the appeal (question of
fact vs. question of law). Leads to dismissal of appeal.
Ex. An RTC rendered a decision. The decision was appealed in the CA. The mode
of appeal is an ordinary appeal via a notice of appeal. Eventually, the records
are transmitted to the CA. Under the new rules, when there is an appeal by
ordinary appeal via notice of appeal, both questions of fact and of law could be
raised. But the rules said that if the only question raised is purely questions of
law, the CA has no jurisdiction. So the CA can dismiss the appeal when purely
questions of law are raised. This is the importance of knowing the term
improper appeal.
Erroneous appeal – this is a situation wherein the mode of appeal used is the
wrong mode.
Ex. Under the rules, the correct mode is ordinary appeal, but the mode used
was petition for review.
Unlike in improper appeal, where it can lead to a dismissal of the appeal, there
are certain cases where the appeal is erroneous, it will not lead to dismissal of
the appeal.
If the court of origin is an MTC, the mode of appeal is an ordinary appeal via a
notice of appeal or a record on appeal (in certain cases) in the RTC. From the
RTC, as an appellate court, there could be a second appeal in the CA, but this
time, the mode of appeal is a petition for review.
From the MTC, supposing the mode of appeal used by the aggrieved party
was a petition for review, can the appeal be dismissed by the RTC on the
ground that the appellant has chosen the wrong mode of appeal?
SC held that if the appellate court is an RTC, and appellant has chosen the
mode of petition for review, RTC should disregard the error committed by the
appellant. The SC reasoned that the contents of a petition for review meets,
and even exceeds, the requirements of a notice of appeal. A petition for review
is a very lengthy document, there is the application of the material data rule,
there are errors that are assigned and there are arguments embodied in the
petition for review. In a notice of appeal, it may compose of one paragraph
where an appellant is simply telling the court he is appealing the decision
rendered on such date, alleging the payment of docket fees. If the appellant
wrongfully chooses a petition for review, the RTC should entertain the petition
as the essentials for a notice of appeal are already contained in the petition for
review.
But if it is the other way around, where the RTC decides the case as an
appellate court and an appeal of its decision was made by the appellant, and
filed in the CA a notice of appeal instead of a petition for review, that appeal
will be dismissed. The mode of appeal used is erroneous and will not confer
jurisdiction anymore upon the RTC. In other words, there are instances where
the wrong mode of appeal will lead to the dismissal of the appeal; and there
are instances where the wrong choice will be disregarded by the court.
Also under the Rules, the only mode of appeal allowed in civil cases to the SC is
Rule 45 (appeal by certiorari/petition for review on certiorari).From the
decision of the RTC in its original jurisdiction, there could be an appeal to the
CA or SC. The appellant decides to go to the SC immediately. It filed a notice of
appeal. SC will dismiss the appeal since the choice of mode of appeal is
erroneous under the Rules. A notice of appeal will never satisfy the
requirements of a petition for review on certiorari or appeal by certiorari under
Rule 45.
On the other hand, even if the Rules are very clear in saying that in civil cases,
the mode of appeal to the SC is only through Rule 45 using a petition for review
on certiorari or sometimes called appeal by certiorari, if the appellant
inadvertently calls his petition simply a Petition for Certiorari under Rule 65,
the SC will liberally consider that as a Petition for Review under Rule 45. The
contents of Certiorari under Rule 45 and Rule 65 are essentially the same. But,
the SC cautioned parties, the erroneous appeal must be filed within the period
of appeal (15 days). If you should recall, the period for appeal by petition for
certiorari provided under Rule 45 is 15 days, whereas under Rule 65, the period
for filing a petition under this Rule is 60 days.
In the CA, the decisions that could be appealed from the CA do not necessarily
come from courts of justice. It could be penned by quasi-judicial bodies. There
is just a common mode of appeal even for quasi-judicial (QJ) bodies, petition
for review.
Appealed decision comes from RTC vs. from QJ body – There is no difference
with respect to the content, but there is a great difference in the execution of
the judgment appealed. If the decision comes from a trial court in the exercise
of its appellate jurisdiction, being appealed in the CA, the decision of the trial
court cannot be executed. There could be not execution. There could be an
execution, but it should be an execution pending appeal (filed in the CA). There
could be an execution on motion, supported by special reasons to convince the
CA to order the execution of judgment. Generally, when there is an appeal to
the CA from a court of justice like an RTC, the appealed decision cannot be the
subject of execution.
In case of QJ body decision, the appeal will not stay the execution of the
decision. The decision of the QJ body will be enforced. There is only one way in
which we can stop the execution of the decision rendered by a QJ body during
the pendency of the appeal, that is to ask the CA to issue a writ of preliminary
injunction.
Why is execution allowed in QJ bodies?
One reason given in the Rules is that quantum of evidence needed in QJ
proceedings is only substantial evidence, while in trial courts, the quantum of
evidence is preponderance of evidence.
If we compare also the remedies available to the defeated party before the trial
court and the appellate courts (CA and SC), the remedies available to the
defeated party are considerably lessened as he goes higher in the hierarchy.
MTC – Motion for reconsideration, Motion for new trial, appeal
RTC – Motion for reconsideration, Motion for new trial, appeal
CA – Motion for reconsideration, Motion for new trial but only on the ground
of NDE
SC–Motion for reconsideration
MOTION FOR NEW TRIAL BUT ONLY ON THE GROUND OF NDE IN THE CA
Note: Under the Rules, it is not necessary for the appealing party to wait for the
case to be decided by the CA. Even if the case has not yet been decided by the
CA, the movant can already file a motion for new trial based on NDE. This is not
possible if the case is in the MTC or even in the RTC acting in its appellate
jurisdiction. In the RTC, we have to wait for the RTC to render a decision before
we can file a motion for reconsideration or new trial. With respect to the CA,
we also have to wait for the decision of the CA before we can move for
reconsideration. But when it comes to a new trial, we can file a motion for new
trial based on NDE even before the case is decided by the CA. This is clearly
spelled out in the Rules. As long as the case is within the jurisdiction of the CA,
even if before the CA had made a decision on the case appealed, a motion for
new trial based only on NDE can be filed.
The SC is generally not a trier of facts. A Motion for new trial will always
involve a question of fact like NDE, and thus will be dismissed by the SC. The
availability of a motion for new trial ends with the CA, but the availability
thereof is based only on the ground of NDE.
RULE 45 APPEAL BY CERTIORARI TO THE SC
In civil cases, this is the only mode used. We cannot use a notice of appeal or a
petition for review if the SC strictly applies these rules on appeal. It does not
mean to say that we cannot go up to the SC b simply filing a notice of appeal or
an ordinary appeal. What the Rules prohibits is the filing of an ordinary appeal
to the SC, that is a notice of appeal if the case is a civil case.
If the case is a criminal case, there could be notice of appeal to the SC. It is
applicable in case the penalty imposed is life imprisonment or reclusion
perpetua. The appeal from that criminal case will be by notice of appeal not via
a petition for certiorari.
In a petition for review on certiorari filed in the CA, it is axiomatic that only
questions of law can be raised. Raising questions of law with questions of fact
before the SC does not necessarily disallow the appeal. The Rules say that if the
issues raised in under Rule 45 are factual and legal, the SC has the discretion to
remand the case to the CA. When the SC sends the case to the CA because the
issues raised are both factual and legal, the CA will have the duty now to review
the case and render its own decision.
But, the opposite does not apply, such as when the CA is the appellate court.
There is an appeal to the CA through ordinary appeal, the court of origin is an
RTC, the mode of appeal is an ordinary appeal by filing a notice of appeal. It is
in this mode of appeal where the appellant is required to submit his brief on
appeal.
Brief on appeal – required only if the appeal is an ordinary appeal, the trial
court is an RTC and the appellate court is the CA.
If the trial court is an MTC, and there is an appeal to the RTC, and an appeal is
made on the RTC exercising its original jurisdiction, the mode of appeal is an
ordinary appeal to the CA via a notice of appeal.
During the pendency of that appeal, the CA will require parties to submit their
briefs. The Rules provide for the brief of the appellant and the appellee. Failure
of the appellant to submit his brief on time will be enough reason for the CA to
dismiss the appeal. Even if he submits his brief on time, the appeal will be
dismissed if the essentials of the brief are not complied with.
SEC. 7. Appellant’s brief.—It shall be the duty of the
appellant to file with the court, within forty-five (45) days
from receipt of the notice of the clerk that all the
evidence, oral and documentary, are attached to the
record, seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of service of
two (2) copies thereof upon the appellee.
SEC. 8. Appellee’s brief—Within forty-five (45) days from
receipt of the appellant’s brief, the appellee shall file
with the court seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of service of
two (2) copies thereof upon the appellant.
SEC. 13. Contents of appellant’s brief.—The appellant’s
brief shall contain, in the order herein indicated, the
following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases alphabetically
arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) An assignment of errors intended to be
urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading “Statement of the
Case,” a clear and concise statement of the
nature of the action, a summary of the
proceedings, the appealed rulings and orders
of the court, the nature of the judgment and
any other matters necessary to an
understanding of the nature of the
controversy, with page references to the
record;
(d) Under the heading “Statement of Facts,” a
clear and concise statement in a narrative
form of the facts admitted by both parties and
of those in controversy, together with the
substance of the proof relating thereto in
sufficient detail to make it clearly intelligible,
with page references to the record;
(e) A clear and concise statement of the issues
of fact or law to be submitted to the court for
its judgment;
(f) Under the heading “Argument,” the
appellant’s arguments on each assignment of
error with page references to the record. The
authorities relied upon shall be cited by the
page of the report at which the case begins
and the page of the report on which the
citation is found:
(g) Under the heading “Relief,” a specification
of the order or judgment which the appellant
seeks; and
(h) In cases not brought up by record on
appeal, the appellant’s brief shall contain, as
an appendix, a copy of the judgment or final
order appealed from.
SEC. 14. Contents of appellee’s brief.—The appellee’s
brief shall contain, in the order herein indicated, the
following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases alphabetically
arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) Under the heading “Statement of Facts,”
the appellee shall state that he accepts the
statement of facts in the appellant’s brief, or
under the heading “Counter-Statement of
Facts,” he shall point out such insufficiencies
or inaccuracies as he believes exist in the
appellant’s statement of facts with references
to the pages of the record in support thereof,
but without repetition of matters in the
appellant’s statement of facts; and
(c) Under the heading “Argument,” the
appellee shall set forth his arguments in the
case on each assignment of error with page
references to the record. The authorities
relied on shall be cited by the page of the
report at which the case begins and the page
of the report on which the citation is found.
Appellants brief – contents – divided into several chapters; lack of assignment
of errors is fatal and will result in dismissal of the appeal.
Why is the CA very much interested in the assignment of errors that must be
contained in the brief, without which the appeal will have to be dismissed?
The assignment of errors is essential in an ordinary appeal because insofar as
the CA is concerned, the decision of the trial court is a correct decision.
Remember that in our Rules of Evidence, there is a presumption that a decision
of a trial court is correct; there is a presumption of regularity in the
performance of official duties. The CA will always apply that disputable
presumption whenever there is an appeal in the CA. That same attitude is also
adopted by the SC. Whenever an appeal under Rule 45 is raised to the SC, the
SC adopts the disputable presumption that the decision of the CA is correct.
Since the CA adopts the presumption that the RTC decided on the case
correctly, the appellant must destroy or overwhelm that presumption by
convincing the CA that serious errors were committed by the RTC. The
appellant cannot be allowed to present evidence thereon, appellant will have
to rely on the records submitted from the RTC. The only way by which
appellant can possibly convince that the RTC committed serious errors is
through the assignment of errors. If the appellant cannot make an assignment
of errors in the brief, it means the appellant finds nothing wrong with the
decision of the RTC. Therefore, the disputable presumption stays, and this will
be used by the CA. That is why the assignment of errors is essential to the brief
of the appellant. Absence thereof is fatal to the appeal, and will cause the
appeal’s dismissal.
Distinguish a brief from a memorandum.
A:
Brief Memorandum
Ordinary Certiorari,
appeals prohibition,
mandamus,
quo warranto
and habeas
corpus cases
Filed Filed within 30
within 45 days
days
Contents Shorter,
specified briefer, only
by rules one issue
involved – No
subject index
or assignment
of errors, just
facts and law
applicable
Can the appellant assign as the only error in the brief that the RTC committed
an error in deciding the case against the appellant?
That is not an assignment of error that is expected by the CA. Assignment of
errors should specify particular acts done by the RTC which could have affected
his substantial rights.
Harmless Errors in Appeal (Section 6, Rule 51)
The trial court must have committed errors in the proceedings; it is expressly
provided in Rule 51 that only errors of the court in admission of evidence and
issuance of orders that affects substantially the rights of the appellant could be
considered by the appellate court. Otherwise, the court will disregard that
error, even if made a part of the assignment of errors.

In civil cases brought on appeal, the appellate court will resolve only issues
raised in the assignment of errors. No other issue, generally, will be resolved by
the court. The only exception is if the issue not raised in the assignment is
closely related to the issue raised in the assignment of errors of the appellant.
This rule applies to a civil case only.
In a criminal case, if there is an error committed by the trial court, whether
mentioned or not in the assignment of errors, the CA or SC can take cognizance
of such errors in resolving the appeal. The appellate courts are very flexible in a
criminal case whose decision from the trial court was brought before it on
appeal.
GR: Only errors assigned in the brief may be considered on appeal
XPNs:
1. Grounds not assigned as errors but affecting the jurisdiction over
the subject matter
2. Matters not assigned as errors on appeal but are evidently plain
or clerical errors within the contemplation of law;
3. Matters not assigned as errors on appeal but consideration of
which is necessary in arriving at a just decision and complete
resolution of the case or to serve the interest of justice or to avoid
dispensing piecemeal justice;
4. Matters not specifically assigned as errors on appeal but raised in
the trial court and are matters of record having some bearing on
the issue submitted which the parties failed to raise or which the
lower court ignored;
5. Matters not assigned as errors on appeal but closely related to an
error assigned; and
6. Matters not assigned as errors on appeal but upon which the
determination of a question properly assigned is dependent.
(Riano, Civil Procedure: A Restatement for the Bar, pp. 445-446,
2009 ed.)
What is the purpose of an appellant’s / appellee’s brief?
A: To present to the court in a concise form the points and question in
controversy, and by fair argument on the facts and law of the case, to assist the
court in arriving at a just and proper conclusion/ decision (De Liano v. CA
(2006)).
If it is the appellant case who does not submit his brief, the appeal is dismissed.
If it is the appellee who does not submit his brief, then the court will simply
decide the appeal without a brief coming from the appellee. The appellee can
choose not to submit a brief. It is the brief of the appellant whose submission
or non-submission could lead to the dismissal of the appeal.
Although Rule 45 is explicitly saying that only questions of law could be raised
in a petition on certiorari, The SC has recognized a number of exceptions.
Exceptional issues where the SC allowed the appeal whereas factual issues
were raised (see Rule 45). (MEMORIZE at least 5)
Exceptions in which factual issues may be resolved by the Supreme
Court:
(a) When the findings are grounded entirely on speculation,
surmises or conjectures;
(b) When the inference made is manifestly mistaken, absurd or
impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings, the CA went beyond the issues of
the case, or its findings are contrary to the admissions of both the
appellant and the appellee;
(g) When the findings are contrary to the trial court;
(h) When the findings are conclusions without citation of specific
evidence on which they are based;
(i) When the facts set forth in the petition as well as in the
petitioner‘s main and reply briefs are not disputed by the
respondent;
(j) When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record;
and
(k) When the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, could justify a different conclusion.
The following cases allow factual issues to be raised based on SC Circulars:
1. Kalikasan cases
2. Amparo
3. Habeas Data
Both factual and legal questions can be raised under Rule 45 in these three
situations.
SATISFACTION OF JUDGMENT (RULE 39) SATISFACTION OF A FINAL AND
EXECUTORY JUDGMENT.
Rule 39 has been described in jurisprudence as the one that gives life to the
law. It does so in the sense that the winning party will be able to recover the
award given in his favor through the use of Rule 39. So if the civil case is the
recovery of money, and the court awards 2M to the prevailing party, the said
party will not be satisfied until he sees the 2M given to him.
It is not correct to assume that in order to satisfy a judgment, we should always
make use of Rule 39. Satisfaction of judgment as conceived in Rule 39 is a
forcible satisfaction of judgment. So if the award in favor the judgment creditor
is for the payment of the judgment debtor of 2M, the judgment creditor does
not even have to think about Rule 39 if the judgment debtor immediately pays
the award of 2M. It is only in that situation where the judgment debtor refuses
to pay that the only remedy of the judgment creditor to enforce payment is to
make use of Rule 39, to force the debtor to pay by levying his properties and by
selling his levied properties by public auction.
In the ordinary course of things, if there is an appeal from the decision
rendered by the trial court, and the case has reached the SC, even if the
decision of the trial court has been affirmed, and the said decision of the SC has
been entered, it is not correct for the prevailing party to ask for execution from
the SC. The matter of execution is a duty of the court of origin, not the
appellate court. If the court of origin is the MTC, it is the duty of the MTC to
enforce the satisfaction of the judgment. So that, there is an indirect rule
between the forcible execution of judgments by the MTC even if the case has
been decided by higher courts. This is because higher courts do not usually
issue an order for execution of judgment. What a lawyer for the judgment
creditor should do is to wait for the records to be returned from the SC or CA to
the court of origin. It could take time for the records to be returned to the
court of origin. So, if a motion for execution was filed by the judgment creditor
in the court of origin before the records are returned, there is likelihood that
the court of origin will tell him they have not yet received the records so they
cannot act on the motion until the records reach the court of origin. Although,
the issuance of an order granting the motion for execution is a ministerial duty
of the court. Rule 39 has provided for a remedy in this situation. The appellate
court will simply issue a certified true copy of the entry of judgment. That
certified true copy will be submitted to the court of origin in order to be a basis
of the granting of the order of a motion for execution. That is enough proof
that there really is a final and executory decision.
Is there a need for the judgment creditor to file a motion for execution, or
will the issuance of a writ of execution come as a matter of course?
There is always a need to file a motion for execution. If the judgment creditor
has not filed a motion for execution, the court has no business to issue a writ of
execution, because the court will not know whether there was voluntary
satisfaction of judgment.
Since the judgment has become final and executory and it has now become a
ministerial duty of the court of origin to issue a writ of execution, then the
motion for execution will be heard ex parte, without notice to the judgment
debtor. This issue has been the subject of conflicting decisions by the SC. The
latest jurisprudence said that a motion for execution of a judgment that has
become final and executory can be heard ex parte by the trial court. But the
other decisions are to the effect that the judgment debtor should also be given
a copy of the motion for execution, because the judgment debtor will have
grounds to oppose the issuance of the writ of for execution. In the old doctrine,
a copy of the motion for execution should be furnished upon the judgment
debtor, but the motion cannot be heard ex parte.
Within the Rules, there is a period fixed within which the court can grant a
motion for execution as a ministerial duty. It is 5 years from the entry of
judgment. After the 5 years from entry, there can be revival of judgment, no
longer a motion, as this is an independent action to revive the judgment. But,
the independent action to revive judgment must be filed within the second 5-
year period after the entry of judgment.
The Rules assume that the prescription period for the execution of a
judgment is the 10-year period. Is this a correct assumption?
This is correct, as this is also provided under the NCC. A prescriptive period of a
final and executory judgment is really 1 years under the NCC.
But what Rule 39 has provided was to divide the 10 years into two parts : the
first five years, and the second five years. Meaning, the first five years, we can
execute the judgment via a motion for execution. After the lapse of the first
five year period, the judgment creditor cannot file a motion for execution. If he
does so, the court will deny the motion as the court will no longer have the
authority to grant the motion of execution. The second 5-year period is
designed to force the judgment creditor to file a separate independent action
to revive the judgment. So the motion for execution should be filed within the
first five years of the 10-year period.
Is the first 5-year period strictly implemented by the rules?
It is not. It can be extended according to the Rules. The SC has decided that if
the institution of the judgment within the first five years is delayed, and the
delays are equitable or are attributable solely to the conduct of the judgment
debtor, then the 5-year period will be correspondingly be extended, that is
equal the delay caused by the conduct of the judgment debtor.
Let’s say that the judgment creditor filed a motion for execution of the
judgment on the 3rd year of the first 5-year period. The court of origin is an
RTC. The judgment debtor received a copy of the motion. After receiving the
copy of the motion, the judgment debtor files a petition for the annulment of
judgment before the CA under Rule 47 with prayer for a preliminary injunction.
And the CA grants the preliminary injunction. Because of the preliminary
injunction issued by the CA, we cannot expect the RTC to order the execution
of the judgment. It took the CA 2 years to decide upon the petition of the
judgment debtor. At the end, the CA orders the dismissal of the petition for
annulment of judgment. There is a delay of 2 years. If the 5[-year period has
already lapsed due to the delay, another 2 years will be added, the 5-year
period will be automatically extended up to 7 years within which the judgment
can be executed through the filing of a motion for execution of judgment. That
is how the SC described how the first 5-year period and the second 5-year
period should be interpreted. It is not a fixed period, it could be extended due
to circumstances that might arise in the case there is a delay arising from the
conduct of the judgment debtor.
It simply means that the judgment debtor can legally delay the execution of the
final judgment. In fact, he is even given 2 remedies under the Rules to prevent
the execution of a final judgment. Rule 38 is one means of delaying the
execution of judgment. In Rule 38, the court that decided the case can issue an
injunction against the enforcement of the judgment. Rule 47 is another remedy
for the judgment debtor, as long as in the petition for the annulment of
judgment, there is a corresponding preliminary injunction that is issued by the
higher court. In annulment of judgment, the court that will try the case will
always be a higher court. Thus, if the higher court hearing the petition issues an
order to stop the execution of the judgment (preliminary injunction), there is
no way for the court of origin to disobey such order.
If the motion for execution is granted, which is expected, as the judgment has
become final and executory, can the judgment debtor file an appeal against
the order granting the motion for execution?
No. Under Section 1 Rule 41, an order granting motion for execution is not
appealable. Also, the order will be treated as a final order. The remedy is to file
a petition under Rule 65, a petition for prohibition.
Supposed the trial court denies a motion for execution of judgment that has
already been entered, is appeal the remedy of a judgment creditor?
No, it does not seem so, based also under Section 1 Rule 41. The creditor
should also resort to Rule 65. The petition that he should file is a petition for
mandamus. Mandamus is proper as there is a ministerial duty for the court to
perform. Under Rule 39, as long as the judgment has been entered, it has
become a ministerial duty of the court to grant a motion for execution. That is
an act that can be compelled by a writ of mandamus.
Can the trial court promptly deny a motion for execution of a judgment that
has been entered, or can the trial court rightly quash the writ of execution it
has issued because the judgment has become final and executory?
The general rule is that the trial court cannot quash or rightly deny a motion for
execution if the judgment has already been entered. But, there are certain
exceptions that the SC has recognized.
First is if the judgment sought to be enforced has already been novated.
The judgment has become dormant. This means that the execution of the final
judgment cannot be granted via a motion for execution. Judgment creditor
must avail of the independent action of revival of judgment to revive a
dormant judgment.
The second is when the parties enter into a compromise agreement after the
judgment has become final and executory. If there is a compromise agreement
signed by both parties whose terms are not consistent with the award given,
the effect being that the award will be novating the judgment. The court will no
longer grant a motion for execution of the judgment of the award that has
been given in the dispositive portion of the duly entered judgment. The
agreement of the parties can change the terms of the dispositive portion of the
judgment. This is an application of novation being a mode of extinguishment of
an obligation under the NCC.
Q: Is a writ of execution subject to a motion to quash?
A: A writ of execution may be quashed on certain grounds:
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the parties making the
execution inequitable or unjust;
3. When execution is sought to be enforced against a property exempt from
execution;
4. When it appears that the controversy has never been submitted to the
judgment of the court;
5. When the terms of the judgment are not clear enough and there remains
room for interpretation thereof;
6. When it appears that the writ of execution has been improvidently issued;
7. When it appears that the writ of execution is defective in substance, or is
issued against the wrong party, or that the judgment debt has been paid or
otherwise satisfied or the writ is issued without authority (Reburiano v. CA, 301
SCRA 342).
Suppose within the first 5-year period, the court grants a motion for
execution, and then issues a writ of execution. The writ of execution is carried
out by virtue of a levy on execution of the properties of the judgment debtor.
But the properties levied upon were not sold during the first 5-year period.
On the 6th year, can the properties levied upon be sold at public auction?
Yes. According to the SC, the 1st 5-year period does not require that the
execution of the judgment, the actual levy and the sale of the property on
public auction must be done within the first 5 years. What is important is that
within the first 5 years, there must be an actual levy of the properties of the
judgment debtor, even if the auction sale was conducted in the 6th year. Levy
is the actual act of carrying out the judgment.
In another case, in year 7 of the 10-year period, the judgment creditor who
neglected to file a motion for execution filed a motion for execution in year 7.
When the judgment creditor served a copy of the motion to the judgment
debtor, the judgment creditor convinced the judgment debtor not to oppose
the granting the motion. The judgment debtor, accommodating the judgment
creditor, even filed his position paper stating that he is not objecting to the
granting of the motion of execution. Due to such manifestation by the
judgment debtor, although it was already year 7, the court granted the motion
for execution. The writ was issued, and the properties of the judgment debtor
were levied upon. It was at this point that the judgment debtor challenged the
validity of the levying of his properties by way of a motion for execution
beyond the first 5-year period. The SC sustained the stand of the judgment
debtor. The SC said that after the first 5-year period, the court loses jurisdiction
to execute the judgment through a mere motion. The fact that the judgment
debtor did not oppose the said motion does not matter because the issue now
is one of jurisdiction. Jurisdiction will not be vested upon the court simply by
inaction on the part of a party. Thus, the proceedings taken by the court in
granting the motion for execution beyond the first 5-year period was held to be
irregular, it will be void. The issuance of the writ of execution will also be void,
and therefore the writ can be quashed for lack of jurisdiction.

