LAST MINUTE REVIEWER IN REMEDIAL LAW

2018 BAR EXAMINATIONS

I. GENERAL PRINCIPLES
II. JURISDICTION
III. CIVIL PROCEDURE
IV. CRIMINAL PROCEDURE
V. SPECIAL PROCEEDINGS
VI. EVIDENCE

BY:

ATTY. SALVADOR N. MOYA II, LL.M.

Managing Partner, Moya Ablola Ebarle Law Firm
Lifetime Member, IBP, Bulacan Chapter
Member, Board of Directors, Philippine Trial Lawyers, Inc.
Member, Vanguard of the Philippine Constitution Inc.
Advance, Pre-Bar, Pre-week Reviewer and Mock Bar Examiner in
Remedial Law, UP Law Center
Pre-Bar Reviewer in Chair’s Cases (Criminal Law), Legal EDGE Review Center
Pre-week Reviewer in Criminal Law and Remedial Law, Magnificus Juris
Reviews and Seminars, Inc.
Bar Reviewer in Remedial Law, Powerhaus Review Center
Special Lecturer in Remedial Law, Villasis Law Center
Bar Reviewer in Criminal Law, Recoletos Law Center
Member, Expert Committee in Criminal Law, UP Law Center
Member, Expert Committee in Remedial Law, UP Law Center
MCLE Lecturer on Trial Advocacy
Author, The 2000 Rules of Criminal Procedure, Notes and Cases
Bar Notes and Cases in Criminal Law
The Revised Guidelines on Continuous Trial in Criminal Cases in Relation to
The 2000 Rules of Criminal Procedure
Bar Notes and Cases in Remedial Law
The Revised Rules of Evidence, Notes and Cases
The 1997 Rules of Civil Procedure As Amended, Notes and Cases (Vol. 1)
Provisional Remedies and Special Civil Actions, Notes and Cases (Vol. 2)
The Rules of Special Proceedings, Notes and Cases
Cross-Examination as a Science and Not an Art (The Contrarian System)
Professor, Tarlac State University College of Law in Remedial Law Review, Evidence,
Criminal Procedure, Election Law, Environmental Law, and Conflict of Laws
Professor, New Era University College of Law in Civil Procedure,
Criminal Procedure and Remedial Law Review
Professor, San Sebastian College-Recoletos, Institute of Law, Manila
in Criminal Law Review and Remedial Law Review
Professor, University of the East College of Law in Remedial Law Review
Professor, Bulacan State University College of Law in Remedial Law Review I
and Criminal Procedure
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I.
GENERAL PRINCIPLES

1. Q. What is the purpose of our rules of procedure?

A. Our rules of procedure are designed to facilitate the orderly disposition of cases and permit
the prompt disposition of unmeritorious cases which clog the court dockets and do little
more than waste the courts’ time. (Go vs. Chaves (619 SCRA 333, 23 April 2010).

2. Q. Explain the clean hands doctrine.

A. The Clean Hands Doctrine holds that when a party merely raises equitable
considerations without a clear-cut legal basis and cogent arguments to support his
claim, he is not entitled to obtain an equitable remedy. (Marquez vs. Espejo, 629
SCRA 117, 25 August 2010.)

3. Q. Explain the doctrine of estoppel.

A. The doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith
and justice, and its purpose is to forbid one to speak against his own act,
representations, or commitments to the injury of one to whom they were directed
and who reasonably relied thereon. (Genato vs. Viola, 611 SCRA 677, 5 February
2010.)

4. Q. What is the principle of law of the case?

A. The principle of "law of the case" states that determinations of questions of law will
generally be held to govern a case throughout all its subsequent stages where such
determination has already been made on a prior appeal to a court of last resort. (Dela
Merced vs. Government Service Insurance System, 661 SCRA 83, 23 November 2011.)

5. Q. What is a moot and academic case?

A. A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical
use or value. (Lacson vs. MJ Lacson Development Company, Inc., 637 SCRA 505, 8
December 2010.)

6. Q. What is the doctrine of Stare Decisis?

A. The doctrine of stare decisis dictates that when a court has reached a conclusion in
one case, it should be applied to those that follow if the facts are substantially the
same, even though the parties may be different. (Commissioner of Internal Revenue
vs. La Tondeña, Inc. [now Ginebra San Miguel], 762 SCRA 636, 15 July 2015.)