With respect to the revival mentioned in the Rules pertaining to the 2nd 5-
year period, this is an independent action. Since this is an independent
action, if the original action was a real action, but this is now simply a revival,
can we still consider the revival action still as a real action?
The SC held yes. If the original action is a real action, the action to revive that
judgment will also be a real action. And therefore, the venue in Rule 4 will still
be followed. In Rule 4, the venue will be determined by the place where the
property is located. Thus, the revival of action will be field in the court having
jurisdiction over the place where the property is situated. The case will be
cognizable by the RTC because it is incapable of pecuniary estimation.
REVIVAL OF JUDGMENT UNDER RULE 39
There is another revival of judgment, this time under Section 34 Rule 39.
SEC. 34. Recovery of price if sale not effective; revival of
judgment.—If the purchaser of real property sold on
execution, or his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in
consequence of irregularities in the proceedings
concerning the sale, or because the judgment has been
reserved or set aside, or because the property sold was
exempt from execution, or because a third person has
vindicated his claim, to the property, he may on motion
in the same action or in a separate action recover from
the judgment obligee the price paid, with interest, or so
much thereof as has not been delivered to the
judgment obligor; or he may, on motion, have the
original judgment revived in his name for the whole
price with interest, or so much thereof as has been
delivered to the judgment obligor. The judgment so
revived shall have the same force and effect as an
original judgment would have as of the date of the
revival and no more.
The revival of judgment in Section 34 Rule 39 is not the revival of a dormant
judgment, but refers to a judgment already executed.
The situation contemplated in Section 34 Rule 39 is that judgment is executed,
properties are levied upon, and these properties have been sold at public
auction, but the highest bidder, or anybody who thereafter acquire the
property, is not able to get possession of the property because of opposition or
legal complications that are related to the execution of judgment. According to
Section 34, the revival of judgment could be had through a motion or through
an independent action. Thus, there is a difference between a revival of
judgment under Section 34 Rule 39 where it is a revival of a judgment already
executed via a motion or via an independent action, and the revival of a
dormant judgment where there has been no execution within the first 5-year
period prescriptive period of a judgment under Section 6 Rule 39.
Take note of the differences between the two kinds of revival of judgments in
Rule 39, under Section 6 and Section 34.
The improvement given by Rule 39 under the 1997 Rules, insofar as the
judgment creditor is concerned, is that under the present Rules, the writ of
execution issued by the court has a life of 5 years. So, the judgment creditor
does not need to file one motion for execution after another, which was the
prior practice when the life of the writ of execution was 60 days. At any time
during that 5-year period, the sheriff could enforce the writ, he may make levy
the properties of the judgment debtor. The only limitation imposed by the
Rules is that the sheriff must file periodic reports to the court as to the progress
of the process of execution.
How does the court enforce a duly entered judgment?
Through the granting of a motion for execution and through the issuance of a
writ of execution. It all depends on the tenor of the judgment. If the judgment
awards money, there will be a levy of properties. If the award involves delivery
of properties or documents, there will be no levy on execution of properties,
the property to be delivered will just be seized from the judgment debtor, and
there is a delivery of possession to the judgment creditor.
If the judgment directs the judgment debtor to sign a deed of conveyance or a
deed of sale in favor of the judgment creditor, and the judgment debtor
refuses, the court can appoint another person, usually the clerk of court, to
sign the document on behalf of the judgment debtor. That document cannot
be considered a spurious document, but one that is signed effectively by the
judgment debtor following a lawful order of the court.
If the judgment directs the judgment debtor to vacate a piece of land or
building, the court, through the sheriff, will forcibly oust him from the building.
The court will throw out the things belonging to the occupants.
In a writ of execution, the writ will be directed to the sheriff. But the writ will
contain verbatim the dispositive portion of the decision. The writ of execution
directs the sheriff to carry out the duty of executing the dispositive portion of
the judgment of execution.
Can the court cite a judgment debtor for refusing to obey a lawful order of
the court in compliance with the judgment to be executed?
No. Citation for contempt is generally not a remedy in enforcing a judgment in
Rule 39. This is because Rule 39 contemplates enforcement of a judgment by
the sheriff of the court making use of the processes in Rule 39. So if the
judgment debtor refuses to obey, a court cannot go to another court to cite the
judgment debtor in contempt. That is not contempt of court. This is because,
according to the SC, the writ is not addressed to the judgment debtor. The writ
is addressed to the sheriff of the court, and hence the sheriff has the duty to
carry out the dispositive portion of the judgment.
Can there be contempt in collection of money cases by way of exception?
Generally, no, but it can be had in support cases. Failure to give support can
result with the disobeying person being cited in contempt, as well as being
subjected to a criminal case for failure to give support.
Generally, a judgment debtor who refuses to obey the writ of execution cannot
be cited in contempt. There are other more effective remedies under Rule 39 in
order to carry out the possible satisfaction of the judgment. The more effective
remedy under Rule 39 is to levy the properties of the judgment debtor, seizure
thereof and sell them at public auction.
Levy of properties under Rule 39 does not automatically mean that possession
of the levied properties will be in the hands of the sheriff or the court. If
properties of the judgment debtor that are levied upon are real properties, the
judgment debtor will have continued possession thereof, he will not be ousted.
The court will simply submit a copy of the levy of execution to the RoD and ask
the RoD to annotate the fact that the real property is subject to a lien via a levy
on execution. What is important to know in the levy of real properties is that
the judgment debtor will not be ousted from his physical possession of the real
property. He will continue to be in possession of the real property although it is
already subject of a levy.
But when the property levied upon is personal property, that is, where the
physical possession of the property will be turned over to the sheriff. In fact,
the properties will literally be placed in custodia legis.
What happens after the levy is implemented by the court?
Levy of properties under Rule 39 should always be followed by sale by public
auction. We will not have an execution if we stop at levying of properties. The
levy must always be accompanied by a sale by auction. If there is only a levy
without a sale by auction, then that levy can be nullified by the court. It is the
duty of the court to see to it that an actual levy of properties should be
followed by a public auction sale.
Under Rule 39 and under certain special laws, there are certain properties of a
judgment debtor that is exempt from levy. If the property of the debtor that is
exempt from execution is levied upon, the levy is void, nor the sale of such
levied items be valid. If the levy is void, the sale thereof is also be void. The
validity of an auction sale shall always stem from the validity of a prior levy.
Even if there is valid levy, but if there are requirements not complied with
before, during or after auction sale, the sale will be void, and the buyer will not
acquire title to the property sold.
THIRD PARTY CLAIM ON PROPERTY LEVIED UPON FOR PURPOSE OF
EXECUTION
The principles in Rule 39 and Rule 16 are practically identical.
Terceria is predicated on the premise that the property levied upon by the
sheriff for the purpose of executing of the duly entered judgment does not
belong to the judgment debtor. (Terceria is a 3rd party claim filed with the
sheriff.) If the property levied upon belongs to another person, the levy is not
valid. The levy not being valid, the sale is not valid. Rule 39 expects that the
property levied upon by the sheriff belongs to a judgment debtor, because Rule
39 is for the satisfaction of a judgment against a judgment debtor. If the sheriff
makes a levy on properties which do not belong to the judgment debtor, you
can expect the true owner to complain. Such owner can file a complaint for the
recovery of the real property from the sheriff. The filing of such complaint of
the owner is just one of the several remedies which the owner can avail of. In
Rule 39, the remedy refers to the filing of a 3rd party claim (Terceria).
The other remedies which are expressly acknowledged in Section 16 Rule 39.
What are the remedies available to a third-party claimant in levy of real
property?
A:
1. Summary hearing before the court which authorized the execution;
2. Terceria or third party claim filed with the sheriff;
3. Action for damages on the bond posted by judgment creditors; or
4. Independent reinvindicatory action. (Sec. 16, Rule 39)
The remedies are cumulative and may be resorted to by the third party
claimant independently of or separately from the others.
Note: The officer shall not be liable for damages for the taking or keeping of
the property, to any third-party claimant if there is a bond filed by the winning
party. If there is no bond, the sale cannot proceed. However, the judgment
obligee can claim damages against a third-party claimant who filed a frivolous
or plainly spurious claim, and such judgment obligee can institute proceedings
therefor in the same or separate action (Sec. 16, Rule 39).
Replevin – remedy of the true owner of the personal property if it was
improperly levied and sold
If the property is a real property, the true owner/3rd party claimant can file an
independent action to prevent the sheriff from selling the property.
The 3rd party claimant, under Section 16 Rule 39, can make use of these
remedies successively. Thus, if he was unsuccessful in recovering the property
under one remedy, he can make use of the other remedies.
The easiest and most practical remedy available right away to the 3rd party
claimant is a Third Party Claim. It does not require the filing of a complaint, just
the submission of an affidavit to the sheriff and to the court, setting forth his
ownership and entitlement to the possession, and that the property should not
be levied upon as this is not a property of the judgment debtor. Evidence
appurtenant thereto must be attached.
Can the court render a judgment that will tell the sheriff that the property is
not the third party claimant’s but that of the judgment debtor?
No. The third party claim is an incident to the execution process, the trial
proceedings are over insofar the court is concerned. The court has no power to
resolve an issue of ownership involving the property levied upon. It should be
threshed out in a separate complaint. Regardless of a finding by the execution
court that the true owner is the judgment debtor, that will have no bearing on
the third party claimant. That order will not be entered, it will not be
considered a judgment on the merits and will not constitute res judicata insofar
as a 3rd party claimant. If at all, the consequence of the finding of the court is
that the sheriff can go ahead with the sale of the property.
If the sheriff schedules the sale, can third party file an independent action to
stop the sale of real property?
Yes, he can file the complaint in another court, RTC, for injunction with claims
for damages, if any.
If property levied upon is a personal property of a 3rd party claimant, can 3rd
party file complaint for replevin?
Yes. The claimant must implead the sheriff and the judgment creditor
(prevailing party).
If the executing court is an RTC, and 3rd party claimant files a case for
replevin, can he file it in the MTC?
Yes, as replevin is cognizable by the MTC depending upon the value of the thing
subject to the auction sale.
Is this interference with the other court? Can the sheriff in the other court
claim that the seizure is interfering with the proceedings of the other court?
No. The sheriff of the MTC can seize the personal property from the sheriff of
the other court.
Cannot the sheriff of the MTC capitalize on the provisions of Rule 60 on
replevin that the writ of replevin cannot be enforced when the property is
subject to attachment?
If you go to Rule 60, it is really a requisite in the issuance of a writ of replevin.
The issuing court can issue a writ of replevin validly if the property to be seized
is not under custodia legis, not under a levy of execution or attachment. If the
property is subject of a levy on execution, it is under custodia legis.
But notwithstanding that provision in Rule 60, the SC said that a writ of replevin
issued by the MTC will prevail over the levy on execution writ by the sheriff,
because the writ of execution by the sheriff is void. What is required under
Rule 60 to is that a property should be under custodia legis to prevent
enforcement of a writ of replevin, it assumes that there was a prior VALID
LEVY ON EXECUTION. For a property to be validly levied upon, the property
must be owned by the judgment debtor. Otherwise, the levy is void. Therefore,
the property can be the subject of a seizure by another sheriff in compliance
with a writ of replevin issued by another court, even if it is an MTC. It is proper
for the MTC to issue a writ of preliminary mandatory injunction directed
against the sheriff to prevent the sheriff from going ahead with the sale.
In Rule 39, if the property of judgment debtor has been subjected to levy on
execution, can it be subjected to another levy on execution?
Yes. If there are several cases where the property is subject to levy, it is
possible the same property can be subject to levy on execution. The debtor
remains to be the owner of the land, and the levy creates a lien only over the
property. The first levy annotated on the title of the property shall be superior
to the subsequent levies following the principle of seniority. The SC has held
that if the property is the subject of different levies, and the judgment debtor
sells the property, the sale is valid, as the judgment debtor is still the owner of
the property at the time of the sale. But the buyer must respect the
annotations of levies in the title as to the liens imposed. So, if the property is
sold at public auction sale later on in execution of the first judgment, the
person who bought it from the judgment debtor stands to lose the property.
Buyer is not considered a buyer in good faith due to the said annotation of the
levies in the title.
If the property was mortgaged to a bank that is still existing, can the sheriff
subsequently levy the property?
Yes, as the levy will not affect the ownership of the property by the judgment
debtor. It only creates a lien. He loses ownership if there was a public auction
sale thereon. But ownership shall not immediately be lost, so long as judgment
debtor still has the right of redemption.
If in cases where there are two different levies over the same piece of land of
the judgment debtor, usually, the property will be sold as a result of the first
levy of the property. If the property is later on sold at public auction, and as the
law gives to the judgment the right of redemption, this right of redemption will
also be enjoyed by the buyer. Rule 39 in defining the redemptioner names a
judgment debtor, his successors in interest or any creditor who holds another
levy or lien subsequent to that of the levying creditor who has caused the sale
of the property.
The right of the first levy holder to redeem is distinct right from the 2nd levy
holder to redeem the property. If it is the 2nd holder who redeems the
property, there could be another redemption by the first judgment debtor.
Under Rule 39, when it is the judgment debtor who redeems the property
from the highest bidder, other rights of redemption are cut off by virtue of the
redemption by the judgment debtor. So we can speak of successive
redemptions only if the redemptioner is not the judgment debtor himself. If the
one who redeems the property is another lien holder, we can apply the rule of
successive redemption which says that another redemption can be had within
60 days from the efficacy of the first redemption, even if the 1-year period for
redemption has already expired.
For example, there are 3 redemptioners, one being the judgment debtor. If the
redemption is carried out by the judgment debtor, the rights of redemption of
the other 2 are cut off. Redemption for all of them is 1 year from the
registration of the sale in the certificate of title. So we have to assume that a
redemption made should be within 1 year of the registration of the certificate
of sale in the certificate of title. If the 2nd levy holder redeems the property,
then the 3rd levy holder can also further redeem the property within 60 days of
the last redemption. But within the 1-year period, the judgment debtor can
redeem the property, who upon his exercise of his right of redemption, the
rights of the others to redeem will be cut off.
Will this not cause prejudice to the other levy holders if we cut off the right to
redemption?
No, it will not. The levy holders will simply enforce their levy since the property
in the hands of the judgment debtor. They can have another public auction sale
of that levied property.
In civil law, as well as in Rule 39, the SC has accepted the principle that
whenever there is a doubt in the interpretation of redemption rules and laws,
the interpretation should always be in favor of the redemptioner, the judgment
debtor.
Rule 39 is also very clear in saying that right of redemption will exist only
when the property sold at public auction is a real property. When the
property levied upon and sold at public auction is a personal property, there is
no right of redemption.
SC has come up with these principles that are applicable to redemption of real
property and principles applicable because there is no redemption allowed in
personal property:
1.Personal property is sold in auction, and the price generated is inequitably
low, the sale is void. The highest bidder does not acquire ownership of the
property. The court will issue an order declaring the sale as ineffectual. Sheriff
must schedule another auction sale until the price generated is not inequitably
low.
2.Real property is sold at public auction, it does not matter as to price even if
inequitably low, the sale will be valid. The low price will not render the sale
void because of the existence of the right to redeem by the judgment debtor.
If the price is very low, that is advantageous to the judgment debtor, because if
he decides to redeem the property, he need only to match the auction sale
price.
Due to the above principle, there could arise a situation where the
levy and public auction sale of a real property would result that the
price generated will be insufficient to pay the lien of the judgment
creditor.
Let us say that the judgment creditor has a lien of 1M, and a piece
of land owned by the judgment debtor was sold at public auction,
but generated only 500K. It is not enough to pay in full the award
given to the judgment creditor. The 500k will go to the judgment
creditor, but there is still a residue of 500k. When the judgment
debtor redeems the property, should he deliver to the sheriff 500k
or 1M?
The judgment debtor should deliver only 500k. He need not deliver
1M because the price paid by the highest bidder was only 500k.
So, if the judgment debtor was able to redeem the property by
producing 500k, but the judgment creditor was not yet fully paid,
the judgment creditor will be tempted to have another levy on the
property. The judgment creditor could really entertain that idea
because he has not yet been fully paid. In Rule 39, there must be
full satisfaction of the award to put an end to the litigation. If the
judgment creditor decides to have another levy on the same
property previously levied upon, but the property had been
redeemed by the judgment debtor, can the same levying creditor
carry out another levy on the same property?
SC held that in this situation, the same levying creditor cannot
impose another levy on the same property. If the levying creditor
wants to have full satisfaction of his lien, he should make another
lien on another property owned by the judgment debtor. Or, he
could avail of the other remedies provided for in Rule 39 if he
cannot get full satisfaction of the judgment.
3. If there is still a residue on the lien of the judgment creditor, he can levy
other properties owned by the judgment debtor, but the judgment creditor
cannot levy the same property that the judgment debtor has redeemed. This
principle does not prevent other creditors from levying the property that was
already redeemed.
With respect to the issue as to who is entitled to the fruits earned during the
pendency of the levy and during the 1-year period of redemption, Rule 39
settled that issue. The fruits of the property sold at public auction during the
period of redemption shall redound to the benefit of the judgment debtor
when the redemption period is still running. The basis is that the judgment
debtor retains ownership of the property while the period of redemption is
still running. If the judgment debtor is unable to redeem the property within
the period of redemption, then the title will be consolidated in favor of the
highest bidder.
Q: What are the rights of a judgment debtor during the period of
redemption?
A:
1. To remain in possession of the property until the expiration of
period of redemption;
2. To collect rents and profits until the expiration of period of
redemption (Sec. 32);
3. To use the property in the same manner it was previously used;
4. To make necessary repairs; and
5. Use it in the ordinary course of husbandry (Sec. 31).
In the auction sale, anybody can bid, even the judgment creditor. It is usually
the judgment creditor who will be offering the highest bid because the
judgment creditor can give an amount equivalent to the award given by the
court. If the award given by the court is 1M, then the judgment creditor can
give an amount as high as 1M. He need not turn over any cash to the sheriff,
because he will just tell the sheriff that he will consider the 1M lien as
fulfillment of his claim. Whereas if a stranger is the highest bidder, this stranger
is expected to give the 1M to the sheriff.
Can the judgment creditor be forced to shell out the equivalent of the highest
bid even if the highest bid is exactly equivalent to the amount of his claim?
Generally, no. But if there is a 3rd party claim, a terceria, and the highest bid
was that of the judgment creditor, the judgment creditor must still shell out
cash in order to be treated by the sheriff and the court as the highest bidder.
If the judgment creditor is not fully paid, there are other options given in the
rules in order to fully satisfy the claim:
1. File a motion in the court for an examination of the judgment debtor.
2. File a motion in the executing court for the examination of a debtor of the
judgment debtor.
3. File a motion for the appointment of a receiver for the remaining properties
of the judgment debtor.
A receiver is one of the provisional remedies in the RoC. Receivership is allowed
by the court, although the case has already been terminated, being already in
the execution stage of the judgment. This is one instance where a provisional
remedy can be used even after a case has been decided by the court. The usual
concept of a provisional remedy is that they are availed of during the pendency
of the case, before entry of judgment. But in the case of receivership, this
remedy can be availed of under Rule 39 even if the case has already been
decided, the judgment has been entered and is now subject to execution.
THE PRINCIPLE OF RES JUDICATA
Res judicata under Section 39 consists of 2 sections, Sections 47 and 48.
Section 47 is concerned with the effect of local judgment after it is entered,
and Section 48 is the effect of a foreign judgments.
In our study of res judicata, there are 3 essential elements:
1. identity of parties
2. identity of causes of action
3. identity of subject matter
The effect of res judicata under section 47 depends upon the nature of the
action:
Judgment in rem –(letter a of Section 47)
Judgment in personam –(letter b Section 47)
Conclusiveness of judgment – (letter c Section 47)
Rule 39SEC. 47. Effect of judgments or final orders .—The
effect of a judgment or final order rendered by a court of
the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
(a) In case of a judgment or final order against a
specific thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
status of a particular person or his relationship to
another, the judgment or final order is conclusive upon
the title to the thing, the will or administration, or the
condition, status or relationship of the person;
however, the probate of a will or granting of letters of
administration shall only be prima facie evidence of the
death of the testator or intestate;
(b) In other cases, the judgment or final order is,
with respect to the matter directly adjudged or as to
any other matter that could have been raised in relation
thereto, conclusive between the parties and their
successors in interest by title subsequent to the
commencement of the action or special proceeding,
litigating for the same thing and under the same title
and in the same capacity; and
(c) In any other litigation between the same
parties of their successors in interest, that only is
deemed to have been adjudged in a former judgment or
final order which appears upon its face to have been so
adjudged, or which was actually and necessarily
included therein or necessary thereto. (49a)
Conclusiveness of judgment
Letter a and b speaks of conclusiveness in both instances.
In letter a, the law says the judgment is conclusive upon the title to the thing,
the will or administration, or the condition, status or relationship of the
person.
In letter b, the law says the judgment is conclusive between the parties and
their successors in interest by title subsequent to the commencement of the
action or special proceeding, litigating for the same thing and under the same
title and in the same capacity.
This is the reason why a cadastral proceeding is considered as an action in rem,
because the judgment in that litigation is conclusive upon the title, it is not
conclusive upon the plaintiff or defendant. Since the judgment in a cadastral
proceeding is conclusive upon the title of the property, that judgment will have
to be binding against the litigants as well as anybody who has an interest over
the property, although these persons might have not been involved in the
litigation.
In the probate of a will, which is another procedure in rem, when there is a
decision of the court admitting the will to probate, it is conclusive upon the will
or administration. Therefore, anybody who have an interest in the will must
respect the decision of the court.
But you will notice that there is a caveat when it comes to a probate of a will: it
is not conclusive as to the fact that the testator is dead. There is only a
disputable presumption, unless proof thereof is presented. The reason for this
is that in civil law as well as in the Rules, the probate of the will can be
commenced even when the testator is still alive, provided that it is initiated by
the testator himself.
If a person has been issued a decree of adoption of a child named Juan dela
Cruz, the decree is conclusive upon the personal status of that adoptee.
Therefore, anyone who meets the adoptee and transacts with him shall be
bound by the issued decree of adoption.
In letter b, when the law says that judgment is conclusive upon the parties and
their successors in interest as to matters directly adjudged or as to matters that
could have been adjudged, that phrase “litigating for the same thing and under
the same title and in the same capacity” will refer, for instance, to a
compulsory counterclaim or a cross-claim. This is because we learned that a
compulsory counterclaim or a cross-claim that is not raised in the same action
shall be barred. The reason they will be barred is because they are matters that
could have been raised in relation to the principal action. So, in a judgment in
personam, the judgment is conclusive only on the matter directly adjudged.
An example of an action in personam could be an action involving
reconveyance of property. If the action is only an action for reconveyance or an
accion reinvindicatoria, it is an action in personam. Although real property is
involved, still it is an action in personam.
Plaintiff won the case with attachment of property. Judgment is entered. The
plaintiff is now the owner of the property insofar as the judgment is
concerned. However, X, the true owner of the property, filed a case for
recovery of the property. Is there res judicata?
No. There is no identity of parties between the first and second case. There also
there may be no identity in cause of action, although there is identity in the
subject matter to recover.
If there is identity in the subject matter, does it not follow that there will be
identity in the causes of action?
No. That would not be the correct assumption. There could be identity as to
the subject matter, but the causes of action could still be different.
For instance, in accion reinvindicatoria, the subject matter involves a piece of
land. The case involves title to a piece of land. If there was another complaint
filed involving the same piece of land, the cause of action could be different,
although they are referring to the same land. For instance, there could be a
case for unlawful detainer filed involving the same property. Again, though
involving the same subject matter, the causes of action for accion
reinvindicatoria and unlawful detainer are different. Accion reinvindicatoria
involves recovery of title to the property, while unlawful detainer involves
recovery of physical possession of the property. In this case, the second case
cannot be dismissed by reason of res judicata as there is no identity of causes
of action.
General Rule on Res Judicata under Section 47 Rule 39
When the judgment is entered as contemplated in Section 47, Rule 39, then the
effect of the judgment is similar to a judgment in rem or judgment in
personam. The collateral principle that we adopt from this rule on res judicata
is that the judgment that has been entered shall become immutable, it cannot
be changed or modified, even by the SC itself. Everybody will have to respect
res judicata applicable to this judgment.
Exception:
1. Propriety of petition to annul judgment (it is an attempt to
change or modify a judgment, one ground being lack of jurisdiction
of the court over the subject matter or over the person of the party)
2. Relief from judgment on ground of FAMEN under Rule 38
FGU Insurance Case and a 2007 case
In that case, the SC gave 5 instances where a final judgment can be
modified or set aside.
1. Clerical errors;
2. Judgment nunc pro tunc;
3. The judgment is void; and
4. When supervening circumstances intervene after finality of
judgment to render execution of judgment unjust and inequitable.
5. SC held that it has the inherent power to change and modify final
and executory judgments if substantial justice so require. (2007
case)
Judgment nunc pro tunc (Now for then) – A judgment intended to enter into
the record the acts which had already been done, but which do not appear in
the records. Its only function is to record some act of the court which was
done at a former time, but which was not then recorded, in order to make
the record speak the truth, without any changes in substance or any material
respect.
Conclusiveness of judgment
“(c) In any other litigation between the same
parties of their successors in interest, that only is
deemed to have been adjudged in a former judgment or
final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included
therein or necessary thereto”
This is a kind of res judicata with limited application. There could be identity of
parties and subject matter, but there is no identity of causes of action. Thus,
subsequent cases may prosper due to absence of res judicata.
The debt based on a promissory note was 1M payable in 2 installments. The
debtor defaulted in the 1st installment. The creditor filed a case where
creditor stated that the PN’s signature was forged. Court held that the
signature on the note was genuine. Then, the second installment became
due. Can another complaint be had?
Yes. Each installment gives rise to a separate cause of action.
Can forgery be raised again on the promissory note?
No. Judgment on the first case is conclusive insofar as the genuineness of the
note is concerned.
Sec. 48 Rule 39Foreign judgments in rem and in personam
Judgment in rem – conclusive upon the title of the thing;
Judgment in personam –there is only the presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title.
There is a foreign judgment rendered by the Japanese Court. The relief which
the creditor stated in the Japanese court is the fulfillment of an unpaid loan of
100k. The Japanese court decides the case in favor of the debtor. The debtor is
required to pay the 100k in the Japanese court. The Japanese court had not
executed the judgment. But somehow, the debtor and creditor were now living
in the Philippines. The judgment debtor has accumulated certain propertied in
the Philippines. Can the judgment creditor in that Japan case file a motion for
execution in the Philippine courts?
No. The Philippine court cannot entertain the motion as it knows nothing about
the claim of the judgment creditor against the judgment debtor in the Japan
case.
Is there a remedy available to the judgment creditor to enforce the judgment
of the Japan court in the Philippines?
Yes, the remedy is found in Section 48 (b) Rule 39. The judgment from the
Japanese court is a presumptive evidence of the judgment creditor’s right
against the judgment debtor.
How does the judgment creditor make use of that rule that the decision of
the Japan court is presumptive evidence of his right against the judgment
debtor?
The creditor should file an independent complaint for the enforcement of the
decision of the Japan court. And the only evidence that he needs to convince
the court as to the preponderance of evidence needed to prove his right is to
present to the Philippine court a certified true copy of the decision rendered by
the Japan court. If he is able to present a certified true copy of the decision to
the Philippine court, the court will then apply the presumption given under
Section 48(b) Rule 39, that the decision of the Japan court is presumptive
evidence of the rights between the parties.
In Section 48, there is a last paragraph talking about repelling of a foreign
judgment. A judgment of a foreign court can be repelled by evidence of a want
of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
law or fact committed by the foreign court. Hence, if the creditor files a case
for the enforcement of the decision of the Japan court, the judgment debtor
can present evidence that will repel the foreign decision, such as want of
jurisdiction over his person.
Can all these grounds repel a local judgment?
No. The defenses available for repelling the execution of a foreign judgment is
not availing.
Why cannot the defendant oppose the execution of a local judgment using
the grounds to repel a foreign judgment?
We do not allow a motion for execution to be denied on the argument did
based on want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact committed by the court because that will be a
collateral attack on the judgment, which is generally not allowed under the
Rules. We can only allow a direct attack on the judgment by filing a petition to
annul that judgment, on the ground of lack of jurisdiction over the subject
matter, lack of jurisdiction over the person of the defendant or extrinsic fraud.
We cannot use these grounds to collaterally attack the judgment in our system.
When we say collateral attack, the person attacking the judgment does not file
a separate complaint for the purpose of having that judgment set aside. If he
only opposes a motion for execution, and the ground is that of lack of
jurisdiction over the case, it is not allowed since that is a collateral attack on
the judgment.
Section 48 allows collateral attacks only against a foreign judgment, which
cannot be allowed insofar as local judgments are concerned.
With respect to collusion and fraud, they are also grounds to attack directly the
judgment under Rule 47 (Annulment of Judgments), and then under Rule 38
(Petition for Relief from Judgments). What cannot be done under our system is
a collateral attack against a final and executory judgment.
When can a collateral attack be had against a judgment?
When the judgment is patently void on its face, it is vulnerable to collateral
attacks.
Ex. The judgment contains only the dispositive portion. This kind of judgment is
void on its face. (Shimizu vs. Magsalin)
PETITION TO REVIVE JUDGMENT
- It is an independent action available to a judgment creditor who has
not executed the case via a motion in the first 5 years from entry of
judgment; Within the 2nd 5-year period from entry of judgment, the
judgment debtor cannot oppose an action to revive judgment by
setting up the defense that the judgment is void due to lack of
jurisdiction over the person of the defendant, as this is a collateral
attack on the judgment rendered.
If the ground that the judgment is void is used as a defense other than an
independent complaint for annulment of judgment, that is a collateral attack
on the judgment.
PROVISIONAL REMEDIES
- Also called as Interim relief and provisional order
Q: What are the Provisional Remedies under the Rules of Court?
A:
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
Q: What are the Other Provisional Remedies available?
A:
1. Temporary custody over a minor
2. Deposit in Actions for Annulment of Sale (Reyes v. Lim)
3. Restraining order against the accused in cases of violence among immediate
family members living in the same domicile and household
4. Hold departure orders issued by Regional Trial Courts in criminal cases
5. Interim reliefs under Writ of Amparo:
a. Temporary Protection Order
b. Witness Protection Order
c. Inspection Order
d. Production Order
(Riano, Civil Procedure: A Restatement for the Bar, p. 534-536, 2009 ed.)
Rule 57 to Rule 61 as well as Separate circulars of the SC on WHD and WA. Support pendente lite cannot be a principal action, as the principal action
Writ of Habeas Data – under certain circumstances, it functions as a provisional should be a complaint for support, with application of the provisional remedy
remedy of support pendente lite.
Writ of Amparo – under certain circumstances, it functions as a provisional
remedy Writ of Amparo and Writ of Habeas Data are actions in themselves, but are
treated as provisional remedies. If there is a criminal case already filed
Amparo Provisional Remedies involving the disappearance of a person, that criminal action being the principal
Protection order case, there can be an application for a writ of Amparo or a writ of Habeas Data
Production Order as a provisional remedy.
Witness Protection Order
Inspection Order
In the circular of Kalikasan, Production and inspection orders, formerly modes
of discovery, were elevated as provisional remedies in Amparo and Kalikasan
writs. Also included were TEPO, preliminary attachment, ocular inspection
order, cease and desist order (Sec. 15a) and production and inspection order.
Provisional Remedies in Marriage-Related Cases:
Spousal support In these new circulars, the SC has elevated several Modes of Discovery as
Child support provisional remedies like production of documents and inspection of things,
Visitation they are now treated as provisional remedies. The Kalikasan court can issue a
Temporary Custody of minor/s production and inspection order or an ocular inspection order.
Hold Departure Order
Protection order The same is true with the Amparo circular. There is a production order and
Appointment of administrator of co-owned propertied of spouses inspection order, although they are substantially of the same nature of the
(owned in common or forming part of the conjugal partnership of production and inspection in the Modes of Discovery.
gains)
Although we have several provisional reliefs, interim reliefs or provisional
Writ of Kalikasan orders, it is incorrect to assume that there are commonalities. These different
Temporary Environmental Protection Order (TEPO) circulars have not adopted the provisions in the Rules (Rules 57 up to 61).
Discovery measures that appears to be considered as provisional
remedies: If you will notice under Rules 57 to 61, one of the common requirements is the
Ocular Inspection Order posting of bond by the applicant (except support pendente lite). We have an
Production order attachment bond, receiver’s bond, production bond, and the like.

Writ of Amparo
Writ of Habeas Data
Writ of Kalikasan
Common element: There is a pending principal action, except when the
provisional remedy by itself is or can be treated as a principal action, such as
Replevin, Writ of Amparo and Writ of Habeas Data.
We cannot file an independent action solely for the purpose of obtaining as a
principal relief any of these provisional remedies.
But in the circular on marriage-related cases, the family court can grant these
provisional orders with or without bond at the discretion of the family court.
Also, in the same circular, the family court can grant these provisional orders
with or without a hearing, which is similar to some provision in the Rules that
some remedies can be granted ex parte, or some provisional remedies require
a summary hearing before issuance.
In the Amparo circular, when it comes to the provisional relief of a PO and IO,
there must be a motion filed by the applicant and a must be hearing
conducted. In the case of WPO and PO, they can be issued ex parte.

Example, a creditor cannot file a case solely for the purpose of obtaining a In the Amparo circular, there is nothing mentioned about the posting of a bond
preliminary attachment. Preliminary attachment should be a relief prayed for in by the applicant. This is similar to that in circular on marriage-related cases,
an independent case. where no bond is required

Note:
Rule 57 Preliminary Attachment is a provisional remedy because of the word
‘preliminary.’
Final attachment is not a provisional remedy. It is now part of the execution
process under Rule 39.
Note:
Levy on execution refers to levy on final attachment. But we use the term levy
on execution to differentiate it on levy on attachment.
Levy on attachment is a provisional remedy.
The enumeration of provisional remedies in the rules is no longer exclusive.
The new rules/circulars issued by the SC used the following terms:
1. Provisional Order – related to marriage-related cases
2. Interim Relief –Amparo
3. Provisional Order or Provisional Remedy - Kalikasan
In the circular for the Writ of Kalikasan, the issuance of Temporary
Environmental Protection Order does not require a bond. Just like preliminary
injunction, there can be TRO good for 72 hours, but can be extended until the
end of the case. What is peculiar is that the party required to post a bond in a
TEPO is not the applicant but the adverse party who will apply the lifting of
the TEPO. When the adverse party moves for the lifting of the TEPO, the
adverse party is required to file a bond to protect the other party. In most
preliminary reliefs, it is the applicant who files a bond. The filing of a
counterbond will lift the preliminary relief. The same is true with a TEPO. But
the applicant does not have to file a bond. If the TEPO is issued, the adverse
party wants to have the bond lifted, then he will be required to post a bond to
protect the interest of the applicants.
Another rule of interim relief or provisional remedies that is applicable to the
issuance of the interim reliefs is that the interim relief or provisional order is
always interlocutory, it is not a final order and has nothing to do with the
merits of the case. Appeal is not allowed.

Provisional remedies cannot be the principal action itself, subject to the
exception of Replevin. Provisional remedy of a writ of replevin is an application
for recovery of personal property in the main case.
The accepted remedy to challenge the issuance of a provisional remedy or
interim relief or a provisional order is Rule 65, but in some circulars, that has
also been changed substantially. For instance, in summary procedure, in cases
in the MTC, when it grants a provisional order, it is not appealable, and the
adverse party cannot file a petition under Rule 65. The reason is that the
application of availment of Rule 65 in order to challenge an interlocutory
order is prohibited under summary proceedings. Likewise in Amparo, there is
a similar provision stating that grant of provisional order is interlocutory, and
Rule 65 is not available, being an expressly prohibited pleading (See Section
11l of The Rule on The Writ of Amparo). In the circular of Kalikasan, the
issuance of TEPO is also interlocutory. Although it can be challenged, the
problem is the challenge on a TEPO can only be filed before the SC under Rule
65.It is only the SC that can entertain a petition assailing the issuance of a
TEPO. So, do not be of the impression that all of these remedies being
provisional in character, they are governed by the same set of rules. They are
governed by a different set of rules, depending upon the circular of the SC
applicable to each one of them.
With respect to the authority of the MTC being able to grant interim relief, it
has been settled under BP 129. Under Sec. 33 of BP 129, it is clearly provided
therein that MTCs have authority to grant provisional remedies so long as it has
jurisdiction over the principal case. In case of support pendente lite, there
could be instances where MTC can grant for support pendente lite, but we
must keep in mind that so long as that principal case is cognizable by the MTC,
support as a provisional remedy can be had.
PRELIMINARY ATTACHMENT
Rule 57. SECTION 1. Grounds upon which attachment may issue.—At the
commencement of the action or at any time before entry of judgment, a
plaintiff or any proper party may have the property of the adverse party
attached as security for the satisfaction of any judgment that may be recovered
in the following cases:
(a) In an action for the recovery of a specified amount of
money or damages, other than moral and exemplary, on
a cause of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party who is
about to depart from the Philippines with intent to
defraud his creditors;
(b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a
public officer, or an officer of a corporation, or an
attorney, factor, broker, agent, or clerk, in the course of
his employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property
unjustly or fraudulently taken, detained or converted,
when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being
found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a
fraud in contracting the debt or incurring the obligation
upon which the action is brought, or in the performance
thereof;
(e) In an action against a party who has removed or
disposed of his property, or is about to do so, with intent
to defraud his creditors; or
(f) In an action against a party who does not reside and
is not found in the Philippines, or on whom summons
may be served by publication.
You will notice in Section 1 that there are 6 instances where one can file for the
relief of preliminary attachment. In the first five, there is a common
denominator, intent to defraud the applicant.
The last is closely related to Rule 14 (Summons), in gaining jurisdiction over the
person of the party. The applicant is moving for an interim relief in order to
enable him to secure for himself a judgment in court by attachment of the
properties of the party who could not be served with summons in any manner,
including by publication. When the property of the absent party is attached,
the action in personam will be converted to an action in rem or quasi in rem by
virtue of a preliminary attachment issued by the court and actually
implemented by the sheriff.
Except for the last part of Section 1, the only purpose of the applicant in
moving for the issuance of a writ of preliminary attachment is to enable him to
obtain a security for any judgment that may be rendered later on by the trial
court in his favor.
If we will note in the cases enumerated in Section 1, mainly, the conduct of the
adverse party is criminal in character. It is a common saying in preliminary
attachment that the fraud committed could be a criminal fraud or wholly a civil
fraud (an act of fraud that has not reached the level of a crime) that will justify
issuance of preliminary attachment. The conduct should fall in any one of the
instances under Section 1 of Rule 57.
Thus, the issuance of a bouncing check can cause the filing of an information as
well as an application for attachment of properties of the drawer. There is
fraud in the performance of an obligation. In the NCC, if there is fraud in
performance of an obligation (dolo incidente), or a fraud in contracting (dolo
causante, a deception employed by one party prior to or simultaneous to the
contract in order to secure the consent of the other). In both instances, they
are justification for the issuance of preliminary relief.
Supposing the plaintiff has a creditor that holds collateral. If there is default
in payment of indebtedness, and there is a case of collection with allegation
of intent to defraud, can the creditor move for preliminary attachment over
the collateral?
Yes. Although applicant may have a security already in hand, the court may still
grant such preliminary attachment if the applicant proves such
collateral/security is insufficient to satisfy the debt. Thus, creditor can look for
other properties of the debtor sufficient to secure the obligation due once the
court grants preliminary attachment.
In preliminary attachment, there are 2 rules that are applicable to preliminary
attachment as well as other provisional remedies in the Rules when they are
granted ex parte:
1. Prior and/or contemporaneous service of summons
2. Principle under Section 20 Rule 57
Prior and/or contemporaneous service of summons – there is an application
filed after the commencement of the action, and even before the court
acquires jurisdiction over the person of the defendant via summons, the court
may already have approved the application for attachment.
For a court to act validly, the court must acquire jurisdiction over the cause of
action, the person of the plaintiff and the person of the defendant. This remedy
is available even before jurisdiction over the defendant can be had via a
verified application for preliminary attachment filed by the plaintiff. But,
issuance of preliminary attachment at pre-stage proceeding requires a hearing
and the court will require the posting of an attachment bond before the writ is
issued; as long as all the conditions have been met, there is only the carrying
out the writ. The sheriff must first serve the summons and then the notice of
attachment, or serve them contemporaneously. This will remedy the lack of
jurisdiction by the court over the person of the defendant. This is applicable in
all provisional remedies that the court can grant ex parte even before the court
has gained jurisdiction over the person of the defendant. This can be applied in
preliminary injunction and in preliminary relief of replevin.
Since preliminary attachment, if carried out, is a derogation on the right of
ownership of the adverse party, the rule on attachment should be strictly
construed in order to protect the right of ownership of the adverse party. If the
properties of the defendant are going to be subject to attachment, and these
properties are those capable of delivery, like a car, they will be seized in
custodia legis so long as the preliminary attachment is not lifted. But the
property will not be delivered to the plaintiff, nor used by the defendant. It will
be in the custody of the court. If the court takes 3 years to decide the case, the
property will be under custody of the court for 3 years.
In case of real property, the title will be annotated with a lien. He does not lose
ownership. He can sell it, but the buyer will be notified via the annotation on
the title, and he must recognize that fact, that the property can be subject to
auction sale later on. The buyer could stand to lose his title on the property.
The buyer cannot be considered a buyer in good faith. He will always be a
buyer with notice of the existence of the preliminary attachment.
If the defendant has a sizable bank account, the sheriff will simply prepare a
writ of garnishment and serve it upon the bank. When the bank receives the
writ, the bank will freeze the account up to the amount of the claim. And if the
bank account is frozen, the defendant cannot use these funds anymore. The
bank will not allow him to withdraw. If it is a checking account and the
defendant issued checks thereon, the bank will dishonor the checks that are
presented to it. Thus, a preliminary attachment is a serious derogation of the
rights of ownership of the defendant. In that writ of garnishment, which is also
applicable to Rule 39 (Execution of Judgment), there will be a new relationship
created as an incident to the case, which we called Forced intervention – the
judgment debtor/defendant, whether he likes it or not, will be subject to
further orders of the court. So if a bank account is garnished, whether the bank
likes it or not, the bank will be forced to follow the orders of the court, in the
sense that the bank will have to follow the orders of the court after the
garnishment of the bank account of the defendant.
The remedies under Rule 57 can be lifted.
How preliminary attachment is lifted:
1. File a cash deposit with the court equal to the attachment bond or
2. File a counterbond via surety authorized by the court (The filing of such
counterbond will make a ministerial duty of the court to lift the preliminary
attachment.)
3. Motion for lifting preliminary attachment due to being improper or irregular
– a motion must be filed by the defendant, with notice of hearing.
If the defendant has already posted a counterbond and the preliminary
attachment has already lifted. Can he apply for reversal of the order granting
preliminary attachment?
Yes. Even if the defendant has caused the lifting of the preliminary attachment
by payment of cash deposit or by counterbond, he can still file a motion to lift
the preliminary attachment. This is because he has put up counterbond or cash
deposit enough to secure the satisfaction of the claim of the plaintiff, and there
is no need for the attachment anymore.
Principle under Section 20 Rule 57
SEC. 20. Claim for damages on account of improper,
irregular or excessive attachment.—An application for
damages on account of improper, irregular or excessive
attachment must be filed before the trial or before
appeal is perfected or before the judgment becomes
executory, with due notice to the attaching party and
his surety or sureties, setting forth the facts showing his
right to damages and the amount thereof. Such
damages may be awarded only after proper hearing and
shall be included in the judgment on the main case.
If the judgment of the appellate court be favorable to the
party against whom the attachment was issued, he must
claim damages sustained during the pendency of the
appeal by filing an application in the appellate court, with
notice to the party in whose favor the attachment was
issued or his surety or sureties, before the judgment of
the appellate court becomes executory. The appellate
court may allow the application to be heard and decided
by the trial court.
Nothing herein contained shall prevent the party against
whom the attachment was issued from recovering in the
same action the damages awarded to him from any
property of the attaching party not exempt from
execution should the bond or deposit given by the latter
be insufficient or fail to fully satisfy the award.
In an action where a writ of attachment has been issued by the court, the writ
will only be lifted if there is a cash deposit or counterbond filed in the court,
and the court will withdraw the order. The court will then decide the merits
of the case. If the applicant wins, there is now a judgment on the merits in
favor of the applicant. Can the defendant hold the applicant liable for
improper or irregular attachment even if he lost the case?
Yes. If the applicant eventually wins the case, it means the applicant has a
cause of action against the defendant. But, it does not necessarily follow that
the cause of action falls under Sec. 1 of Rule 57. He may not have been able
to prove dishonesty or intent to defraud. So, if the applicant failed to prove
that his case falls under the cases mentioned in Section 1 of Rule 57, it means
that the issuance of the court of the writ of preliminary attachment was
irregular and improper. The only instance the court should grant preliminary
attachment are the instances mentioned in Sec. 1 Rule 57. If the defendant
wins the case, the applicant shall be liable for damages as a matter of course.
But Section 20 is the procedure to be followed in rendering the applicant liable
for damages for a wrongful or improper issuance of a writ of preliminary
attachment.
Note: If bond or deposit given by the party availing of the provisional remedy be
insufficient or fail to satisfy the award:
Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec.
8, Rule 58; Sec. 9, Rule 59; Sec. 10, Rule 60).
Note: Any award of damages for the wrongful issuance of a provisional remedy
should be recovered in the same case. The recovery of damages cannot be had
in a separate action.
The first principle under Section 20 Rule 57 is that the recovery of damages
should be had in the same case, not in an independent action. Adverse party
must already submit an application for damages for improper issuance of writ
of preliminary attachment. The most practical way of informing the court right
away is to set up in his answer a compulsory counterclaim for recovery of
damages. If the defendant did set up a counterclaim for recovery of damages,
and then the defendant eventually wins, he will just file an application through
a motion to conduct a hearing on the extent of liability to which the defendant
is entitled to recover.
What Rule 57 tells us is that it is not possible for the defendant who has won
the case to file a separate complaint for recovery of damages arising out of a
wrongful attachment. If he did so, that independent case will be dismissed,
even motu propio by the court, due to res judicata.
In Section 20, Rule 57, it is very clear that the extent of damages to be
recovered need not be equivalent to the attachment bond filed in court. Sec.
20 Rule 57 provides that if the attachment bond is insufficient, there could be
an availment of a levy of execution under Rule 39 by the defendant. (This
section is similar to other provisional remedies in the Rules) “Nothing herein
contained shall prevent the party against whom the attachment was issued
from recovering in the same action the damages awarded to him from any
property of the attaching party not exempt from execution should the bond
or deposit given by the latter be insufficient or fail to fully satisfy the award.”
Thus, the defendant can ask for a writ of execution against the applicant under
Rule 39. There can now be a levy on execution against the applicant.
Remember that Rule 20 is a provision that is followed by other provisional
remedies where there is a bond required (preliminary injunction, receivership
and replevin) before the court will issue the preliminary relief prayed for.
RULE 58 PRELIMINARY INJUNCTION (PI)
The principal action could be any action coupled with an application for a TRO
or a writ of Preliminary Injunction. A special action for certiorari under Rule 65
is usually accompanied by a verified application for TRO and writ for PI. The
relief usually asked for in Rule 65 is for a writ to prevent or prohibit the
respondent court from going ahead with the case pending before the court, or
in case of a certiorari, to set aside the decision or interlocutory order of the
respondent court. Preliminary injunction and TRO can be availed of in any civil
proceeding where the principal relief sought by the applicant or petitioner is to
prevent an act or compel performance of an act. PI can also be had in criminal
cases or special proceedings, as long the principal relief is to compel or to
prevent the performance of an act.
In PI, there are 2 provisional remedies contemplated:
1. TRO
2. Writ of Preliminary Injunction
Both require an injunction bond. TRO, in exceptional cases, can be granted ex
parte. A bond must be paid. Generally, a court cannot grant TRO without a
hearing. When there is grave and irreparable injury,
The general rule is that a court cannot grant a TRO or a writ of PI without a
hearing, unlike preliminary attachment. Always expect a summary hearing,
with notice to both parties, to be conducted.
TRO can be granted ex parte, by way of exception, in instances when there is
grave and irreparable injury that will be caused to the applicant, and in no way
shall the total period of the TRO be longer than 20 days. The court will still fix a
TRO bond. During the 20-day period, the court will then conduct a hearing to
determine whether or not a writ of PI will be needed.
(‘if the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of a multiple-sala court or
the presiding judge of a single-sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72) hours from issuance but he
shall immediately comply with the provisions of the next preceding section as
to service of summons and the documents to be served therewith. Thereafter,
within the aforesaid seventy-two (72) hours, the judge before whom the case is
pending shall conduct a summary hearing to determine whether the temporary
restraining order shall be extended until the application for preliminary
injunction can be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days, including the original
seventy-two hours provided herein.’ 2nd Par. Sec. 5 Rule 58),
PI ABSOLUTELY requires a summary hearing. A court cannot grant a PI without
a hearing. There is no exception. It is only in the issuance of a TRO where there
is an exception to the general rule where it can be issued ex parte. In multi-sala
courts, the executive judge can issue a TRO ex parte, but it shall be good only
for 72 hours. And then, in a multi-sala court, what the petitioner files with the
court is motion for a special raffle. If granted, there will be such special raffle in
the meantime that the executive judge has issued the ex parte TRO. After the
raffle is completed, the judge sala in which the action has been assigned has
the duty to conduct a hearing to determine whether or not it will have to issue
a writ of PI.
Do not forget the modifications of the 2007 circular to Rule 58. The
modification is that if a court has issued a writ of PI which has no term (not
lifted until finally decided or until ordered), the court that issued such writ of
PI must decide the principal action within a period of 6 months. This is the
modification in the 2007 circular. If the court does not place a limit of 6 months
to decide the principal action, the writ will be effectively be a perpetual
injunction, because it is effective until the case has finally been decided. If the
court grants the PI today, it has only 6 months within which to decide the case.
In deciding the principal case, the court could rule in favor of the plaintiff or
defendant. If ruled in favor of the defendant, the PI is automatically lifted,
meaning the plaintiff has no right at all to ask for the writ of PI.
Although the authority of the court is very broad in the issuance of a writ of PI,
there are instances where a court cannot grant a writ of PI or TRO.
Instances where a court cannot grant PI or TRO:
1. in the enforcement of Kalikasan statutes (except the SC, as only SC is
authorized to issue TRO or PI in Kalikasan cases)
2. if there is a TEPO issued by any court (it is only the SC that can prevent the
carrying out of the TEPO)
3. In the case of infrastructure projects of the national government (only the
SC that can prevent the carrying out of the project)
4. When it is a government bank that forecloses the mortgage (only the SC that
can prevent the carrying out of the foreclosure, either judicial or extra-
judicial)
5. court has no authority to grant injunctive relief against the BoC. (violation of
separation of powers)
6. court cannot grant injunctive relief against deportation of aliens (violation of
separation of powers)
If we compare the remedies available to a defendant against whom an
injunctive writ has been issued to that of which a Preliminary Attachment has
been issued, in Rule 57, in PA, if the adverse part/defendant files with the court
a counterbond, the lifting of the PA is ministerial to the court. The properties
will be returned. PI cannot be lifted without a hearing despite posting of
counterbond. The court cannot rely on the filing of a counterbond to lift the PI,
as it has to study the merit of the lifting of the injunction. It is not a matter of
right of the adverse party to expect the injunction court to lift the PI just
because of the filing of a counterbond. The reason why the Rules do not make
it a ministerial duty of the court to lift the PI simply because there is a
counterbond is due to the ground of grave and irreparable injury. The injury
cannot be measured exactly, there is no mathematical formula to determine
extent of damages that applicant can suffer in injunction cases.
In Preliminary Injunction (PI) and Preliminary Mandatory Injunction (PMI), we
should always relate these to the summary proceedings. Relate these in
relation to Forcible Entry and Unlawful Detainer in the NCC. The MTC can grant
PA or PMI.
The NCC contains some procedures in the matters pertaining to Forcible Entry
or Unlawful Detainer. In the NCC, which is copied by Rule 70, it is provided that
the court can grant PI or PMI in cases of ejectment. If the MTC grants PI or PMI,
that cannot be appealed or challenged by a petition under Rule 65. Under the
rule on summary proceedings, Rule 65 is a prohibited pleading in summary
proceedings in challenging an interlocutory order. This is the Rule found in Rule
70, as well as in some articles of the NCC.
But when that ejectment case is appealed in the RTC, in the exercise of its
appellate jurisdiction, the NCC, as well as the Rules, provides that the RTC can
grant PMI or PI if applied by the plaintiff/applicant. PI or PMI granted by the
RTC as an appellate court remains unappealable as it remains to be
interlocutory, but this can now be challenged under Rule 65. This is because
summary procedure is in effect while the case is in the MTC, whereas on
appeal in the RTC, the regular procedure applies, and challenge under Rule 65
is allowed.
RULE 59 RECEIVERSHIP
It has a feature not present in other provisional remedies. Provisional remedies
are contemplated to be used during the pendency of the case. In receivership,
the court can appoint a receiver during pendency of a case. Under the Rules,
the court can also appoint a receiver after the judgment or in the process of
execution of said judgment. This feature makes this remedy unique. There is
no fixed time in which a court can appoint a receiver.
Relate this to the remedies of a judgment creditor in Rule 39 when he is unable
to recover full satisfaction of his account. Under Rule 39, the judgment creditor
can ask for examination of the judgment debtor for any properties. If there are
properties present, judgment creditor can apply that such properties be placed
in receivership.
There has to be a summary hearing, no ex parte appointment of a receiver is
allowed.
The grounds for appointment of receiver are quite broad. Whenever the court
feels there is a need for the appointment of a receiver to preserve the property
in litigation, it shall do so. The Rules also provide in foreclosure of a mortgage,
the mortgagee can move for the court to have the mortgaged property placed
under receivership, even if there is no proof that the collateral will be lost or
deteriorate. This can be done whenever the deed of mortgage contains a
stipulation authorizing the mortgagee to move for the appointment of a
receiver. But generally, the purpose of receivership is to preserve the property
under litigation from loss or deterioration.
SC held that the receiver is not a representative of either party. It classified
the receiver as a representative and an officer of the court. Thus, the receiver
cannot file a case as a receiver without the consent of the court. If a receiver
needs to file a case to recover certain properties under receivership, he needs
permission from the court to do so. On the other hand, if a 3rd person has a
grievance against the receiver in his capacity as a receiver, the 3rd person
cannot simply file a case against such receiver as the 3rd person must seek
permission of the court first. We find here a situation that the filing of a case
will need permission of the court. If not granted, that action will fail.
Practically every issue is left to the court. The court determines how much
compensation to give to the receiver, the qualifications of a receiver, how
many receivers may be needed. The court can appoint a receiver, it can also
fire said receiver and appoint a new one, whenever there is a need to preserve
the property. The competence in the determination of such matters is in the
receivership court.
There is another feature in receivership that is not found in the other
provisional remedies. In receivership, there are two bonds :
1. Bond of the applicant
2. Bond of the receiver
The applicant should manifest that he is able to post bond. Once the court
appoints the receiver, the receiver shall also post a bond. The receiver’s bond is
designed to protect the parties to the litigation from any abuse or mischief by
the receiver in the performance of his duty.
RULE 60 REPLEVIN
By jurisprudence, it is accepted as a main action and as a provisional remedy
at the same time. Recovery of possession of property capable of manual
remedy is termed as a complaint for replevin. It automatically rules out a real
action. In personal action for recovery of possession of personal property, it
involves warrant of seizure or writ of replevin to enable applicant to gain
possession of the specified personal property.
In replevin cases, without an application of a provisional remedy of a writ of
replevin, the plaintiff recovers possession of a personal property only after the
case has been decided in his favor. So, if plaintiff filed the case today for
recovery of a car without an application for the provisional remedy of a writ of
replevin, and the case was decided 5 years later, the car shall remain under the
possession of the defendant during those 5 years. Chances are, by the time the
case is decided, the car might already be in a bad condition. That is the role of a
writ of replevin. So if a plaintiff files a complaint today for the recovery of a car,
if he wants to gain possession of the car right away, he should file an
application for a writ of replevin in order for him to immediately gain
possession of the car.
Writ of replevin is tilted always in favor of the applicant. The court can grant
the motion or application ex parte. This is one provisional remedy which
cannot be granted by an appellate court. Only the court of original
jurisdiction can grant it, as this can be granted ONLY before the defendant
answers (thus, it will be improper for the court to grant it once the defendant
already filed an answer). But, there must be prior/contemporaneous service
of summons to cure defect in jurisdiction over the person of the defendant.
Once served, the sheriff will seize the personal property. Sheriff has a 5 day
holding period after seizure. If there is no challenge on sufficiency of the
replevin bond and no counterbond, the sheriff shall turn over possession to the
plaintiff. This is the advantage of replevin, it immediately enables the plaintiff
to recover possession of the personal property that is the subject of litigation..
Problems in the service of the writ of replevin.:
1. Jurisdiction is either RTC or MTC depending on the value of the property
alleged in the complaint. As long as the court has jurisdiction over the
complaint based on the alleged value of the personal property, the court can
issue the provisional remedy of a writ of replevin.
Note: Value of the property = jurisdictional
2. The bond required is different than the other provisional remedies. The
bond is DOUBLE THE VALUE of the property subject to seizure AS ALLEGED in
the complaint. The court has not further authority to increase or decrease the
bond. IT will be based solely on the value of the property as alleged in the
complaint.
3. In the service of writ of replevin, when the sheriff finds the property is not
in possession of the defendant but a 3rd person who is not a litigant, and said
person claims ownership of the property, sheriff will not seize the property.
(Note: The solution to this is to advise your client that complaint should
implead 2 defendants, one who was known by the plaintiff to possess the thing
subject to the complaint and an UNKNOWN defendant. Thus, sheriff can
rightfully seize the car from anybody who might be in possession, as long as
an unknown defendant is impleaded in the complaint.)
4. Within the holding period of 5 days, the defendant can file motion to
challenge sufficiency of the bond (undervaluing) or a 3rd party claim, wherein
a 3rd person claims to be a true owner of the thing (like in Rule 57 and Rule
39). But in Rule 60, Replevin, the 3rd party claim must be filed within the 5-
day holding period, otherwise, the 3rd party claim is useless. This is because
after the 5-day holding period, the sheriff shall deliver the car to the
applicant.
A complaint for replevin was filed by X for recovery of a car. The court issued
the writ but the sheriff submitted a return saying he cannot enforce the writ
as the car can no longer be found. What the plaintiff did after receiving the
return was to file another application for Preliminary Attachment of the
properties of the defendant based on the same complaint on the ground that
the defendant has gotten hold of the property fraudulently and that he has
hidden the car so it cannot be found and be subject to seizure. Is this proper?
The conversion of application for a writ of replevin into one for an issuance for
PA is not proper. SC held that if plaintiff does not succeed via replevin, he
cannot use PA. If he desires to use PA, he should overhaul his complaint. The
allegations for the application for a writ of replevin is different from that for
issuance of a writ of PA. In application for issuance of a writ of replevin, the
plaintiff alleges he is the owner or entitled to possession. PA is for security
purposes, the ownership of the property subject to it belongs to the defendant,
not a property of the plaintiff.
5 The decision of the court can be in the alternative. If the property itself
cannot be delivered, the value of such property can be delivered to the
prevailing party.
RULE 61 SUPPORT PENDENTE LITE
This is found under the Rules and also mentioned in the SC Circular on
Provisional Remedies in Marriage-Related Cases. In fact, the circular of the
court is more expansive. This is because, it does not only mention support
pendente lite, it classifies it into spousal support and child support, and are
treated differently.
In the circular Family Court, which has jurisdiction over a complaint for support,
can grant both spousal support and child support even without hearing and
without requiring the filing of a bond. This is also provided in the Rules on
Support pendente lite. We follow that provision provided for in the circular. A
Family Court can grant spousal and child support even without filing of a bond
and without need for a hearing.
This is different in trial in courts that are not functioning as family court. This is
because in the Rules of Court, it is not proper for an ordinary court to grant an
application of support pendente lite without conducting a hearing. In the Rules,
in Provisional Remedies, support pendente lite can only be allowed only after a
hearing is heard, and the applicant and respondent are given the chance to
explain. The reason why this is required in the Rules is that a court cannot
conceivably issue an order granting support pendente lite unless the court is
able to determine first that the petitioner needs support, and even if the
petitioner does need support, to determine that the respondent is capable of
grant such support. This is because if the court simply grants an application for
support pendente lite without examining the financial ability of the
respondent, that provisional remedy will be useless. If the respondent cannot
comply, as he had no means to give support, he could be jailed. This is one
action where the court can imprison a respondent who does not comply with
its order to give support, although the respondent really may not have the
ability to really do so.
Remedies in case of violation against giving of support under substantive law:
(Dean Jara: This probably violates the equal protection clause as they are
relatively unfavorable to us men.)
1. Imprisonment for commission of a crime
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against violator under Rule 39
In the Rules of Court on Support Pendente Lite, you will notice that the
principle in Section 20 Rule 57 is not followed at all. A remedy to recover
damages in wrongful issuance of provisional remedies should be in the same
case. There must be no separate action to recover damages. But if you read the
provisions for Support Pendente Lite, it is expressly provided that there could
be an independent action for recovery of money given as support in
compliance with an order of the court. There is no need for respondent to file a
claim for damages in the same action.
If you are asked why a Family Court can order spousal support without a
hearing, just state that there is no need for a Family Court to determine the
needs of the spouse or of the minor children, there is no need for the court to
determine the financial ability of the defendant. This is because in family-
related cases, there is a need for an inventory of properties submitted to the
Family Court by the petitioner. Based on the inventory, the court can conclude
how much the spouse is entitled and how much the minors are entitled to
support.
Also, with respect to the Provisional Orders granted by a Family Court in
marriage-related cases, although the provisional orders are called by some
other name, these partake in the nature of an injunction.
TPO in a marriage-related case is actually a prohibitory injunction and a
mandatory injunction at the same time. This is because in the protection order,
the Family Court prohibits respondent from certain acts,, which is a prohibitory
injunction. Also, the Family Court can tell the respondent not to enter the
former conjugal dwelling and to remove his personal properties from the
house. Thus, it partakes of a mandatory injunction.
RECEIVERSHIP IN MARRIAGE-RELATED CASES
We also have receivership in marriage-related cases where the court may
appoint an administrator of the properties. He is effectively a receiver of
properties owned in common.
With respect to interim reliefs in Amparo, there is nothing mentioned in the
circular about filing of a bond.
With respect to Kalikasan circular, the applicant is not required to post a bond.
It is the adverse party who will have to post a bond in order to lift or dissolve
the writ of Kalikasan as security to protect the interest of the applicant.
Read the Circulars on the Writs.
Center your attention on the procedures required in civil and criminal cases
given in the Writs:
Kalikasan cases
- Commenced in RTC, MTC, CA, SC
- Continuing mandamus is only cognizable only in SC and CA
- Party complaining/answering must have attached documentary
and/or object evidence available
- If the defendant does not file an answer, there is no need for a
motion do declare defendant in default, it being a prohibited
pleading.
- If the defendant does not answer, it is the duty of the court to
declare the defendant in default, no motion need be had, and the
plaintiff’s evidence can be received ex parte.
- Compromise of the civil action is encouraged. The judgment is not
called a judgment based upon a compromise but is called a Consent
Decree.
- Rules on Evidence are not necessarily followed. Quantum of
evidence in civil cases is mere preponderance of evidence. However,
there are several instances in Kalikasan cases that mere substantial
evidence is enough, which is also now followed in Amparo cases. In
Amparo cases, only substantial evidence is required, which is the
same quantum of evidence in quasi-judicial proceedings. In Amparo
cases, the rule on quantum of evidence is exclusively determined by
the SC. If substantial evidence is required in Amparo cases, then that
is the quantum required. An administrative body cannot change the
quantum of evidence required.
Special Civil Actions
1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies (Rule 63)
3. Review of judgments and final orders of the COMELEC and the Commission
on Audit (Rule 64)
4. Certiorari, prohibition and mandamus (Rule 65)
5. Quo warranto(Rule 66)
6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage(Rule 68)
8. Partition (Rule 69)
9. Forcible entry and unlawful detainer (Rule 70)
10. Contempt (Rule 71)
11. Petition for Writ of Kalikasan
12. Petition for Continuing Mandamus
Q: What special civil actions are initiated by complaints and initiated by
petitions?
A:
1. by complaint
a. interpleader
b. expropriation
c. foreclosure of real estate mortgage
d. partition
e. forcible entry and unlawful detainer
2. by petition
a. declaratory relief
b. review of judgments and final orders or resolutions of the
COMELEC / COA
c. Certiorari
d. Prohibition
e. Mandamus
f. Quo Warranto
g. Contempt
h. Petition for Writ of Kalikasan
i. Petition for Continuing Mandamus
To properly appreciate why a civil action is further classified into a special civil
action, all that we have to do is to check Rule 1. In Rule 1, a special civil action
is inherently a civil action. What makes it special is that the Rules require
additional procedure for each and every special civil action that is not followed
in ordinary civil proceedings. Unless there is a special rule specifically devoted
to a certain special civil action, we will still apply ordinary rules of civil
procedure.
RULE 62 INTERPLEADER
What is so special about interpleader?
In ordinary civil cases, an action is commenced by the filing of a complaint,
petition or something equivalent to a complaint.
In an interpleader, it can be commenced by the filing of an answer with a
counterclaim for interpleader.
Since we are following the rules in ordinary civil action, there is need of a
plaintiff and a defendant. In an interpleader, there is a plaintiff and there can
two or more defendants.
One of the features of interpleader which is not possessed by ordinary civil
actions is the absence of a cause of action. In ordinary civil actions, if there is
no cause of action, the complaint will be dismissed. In a complaint for
interpleader or a counterclaim for interpleader, the plaintiff does not aver a
cause of action. The plaintiff in interpleader cannot say that he has a cause of
action because it is an essential requirements in an action for interpleader that
the plaintiff does not allege a right at all; or if he alleges a right, nobody has
violated the right, the defendants agree he has a right or does not contest the
right.
Since we are going to follow the rules of ordinary civil actions unless
otherwise provided in the Rules, does it mean to say that we should submit a
controversy of interpleader involving at least two or more defendants, should
there be prior barangay conciliation before we go to court?
Yes. Generally, that is a rule that is applicable to all civil actions, and thus will
include special civil actions, so long as the parties are natural persons residing
in the same city or municipality.
Since we are going to follow the rules of ordinary civil actions unless
otherwise provided in the Rules, does it mean to say that we should wait for
the court to issue summons?
Yes. That is the means by which the court will acquire jurisdiction over the
defendant.
In interpleader, a summoned defendant who failed to file an answer shall be
declared in default.

In Rule 9, when there is a complaint against several defendants, and one or two
of these defendants failed to file an answer while the others filed an answer,
Rule 9 says that the non-answering defendant will be declared in default, but
the non-answering defendant will be tried based on the answer filed by the
other answering defendants. Hence, if the answering defendant wins, the
defaulting defendant automatically wins. This is because both answering and
non-answering defendants are sued under a common cause of action.
We do not apply Rule 9 to an interpleader. In interpleader, when one
defendant files an answer and the other did not file an answer and was
declared in default, the defaulting defendant automatically loses the case. This
is because the Rules provide, that in addition to being declared in default, the
non-answering defendant will lose his claim. Although in reality the defaulting
defendant has a claim, his being declared in default will make him lose his right
to the claim. Thus, if there are only two defendants and one of them was
declared in default, since the defaulting defendant has already lost the case,
the remaining defendant will have a great chance of being declared as the one
with the right to the subject of the interpleader. This is because the plaintiff in
the interpleader does not have any right or interest to the claim of either
defendants. The remaining defendant will be declared as the one with the right
to the claim that is the subject of the interpleader.
Q: What are the three special civil actions which are within the jurisdiction of
MTCs?
A:
1. Interpleader, provided that the amount is within the jurisdiction of such MTC
2. Ejectment suits
3. Contempt
Q: What is an interpleader?
A: It is a special civil action filed by a person against whom two conflicting
claims are made upon the same subject matter and over which he claims no
interest, to compel the claimants to interplead and to litigate their conflicting
claims among themselves. (Sec. 1, Rule 62).
Q: What are the requisites in order that the remedy of interpleader may be
availed of?
A:
1. Plaintiff claims no interest in the subject matter or his claim is not disputed
2. Two or more claimants asserting conflicting claims
3. The subject matter must be one and the same
4. Person in possession or obliged files a complaint.
5. The parties to be interpleaded must make effective claims.
6. Payment of docket and other lawful fees.
Note: Upon filing of complaint, the court shall issue an order requiring
conflicting claimants to interplead. (Sec. 2, Rule 62)
Rule 63 Enumerates 4 special civil actions
~Declaratory Relief
“and other similar remedies”:
~Reformation of instrument
~Quieting of title
~Consolidation of title
Although in the same Rule, they are governed by different procedures.
DECLARATORY RELIEF RULE 63
The obvious nature of declaratory relief, which makes it a special civil action, is
that the petition must be filed before a breach or violation of a right. (If we
would follow ordinary rules of procedure, the complaint would have been
dismissed outright because of lack of a cause of action.) There is no allegation
that there is a right violated by another. If there is such an allegation, then the
action ceases to be a special civil action for declaratory relief, it becomes an
ordinary action.
Declarative relief is a preventive mechanism to prevent parties from getting
involved in an ordinary civil case. In Declarative relief , the petitioner does not
allege he has a right, or if he has, it has not been violated, and therefore, there
is really no cause of action. The petitioner seeks from the court a determination
of what his rights are. Petitioner is not absolutely certain if he has rights under
a certain instrument, so he asks the court to declare what his rights are. The
actual remedy is that the court declares what his rights are.
If the remedy is the declaration of the rights of the petitioner, then a prayer
for damages in declaratory relief negates the nature of such special civil
action. Damages connote the fact that a breach or violation of a right has
occurred.
There is an enumeration under Rule 63 (Section 1) as to the instruments which
could be subjects of a petition for declaratory relief; “deed, will, contract or
other written instrument, whose rights are affected by a statute, executive
order or regulation, ordinance, or any other governmental regulation.”
With respect to statute or ordinance, the same principle applies, we cannot
apply for a petition for declaratory relief if there is already a violation. If there
is a violation already, the petition will not be proper. Declaratory relief must be
had before such ordinance or statute has become effective. This is one of the
reasons of the 30 day period (date of effectivity; after publication) before a law
that has been enacted by Congress has effect. The said time before such
statute or ordinance takes effect is the time for it to be subject to petition for
declaratory relief, determining whether that statute or ordinance is
constitutional or unconstitutional.
You will meet decisions of the SC concerning declaratory relief to the effect
that you cannot file a motion for execution in order to carry out the declaratory
judgment (the judgment in a case for declaratory relief), in order to
differentiate it from what the court usually renders after a judgment has been
entered in order to clarify the judgment. The latter is what we a clarificatory
judgment. In a clarificatory judgment, that is where a judgment that has
become final and executory but has certain ambiguities with that judgment.
The remedy of the interested party is to file a motion for the rendition of a
clarificatory judgment. This clarificatory judgment is different from a
declaratory judgment. In declaratory judgment the court will only tell the
petitioner what his rights and duties are under a certain will or contract. But in
the case of a statute or ordinance, the court will tell the petitioner whether or
not the statute or ordinance is unconstitutional or not. So after the court has
done its duty, there is no more need for the prevailing party to return to the
court in order to move for the execution. We do not apply Rule 39 to a petition
for declaratory relief.
So, that is the nature of a declaratory relief that makes it a special civil action.
There is really no cause of action as contemplated in ordinary civil actions
where there is a right violated by the defendant.
Distinguish declaratory judgment from ordinary judgment.
A:
DECLARATORY JUDGMENT ORDINARY JUDGMENT
Declaratory judgment stands by itself Ordinary judgment involves executor
and no executory process follows or coercive relief
Intended to determine any question Intended to remedy or compensate
of construction or validity prior to injuries already suffered
breach or violation
What are the requisites of an action for declaratory relief?
A:
1. Filing of Petition before there is a breach or violation
2. Subject matter is a deed, will, contract, written instrument, statute,
executive order, regulation or ordinance
Note: The enumeration of the subject matter is exclusive, hence, an
action not based on any of the enumerated subject matters cannot
be the proper subject of declaratory relief. (Riano, Civil Procedure: A
Restatement for the Bar, p. 613, 2009 ed.)
3. There is justiciable controversy
4. Issue is ripe for judicial determination (Republic v. Orbecido III, G.R. No.
154380, October 5, 2005), i.e. litigation is imminent and inevitable (Tolentino v.
Board of Accountancy, G.R. No. L-3062, September 28, 1951)
5. Adequate relief is not available through other means or other forms of action
or proceedings (Ollada v. Central Bank, G.R. No. L-11357, May 31, 1962)
6. The controversy is between persons whose interests are adverse.
Q: When may an action for declaratory relief be converted into an ordinary
action?
A: After filing of petition for declaratory relief but before the final termination
of the case or rendition of judgment, a breach or violation of an instrument,
statute, executive order, regulation or ordinance takes place. (Sec. 6, Rule 63)
Q: Distinguish Ordinary Civil Action from Special Civil Action for Declaratory
Relief.
A:
1. Ordinary civil action – plaintiff alleges that his right has been violated by the
defendant; judgment rendered is coercive in character; a writ of execution may
be executed against the defeated party.
2. Special civil action of declaratory relief – an impending violation is sufficient
to file a declaratory relief; no execution may be issued; the court merely makes
a declaration.
The second procedural rule that we apply to declaratory relief which is not
followed in other special civil actions or in other ordinary civil actions is the
authority of the court not to entertain a petition for declaratory relief. The
court can refuse to make a declaration of the rights of petitioner and
respondents on a deed or a contract on the ground that the judgment will not
bind the parties not impleaded in the petition for declaratory relief. This shows
that declaratory relief is not in rem. It is purely a petition in personam. It
cannot bind other parties who had not been impleaded, although these parties
not so impleaded may be parties to the contract or matter under litigation.
When may a court refuse to make a judicial declaration?
A: Court may motu propio or upon motion refuse based on the following
grounds:
1. A decision will not terminate the uncertainty or controversy which gave rise
to the action
2. Declaration or construction is not necessary and proper under the
circumstances
Note: Discretion to refuse does not extend to actions for reformation of an
instrument quiet title or remove clouds or to consolidated ownership in a pacto
de retro sale. (Regalado, Remedial Law Compendium, Vol. I, p. 769, 2005 ed.)
Q: Can the court exercise discretion in application for declaratory relief?
A:
1. In declaratory relief, the court is given the discretion to act or not to act on
the petition. It may therefore choose not to construe the instrument sought to
be construed or could refrain from declaring the rights of the petitioner under
the deed or the law. A refusal of the court to declare rights or construe an
instrument is actually the functional equivalent of the dismissal of the petition.
2. On the other hand, the court does not have the discretion to refuse to act
with respect to actions described as similar remedies. Thus, in an action for
reformation of an instrument, to quiet or to consolidate ownership, the court
cannot refuse to render a judgment (Sec. 5, Rule 63).
Q: Is a third-party complaint proper in an action for declaratory relief?
A: No. Because in a third-party complaint, such person seeks to obtain
contribution, indemnity, subrogation or other reliefs and a declaratory relief is
confined merely to the interpretation of the terms of a contract. (Commission
of Customs v. Cloribel, G.R. No. 21036, June 30, 1977).
Q: What are the instances wherein a declaratory relief is unavailable?
A:
1. To obtain judicial declaration of citizenship;
2. To establish illegitimate filiation and determine hereditary rights;
3. The subject of the action is a court decision;
4. Actions to resolve political questions;
5. Those determinative of the issues rather than a construction of definite
status, rights and relations;
6. Terms of assailed ordinances are not ambiguous or of doubtful meaning;
7. In a petition to seek relief from a moot and academic question;
8. Where the contract or statute on which action is based has been breached;
9. When the petition is based on the happening of a contingent event;
10. When the petitioner is not the real party in interest; and
11. Where the administrative remedies have not yet been exhausted.
What is the competent court in a petition for declaratory relief?
Petition for declaratory relief is an action incapable of pecuniary estimation;
hence RTC is the proper venue. However, as to who is the competent court in
“other similar remedies”, take into account the provisions under BP 129:
~Reformation of instrument is cognizable solely by RTC as it is incapable of
pecuniary estimation.
~Quieting of Title is not necessarily under the RTC. Actions involving title to
property will depend on the value of the property. Under BP 129, actions
involving title to or possession of the property may be cognizable by an RTC or
MTC depending upon the assessed value of the property involved.
~Consolidation of title involves real property, hence, assessed value must be
alleged to vest jurisdiction.
Q: What is an action for quieting title to real property?
A: This action is brought to remove a cloud on title to real property or any
interest therein. The action contemplates a situation where the instrument or a
record is apparently valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be prejudicial to said title to
real property. This action is then brought to remove a cloud on title to real
property or any interest therein. It may also be brought as a preventive remedy
to prevent a cloud from being cast upon title to real property or any interest
therein (Art. 476, Civil Code).
Q: Is it required that the plaintiff be in the possession of the property before
an action is brought?
A: The plaintiff need not be in possession of the real property before he may
bring the action as long as he can show that he has a legal or an equitable title
to the property which is the subject matter of the action (Art. 477, Civil Code).
Why do we need to file a special civil action for consolidation of title?
In execution of judgment under Rule 39, if a real property is sold at public
auction by virtue of a levy on execution, the highest bidder will not
automatically get a title in his own name, merely a certificate of sale from the
sheriff, which bidder must register such encumbrance in the RoD for
annotation to the title of the property. He must wait one year. If there is no
redemption after one year from registration in the RoD, the sheriff will issue a
final deed of sale to the highest bidder and the highest bidder will have the
final deed of sale recorded in the RoD. The RoD will determine whether the 1-
year period has been met, and if there is no redemption, the highest bidder will
naturally be interested in securing the title to the property in his name. The old
title (still in the name of the judgment debtor) will be cancelled, and a new title
will be issued in the name of the highest bidder. The highest bidder does not
have to file an action for consolidation of title. The highest bidder will only
secure from the sheriff the final deed of sale. The RoD will simply cancel the old
title and issue a new title in the name of the highest bidder. So, in Rule 39,
there is no such thing as consolidation of title as a special civil action.
This is also the procedure that is followed when a mortgage is foreclosed. Once
the mortgage is foreclosed, the property is sold under auction to the highest
bidder. The sheriff will issue a certificate of sale to be registered in the RoD,
and then wait for the 1-year redemption period to expire. If there is no
redemption, the sheriff will again issue a final deed of sale. And on the basis of
that final deed of sale, the RoD will cancel the title of the judgment mortgagor
and issue a new title in the name of the highest bidder.
So you will notice that under Rule 39 and even in the Mortgage Law, in order to
consolidate title, we do not require a special civil action to consolidate title to
be filed in court. The only public officer who is going to deal with the interested
party is the RoD, who has the ministerial duty to issue a title if the papers are in
order, in this case a final deed of sale.
Why do we require an action to consolidate under Article 1607 of the NCC?
NCC Art. 1607. In case of real property, the consolidation
of ownership in the vendee by virtue of the failure of the
vendor to comply with the provisions of article 1616 shall
not be recorded in the Registry of Property without a
judicial order, after the vendor has been duly heard.
NCC Art. 1616. The vendor cannot avail himself of the
right of repurchase without returning to the vendee the
price of the sale, and in addition:
 (1) The expenses of the contract, and any other
legitimate payments made by reason of the sale;
(2) The necessary and useful expenses made on the thing
sold.
This is to obtain an order from the court for the RoD to consolidate the title of
a property subject to sale with right to redeem, although the factual
antecedents are the same. In the NCC Art. 1607, if there is a right to
redemption, it is called conventional redemption, not a legal redemption as
that in Rule 39 and in foreclosure of mortgage. It is that classification of
redemption to conventional that makes the difference.
A conventional redemption has also a period for 1 year. When the 1-year
period expires, the buyer of the property cannot deal directly with the RoD.
The reason why there is a need to go to court in conventional redemption is
that there is a provision in the NCC requiring it. It is explicitly stated in the NCC
that sale with the right to redeem is not a sale but an equitable mortgage. So,
insofar as the courts are concerned, if the contract entered by the parties is a
sale with right to redeem by way of conventional redemption, the NCC assumes
(a disputable presumption) that the real agreement between the parties is not
really a sale but an equitable mortgage. Insofar as the NCC is concerned, the
seller is not a genuine seller, only a mortgagor, and the buyer is the mortgagee
of the property, notwithstanding the clear tone of the deed of sale with right of
redemption. Even the RoD will have to observe the disputable presumption
given by the NCC that the deed of sale with right of redemption is one of an
equitable mortgage. So if we go to the RoD for consolidation of title, the RoD
will simply tell the buyer of the property that the contract is one of equitable
mortgage, not of sale, so there is a need to get a decision from the court
declaring that contract is really a genuine contract of sale with right of
redemption. That is the only purpose of this special civil action of consolidating
of title under Art. 1607 NCC, to give to the buyer in sale with right of
redemption a chance to present evidence to defeat that disputable
presumption contained in the NCC. If he is able to convince the court that the
sale is a genuine sale, the court will issue an order directing the RoD to cancel
the title of the seller and issue a new title in the name of the buyer.
But if the petitioner/buyer fails to defeat the disputable presumption that the
contract is one of equitable mortgage, he can still obtain a title, but he must file
another special civil action. This time, the buyer must file an action for judicial
foreclosure of mortgage. Even if he is not able to obtain a decision under Rule
63 in order to consolidate title under Article 1607 NCC, that is not the end
insofar as the buyer is concerned since he is an equitable mortgagee, so he still
has the right to foreclose the property. The only means where he can foreclose
the property is by availing of another special civil action, which is called
foreclosure of real estate mortgage under Rule 68. But the procedure for
judicial foreclosure of mortgage is quite lengthy, requiring 3 final orders of the
foreclosure court, a sale via public auction for the property, and even if we
assume that the mortgagee will become the highest bidder, he will get the title
in his own name only after the confirmation by the foreclosure court of the sale
in his favor is duly entered. As we will see later, judicial foreclosure of
mortgage, as a complement to a special civil action for consolidation of title, is
a 3-stage special civil action. Meaning to say, that the foreclosure court is
expected to make three decisions/orders before the mortgagee can obtain a
title in his name.
Q: What is the purpose of an action brought to consolidate ownership?
A: The action brought to consolidate ownership is not for the purpose of
consolidating the ownership of the property in the person of the vendee or
buyer but for the registration of the property. The lapse of the redemption
period without the seller a retro exercising his right of redemption consolidates
ownership or title upon the person of the vendee by operation of law. Art.
1607 requires the filing of the petition to consolidate ownership because the
law precludes the registration of the consolidated title without judicial order
(Cruz vs. Leis, 327 SCRA 570).
Note: The concept of consolidation of ownership under Art. 1607, Civil Code,
has its origin in the substantive provisions of the law on sales. Under the law, a
contract of sale may be extinguished either by legal redemption (Art. 1619) or
conventional redemption (Art. 1601). Legal redemption (retracto legal) is a
statutory mandated redemption of a property previously sold. For instance, a
co-owner of a property may exercise the right of redemption in case the shares
of all the other co-owners or any of them are sold to a third person (Art. 1620).
The owners of adjoining lands shall have the right of redemption when a piece
of rural land with a size of one hectare or less is alienated (Art. 1621).
Conventional redemption (pacto de retro) sale is one that is not mandated by
the statute but one which takes place because of the stipulation of the parties
to the sale. The period of redemption may be fixed by the parties in which case
the period cannot exceed ten (10) years from the date of the contract. In the
absence of any agreement, the redemption period shall be four (4) years from
the date of the contract (Art. 1606). When the redemption is not made within
the period agreed upon, in case the subject matter of the sale is a real
property, Art. 1607 provides that the consolidation of ownership in the vendee
shall not be recorded in the Registry of Property without a judicial order, after
the vendor has been duly heard.
If we compare this procedure governing the’ other similar remedies’ in Rule 63,
you will notice right away that while the court can outrightly refuse to
entertain a petition for declaratory relief, the court cannot outrightly refuse a
petition for consolidation of title, reformation of instrument or quieting of title.
This is expressly provided in Rule 63. So, if the complaint is for the
consolidation of title, the court will have to follow the procedure outlined in
ordinary civil cases, which is not followed in declaratory relief. In declaratory
relief, if the court notices that not all contracting parties are impleaded in the
case, it can refuse to entertain the petition as the judgment will not resolve the
lawsuits which may be filed as a result of this mistake.
If the court decides to entertain a petition for declaratory relief, and during the
pendency of the petition, the law took effect or there is a violation committed
as to the terms of the contract, the court shall order the conversion of
declaratory relief into an ordinary civil action. Petitioner will have to amend his
complaint, as he will now allege that he has a right and that right has been
violated. The declaratory relief will cease to be a special civil action. An
ordinary civil action takes its place, which is not possible in the actions covered
by ‘other similar remedies.’ The court does not enjoy discretion to outrightly
dismiss a petition for consolidation of title, reformation of instrument or
quieting of title.
It is settled when a person doubts his citizenship, he cannot file a petition for
declaratory relief. He can decide for himself right away. He needs not go to
court. He can register as a voter, which then shall be tantamount to his
recognition as a Filipino. Or, he may opt to go through naturalization. If he files
a petition for declaratory relief as to his citizenship, the court will dismiss
outrightly the petition. This is because declaratory relief is interested only in
declaration of rights and duties under a deed, will, contract or any other
instrument. There is no deed, contract or other instrument which will be
involved in determining whether a person is a Filipino or not. If he is not a
Filipino citizen, then he may need to go through naturalization or
administrative way of acquiring citizenship, not through a petition for
declaratory relief to be filed before the RTC.
RULE 64 VS. 65 AND SPECIAL CIVIL ACTIONS IN WRIT OF KALIKASAN
Rule 64 is always related to Rule 65. Although Rule 64 is a mode of review, and
the period to file for Rule 64 is different from that in Rule 65, Rule 64 itself
provides that in availing of the mode of review provided in Rule 64, the
petitioner should adopt the pleading in Rule 65, a special civil action for
certiorari, prohibition and mandamus. We have a review process from the
COMELEC and COA, it is not strictly a special civil action that will be filed, it is
still a mode of review, but using the pleadings outlined in Rule 65.
Rule 64 speaks of a mode of appeal from a judgment or final order of
COMELEC and CoA. Although a mode of review, Rule 64 provides that
petitioner should adopt the pleading in Rule 65. Rule 65 is about a special civil
action for certiorari, prohibition and mandamus.
Q: What is the mode of review for judgments and final orders of the
COMELEC and COA?
A: The petition may be brought by the aggrieved party to the Supreme Court
on Certiorari under Rule 65, except otherwise provided.
Note: Rule 65 applies to the mode of review under Rule 64.Said mode of
review is based on Article IX-A of the 1987 Constitution providing that the
proper mode of review is certiorari under Rule 65 to be filed before the
Supreme Court. Under R.A. 7902 the Court of Appeals has jurisdiction over all No. 02-03-SC)
adjudications of the Civil Service Commission.

Note: The order to comment under Sec. 6, Rule 64 in case the Supreme Court
finds the petition sufficient in form and substance is equivalent to summons in
ordinary civil action.
Court exercises original jurisdiction The court is in the exercise of its
appellate jurisdiction and power of
Q: What is the period for filing certiorari as referred to in Rule 64?
review.
A: The petition for certiorari referred to in Rule 64 shall be filed within 30 days
Filed with the RTC, CA, Filed with the SC
from notice of the judgment, final order or resolution of the COMELEC and the
Sandiganbayan or COMELEC
COA sought to be reviewed (Sec. 3, Rule 64).

Note: While Rule 64 makes reference to the certiorari under Rule 65, the Note: The remedies of appeal and certiorari are mutually exclusive and not
period for the filing of the petition for certiorari assailing the judgment of the alternative or successive. The antithetic character of appeal and certiorari has
COMELEC and COA is shorter than that provided under Rule 65 been generally recognized and observed save only on those rare instances
when appeal is satisfactorily shown to be an inadequate remedy. Thus, a
Petitioner should not move for an extension for a petition under Rule 65. It is petitioner must show valid reasons why the issues raised in his petition for
inextensible. certiorari could not have been raised on appeal (Banco Filipino Savings and
Mortgage Bank vs. CA, 334 SCRA 305).
Cite some distinctions between certiorari in Rule 45, 64 and 65.
Rule 45 is appeal by certiorari Certiorari as a Mode of Appeal (Rule Certiorari as a Special Civil Action
Rule 64 is appeal to SC with reference to Rule 65 pertaining to final orders, 45) (Rule 65)
resolutions or decisions rendered by CoA or COMELEC acting as quasi-judicial Called petition for review on A special civil action that is an original
bodies. certiorari, is a mode of appeal, which action and not a mode of appeal, and
Rule 65 is a special civil action of certiorari, prohibition and mandamus. is but a continuation of the appellate not a part of the appellate process
process over the original case; but an independent action.
Rule 65 – competent court is RTC, CA or SC Seeks to review final judgments or May be directed against an
Under COMELEC CODE, COMELEC has certiorari jurisdiction under Rule 65. final orders; interlocutory order of the court or
Sandiganbayan has certiorari jurisdiction under Rule 65. where not appeal or plain or speedy
remedy available in the ordinary
Q: Distinguish Rule 64 from Rule 65. course of law
A:
Rule 64 Rule 65
Directed only to the judgments, final Directed to any tribunal, board or DISTINCTIONS BETWEEN CERTIORARI UNDER RULES 45, 64, AND 65
orders or resolutions of the COMELEC officers exercising judicial or quasi- Rule 65 Rule 64 for COMELEC Review of judgment,
and COA; judicial functions; Certiorari, Prohibition and COA final orders or
Must be filed within 30 days from Must be filed within 60 days from and Mandamus resolutions of other
notice of judgment or resolution notice of judgment or resolution tribunals, persons and
If MR is denied, the aggrieved party If MR is denied, the aggrieved party officer (Rule 45)
may file the petition within the will have another 60 days within Special civil action for Appeal to the SC using Petition for Review or
remaining period, but which shall not which to file the petition counted certiorari, prohibition Rule 65 from the Appeal by Certiorari;
be less than 5 days. from the notice of denial. and mandamus; COMELEC En Banc
Called petition for
A special civil action review on certiorari, is a
Distinguish certiorari under Rule 65 and certiorari under Rule 45. that is an original action mode of appeal, which
A: and not a mode of is but a continuation of
Rule 65 Rule 45 appeal, and not a part the appellate process
of the appellate process over the original case;
Findings of fact of Court of Appeals GR: Findings of fact of CA are
but an independent
are not conclusive or binding upon SC conclusive
action.
Involves question of jurisdiction Involves question of law
May be directed against Directed only to the Review of judgment,
Mode of appeal Mode of review
an interlocutory order judgments, final orders final orders or
Directed against an interlocutory Involves the review of the judgment
of the court or where or resolutions of the resolutions of the CA,
order of a court or where there is no final orders or resolutions of the CA,
not appeal or plain or COMELEC and COA; Sandiganbayan, CTA,
appeal or any other plain, speedy or Sandiganbayan, CTA, RTC or other
speedy remedy RTC or other courts
adequate remedy courts
available in the ordinary Rules of the COMELEC
Filed not later than 60 days from Filed within 15 days from notice of course of law states that only
notice of judgment, order or judgment, final order or resolution decisions of the En Banc
resolution appealed from appealed from shall be appealable in
Unless a writ of preliminary injunction Stays the judgment or order appealed the SC) and CoA acting
or temporary restraining order is from as quasi-judicial bodies
issued, it does not stay the challenged (final orders or
proceeding judgments
The judge, court, quasi-judicial The appellant and the appellee are Under BP 129: RTC, CA SC CA, SC
agency, tribunal, corporation, board, the original parties to the action, and or SC has concurrent
officer or person shall be public the lower court or quasi-judicial and original jurisdiction;
respondents who are impleaded in agency is not impleaded under special laws:
the action COMELEC and
Motion for reconsideration or for new Motion for reconsideration is not Sandiganbayan has
trial is required. required special certiorari
If a motion for reconsideration or jurisdiction
new trial is filed, another 60 days BP 129: Original and Appellate Appellate
shall be given to the petitioner (A.M. Concurrent Jurisdiction
(RTC, CA and SC)
The petitioner has a Failure of petitioner to SC may deny the However, SC had sought to prevent being swamped by petitions under Rule 65.
choice to file in the RTC, comply with the formal decision motu propio on To remedy the abuse by petitioners, SC devised the principle of hierarchy of
and if an adverse requirements under the ground that the courts under Section 4 of Rule 65. This will limit the choice that theoretically a
decision is given, he can Sec. 5 Rule 64 will cause appeal is without merit, petitioner has. Effectively, petitioners are prohibited from going directly to the
elevate it to the CA, and the petition to be or is prosecuted SC under Rule 65. Petitioner must file first in the RTC or in the CA. If a petition
then the SC. If directly dismissed. manifestly for delay, or was filed directly in SC, it will outrightly dismiss a petition if such petition is
filed in the SC, SC has that the questions insufficient in form or substance. Even if the petition is well-crafted, a single
the discretion whether raised therein are too omission, such as the PTR number, shall dismiss it for being insufficient in form.
to outrightly dismiss unsubstantial to require
the petition or remand consideration. Q: What are the grounds for the outright dismissal of the petition?
it to the CA because of A: (Sec. 6, Rule 64)
insufficiency in form 1. Petition is not sufficient in form and substance (Sec. 5, Rule 64)
and/or substance in 2. Petition was filed for purpose of delay
accordance with the 3. Issue is unsubstantial
principle of hierarchy of
courts. Q: What are the grounds for the filing of a petition for certiorari?
Raises questions of Petition is based on Petition is based on A: That a tribunal, board or officer exercising judicial or quasi-judicial functions
jurisdiction because a questions of law questions of law acted:
tribunal, board or 1. Without or in excess of jurisdiction
officer exercising 2. In grave abuse of discretion amounting to lack or excess of jurisdiction
judicial or quasi-judicial
functions has acted Note: It is commenced by the filing of a verified petition accompanied by
without jurisdiction or certified true copy of the judgment, order or resolution subject thereof, copies
in excess of jurisdiction of all pleadings and documents relevant and pertinent thereto and a sworn
or with grave abuse of certification of non-forum shopping. (Sec. 1, Rule 65).
discretion amounting to
lack of jurisdiction; Q: When is certiorari under Rule 65 unavailable?
Filed not later than 60 Filed within 30 days Filed within 15 days A:
days from notice of from notice of from notice of 1. Summary procedure
judgment, order or judgment, final order or judgment, final order or 2. Writ of Amparo
resolution appealed resolution sought to be resolution appealed 3. Writ of Habeas Data
from reviewed from 4. Small claims cases (Riano, Civil Procedure: A Restatement for the Bar, p. 629,
Extension no longer No extension of period Extension of 30 days 2009 ed.)
allowed; (Motion for mentioned in Rule 64 may be granted for
extension of period to justifiable reasons Q: When is prohibition issued?
file is not allowed) A:
Motion for The filing of Motion for Motion for GR: Prohibition does not ordinarily lie to restrain an act which is already fait
reconsideration or for reconsideration or for reconsideration is not accompli.
new trial is required. new trial, if allowed required
under the procedural XPN: It will lie to prevent the creation of a new province by those in the
If a motion for rules of the corridors of power who could avoid judicial intervention and review by merely
reconsideration or new Commission, shall speedily and stealthily completing the commission of such illegality. (Tan v.
trial is filed, another 60 interrupt period fixed COMELEC, G.R. No. 73155, July 11, 1986)
days shall be given to
the petitioner (Fresh Note: Prohibition and not mandamus, is the remedy where a motion to dismiss
Period Rule/Neypes is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30, 1949)
Doctrine) (A.M. No. 02-
03-SC) Is it fatal for a petitioner to file a petition for certiorari, although the true
Unless a writ of Does not stay the Stays the judgment or remedy is a petition for prohibition?
preliminary injunction execution unless SC order appealed from For instance, where a motion to dismiss is filed by the defendant on the ground
or temporary shall direct otherwise of absence of jurisdiction over the subject matter of the case. Said motion was
restraining order is upon such terms as it denied. The defendant could appeal to the higher court via a petition under
issued, it does not stay may deem just Rule 65.
the challenged
proceeding We do not follow Rule 16 which tells the defendant that when his motion to
dismiss is denied, he has to file an answer within the remaining period. The SC
The judge, court, quasi- The COMELEC and COA The appellant and the
judicial agency, tribunal, shall be public appellee are the original has recognized the propriety of filing a petition for certiorari, prohibition or
corporation, board, respondents who are parties to the action, mandamus if a motion to dismiss founded on lack of jurisdiction over the
subject matter has been denied.
officer or person shall impleaded in the action and the lower court or
be public respondents quasi-judicial agency is
The petitioner files a petition for certiorari in the CA or SC. The true remedy,
who are impleaded in not impleaded
the action according to the SC, is a petition for prohibition, not a certiorari. From the facts
stated above, a prohibition is the correct remedy. As the petitioner/defendant
Court exercises original The court is in the The court is in the
had filed a petition for certiorari, can CA/SC outrightly deny the petition
jurisdiction exercise of its appellate exercise of its appellate
because it is the wrong remedy? SC said no. The petition for certiorari should
jurisdiction and power jurisdiction and power
instead be treated as a petition for prohibition. So it seems under this attitude
of review of review
of liberal interpretation of statutes, it is not fatal for a petitioner to choose the
remedy provided under Rule 65.
SC, CA and RTC have original jurisdiction over petitions under Rule 65. Thus,
there is concurrence of jurisdiction among these three courts. Theoretically,
Remember that certiorari is different from prohibition and mandamus,
petitioner has a choice as to where to file. The law does not compel him to file
although they are all contained in one Rule. The SC will simply treat the petition
a petition first in the RTC, then the CA, and finally in the SC. There is no such
for certiorari as a petition for prohibition. If you will analyze the requisites of a
provision in BP 129 and the Constitution.
petition for certiorari and prohibition, they are practically the same. There is
not much difference between the concept given in Section 1 Rule 65
(Certiorari) and Section 2 Rule 65 (Prohibition). The only differences is that in
certiorari, the petitioner asks that the judgment or interlocutory order be
annulled or set aside; in prohibition, the petitioner simply asks the prohibition
court to prevent the respondent court from going ahead with the proceedings,
and in prohibiting the respondent court, the prohibition court will be
effectively telling the respondent court that the denial, the interlocutory order
or the judgment rendered therein should be set aside and annulled because it
is a wrong final order or wrong interlocutory order.
CERTIORARI
That the petition is
directed against a
tribunal, board or
officer exercising
judicial or quasi-judicial
functions;
The tribunal, board or
officer has acted
without, or in excess of
jurisdiction or with
abuse of discretion
amounting to lack or
excess or jurisdiction
There is no appeal or
any plain, speedy and
adequate remedy in the
ordinary course of law.
Accompanied by a
certified true copy of
the judgment or order
subject of the petition,
copies of all pleadings
and documents relevant
and pertinent thereto,
and sworn certification
of non-forum shopping
under Rule 46.
Prohibition is an
extraordinary writ
commanding a tribunal,
corporation, board or
person, whether
exercising judicial,
quasi-judicial or
ministerial functions, to
desist from further
proceedings when said
proceedings are
without or in excess of
its jurisdiction, or with
abuse of its discretion,
there being no appeal
or any other plain,
speedy and adequate
remedy in the ordinary
course of law (Sec. 2,
Rule 65).
Special civil action
To prevent an
encroachment, excess,
usurpation or
assumption of
jurisdiction;
May be directed against
entities exercising
judicial or quasi-judicial,
or ministerial functions
Extends to discretionary Extends only to Does not necessarily
functions ministerial functions extend to ministerial,
discretionary or legal
functions;
Always the main action Always the main action May be the main action
or just a provisional
remedy
May be brought in the May be brought in the May be brought in the
Supreme Court, Court Supreme Court, Court Regional Trial Court
of Appeals, of Appeals, which has jurisdiction
PROHIBITION MANDAMUS Sandiganbayan, or in Sandiganbayan, or in over the territorial area
The petition is directed The plaintiff has a clear the Regional Trial Court the Regional Trial Court where respondent
against a tribunal, legal right to the act which has jurisdiction which has jurisdiction resides.
corporation, board or demanded; over the territorial area over the territorial area
person exercising where respondent where respondent
judicial, quasi-judicial, resides. resides.
or ministerial functions;
The tribunal, It must be the duty of But in our example, when a motion to dismiss founded on lack of jurisdiction is
corporation, board or the defendant to denied, it is also correct for the petitioner to make use right away of Rule 65. If
person must have acted perform the act, which he immediately files a petition for certiorari either in the CA or SC, that petition
without or in excess of is ministerial and not for certiorari will not be denied because it is not compliant with the
jurisdiction or with discretionary, because requirements of Sections 1 and 2 Rule 65, that there is “no appeal, or any
grave abuse of the same is mandated plain, speedy, and adequate remedy in the ordinary course of law.” This phrase
discretion amounting to by law; serves as an essential requisite before we can properly file a petition under
lack of jurisdiction; Rule 65. In fact, it is this phrase which is the source of the principle that we
learned that in Rule 65, a motion for reconsideration is a MUST. This is not
There is no appeal or The defendant
expressly mentioned in Rule 65. Motion for reconsideration is not even
any plain, speedy and unlawfully neglects the
mentioned in Rule 65. A motion for reconsideration is always a plain, speedy
adequate remedy in the performance of the
and adequate remedy in the ordinary course of law.
ordinary course of law. duty enjoined by law;
Accompanied by a There is no appeal or
Note: General Rule: Motion for reconsideration is a condition precedent in
certified true copy of any plain, speedy and
the filing of a petition for certiorari under Rule 65. Motion for reconsideration
the judgment or order adequate remedy in the
is a plain and speedy remedy available prior to petition under Rule 65.
subject of the petition, ordinary course of law.
copies of all pleadings
In Rule 65, if we examine the caption of a petition under Rule 65, we will
and documents relevant
discover that there are at least 2 respondents, one is the private respondent,
and pertinent thereto,
the other is the public respondent. The public respondent is the agency, court
and sworn certification
or officer/person who exercises judicial or quasi-judicial functions (in case of
of non-forum shopping
prohibition, public respondent is the agency, court or officer/person who
under Rule 46.
exercises judicial , quasi-judicial or ministerial functions). In other words, we
Mandamus is an Main action for
always involve a public officer or agency or court on or officer/person who
extraordinary writ injunction seeks to
exercises judicial , quasi-judicial or ministerial functions under Rule 65. We
commanding a tribunal, enjoin the defendant
cannot get a petition for certiorari under Rule 65 with only the private
corporation, board or from the commission or
respondent. We must implead the public respondent.
person, to do an act continuance of a
required to be done: specific act, or to
Although the rules describe the public respondent as a nominal party, it is in
(a) When he unlawfully compel a particular act
fact an indispensible party under Rule 65, because it is the final order or
neglects the in violation of the rights
judgment that it had issued that is being assailed or challenged. The reason
performance of an act of the applicant.
why Rule 65 calls the public respondent only as a nominal party is because in
which the law Preliminary injunction is
Rule 65 itself, it is provided that the public respondent is not authorized to
specifically enjoins as a a provisional remedy to
enter his appearance and to defend himself before the certiorari court. The
duty, and there is no preserve the status quo
fate of the public respondent lies in the hands of the private respondent. It is
other plain, speedy and and prevent future
the private respondent who will argue before the higher court and explain the
adequate remedy in the wrongs in order to
correctness of the interlocutory order or judgment that is being assailed under
ordinary course of law; preserve and protect
Rule 65. It is only in rare instances where the higher court will allow the public
or certain interests or
respondent to argue on his own behalf or submit his own papers in the
(b) When one rights during the
certiorari court. He should always rely on the papers and pleadings that are
unlawfully excludes pendency of an action.
submitted by the private respondent.
another from the use
and enjoyment of a
Because of the inherent nature of the petition under Rule 65, that there is
right or office to which
always a public respondent, the petition under Rule 65 does not have to
the other is entitled
comply with that condition precedent of prior barangay conciliation. This is one
(Sec. 3, Rule 65).
of the exceptions given in the LGC, where the action involves a government
Special civil action Ordinary civil action officer or employee in the performance of his duty.
To compel the For the defendant
performance of a either to refrain from And the grounds of course are very strictly interpreted. In Rule 65 Sections 1
ministerial and legal an act or to perform not and 2, the ground is that the public respondent has acted without jurisdiction,
duty; necessarily a legal and in excess of jurisdiction or with grave abuse of discretion amounting to lack of
ministerial duty; jurisdiction.
May be directed against Directed against a party
judicial and non-judicial
entities
The definition of Grave abuse of discretion amounting to lack or excess of
jurisdiction is a very simple definition given by the SC, when the public
respondent acts whimsically, despotic and/or arbitrarily. The SC did not
elaborate on whimsical, despotic or arbitrary, so it would have to be resolved
on a case-to-case basis.
For instance, a case is pending in the RTC for the collection of an
indebtedness. The plaintiff applies for the issuance of a writ of preliminary
attachment. The court grants and issues the writ. Does the RTC act
arbitrarily, acting gravely in abuse of its discretion if it grants and issues the
writ of preliminary attachment?
Yes, if that complaint does not fall any one of the cases mentioned in Rule 57:
(a) In an action for the recovery of a specified amount of
money or damages, other than moral and exemplary, on
a cause of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party who is
about to depart from the Philippines with intent to
defraud his creditors;
(b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a
public officer, or an officer of a corporation, or an
attorney, factor, broker, agent, or clerk, in the course of
his employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property
unjustly or fraudulently taken, detained or converted,
when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being
found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a
fraud in contracting the debt or incurring the obligation
upon which the action is brought, or in the performance
thereof;
(e) In an action against a party who has removed or
disposed of his property, or is about to do so, with intent
to defraud his creditors; or
(f) In an action against a party who does not reside and
is not found in the Philippines, or on whom summons
may be served by publication.
No, if the case does not fall under the above-mentioned cases under Rule 57
Section 1. Thus, the court would have acted in grave abuse of its discretion
amounting to lack or excess of jurisdiction.
Hence, in the issuance of provisionary remedies or orders, it could happen that
a court will gravely abuse its discretion amounting to lack or excess of
jurisdiction, a very despotic and arbitrary act of a court.
For instance, the defendant files an answer containing a negative defense
properly crafted. Then the court grants a summary judgment or rendered a
judgment on the pleadings. That is an arbitrary act of the court. But if the
decision rendered is a summary judgment or judgment on the pleadings, Rule
65 may not be a correct remedy. This is because under our Rules, because from
a judgment, the remedy is to appeal from the judgment. Whenever there is an
appeal available, you better forget Rule 65, because it is available only when
there is no appeal or other plain, speedy and adequate remedy available in the
ordinary course of law. This is the rule that we must always follow. Although,
there are rare instances that the SC allowed a petition for Rule 65 although
appeal is still available. If you will remember, there are certain exceptions to
the general rule that a motion for reconsideration is a must before making use
of Rule 65. There are also rare instances where the court allowed a petition
under Rule 65 even if appeal was still available, the reason being that in certain
instances, appeal is not a plain, speedy and adequate remedy available in the
ordinary course of law.
Q: Is it an absolute rule that before recourse to certiorari is taken a motion
for reconsideration must be filed?
A:
GR: Petition for certiorari will not be entertained unless the public
respondent has been given first the opportunity through a motion for
reconsideration to correct the error being imputed to him.
XPNs: A prior motion for reconsideration is not necessary to entertain a
petition for certiorari where:
1. Order is a patent nullity, as where the court a quo has no
jurisdiction;
2. Questions raised in the certiorari proceedings have been duly
raised and
passed upon by the lower court, or are the same as those raised
and passed upon in the lower court;
3. Urgent necessity for the resolution of the question, and any
further delay would prejudice the interests of the Government or
of the petitioner, or the subject matter of the action is perishable;
4. Under the circumstances, a motion for reconsideration would be
useless;
5. Petitioner was deprived of due process and there is extreme
urgency for relief;
6. In a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable;
7. Proceedings in the lower court are a nullity for lack of due
process;
8. Proceedings were ex parte or in which the petitioner had no
opportunity to object; and
9. Issue raised is one purely of law or where public interest is
involved.
Can a petition under Rule 65 that is filed to challenge an interlocutory order
or judgment be enough to suspend all proceedings in the lower court and
await the decision of the certiorari court on the petition for certiorari?
If the litigant is aggrieved by an order or judgment that is inappealable, it is
not allowed under Rule 65 for the trial court to suspend proceedings in the
case pending before it. Proceedings will only be suspended if the higher court
issues TRO or writ of PI. Thus, it is practical to ask along with the petition for
an issuance of TRO or writ of PI.
Take note of the modifications in Rule 65 concerning the abuse of parties and
lawyers in using petition for certiorari, prohibition or mandamus. It is under the
principle of res ipsa loquitur. In the past, lawyers usually file such petitions
whenever motions are denied, citing abuse of discretion whereas under Rule
65, the required ground is GRAVE ABUSE of discretion. In order to prevent
this practice, SC incorporated in Rule 65 the application of the civil law
principle of res ipsa loquitur. If a lawyer and his client will go up to CA or SC
under Rule 65, and the court resolves that the petition was manifestly
without merit or for purposes of delay, the lawyer and client will be held in
contempt of court for filing such manifestly unmeritorious petition or to pay a
solidary debtor treble costs, and there may be administrative sanctions
against the lawyer.
If the writ of mandamus is issued as requested, there is propriety of awarding
damages in favor of the petitioner, so it is automatically awarded under
Section 3 of Rule 65.In petitions for certiorari, petitioner may include petition
for award of damages. If proven, SC may award such damages.
SEC. 3. Petition for mandamus.—When any tribunal,
corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done
to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
The petition shall also contain a sworn certification of
non-forum shopping as provided in the third paragraph
of section 3, Rule 46.
Rule 65 does not specifically provide for award of damages under Sections 1
and 2 (Certiorari and Prohibition respectively). But the SC resolved that in
proper instances, if there is a prayer for damages incorporated in a petition for
certiorari or prohibition, there is nothing wrong if the court grants the writ of
certiorari or mandamus and award damages in favor of the petitioner, although
none is provided for it in Sections 1 and 2.The justification given by the SC is
that in a petition for certiorari or prohibition, there is always that prayer for
any additional relief which the court will deem just and equitable. SC said that
is enough justification for the award of damages, so long as the petitioner is
able to present proof of damages. TABLE OF COMPARISON FOR THE WRITS OF HABEAS CORPUS, AMPARO,
HABEAS DATA AND KALIKASAN
Why do we consider Rule 65 as a special civil action? HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN
1. Procedurally, the court can dismiss the petition for insufficiency in form and Literal interpretation
substance, which has a very broad in interpretation. So even if the SC has You have the To protect You have the It is a Filipino
jurisdiction, it can outrightly dismiss the petition. body data word which
means “nature”
2.If the court did not dismiss the petition outrightly, the court may not issue in English
summons. It may instead issue an order to comment. Once a comment is Governing Rule
submitted, the court acquires jurisdiction over that party. (Similarly, no Rule 102 A.M. No. 07-9- A.M. No. 08-1- A.M. No. 09-6-8-
summons is issued in cases of interpleader and declaratory relief and other 12-SC 16-SC SC
similar remedies.) Description
Writ directed to Remedy Remedy Special remedy
3. Since the court does not issue summons, issuing instead a plain order to the person available to any available to any available
comment within a fixed period, if no comment is submitted, the court cannot detaining person whose person whose to a natural or
declare respondent in default. another, right to life, right to privacy juridical person,
commanding him liberty, and in life, liberty or entity authorized
4. Under Rule 65, the court will not conduct a pre-trial or a trial. The issue is a to produce the security is security is by law, people’s
very limited issue. It is not only a mere question of law raised in Rule 65. That body of the violated or violated or organization,
question of law is one of law that it is limited to the issue of jurisdiction prisoner at a threatened with threatened by an non-
(without or in excess with grave abuse of discretion). There could be several designated time violation by an unlawful act or governmental
questions of law that could be raised. But, that question of law may not involve and place, with unlawful act or omission of a organization, or
jurisdiction at all. But in Rule 65, the issue is one of law and it is limited to the the day and omission of a public official or any public
issue of jurisdiction, whether or not the respondent committed grave abuse of cause of his public official or employee, or of interest group
discretion amounting to lack or excess of jurisdiction. capture and employee, or of a private accredited by or
detention, to do, a private individual or registered with
Also , the submission of the petition or Order to comment requires parties to submit to, and individual or entity engaged in any government
submit the pleadings already submitted in the lower courts. So, the court will receive entity. the gathering, agency, on
just analyze the documents presented before it via the documents attached to whatsoever the collecting, or behalf of persons
the petition or the comment, and thus there is no need for a trial. court or judge storing of data or whose
awarding the information constitutional
What is the remedy of the aggrieved party in a petition for certiorari? writ shall regarding the right to a
The remedy is appeal, either by petition for review or petition on certiorari consider in that person, family, balanced and
(Rule 45). behalf. home and healthful ecology
correspondence is violated, or
of the aggrieved threatened with
party. violation by an
unlawful act or
omission of a
public official or
employee, or
private individual
or entity,
involving
environmental
damage of such
magnitude as to
prejudice the
life, health or
property of
inhabitants in
two or more
cities or
provinces.
Coverage
Involves the right Involves the right Involves the right Constitutional
to liberty of and to life, liberty, to privacy in life, right to a
rightful custody and security of liberty, and balanced and
by the aggrieved the aggrieved security of the healthful
party. party and covers aggrieved party ecology.
extralegal killings and covers
and enforced extralegal killings
disappearances. and enforced
disappearances.
 Rights violated If granted by SC Enforceable anywhere in the Enforceable
There is an There is an There is an There is an or CA: Philippines regardless of who issued anywhere in the
actual violation actual or actual or actual or enforceable the same Philippines
of the aggrieved threatened threatened threatened anywhere In the
party’s right. violation of the violation of the violation of one’s Philippines;
aggrieved party’s aggrieved party’s right to a If granted by
right. right. healthful and RTC: enforceable
balanced ecology only within the
involving judicial district
environmental Docket fees
damage. Payment is Petitioner is Payment is Petitioner is
Where to file required exempted from required. exempted from
RTC or any judge RTC of the place RTC where the In SC or any Note: Rule on payment Note: Rule on payment
thereof, CA or where the petitioner or stations of the indigent indigent
any member threat, act or respondent CA. petitioner petitioner
thereof in omission was resides, or that applies. applies.
instances committed or which has Service of writ
authorized by any of its jurisdiction over Served upon the Served upon the Served upon the Served upon the
law; or SC or any elements the place where person to whom respondent respondent respondent
member thereof. occurred; SB or the data or it is directed, and personally; or personally; or personally; or
any justice information is if not found or substituted substituted substituted
thereof; CA or gathered, has not the service service service.
any justice collected or prisoner in his
thereof; SC or stored, at the custody, to the
any justice option of the other person
thereof. petitioner; or having or
with SC, CA or SB exercising such
when the action custody
concerns public Person who makes the return
data files or Officer by whom Respondent Respondent Respondent
government the prisoner is
offices. imprisoned or
Who may file a petition the person in
In the following In the following A natural or whose custody
1. Party for order: order: juridical person, the prisoner is
whose relief it is 1. Any member 1. Any aggrieved entity authorized found
intended; or of the immediate party; by law, people’s When to file a return
family 2. However, in organization, On the day Within 5 working The respondent Within non-
2. Any person on 2. Any cases of non- specified in the days after shall file a extendible
his behalf ascendant, extralegal killings governmental writ service of the verified written period of 10 days
descendant, or and enforced organization, or writ, the return together after the service
collateral relative disappearances: any public respondent shall with supporting of writ.
of the aggrieved a. Any member interest file a verified affidavits within
party within the of the immediate group accredited written return 5 working days
4th civil degree family by or registered together with from service of
of consanguinity b. Any with any supporting the writ, which
or affinity ascendant, government affidavits. period may be
3. Any concerned descendant, or agency. reasonably
citizen, collateral relative extended by the
organization, of the aggrieved Court for
association or party within the justifiable
institution 4th civil degree reasons.
of consanguinity Return
or affinity If granted by the If issued by RTC: If issued by RTC: If issued by SC,
Respondent SC or CA: returnable returnable returnable
May or may not Public official or Public official or Public official or returnable before such before such before such
be an officer. employee or a employee or a employee, before the court court; court; court or CA.
private individual private individual private individual or any member If issued by SB or If issued by SB or
or entity. or entity or entity. or before RTC or CA or any of CA or any of
engaged in the any judge their justices: their justices:
gathering, thereof; returnable returnable
collecting or If granted by before such before such
storing of data or RTC: returnable court or to any court or to any
information before such RTC of the place RTC of the place
regarding the court where the where the
person, family, threat, act or petitioner or
home and omission was respondent
correspondence committed or resides or that
of the aggrieved any of its which has
party. elements jurisdiction over
HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN occurred; the place where
Enforceability of the writ If issued by SC or the data or
any of its information is
 justices: gathered, 11. Motion for reconsideration of complaint;
returnable collected or interlocutory orders or interim relief 7. Reply; and
before such stored; orders; and 8. Motion to
court, or before If issued by SC or 12. Petition for certiorari, mandamus declare
SB, any of its or prohibition against any respondent in
CA, or to any RTC justices: interlocutory order. default.
of the place returnable
where the before such
threat, act or court, or before
omission was SB, CA, or to any SPECIAL CIVIL ACTIONS IN THE KALIKASAN CIRCULAR
committed or RTC of the place The Writ of Kalikasan is a mini RoC for environmental cases. By itself, the
any of its where the circular appears to contain all rules pertaining to civil cases arising out of
elements petitioner or Kalikasan laws as well as criminal procedures.
occurred respondent
resides or that 2 special civil actions:
which has ~Writ of Kalikasan
jurisdiction over ~Petition for Continuing Mandamus
the place where
the data or Why does the Kalikasan circular consider a petition for a writ of kalikasan and
information is continuing mandamus as a special civil action?
gathered, It is because of the fact that although these are governed by ordinary rules of
collected or procedure, there are instances where there is a special procedure which has to
stored be followed in hearing said special proceeding.
General denial
Not prohibited. Not allowed. Not allowed. Not allowed. A Petition of a Writ of Kalikasan as a special civil action is entirely different from
HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN ordinary civil cases. The sheer number of parties, as well as the magnitude of
Liability of the person to whom the writ is directed if he refuses to make a the prejudice that could be suffered by the petitioners (the threat to their life,
return liberty and property),is such that they are the inhabitants of at least 2 or more
Forfeit to the Imprisonment or Imprisonment or Indirect provinces or cities. If we talk about numbers, the actual number of inhabitants
aggrieved party fine for fine for contempt. in a typical province could number in the hundreds of thousands. This is a
the sum of committing committing perfect example of a class suit. They stand to be prejudiced in their right to
P1000, and may contempt. contempt. their life, liberty and property by a violation or a threat to violate
also be punished environmental laws by a natural person or juridical entity. Even if there is just a
for contempt. petitioner, a juridical entity, an NGO or an accredited public interest group,
Hearing they can file a petition on behalf of two or more provinces or cities. The parties
Date and time of Summary Summary The hearing are so numerous that it will be impractical for all of them to be brought before
hearing is hearing shall be hearing shall be including the the court.
specified in the conducted not conducted not preliminary
writ. later than 7 days later than 10 conference shall To make matters simple procedurally, take note that the procedures in Habeas
from the date of working days not extend Corpus and Amparo as special proceedings are practically the same procedures
issuance of the from the date of beyond sixty (60) followed in Kalikasan cases.
writ. issuance of the days and shall be
writ. given the same Upon the filing of the petition, and the court analyzes the petition, and the
priority as court is convinced of the need for the writ to be issued, the writ will be
petitions for the immediately issued without need of hearing the side of the respondents. The
writs of habeas writ can be issued right away by the court as long as the allegations in the
corpus, amparo petition are complete, that petition is meritorious by itself. The court may issue
and habeas data. also an order requiring respondents to file a VERIFIED RETURN (not an answer).
Period of appeal In writ of HC and Amparo, return is also required to be filed by respondents.
Within 48 hours 5 working days 5 working days Within fifteen The Return must contain the respondent’s explanation as to his side. The writ is
a special civil action in this contest because the writ is issued right away, even
from notice of from the date of from the date of (15) days from
the judgment or notice of the notice of the the date of before the respondent is given the chance to give his side, even before the
final order adverse judgment or final notice of the respondent can file his return.
appealed from. judgment. order. adverse
judgment or The Kalikasan circular has lots of sections as to the use of discovery measures.
But, they are treated not as discovery measures, but as provisional orders in
denial of motion
for the Kalikasan circular.
reconsideration.
After the issuance of the writ of Kalikasan, even without hearing the
Prohibited pleadings
respondent, the Kalikasan court can issue a provisional remedy called cease
None 1. Motion to dismiss; 1. Motion to and desist order, which is similar to a TRO in civil cases. But, it does not have an
2. Motion for extension of time to file dismiss; expiration date, unlike a TRO in ordinary procedure, the duration depends
opposition, affidavit, position paper 2. Motion for upon the discretion of the Kalikasan court.
and other pleadings; extension of
3. Dilatory motion for postponement; time to file Also, there are only 2 courts that can take cognizance of a petition for a writ of
4. Motion for a bill of particulars; return; Kalikasan, the SC and the CA.
5. Counterclaim or cross - claim; 3. Motion for
6. Third - party complaint; postponement; Since there is no answer that is required to be filed by the respondent, failure
7. Reply; 4. Motion for a by the respondent to file a verified return does not result in default. In ordinary
8. Motion to declare respondent in bill of particulars; civil actions involving environmental laws, we follow a different procedure.
default; 5. Counterclaim
9. Intervention; or cross-claim; If the defendant in an ordinary civil procedure does not file an answer, the
10. Memorandum; 6. Third-party defendant will be declared in default even if there is no motion initiated by a
plaintiff. That is in an ordinary civil action involving environmental laws which is
not a special civil action of Kalikasan filed only in the CA or SC. So if the
respondents do not submit a verified return, the court will go ahead with
analyzing the merit of the petition for a writ of Kalikasan.
A decision of the Kalikasan court in a special civil action of Kalikasan is
immediately executory, although there could be an appeal. If the Circular says
that the decision is immediately executory, it does not mean that appeal is no
longer available. A decision could be executed as a matter of right even if the
aggrieved party still has the right to appeal. This is an example of a judgment
that is immediately executory, but the aggrieved party enjoys the right of
appeal.
In a special civil action for a writ of kalikasan, an appeal under Rule 45 is filed
in the SC. Questions of fact could be raised therein, as an exception to the
general rule in Rule 45 that only questions of law could be raised before the
SC.
Judgment in favor of petitioner, aside from being immediately executory,
partakes of a permanent prohibitory mandatory injunction and at the same
time a permanent mandatory injunction. That is the tenor of a judgment in
Kalikasan cases. The judgment will always contain a provision in which
respondent is permanently prohibited from violating or from doing an act that
will violate environmental laws, and the permanently mandatory part is that
the LGU is given a mandate to enforce environmental laws.
Writ of Continuing Mandamus in Kalikasan Cases
It is patterned after the mandamus contained in Rule 65. If you will compare
the definition of mandamus in Rule 65 to the definition of continuing
mandamus in the Kalikasan Circular, there is only the inclusion in continuing
mandamus of the clause pertaining to the enforcement of environmental laws
(“in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein,” Section 1 Rule 8
Rules of Procedure on Environmental Cases).
MCQ
The idea or concept of continuing mandamus. What is the source of this writ
of continuing mandamus?
1. an invention of the SC
2. it was taken from India
3. It was taken from USA
4. it is adopted from Latin American Countries just like Amparo.
Answer –2. it came from the SC of India, which seems to have a good
experience in enforcing environmental laws.
Why do we have a writ of continuing mandamus when we already have
mandamus under Rule 65? Cannot the writ of Mandamus under Rule 65
satisfy the requirements of a continuing mandamus?
Mandamus under Rule 65 under Sec. 3 cannot satisfy the requirement of a
continuing mandamus. It will negate the state policy of enforcing strictly
environmental laws. A final and executory judgment under Rule 39 can only
be enforced through a motion in the first five years. After that, the next five
years, a case for revival of judgment must be had. In continuing mandamus, it
is designed to avoid the process of motion and then filing a case for revival of
judgment. The continuing mandamus requires continuous enforcement of the
judgment. Via the continuing mandamus, the government is given a duty
until the objective sought in achieved.
MMDA vs. Concerned Citizens – Writ of Kalikasan and Continuing Mandamus
– petition to clean Manila Bay 2011
MMDA and various agencies were ordered by SC to clean Manila Bay until it is
returned to its pristine condition. (Without Continuing Mandamus, MMDA will
not be compelled to execute the judgment.)
MMDA v. Concerned Residents of Manila Bay
The Cleaning or Rehabilitation of Manila Bay Can be
Compelled by Mandamus
Generally, the writ of mandamus lies to require the
execution of a ministerial duty. A ministerial duty is one
that “requires neither the exercise of official discretion
nor judgment.” It connotes an act in which nothing is
left to the discretion of the person executing it. It is a
“simple, definite duty arising under conditions admitted
or proved to exist and imposed by law.”Mandamus is
available to compel action, when refused, on matters
involving discretion, but not to direct the exercise of
judgment or discretion one way or the other.
***
Respondents, on the other hand, counter that the
statutory command is clear and that petitioners’ duty to
comply with and act according to the clear mandate of
the law does not require the exercise of discretion.
According to respondents, petitioners, the MMDA in
particular, are without discretion, for example, to
choose which bodies of water they are to clean up, or
which discharge or spill they are to contain. By the same
token, respondents maintain that petitioners are bereft
of discretion on whether or not to alleviate the problem
of solid and liquid waste disposal; in other words, it is
the MMDA’s ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners’
obligation to perform their duties as defined by law, on
one hand, and how they are to carry out such duties, on
the other, are two different concepts. While the
implementation of the MMDA’s mandated tasks may
entail a decision-making process, the enforcement of
the law or the very act of doing what the law exacts to
be done is ministerial in nature and may be compelled
by mandamus. We said so in Social Justice Society v.
Atienza in which the Court directed the City
of Manila to enforce, as a matter of ministerial duty, its
Ordinance No. 8027 directing the three big local oil
players to cease and desist from operating their
business in the so-called “Pandacan Terminals” within
six months from the effectivity of the ordinance. But to
illustrate with respect to the instant case, the MMDA’s
duty to put up an adequate and appropriate sanitary
landfill and solid waste and liquid disposal as well as
other alternative garbage disposal systems is ministerial,
its duty being a statutory imposition. The MMDA’s duty
in this regard is spelled out in Sec. 3(c) of Republic Act
No. (RA) 7924 creating the MMDA. This section defines
and delineates the scope of the MMDA’s waste disposal
services to include:
Solid waste disposal and
management which include
formulation and implementation
of policies, standards, programs
and projects for proper and
sanitary waste disposal. It shall
likewise include the establishment
and operation of sanitary land fill
and related facilities and the
implementation of other
alternative programs intended to
reduce, reuse and recycle solid
waste. (Emphasis added.)
The MMDA is duty-bound to comply with
Sec. 41 of the Ecological Solid Waste Management Act
(RA 9003) which prescribes the minimum criteria for the
establishment of sanitary landfills and Sec. 42 which
provides the minimum operating requirements that
each site operator shall maintain in the operation of a
sanitary landfill. Complementing Sec. 41 are Secs. 36
and 37 of RA 9003, enjoining the MMDA and local
government units, among others, after the effectivity of
the law on February 15, 2001, from using and operating
open dumps for solid waste and disallowing, five years
after such effectivity, the use of controlled dumps.
The MMDA’s duty in the area of solid waste
disposal, as may be noted, is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its
charter as well. This duty of putting up a proper waste
disposal system cannot be characterized as
discretionary, for, as earlier stated, discretion
presupposes the power or right given by law to public
functionaries to act officially according to their
judgment or conscience. A discretionary duty is one that
“allows a person to exercise judgment and choose to
perform or not to perform.” Any suggestion that the
MMDA has the option whether or not to perform its solid
waste disposal-related duties ought to be dismissed for
want of legal basis.
A perusal of other petitioners’ respective charters
or like enabling statutes and pertinent laws would yield
this conclusion: these government agencies are
enjoined, as a matter of statutory obligation, to
perform certain functions relating directly or indirectly
to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded
from choosing not to perform these duties. ****
****
All told, the aforementioned enabling laws
and issuances are in themselves clear, categorical, and
complete as to what are the obligations and mandate of
each agency/petitioner under the law. We need not
belabor the issue that their tasks include the cleanup of
the Manila Bay.
Secs. 17 and 20 of the Environment Code Include
Cleaning in General
****
Respondents are correct. For one thing, said
Sec. 17 does not in any way state that the government
agencies concerned ought to confine themselves to the
containment, removal, and cleaning operations when a
specific pollution incident occurs. On the contrary, Sec.
17 requires them to act even in the absence of a specific
pollution incident, as long as water quality “has
deteriorated to a degree where its state will adversely
affect its best usage.” This section, to stress, commands
concerned government agencies, when appropriate, “to
take such measures as may be necessary to meet the
prescribed water quality standards.” In fine, the
underlying duty to upgrade the quality of water is not
conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the
Environment Code, as couched, indicates that it is
properly applicable to a specific situation in which the
pollution is caused by polluters who fail to clean up the
mess they left behind. In such instance, the concerned
government agencies shall undertake the cleanup work
for the polluters’ account.**** As earlier discussed, the
complementary Sec. 17 of the Environment Code comes
into play and the specific duties of the agencies to clean
up come in even if there are no pollution incidents
staring at them. Petitioners, thus, cannot plausibly
invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of
RA 9275 on the pretext that their cleanup mandate
depends on the happening of a specific pollution
incident. In this regard, what the CA said with respect
to the impasse over Secs. 17 and 20 of PD 1152 is at
once valid as it is practical. The appellate court wrote:
“PD 1152 aims to introduce a comprehensive program
of environmental protection and management. This is
better served by making Secs. 17 & 20 of general
application rather than limiting them to specific
pollution incidents.”
Granting arguendo that petitioners’ position
thus described vis-à-vis the implementation of Sec. 20 is
correct, they seem to have overlooked the fact that the
pollution of the Manila Bay is of such magnitude and
scope that it is well-nigh impossible to draw the line
between a specific and a general pollution incident. And
such impossibility extends to pinpointing with reasonable
certainty who the polluters are. We note that Sec. 20 of
PD 1152 mentions “water pollution incidents” which may
be caused by polluters in the waters of
the Manila Bay itself or by polluters in adjoining lands
and in water bodies or waterways that empty into the
bay. Sec. 16 of RA 9275, on the other hand, specifically
adverts to “any person who causes pollution in or
pollutes water bodies,” which may refer to an individual
or an establishment that pollutes the land mass near
the Manila Bay or the waterways, such that the
contaminants eventually end up in the bay. In this
situation, the water pollution incidents are so
numerous and involve nameless and faceless polluters
that they can validly be categorized as beyond the
specific pollution incident level.
Not to be ignored of course is the reality that
the government agencies concerned are so
undermanned that it would be almost impossible to
apprehend the numerous polluters of the Manila Bay. It
may perhaps not be amiss to say that the apprehension,
if any, of the Manila Bay polluters has been few and far
between. Hence, practically nobody has been required
to contain, remove, or clean up a given water pollution
incident. In this kind of setting, it behooves the
Government to step in and undertake cleanup
operations. Thus, Sec. 16 of RA 9275, previously Sec. 20
of PD 1152, covers for all intents and purposes a general
cleanup situation.
The cleanup and/or restoration of
the Manila Bay is only an aspect and the initial stage of
the long-term solution. The preservation of the water
quality of the bay after the rehabilitation process is as
important as the cleaning phase. It is imperative then
that the wastes and contaminants found in the rivers,
inland bays, and other bodies of water be stopped from
reaching the Manila Bay. Otherwise, any cleanup effort
would just be a futile, cosmetic exercise, for, in no time
at all, the Manila Bay water quality would again
deteriorate below the ideal minimum standards set by
PD 1152, RA 9275, and other relevant laws. It thus
behooves the Court to put the heads of the petitioner-
department-agencies and the bureaus and offices under
them on continuing notice about, and to enjoin them to
perform, their mandates and duties towards cleaning up
the Manila Bay and preserving the quality of its water to
the ideal level. Under what other judicial discipline
describes as “continuing mandamus,” the Court may,
under extraordinary circumstances, issue directives
with the end in view of ensuring that its decision would
not be set to naught by administrative inaction or
indifference. In India, the doctrine of continuing
mandamus was used to enforce directives of the court to
clean up the length of the Ganges River from industrial
and municipal pollution.
*****
In the light of the ongoing environmental
degradation, the Court wishes to emphasize the extreme
necessity for all concerned executive departments and
agencies to immediately act and discharge their
respective official duties and obligations. Indeed, time is
of the essence; hence, there is a need to set timetables
 for the performance and completion of the tasks, some
of them as defined for them by law and the nature of
their respective offices and mandates.
The importance of the Manila Bay as a sea
resource, playground, and as a historical landmark
cannot be over-emphasized. It is not yet too late in the
day to restore the Manila Bay to its former splendor and
bring back the plants and sea life that once thrived in its
blue waters. But the tasks ahead, daunting as they may
be, could only be accomplished if those mandated, with
the help and cooperation of all civic-minded individuals,
would put their minds to these tasks and take
responsibility. This means that the State, through
petitioners, has to take the lead in the preservation and
protection of the Manila Bay.
The era of delays, procrastination, and ad
hoc measures is over. Petitioners must transcend their
limitations, real or imaginary, and buckle down to work
before the problem at hand becomes unmanageable.
Thus, we must reiterate that different government
agencies and instrumentalities cannot shirk from their
mandates; they must perform their basic functions in
cleaning up and rehabilitating the Manila Bay. We are
disturbed by petitioners’ hiding behind two untenable
claims: (1) that there ought to be a specific pollution
incident before they are required to act; and (2) that the
cleanup of the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation
enacted to radically transform and improve waste
management. It implements Sec. 16, Art. II of the 1987
Constitution, which explicitly provides that the State
shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the
rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the
Court stated that the right to a balanced and healthful
ecology need not even be written in the Constitution for
it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of
transcendental importance with intergenerational
implications. Even assuming the absence of a
categorical legal provision specifically prodding
petitioners to clean up the bay, they and the men and
women representing them cannot escape their
obligation to future generations of Filipinos to keep the
waters of the Manila Bay clean and clear as humanly as
possible. Anything less would be a betrayal of the trust
reposed in them.
How do we execute that judgment in the Kalikasan court?
Theoretically, SC said that the execution of the judgment requires a periodic
report from the agencies concerned on the extent of progress the government
agencies concerned had achieved until the objective of the writ has been
achieved. If the SC is understaffed to monitor the progress, it can appoint
commissioners in charge of accepting periodic reports and in submitting the
progress reports to the SC in order to satisfy this judgment requirement.
Thus, dormancy and prescription of judgment under Rule 39 and NCC shall
not apply in Writ of Kalikasan.
A continuing mandamus is another special civil action, but this time it is
cognizable by the RTC, CA and the SC. Just like in Rule 65 or the Writ of
Kalikasan as a special civil action, the respondent is required to file a verified
return, and if no return is filed by respondent, court continues with the process
of analyzing the merit of the petition for continuing mandamus.
A provisional remedy that could be issued by the court handling the petition for
continuing mandamus is the issuance of a Temporary Environmental Protection
Order (TEPO) or a cease and desist order, just like in the writ of Kalikasan.
There could also be an award of damages.
You will also notice that unlike in Kalikasan, there is no provision concerning
appeals in continuing mandamus.. In the writ of Kalikasan as a special civil
action, appeal under Rule 45 is a remedy, raising only questions of law and
questions of fact. . It would seem that the appeals provided in ordinary civil
procedure will govern. If the trial court is the RTC, the appeal could be by
notice of appeal provided in the Rules, or it could be an appeal directed to the
SC. In ordinary civil cases, we allow an appeal from the RTC to the SC under
Rule 45, but the appeal should only contain questions of law.
What is the precautionary principle in Kalikasan Cases?
Precautionary principle states that when human activities may lead to threats
of serious and irreversible damage to the environment that is scientifically
plausible but uncertain, actions shall be taken to avoid or diminish that
threat.
What is Strategic Lawsuit Against Public Performance (SLAPP) ?
It could be in the form of a civil or criminal action. Plaintiff’s intent from SLAPP
is to discourage enforcement officers from enforcing or attempting to enforce
environmental laws. This is filed usually against DENR or MMDA by a private
individual.
Strategic lawsuit against public participation
(SLAPP)refers to an action whether civil, criminal or
administrative, brought against any person, institution
or any government agency or local government unit or
its officials and employees, with the intent to harass,
vex, exert undue pressure or stifle any legal recourse
that such person, institution or government agency has
taken or may take in the enforcement of environmental
laws, protection of the environment or assertion of
environmental rights.
In such case, the government officer can file a motion to dismiss such case. The
public officer/defendant/accused need only to present substantial evidence
(the same standard in administrative cases) to prove that the case filed was a
SLAPP. The plaintiff must present preponderance of evidence/proof beyond
reasonable doubt to sustain his challenge.
In criminal procedure in SLAPP, there is a substantial change in the manner by
which a criminal case is governed when compared to a criminal action which
follows criminal procedure.
In ordinary criminal procedure, if the court grants bail, one of the conditions in
the bail is that if the accused does not appear in court for trial, then the court is
authorized to conduct a trial in absentia. But in criminal procedure, if the
accused is granted bail, and then during the arraignment he does not appear,
the criminal court will be forced to suspend proceedings until the accused is
rearrested. What the court will do is to postpone the arraignment, issue
another arrest warrant and probably order the cancellation of the bail bond.
But, the arraignment will not be pushed through. If there is no arraignment,
there can be no trial in the ordinary criminal case. There must be an
arraignment first before the court can conduct a trial in absentia.
This is not followed in the Kalikasan criminal cases. In the Kalikasan criminal
cases, the crimes are usually bailable. If the accused is granted bail, the
condition of the bail bond will contain similar provisions to that found in bail
under ordinary criminal proceedings. There is modification in arraignment. If
accused does not appear in the scheduled arraignment, the court is authorized
enter a plea of not guilty, so that if there is a plea of not guilty, the arraignment
is completed, a trial can then be scheduled. If the accused still failed to appear
on trial, there can be a trial in absentia.
There is no more need for the accused to be present personally during the
arraignment in the Kalikasan criminal cases. If he does not appear, then it is the
court who will enter a plea of not guilty for him so the court can continue with
the trial in absentia of the accused.

Other Terms(Rules of Procedure on Environmental
Cases):
By-product or derivatives means any part taken or
substance extracted from wildlife, in raw or in processed
form including stuffed animals and herbarium specimens.
Consent decree refers to a judicially-approved settlement
between concerned parties based on public interest and
public policy to protect and preserve the environment.
Mineral refers to all naturally occurring inorganic
substance in solid, gas, liquid, or any intermediate state
excluding energy materials such as coal, petroleum,
natural gas, radioactive materials and geothermal
energy.
Wildlife means wild forms and varieties of flora and
fauna, in all developmental stages including those which
are in captivity or are being bred or propagated.
Some Important provisions (Rules of Procedure on
Environmental Cases):
Rule 2 SEC. 13. Service of summons, orders and other
court processes.—The summons, orders and other court
processes may be served by the sheriff, his deputy or
other proper court officer or for justifiable reasons, by
the counsel or representative of the plaintiff or any
suitable person authorized or deputized by the court
issuing the summons.
Any private person who is authorized or deputized by
the court to serve summons, orders and other court
processes shall for that purpose be considered an
officer of the court.
The summons shall be served on the defendant, together
with a copy of an order informing all parties that they
have fifteen (15) days from the filing of an answer, within
which to avail of interrogatories to parties under Rule 25
of the Rules of Court and request for admission by
adverse party under Rule 26, or at their discretion, make
use of depositions under Rule 23 or other measures
under Rules 27 and 28.
Should personal and substituted service fail, summons by
publication shall be allowed. In the case of juridical
entities, summons by publication shall be done by
indicating the names of the officers or their duly
authorized representatives.
Rule 3 SEC. 3. Referral to mediation.—At the start of the
pre-trial conference, the court shall inquire from the
parties if they have settled the dispute; otherwise, the
court shall immediately refer the parties or their counsel,
if authorized by their clients, to the Philippine Mediation
Center (PMC) unit for purposes of mediation. If not
available, the court shall refer the case to the clerk of
court or legal researcher for mediation.
Mediation must be conducted within a non-extendible
period of thirty (30) days from receipt of notice of
referral to mediation. The mediation report must be
submitted within ten (10) days from the expiration of
the 30-day period.
Rule 3 SEC. 5. Pre-trial conference; consent decree.—The
judge shall put the parties and their counsels under
oath, and they shall remain under oath in all pre-trial
conferences.
The judge shall exert best efforts to persuade the parties
to arrive at a settlement of the dispute. The judge may
issue a consent decree approving the agreement
between the parties in accordance with law, morals,
public order and public policy to protect the right of the
people to a balanced and healthful ecology.
Evidence not presented during the pre-trial, except
newly discovered evidence, shall be deemed waived.
Rule 4 SEC. 2. Affidavits in lieu of direct examination.—In
lieu of direct examination, affidavits marked during the
pre-trial shall be presented as direct examination of
affiants subject to cross-examination by the adverse
party.
Rule 4 SEC. 3. One-day examination of witness rule.—The
court shall strictly adhere to the rule that a witness has
to be fully examined in one (1) day, subject to the
court’s discretion of extending the examination for
justifiable reason. After the presentation of the last
witness, only oral offer of evidence shall be allowed,
and the opposing party shall immediately interpose his
objections. The judge shall forthwith rule on the offer of
evidence in open court.
Rule 4 SEC. 4. Submission of case for decision; filing of
memoranda.— After the last party has rested its case,
the court shall issue an order submitting the case for
decision.
The court may require the parties to submit their
respective memoranda, if possible in electronic form,
within a non-extendible period of thirty (30) days from
the date the case is submitted for decision.
The court shall have a period of sixty (60) days to decide
the case from the date the case is submitted for decision.
Rule 4 SEC. 5. Period to try and decide.—The court shall
have a period of one (1) year from the filing of the
complaint to try and decide the case. Before the
expiration of the one-year period, the court may
petition the Supreme Court for the extension of the
period for justifiable cause.
The court shall prioritize the adjudication of
environmental cases.
Rule 5 SECTION 1. Reliefs in a citizen suit.—If warranted,
the court may grant to the plaintiff proper reliefs which
shall include the protection, preservation or
rehabilitation of the environment and the payment of
attorney’s fees, costs of suit and other litigation
expenses.
It may also require the violator to submit a program of
rehabilitation or restoration of the environment, the
costs of which shall be borne by the violator, or to
contribute to a special trust fund for that purpose
subject to the control of the court.
Rule 5 SEC. 2. Judgment not stayed by appeal.— Any
judgment directing the performance of acts for the
protection, preservation or rehabilitation of the
environment shall be executory pending appeal unless
restrained by the appellate court.
Rule 7 SEC. 6. How the writ is served.—The writ shall be
served upon the respondent by a court officer or any
person deputized by the court, who shall retain a copy
on which to make a return of service.
In case the writ cannot be served personally, the rule on
substituted service shall apply.
Rule 7 SEC. 7. Penalty for refusing to issue or serve the
writ.—A clerk of court who unduly delays or refuses to
issue the writ after its allowance or a court officer or
deputized person who unduly delays or refuses to serve
the same shall be punished by the court for contempt
without prejudice to other civil, criminal or
administrative actions.
Rule 10 SECTION 1. Institution of criminal and civil
actions.—When a criminal action is instituted, the civil
action for the recovery of civil liability arising from the
offense charged, shall be deemed instituted with the
criminal action unless the complainant waives the civil
action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action.
Unless the civil action has been instituted prior to the
criminal action, the reservation of the right to institute
separately the civil action shall be made during
arraignment.
In case civil liability is imposed or damages are awarded,
the filing and other legal fees shall be imposed on said
award in accordance with Rule 141 of the Rules of Court,
and the fees shall constitute a first lien on the judgment
award. The damages awarded in cases where there is no
private offended party, less the filing fees, shall accrue
to the funds of the agency charged with the
implementation of the environmental law violated. The
award shall be used for the restoration and
rehabilitation of the environment adversely affected.
Rule 14 SECTION 1. Bail, where filed.—Bail in the amount
fixed may be filed with the court where the case is
pending, or in the absence or unavailability of the judge
thereof, with any regional trial judge, metropolitan trial
judge, municipal trial judge or municipal circuit trial judge
in the province, city or municipality. If the accused is
arrested in a province, city or municipality other than
where the case is pending, bail may also be filed with any
Regional Trial Court of said place, or if no judge thereof is
available, with any metropolitan trial judge, municipal
trial judge or municipal circuit trial judge therein. If the
court grants bail, the court may issue a hold-departure
order in appropriate cases.
Rule 16 SEC. 4. Manner of questioning.—All questions or
statements must be directed to the court.
Rule 16 SEC. 5. Agreements or admissions.—All
agreements or admissions made or entered during the
pre-trial conference shall be reduced in writing and
signed by the accused and counsel; otherwise, they
cannot be used against the accused. The agreements
covering the matters referred to in Section 1, Rule 118 of
the Rules of Court shall be approved by the court.
Rule 20 PRECAUTIONARY PRINCIPLE
SECTION 1. Applicability.—When there is a lack of full
scientific certainty in establishing a causal link between
human activity and environmental effect, the court
shall apply the precautionary principle in resolving the
case before it.
The constitutional right of the people to a balanced and
healthful ecology shall be given the benefit of the
doubt.
SEC. 2. Standards for application.—In applying the
precautionary principle, the following factors, among
others, may be considered:
(1) threats to human life or health;
(2) inequity to present or future generations; or
(3) prejudice to the environment without legal
consideration of the environmental rights of those
affected.
RULE 66 QUO WARRANTO
~One of the cases under the concurrent original jurisdiction of the SC, CA and
RTC under BP 129 and also the COMELEC under the Omnibus Election Code.
MTC has limited quo warranto jurisdiction as to proceedings at the barangay
level.
Q: What is quo warranto?
A: A proceeding or writ issued by the court to determine the right to use an
office, position or franchise and to oust the person holding or exercising such
office, position or franchise if his right is unfounded or if a person performed
acts considered as grounds for forfeiture of said exercise of position, office or
franchise.
Note: It is commenced by a verified petition brought in the name of the
Republic of the Philippines or in the name of the person claiming to be entitled
to a public office or position usurped or unlawfully held or exercised by
another. (Sec. 1)
Q: What are the classifications of quo warranto proceedings?
A:
1. Mandatory – brought by the Solicitor General or Public prosecutor when:
a. directed by the President;
b. upon complaint or when he has reason to believe that the cases
for quo warranto can be established by proof (Sec. 2)
c. at the request and upon the relation if another person (ex
relatione), but leave of court must first be obtained. (Sec. 3)
2. Discretionary – brought by the Solicitor General or a public prosecutor at the
request and upon the relation of another person, provided there must be:
a. leave of court
b. at the request and upon the relation of another person
c. indemnity bond (Sec. 3)
Who commences the action?
A:
1. The solicitor general or public prosecutor, when directed by the President of
the Philippines, or when upon complaint or otherwise he has good reason to
believe that any case specified in the proceeding section can be established by
proof. (mandatory quo warranto)
2. The Solicitor General or a public prosecutor may, with the permission of
court, bring an action at the request and upon the relation of another person.
(discretionary quo warranto)
3. A person claiming to be entitled to a public office or position or unlawfully
held or exercised by another may also bring action, in his own name. (Relator)
Q: Against whom a quo warranto may be filed?
A: The action must be filed against:
1. A person who usurps, intrudes into, or unlawfully holds or
exercises a public office, position or franchise;
2. A public officer who does or suffers an act which, by the provision
of law, constitutes a ground for the forfeiture of his office; and
3. An association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to
act (Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations now fall under the
jurisdiction of the RTC (Sec. 5.2, Securities Regulations Code).
Usually, the petitioner has the right of choice. But under Rule 65, although
nothing is mentioned in Rule 66 about hierarchy of courts in quo warranto
proceedings, we follow hierarchy of courts. As much as possible, we do not file
a petition for quo warranto in the SC. It should be filed in the RTC which has
territorial jurisdiction over the case where the public office in question is
placed.
If we compare quo warranto to mandamus, if you go back to Rule 65 Section 3,
the second part of that section has a phrase or clause which seems to overlap
with the concept of quo warranto. Quo warranto refers to the usurpation,
holding an office without title. In mandamus, the second part of the section on
mandamus speaks about a respondent who unlawfully excludes another from
the use or enjoyment of a right or office to which he is entitled. So there seems
to be an overlap between the second part of mandamus and quo warranto.
Rule 65 SEC. 3. Petition for mandamus.—When any
tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done
to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
The petition shall also contain a sworn certification of
non-forum shopping as provided in the third paragraph
of section 3, Rule 46.
Because of this seemingly overlap between mandamus and quo warranto, the
SC has also resolved that there is nothing wrong when a petitioner files a
petition for mandamus or in the alternative a petition for quo warranto. The
petitioner is not very certain whether the right proceeding is mandamus or quo
warranto, because these actions would involve really the intrusion or
usurpation of a public office or title.
But there is a great difference procedurally between mandamus and quo
warranto although these petitions could be used alternatively. This is because
in a quo warranto proceeding, the petitioner could be the Solicitor General,
although he is not interested in the public office in question. Upon the
instruction of the President, the SolGen is authorized to file a petition for quo
warranto. Or, if the instructions does not come from the President, the request
comes from a relator. A relator is a term associated with quo warranto, he is
the petitioner, a person who believes he is entitled to the public office held by
another, and he is asking the SolGen to file a petition for quo warranto on his
behalf. The SolGen, upon the request of a relator, shall commence a petition
for quo warranto. But the person interested in the office could himself file a
petition for quo warranto. That is what usually happens. The person who
alleges he is entitled to a position can file a petition for quo warranto in a
competent court.
Quo warranto is a special civil action because of numerous changes in the
procedure which modify the rules we apply to ordinary civil actions.
Procedural changes:
1. Rule on venue
Usually in ordinary civil cases, in the absence of an express agreement, venue is
governed by Rule 4. We do not follow this in quo warranto. It is specifically
provided that for quo warranto, the venue is where the officer sought to be
ejected is residing. We do not take into account the residence of the
petitioner.
Q: A group of businessmen formed an association in Cebu City
calling itself Cars Co. to distribute/sell cars in said city. It did not
incorporate itself under the law nor did it have any government
permit or license to conduct its business as such. The Solicitor
General filed before the RTC in Manila a verified petition for quo
warranto questioning and seeking to stop the operations of Cars
Co. The latter filed a motion to dismiss the petition on the ground
of improper venue claiming that its main office and operations are
in Cebu City and not in Manila. Is the contention of Cars Co.
correct? Why?
A: No. As expressly provided in the Rules, when the Solicitor General
commences the action for quo warranto, it may be brought in a
Regional Trial Court in the City of Manila, as in the case, in the CA or
in the SC (Sec. 7, Rule 66). (2001 Bar Question)
2. Period for submission of pleadings
In ordinary civil actions, the period to file pleadings is fixed in the Rules, and the
court has discretion to grant extension thereof. But if we read Rule 66, the quo
warranto court can reduce the period at its discretion. The quo warranto court
can issue a summons instructing the recipient thereof to file a responsive
pleading with 5 days. That discretion of a quo warranto court is not enjoyed by
other courts under ordinary civil procedure, as courts under ordinary
procedure can grant extensions only.
3. The most significant change in quo warranto is that we do not apply the rule
against splitting a cause of action. It is expressly allowed in quo warranto
under Sections 9, 10 and 11 of Rule 66.
SEC. 9. Judgment where usurpation found.—When the
respondent is found guilty of usurping, intruding into, or
unlawfully holding or exercising a public office, position
or franchise, judgment shall be rendered that such
respondent be ousted and altogether excluded
therefrom, and that the petitioner or relator, as the
case may be, recover his costs. Such further judgment
may be rendered determining the respective rights in
and to the public office, position or franchise of all the
parties to the action as justice requires.
SEC. 10. Rights of persons adjudged entitled to public
office; delivery of books and papers; damages.—If
judgment be rendered in favor of the person averred in
the complaint to be entitled to the public office he may,
after taking the oath of office and executing any official
bond required by law, take upon himself the execution
of the office, and may immediately thereafter demand
of the respondent all the books and papers in the
respondent’s custody or control appertaining to the
office to which the judgment relates. If the respondent
refuses or neglects to deliver any book or paper
pursuant to such demand, he may be punished for
contempt as having disobeyed a lawful order of the
court. The person adjudged entitled to the office may
also bring action against the respondent to recover the
damages sustained by such person by reason of the
usurpation.
SEC. 11. Limitations.—Nothing contained in this Rule
shall be construed to authorize an action against a
public officer or employee for his ouster from office
unless the same be commenced within one (1) year
after the cause of such ouster, or the right of the
petitioner to hold such office or position, arose; nor to
authorize an action for damages in accordance with the
 provisions of the next preceding section unless the Presupposes that the respondent is Petition must be filed within 10 days
same be commenced within one (1) year after the entry already actually holding office and from the proclamation of the
of the judgment establishing the petitioner’s right to action must be commenced within 1 candidate.
the office in question. year from cause of ouster or from the
time the right of petitioner to hold
office arose.
You will note that in these 3 sections, there is a rule derived from these The petitioner must be the May be filed by any voter even if he is
sections, which says that if the quo warranto court decides in favor of the government or the person entitled to not entitled to the office.
petitioner, the quo warranto court will oust the respondent and direct that the office and who would assume the
the office and the records of that office be turned over to the prevailing same if his action succeeds.
party. In the succeeding sections, it is also provided that the prevailing party Person adjudged entitled to the office Actual or compensatory damages are
has a right, within 1 year after taking over, can claim damages incurred as a may bring a separate action against recoverable in quo warranto
result of usurpation by ousted respondent public officer. Although a favorable the respondent to recover damages. proceedings under the Omnibus
decision in a quo warranto proceeding could lead the court to award damages Election Code.
against the respondent public officer, the quo warranto need not award
damages in the quo warranto petition itself. There could be a separate Note: If the dispute is as to the counting of votes or on matters connected with
complaint for recovery of damages arising from the usurpation of a public the conduct of the election, quo warranto is not the proper remedy but an
office. This is splitting a cause of action. In other words, the prevailing party can election protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25, 1929)
recover the office, and after he has assumed office, within one year from entry
of judgment, he can file a separate complaint for the recovery of damages Is the claim of damages in quo warranto cases considered a separate special
suffered as a result of the intrusion or usurpation made by the defendant. civil action?
No, it is an ordinary action for a claim of damages.
Claim for damages arising from principal cause of action is not barred if split
from quo warranto action. But prescriptive period is 1 year from entry of the Supposing that the petitioner filed a case for quo warranto against
main action. Whereas in the case of mandamus, a special civil action, let’s say respondent. His petition for quo warranto was granted. The respondent was
the petitioner files a petition for mandamus without a claim for damages. He ousted from the office. When the prevailing party filed a case for damages, 1
later on wins the case. When court directs the defendant to turn over the office year after the entry of the judgment of the quo warranto court, the
to the prevailing party, the prevailing party will be barred from claiming respondent interposed a defense that he cannot be held liable for damages as
damages from the plaintiff. Mandamus does not authorize splitting a cause of the judgment of the quo warranto court was an invalid judgment. Is his
action. A claim of damages could be awarded if claimed in the same petition for defense succeed in this ordinary complaint for damages?
mandamus. In quo warranto, there is a different procedure that we follow No. It cannot be set up. It is a collateral attack on a judgment, which we do not
when it comes to recovery of damages. There could be a separate complaint allow. Collateral attack on judgment rendered by the court is not allowed when
for recovery of damages arising from the intrusion or usurpation of public the judgment appears on its face to be valid under Rule 39. Practically, in that
office. But the prescriptive period is one year from entry of judgment of the separate complaint for the recovery of damages, no meritorious defense could
quo warranto proceeding. be set up by the respondent because the award of damages necessarily arises
from the fact that there is already a final and executory judgment rendered in
the principal case of quo warranto.

Distinguish mandamus from quo warranto. RULE 67 EXPROPRIATION

A: Q: What is expropriation?
Mandamus Quo Warranto A: The procedure for enforcing the right of eminent domain.
Available when one is unlawfully Available against the holder of an
excluded from the use or enjoyment office, who is the person claiming the Q: What are the requisites of a valid expropriation?
of an office against a person who is office as against petitioner, not A:
responsible for excluding the necessarily the one who excludes the 1. Due process of law
petitioner petitioner 2. Payment of just compensation
No splitting of a cause of action. Recovery of damages is allowed 3. Taking must be for public use
within 1 year from the entry of
judgment of the petition for quo Q: What is the power of eminent domain?
warranto A: It is the right of the State to acquire private property for public use upon the
payment of just compensation.
Distinguish quo warranto in elective office from an appointive office.
A: Q: When is expropriation proper?
Elective Office Appointive Office A: It is proper only when the owner refuses to sell or, if the latter agrees,
Issue: eligibility of the respondent Issue: validity of the appointment agreement as to the price cannot be reached.
Occupant declared ineligible/disloyal Court will oust the person illegally
will be unseated but petitioner will appointed and will order the seating
not be declared the rightful occupant of the person who was legally Jurisdiction – exclusively cognizable by RTC. The test in BP 129 as to assessed
of the office. appointed and entitled to the office. value of the property is not applied here.

Distinguish quo warranto under Rule 66 from quo warranto under Omnibus
Election Code.
A:
Quo Warranto Under Rule 66
Prerogative writ by which the
government can call upon any person
to show by what title he holds a
public office or exercises a public
franchise.
Grounds: 1. usurpation
2. forfeiture
3. illegal association
Quo Warranto In Electoral
Proceedings
To contest the right of an elected
public officer to hold public office.
Grounds:
ineligibility or disqualification to hold
the office
The nature of the action as a real action has nothing to do with the
jurisdiction of the court, but it has something to do only with respect to the
venue. The nature of the property is not determinative of jurisdiction in
expropriation proceedings because expropriation is one not capable of
pecuniary estimation.
Why is this so when state is required to pay just compensation?
This is because the issue to be resolved first by the court is the right of the
plaintiff to expropriate. Only in the second stage is the fixing of just
compensation resolved. A court cannot simply decide the issue of just
compensation first, as it should assess first the right to expropriate, which is
incapable of pecuniary estimation. SC held that since the first issue to be
resolved is one incapable of pecuniary estimation, under BP 129, then it should
be the RTC which should have jurisdiction.
In expropriation proceedings, if there is a complaint filed yesterday, and the
plaintiff deposits an amount equivalent to assessed value today, even if the
defending party has not been notified yet, the plaintiff can proceed to
possess the property subject of expropriation. Let us say that the DPWH is
interested in getting a property of land for the purpose of expanding a national
highway. What it will do is to simply file a complaint in the RTC where the land
is located. The deposit is made the next day. Immediately, the DPWH will take
over the said property, and the owner thereof can do nothing about it. Once
deposit is made as required by the Rules or as required by substantive law,
the court issues a writ of possession as its ministerial duty. In ordinary civil
actions, issuance of a writ of possession can be done only after the court has
rendered a decision and such decision has been entered.
In case of reversion, when will the owner recover the expropriated property?
After a judgment in favor of owner has become final and executory. If there is
an appeal, possession is not returned, except when execution pending appeal is
granted. Otherwise, a writ of possession shall be issued upon finality.
Suppose there is a lien over the property? What if there were informal
settlers in the property?
They will all be driven out as a result of the writ of possession issued even
before the expropriation court has determined whether or not the state has a
right to expropriate.
There are now new laws providing for fixing the amount of deposit to be made,
not the one that is always provided for under Rule 67. The new laws say that
deposit should be 100% of the assessed value. Rule 67 shall govern in cases
where the special laws are not applicable.
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL
PROPERTY
Q: What is the new system of immediate payment of initial compensation?
A: RA 8974 provides a modification of sec 2, Rule 67 where the Government is
required to make immediate and direct payment to the property owner upon
the filing of the complaint to be entitled to a writ of possession. As a relevant
standard for initial compensation, the market value for the property as stated
in the tax declaration or the current relevant zonal valuation of the Bureau of
internal Revenue (BIR), whichever is higher and the value of the
improvements and/or structures using the replacement cost method.
Note: RA 8974 applies in instances when the national government
expropriates property for national government infrastructure projects. Thus,
if expropriation is engaged by the national government for purposes other
than national infrastructure projects, the assessed value standard and the
deposit mode prescribed in Rule 67 continues to apply.
The intent of RA 8974 to supersede the system of deposit under Rule 67 with
the scheme of immediate payment in cases involving national government
infrastructure projects is indeed very clear (MCWD v. J. King and Sons, GR
175983, April 16, 2009)
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION
Q: What is the new system of immediate payment of initial just
compensation?
A: For the acquisition of right-of-way, site or location for any national
government infrastructure project through expropriation, upon the filing of the
filing of the complaint, and after due notice to the defendant, the
implementing agency shall immediately pay the owner of the property the
amount equivalent to the sum of (1) 100 percent of the value of the property
based on the current relevant zonal valuation of the BIR; and (2) the value of
the improvements and/or structures as determined under Sec. 7 of RA 8974
(Sec. 4, RA 8974).
Expropriation by LGUs, under the LGC, it must be alleged in the complaint that
there is an ordinance authorizing the filing expropriation complaint and a
further allegation that LGU offered to buy the property from the owner, but
the owner refused (there was an attempt by the LGU to buy the property).
What are the two (2) stages in expropriation proceedings?
A:
1. Determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of the exercise in the context of the facts
involved.
2. Determination of just compensation.
FIRST STAGE
The first stage of the expropriation proceeding is for purposes of determining
the plaintiff’s right to expropriate. The first decision in resolving this issue is
called an order of condemnation or expropriation, which is a final decision on
the merits. This is appealable.
Certain pleadings are not allowed: Counterclaim, cross-claim and 3rd party
complaint. If defendant believes the filing of expropriation by the Republic is
arbitrary, he cannot sue the Republic. He cannot file a counterclaim against the
Republic.
Is there a way the defendant protect himself in case the court decides in his
favor?
Under Rule 67, even if without a counterclaim, if the court resolves the
expropriation is not meritorious, the court will award damages in favor of
defendant. If there is a dispute among several defendants as to who is entitled
to just compensation, even if no cross-claim is filed, the court itself will resolve
this issue, even if there are no pleadings relating thereto. The expropriation
court has a very wide discretion in the matter of payment, or even distribution,
of just compensation that will be fixed during the 2nd stage where the court
will appoint commissioners, who will then tell the court the amount of just
compensation to be paid to the various defendants.
POSSESSORS WITH JUST TITLE
SC also ruled that if the Republic has a Torrens title over certain properties, but
the said properties were in the possession of private individuals claiming
possession under a just title, the Republic cannot simply cause their ejection,
but Republic can simply file an expropriation proceeding against them. There is
nothing wrong if the Republic will file a complaint for expropriation to oust the
possessors from the property, although these properties are already in the title
of the government.
DEFAULT
Supposing the defendant does not answer within the period of default, the
court, upon motion of the plaintiff, may declare the defendant in default. But in
the default order issued in expropriation proceedings, the defendant is in
default only during the first stage of the proceedings, and is lifted automatically
in the 2nd stage. The defendant, if declared in default, will not be able to
participate during the first stage of the proceedings where the right of the
plaintiff to expropriate will be determined by the court. The first stage ends, if
favorable to plaintiff, with the court issuing an order for condemnation or order
of expropriation. Once that order is entered, or even if there is an appeal from
that order, the expropriation court will now go to the second stage, the fixing
of just compensation. During the 2nd stage, the defendant is allowed again to
participate in the proceedings the fixing of just compensation. Unlike in
ordinary civil actions, if the defendant is in default, the defendant will not be
able to participate during the entire proceedings, unless the order of default is
lifted or the order of default is set aside.
SECOND STAGE
The fixing of just compensation is not solely the discretion of the court. Court
MUST appoint commissioners to determine such compensation. If the court
has not followed this procedure, there is ground to question the decision of
just compensation by said court. Commissioners must be appointed in order to
help the court in fixing the just compensation to be paid. This is another
deviation from ordinary procedures. Note in ordinary procedure, trial by
commissioners is discretionary; unlike in expropriation, the appointment of
commissioners in the second stage is mandatory. The judgment rendered by
the expropriation court will be void if the court does not follow the mandatory
requirement of appointing of commissioners.
Q: May the court dispense with the assistance of commissioners in the
determination of just compensation in expropriation proceedings?
A: No. The appointment of commissioners in expropriation proceedings is
indispensable. In such cases, trial with the aid of commissioners is a substantial
right that may not be done away with capriciously or for no reason at all
(MERALCO v. Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be filed within 10 days
from service of the order and shall be resolved within 30 days after all the
commissioners received the copies of the objections (Sec. 5)
Q: What is just compensation?
A: Just compensation is equivalent to the fair market value of the property at
the time of its taking or filing of complaint whichever comes first. It is the fair
and full equivalent for the loss sustained by the defendant.
Q: What is the formula for the determination of just compensation?
JC = FMV + CD – CB
If CB is more than CD then,
JC = FMV
Where:
JC – Just compensation
FMV – Fair market value
CD – Consequential damages
CB – Consequential benefits
Note: Sentimental value is not computed.
Q: What is the reckoning point for determining just compensation?
A:The value of just compensation shall be determined as of the date of the
taking of the property or the filing of the complaint, whichever came first. (Sec.
4)
GR: When the taking of the property sought to be expropriated coincides with
the commencement of the expropriation proceedings, or takes place
subsequent to the filing of the complaint for eminent domain, the just
compensation should be determined as of the date of the filing of the
complaint. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb.
12, 2010).
Note: Typically, the time of taking is contemporaneous with the time the
petition is filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10, 2009)
XPNs:
1. Grave injustice to the property owner
2. The taking did not have color of legal authority
3. The taking of the property was not initially for expropriation
4. The owner will be given undue increment advantages because of the
expropriation
Based on past jurisprudence, if the state has expropriated a piece of land and
had paid just compensation based on the court’s decisions, but the state did
not push through with the project alleged in the complaint, there is nothing we
can do about it on ground of res judicata. The case can no longer be reopened.
But that was old jurisprudence. Recently, the decision on Mactan-Cebu
International Airport cases, the last of which was decided in 2010, the SC held
that in the case of the public purpose of the expropriation being unfulfilled,
the former owners can rightfully file a complaint in the RTC for the reversion
of the property and reconveyance of the property expropriated, the amount
of payment of which shall be based on the just compensation paid at the time
of expropriation (the purpose being to return to the government the amount
of just compensation paid to them).
In another case, there was a land owner who donated a tract of land to the
government. The government introduced improvements with tolerance of the
owner, and the value of the property increased. The donor, seeing that the
improvements increase the value of his property, changed his mind and sought
to recover the donated property by filing a case for unlawful detainer against
the government.SC held that unlawful detainer is not the remedy. There was a
de facto expropriation that happened when the government took over the
property. What the owner can do is to file an ordinary action for the recovery
of just compensation.
In other words, if we follow the reasoning of the SC, expropriation could be de
jure expropriation, it could also be de facto expropriation. If the government
actually occupies a piece of land and introduces improvements therein, with
the tolerance of the owner of the property, that is effectively an expropriation
of the property. And the only remedy of the land owner is to file an ordinary
case for the recovery of just compensation. There will still be a need to fix the
amount of just compensation.
We follow the same procedure if the subject of expropriation is personal
property. But there are laws fixing the amount to be deposited if the
government wants to take possession of the personal property right away.
APPEAL
Supposed defendant appealed the first final order, may the court proceed
with the 2nd stage?
Yes. An appeal from the first final order will not prevent the court from
proceeding to the 2nd stage to fix the amount of just compensation.
If the defendant during appeal asks the court to withdraw the deposit made,
will that mean he is withdrawing his appeal or shall the appeal continue?
The appeal shall continue. SC held that defendant is allowed to withdraw the
money since technically it is his as it is intended to pay partly his just
compensation, this will not mean that the appeal is being withdrawn.
Thus, immediately, you can see why expropriation is a special civil action. It
consists of 2 stages. And for each stage, there is a final order of judgment.
Thus, for each final order of judgment, an appeal can be had, meaning there
can be 2 appeals in an expropriation case. Thus, it is possible that there can be
multiplicity of appeals in expropriation cases, which is not allowed in ordinary
civil actions.
Because of the possibility of multiple of appeals in expropriation proceedings,
the requirements of appeal are changed. In ordinary civil proceedings, the
period to appeal is 15 days, and what needs to be filed is just a notice to
appeal. In expropriation proceedings, since there could be multiple appeals, the
period to appeal is extended to 30 days, and together with notice of appeal,
appellant is also required to file a record on appeal. Failure to file record to
appeal means the appeal is not perfected.
Q: City of Iloilo (petitioner) represented by Mayor Treñas filed a complaint for
eminent domain against Javellana seeking to expropriate two parcels of land.
Mayor Treñas filed a motion for issuance of writ of possession alleging that it
had deposited 10% of the amount of compensation of which the court issued.
A writ of possession was subsequently issued, and petitioner was able to take
physical possession of the properties. After which, the expropriation
proceedings remained dormant. 16 years later, Javellana filed an ex parte
motion/manifestation, where he alleged that when he sought to withdraw
the money, he discovered that no deposit was made. Thus, Javellana filed a
complaint for recovery of possession, fixing and recovery of rental and
damages. The City of Iloilo argues that Javellana could no longer bring an
action for recovery since the subject property was already taken for public
use. The trial court in its orders and amended orders maintained that the
assailed orders issued by it were interlocutory in character and as such are
always subject to modification and revision by the court anytime. Is the order
of expropriation final?
A: Expropriation proceedings have two stages. The first phase ends with an
order of dismissal, or a determination that the property is to be acquired for a
public purpose. The second phase consists of the determination of just
compensation. Both orders, being final, are appealable.
An order of condemnation or dismissal is final, resolving the question of
whether or not the plaintiff has properly and legally exercised its power of
eminent domain. Once the first order becomes final and no appeal thereto is
taken, the authority to expropriate and its public use can no longer be
questioned. Thus, it has become final, and the petitioner’s right to expropriate
the property for a public use is no longer subject to review. (City of Iloilo v. Hon.
Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010).
May Congress enact a law providing that a 5,000 square meter lot, a part of
the UST compound in Sampaloc, Manila, be expropriated for the construction
of a park in honor of former City Mayor Arsenio Lacson? As compensation to
UST, the City of Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna
originally intended as a residential subdivision for the Manila City Hall
employees. Explain.
A: Yes, Congress may enact a law to expropriate property but it cannot limit
just compensation. The determination of just compensation is a judicial
function and Congress may not supplant or prevent the exercise of judicial
discretion to determine just compensation. Under Sec. 5, Rule 67 of the Rules
of Court, the ascertainment of just compensation requires the evaluation of 3
commissioners. (2006 Bar Question)
RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE
Another multi-stage special civil action – it has 3 stages
Q: What is foreclosure of Real Estate Mortgage (REM)?
A: It is the remedy used for the satisfaction of any monetary obligation, which a
person owes to another, by proceeding against the property used to secure
said obligation.
Note: It is commenced by a complaint setting forth the date and due execution
of the mortgage; the names and residences of the mortgagor and the
mortgagee; a description of the mortgaged property; date of the note or other
documentary evidence of the obligation secured by the mortgage, the amount
claimed to be unpaid thereon; and the names and residences of all persons
having or claiming an interest in the property subordinate in right to that of the
holder of the mortgage (Sec. 1).
JUDICIAL VS.EXTRA-JUDICIAL FORECLOSURE
Judicial Foreclosure Extra-judicial Foreclosure
Governed by Rule 68 Governed by Act 3135
There is only an equity of redemption Right of redemption exists
except when the mortgagee is a bank
Requires court intervention No court intervention necessary
Mortgagee need not be given a Mortgagee is given a special power of
special power of attorney. attorney in the mortgage contract to
foreclose the mortgaged property in
case of default
Note: A mortgagee may bring a personal action for the amount due, instead of
a foreclosure suit, in which case, he will be deemed to have waived his right to
proceed against the property in a foreclosure proceeding. (Movido v. RFC, G.R.
No. L-11990, May 29, 1959)
Judicial foreclosure of real estate mortgage. Rule 68 deals only with real estate
mortgage. Here, the court is involved.
Note: There is no judicial foreclosure of a chattel mortgage.
Extra-judicial foreclosure of real mortgage is governed by special law, the Real
Estate Mortgage Law. We deal only with the notary public or the court sheriff.
There is a circular issued by the SC concerning extra-judicial real estate
mortgage, so we follow that SC circular when it comes to extra-judicial
foreclosure. In the circulars, the mortgagee will not need to file a complaint,
but instead will be dealing with notary public or sheriff. There will also be
public auction, period of redemption, and consolidation of title by RoD. The
only time when the purchaser in this foreclosure needs to go to court is when
the purchaser needs to recover possession of the property. He will have to go
to court in order to petition for the issuance of a writ of possession.
In extra-judicial foreclosure of mortgage, the period of redemption is similar to
Rule 39, 1 year from registration of the certificate of sale. This period of
redemption is one of the distinctions of judicial under Rule 68 and extra-judicial
foreclosure of mortgage.
Redemption in judicial foreclosure is called equity of redemption. It is
redemption just the same. Period of redemption is between 90 to 120 days
from entry of judgment. Such short period is actually misleading, as it can be
without a definite end. The counting must be commenced from ENTRY of
judgment or final order. There are 3 judgments or final orders to be rendered
in judicial foreclosure. For each stage, there could be an appeal in each final
order. The counting starts upon entry of all three judgments or final orders.
Thus, if one or two judgments were appealed in the CA up to the SC, then such
period is extended until the finality of the said judgments, which could take
many years. If an appeal is perfected on time, there can be no entry of
judgment. This is the reason why mortgagees are discouraged from engaging in
judicial foreclosures.
Q: Distinguish equity of redemption from right of redemption.
A:
Equity of Redemption Right of Redemption
Right of the defendant mortgagor to Right of the debtor, his successor in
extinguish the mortgage and retain interest or any judicial creditor or
ownership of the property by paying judgment creditor of said debtor or
the debt within 90-120 days after the any person having a lien on the
entry of judgment or even after the property subsequent to the mortgage
foreclosure sale but prior to or deed of trust under which the
confirmation property is sold to redeem the
property within 1 year from the
registration of the Sheriff’s
certificate of foreclosure sale
Governed by Rule 68 Governed by Secs. 29-31, Rule 39
Note: There is no right of redemption in judicial foreclosure sale after the
confirmation of sale except those granted by banks or banking institutions in
favor of non-judicial persons as provided by the General Banking Act
(Government Insurance System v. CFI of Iloilo, G.R. No. 45322, July 5, 1989).
In extra-judicial foreclosure, the mortgagor has the right to redeem the
property within one year from the registration of the deed of sale. However,
Sec. 47 of the General Banking Act provides that in case of extra-judicial
foreclosure, juridical persons shall have the right to redeem the property until,
but not after, the registration of the certificate of foreclosure sale which in no
case shall be more than 3 months after foreclosure, whichever is earlier.
The pendency of the action stops the running of the right of redemption. Said
right continues after perfection of an appeal until the decision of the appeal.
(Consolidated Bank and Trust Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)
A mortgagee can only foreclose extra-judicially under the Real Mortgage Law
if he is given an SPA to do so by the mortgagor. Otherwise, he must make use
of judicial foreclosure of mortgage. If mortgagee files a complaint for judicial
foreclosure, the first problem is jurisdiction.
SC held that foreclosure of REM is always cognizable under the RTC. It is not
capable of pecuniary estimation. Notwithstanding the nature of foreclosure of
a real estate, the SC used the reasons in expropriation. SC held that a judicial
foreclosure of a real estate mortgage is incapable of pecuniary estimation since
in the first stage, the court determines the right of plaintiff to foreclose, which
is incapable of pecuniary estimation.
Rule 68 already tells who should be the plaintiff as well as who to implead
defendant. The defendants should be the debtor and the mortgagor. The
debtor is different from mortgagor. And debtor must also implead as co-
defendants persons who might have interests or liens subsequent to the
mortgagee. By implication, the owner of a piece of land can validly mortgage
his land more than once. He can mortgage the land to A, then to B, and then C.
If the mortgage loans are all defaulted, the defendant, if he has not given any
authority to foreclose the mortgage, is sure to be impleaded as a defendant in
the complaint for judicial foreclosure of a real estate mortgage. It is the first
mortgagee who judicially forecloses the mortgage and if he follows the Rules,
the first mortgagee should implead the debtor, the mortgagor and the
subsequent mortgagees.
Does it mean to say that the debtor is an indispensible party?
Yes. The mortgagor is an indispensable party, whose property is sought to be
foreclosed. Remember that a mortgage is a collateral contract. There must
always be a principal contract coupled with a contract of real estate mortgage.
Thus, we should always implead the mortgagor, who is an indispensable party
in the recovery of the indebtedness.
How about the mortgagor, is he an indispensible party?
Yes. He is also an indispensible party as it is his property that will be foreclosed.
He might lose his property if it is foreclosed to satisfy the obligation incurred by
the debtor.
Supposing the mortgagor files an answer and sets up the defense that the
mortgage insofar as he is concerned is void due to lack of consideration
thereto, is this a valid argument against the foreclosure?
It is untenable. In civil law, where there is a collateral under an accessory
contract, the consideration under the principal contract serves automatically as
the consideration for the accessory contract. The mortgagor only has himself to
blame, setting up his property as security for the benefit of the debtor without
compensation.
Subsequent lien holders are necessary parties, so they will lose their equity of
redemption incase the plaintiff wins the case.
The only reason why subsequent mortgagees should be impleaded under the
Rules is to protect the 1st mortgagee, assuming that he wins the case, from
these subsequent lien holders (subsequent mortgagees) from exercising their
equity of redemption. If the subsequent mortgagees are not impleaded, and
there is a decision in favor of the 1st mortgagee, the subsequent mortgagees
will not lose their equity of redemption. Meaning, they do not start to count
the 90 to 120 days period from entry of judgment so as to bar these
subsequent lien holders from exercising their right to equity of redemption.
That is the only reason why Rule 68 says that subsequent lien holders should be
impleaded, because they are necessary parties, so that they will lose their
equity of redemption if ever the 1st mortgagee will win the case.
In an indispensible party is not impleaded, the court will order plaintiff to
amend his complaint and include said party. Failure to implead an indispensible
party despite order of the court will result in the dismissal of the case.
STAGES OF JUDICIAL FORECLOSURE
FIRST STAGE
In the first stage, the court determines the liability of the debtor, and the court
will order the debtor to pay his indebtedness within a 90- to 120-day period
from entry of judgment. The mortgagor is not the one ordered to pay the
secured indebtedness, it is the debtor who must pay.
But inn our given facts, we do not expect the debtor to pay, because the
property anyway does not belong to him. He will leave the problem to the
mortgagor. If there is no payment, and the judgment is not appealed, it will be
entered. The entry will not cut off the equity of redemption. The equity of
redemption shall exist until after the entry of the 2nd judgment.
If the debt is paid, the proceedings become academic. There is no more reason
for the mortgagee continue his complaint if the debt is paid. It is the obligation
of the mortgagee to cancel the mortgage if the obligation is finally settled. But
if the obligation is not paid, the proceedings will go to the 2nd stage.
SECOND STAGE
The foreclosure court orders the sale of the mortgaged property at public
auction. The court will issue an order directing the sheriff to sell the property in
a public auction under Rule 39, as well as in the Mortgage Law.
If the property is sold to the highest bidder, do we now cut off the equity of
redemption?
We do not cut off as of yet the equity of redemption even when the property
has been sold at public auction. What the court will do next after the public
auction is conducted is to resolve the motion for the confirmation of the
validity of the auction sale. This is the second final order of confirmation. It is
appealable. When an appeal is seasonably filed, the final order of confirmation
is not entered, the equity of redemption will still continue to run. It will not be
interrupted until the 2nd judgment is entered. If 2nd final order is entered, that
will not mark the end of the proceedings. That will only mark the beginning of
the 3rd stage.
THIRD STAGE
Deficiency Judgment
If the proceeds of the auction sale are not enough to pay off the indebtedness,
the court will be determining if there is any deficiency and issue another final
order authorizing the recovery of the deficiency.
The recovery of the deficiency will be governed by Rule 39, because the
property/collateral has already been sold at public auction. We are going to
apply, for purposes of recovery of deficiency, execution of judgment. The
recovery of deficiency is the third final order. If there is no satisfaction of the
deficiency through voluntary payment, the foreclosing mortgagee will have to
avail of Rule 39. He can move for the issuance of a writ of execution.
But in that 3rd stage, do not forget that the only one who is liable now is the
debtor. The mortgagor will not be liable for any deficiency, because the
mortgagor is not the debtor. The mortgagor is liable only to the extent of the
value of his collateral. He cannot be held personally liable for the value of the
deficiency, unless he makes himself solidarily liable together with the debtor.
So in the recovery of deficiency, only the principal debtor is held liable, but not
the mortgagor of the property.
Since we are going to apply Rule 39, there will be a levy on execution of
properties of the debtor. If these are sold at public auction, there will be
another round of legal redemption, 1 year from registration of the certificate of
sale in the RoD, but not because of the foreclosure, but because of the issuance
of the foreclosure court of a writ of execution.
Q: What is deficiency judgment?
A: It is the judgment rendered by the court holding the defendant liable for any
unpaid balance due to the mortgagee if the proceeds from the foreclosure sale
do not satisfy the entire debt.
Q: What are the instances when the court cannot render deficiency
judgment?
A: where the debtor-mortgagor is a non-resident and who at the time of the
filing of the action for foreclosure and during the pendency of the proceedings
was outside the Philippines, then it is not procedurally feasible. It is by nature
in personam and jurisdiction over the person is mandatory.
In one case decided by the SC, the debtor secured his indebtedness with a
real estate mortgage to his own property. The lender/mortgagee obligated
the debtor to issue post-dated checks for the payment of the obligation. The
mortgagees filed criminal cases since the checks he got from the mortgagor
were dishonored upon presentation. During the pendency of the criminal
cases, since the principal obligation remained unpaid, the mortgagee availed
of the special civil action for judicial foreclosure of mortgage of the
mortgagor’s property. The mortgagor, previously summoned in the criminal
cases, sought for the dismissal of the foreclosure case, claiming that the civil
aspect of BP 22 should not be separated from the criminal aspect as it is
automatically carried with the criminal case, and that mortgagee has split his
causes of action in filing the special civil action for judicial foreclosure. Is the
mortgagor correct?
In an earlier case, the SC upheld the mortgagor. The special civil action for
judicial foreclosure was dismissed. There was really splitting of causes of action.
The criminal cases stemmed from the issuance of the debtor of the checks,
which were dishonored. In a mortgage relationship, there are effectively 2
contracts entered into between the mortgagor and mortgagee. The principal
contract, usually a loan, and an accessory contract of mortgage. If the
mortgagee files a separate complaint for the recovery of the loan without
foreclosing the mortgage, he can do so. The filing of a separate complaint for
the purpose of recovering the loan will be considered as a waiver of the
collateral arrangement. The mortgagee, if he does this, is deemed to have
abandoned the mortgage. He is deemed to have converted his secured loan to
an unsecured loan. The ordinary civil action of the loan will bar a second
complaint for the judicial foreclosure of mortgage.
In a 2011 decision, involving the same set of facts, the SC changed its course.
SC held that the existence of a criminal case for violation of BP 22 is not a
ground to conclude that the mortgagee has abandoned his mortgage lien.
Notwithstanding the criminal case for violation of BP 22 pending before the
MTC, the mortgagee can still institute a judicial foreclosure of the mortgage.
Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled
land of her friend Gretchen who, however, did not assume personal liability
for the loan. Arlene defaulted and GAP filed an action for judicial foreclosure
of the real estate mortgage impleading Arlene and Gretchen as defendants.
The court rendered judgment directing Arlene to pay the outstanding account
of P1.5 million (principal plus interest) to GAP. No appeal was taken by
Arlene. Arlene failed to pay the judgment debt within the period specified in
the decision. At the foreclosure sale, the land was sold to GAP for P1.2
million. The sale was confirmed by the court, and the confirmation of the sale
was registered with the Registry of Deeds on January 5, 2002.
On January 10, 2003, GAP filed an ex-parte motion with the court for the
issuance of a writ of possession to oust Gretchen from the land. It also filed a
deficiency claim for P800,000 against Arlene and Gretchen. The deficiency
claim was opposed by Arlene and Gretchen.

1. Resolve the motion for the issuance of a writ of possession.

2. Resolve the deficiency claim of the bank.

A:
1. In judicial foreclosure by banks such as GAP, the mortgagor or debtor
whose real property has been sold on foreclosure has the right to redeem the
property within 1 year after the sale (or registration of the sale). However,
under Sec. 47 of the General Banking Law of 2000, the purchaser at the
auction sale has the right to obtain a writ of possession after the finality of
the order confirming sale. The motion for writ of possession, however, cannot
be filed ex parte. There must be a notice of hearing.

2. The deficiency claim of the bank may be enforced against the mortgage
debtor Arlene, but it cannot be enforced against Gretchen, the owner of the
mortgaged property, who did not assume personal liability of the loan. (2003
Bar Question)

INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT

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

If the mortgagee holds a chattel mortgage, he will have to foreclose it under

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