7. Q. What is the essence of procedural due process?

A. The essence of procedural due process is that a party to a case must be given sufficient
opportunity to be heard and to present evidence. (Malixi vs. Mexicali Philippines,
792 SCRA 586, 8 June 2016.)

8. Q. Is there a denial of due process in disbarment proceedings when the Supreme Court
submits the case for Resolution without requiring the complainant to file a Reply to
the Comment or Answer? Explain.

A. No. The Supreme Court held that there was no denial of due process in resolving the instant
case. The respondents were required to file their respective Answers. Based on the
Complaint and the supporting affidavits attached thereto, and the respective Comments of
the respondents, the Court found that the presumption of innocence accorded to
respondents was not overcome. The Court no longer required complainant to file a Reply
since it has the discretion not to require the filing of the same when it can already
judiciously resolve the case based on the pleadings thus far submitted. (Rodica vs. Lazaro,
693 SCRA 273, 13 March 2013).
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The Court can proceed to resolve the case without need of informing the parties that
the case is already submitted for resolution.

9. Q. Can procedural laws be given retroactive effect?

A. Yes. Procedural laws may be given retroactive effect to actions pending and
undetermined at the time of their passage, there being no vested rights in the rules
of procedure. (Pfizer, Inc. vs. Galan, 410 Phil. 483, 2001).

10. Q. What are provisional remedies?

A. They are provisional because they constitute temporary measures availed of during
the pendency of the action, and they are ancillary because they are mere incidents in
and are dependent upon the result of the main action. (United Alloy Philippines
Corporation vs. United Coconut Planters Bank, 775 SCRA 147, 23 November 2015.)
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II.
JURISDICTION

11. Q. What is Jurisdiction? How is it determined?

A. Jurisdiction is defined as the power and authority of a court to hear, try and decide a case.
In order for the court or an adjudicative body to have authority to dispose of the case on
the merits, it must acquire jurisdiction over the subject matter and the parties. (Forest
Hills Golf and Country Club, Inc. vs. Fil-Estate Properties, Inc., 797 SCRA 655, 20 July
2016; Genato vs. Viola, 611 SCRA 677, 5 February 2010.)

The settled principle is that "the allegations of the Complaint determine the nature of the
action and consequently the jurisdiction of the courts. This rule applies whether or not the
plaintiff is entitled to recover upon all or some of the claims asserted therein as this is a
matter that can be resolved only after and as a result of the trial. (Cacayorin vs. Armed
Forces and Police Mutual Benefit Association, Inc., 696 SCRA 311, 15 April 2013;
Padre vs. Badillo, 640 SCRA 50, 19 January 2011.)

12. Q. Distinguish jurisdiction over the subject matter and jurisdiction over the person.

A. Jurisdiction over the subject matter is conferred by the Constitution or by law. It is

determined by the material averments in the complaint as well as the character of the relief
sought. (Dazon vs. Yap, 610 SCRA 79, 15 January 2010.)

Jurisdiction over the person is acquired by the court by virtue of the party's voluntary
submission to the authority of the court or through the exercise of its coercive processes.
Thus, in civil cases, courts acquire jurisdiction over the plaintiffs upon the filing of the
complaint, while jurisdiction over the defendants is acquired either through the service of
summons upon them in the manner required by law or through their voluntary appearance
in court and their submission to its authority.

13. Q. What is the jurisdiction of the Regional Trial Court (RTC) in civil cases? What is the
jurisdiction of the Metropolitan Trial Court (MeTC), Municipal Trial Court (MTC),
Municipal Circuit Trial Court (MCTC) in civil cases?

A. Pursuant to Section 19 of BP 129 as amended by RA 7691, the RTCs shall, in civil cases,
exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;

(2) In all civil actions which involve the title to, or possession of, real property, or any interest
therein, where the assessed value of the property involved exceeds twenty thousand pesos
(₱20,000.00) or for civil actions in Metro Manila, where such value exceeds fifty thousand
pesos (₱50,000.00) except actions for forcible entry into and unlawful detainer of lands
or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; (Cabrera vs. Francisco,
704 SCRA 103, 28 August 2013.)

(3) In all actions in admiralty and maritime jurisdiction where he demand or claim exceeds One
hundred thousand pesos (P100,000.00) or, in Metro Manila, where such demand or claim
exceeds Two hundred thousand pesos (200,000.00);

(4) In all matters of probate, both testate and intestate, where the gross value of the estate
exceeds One hundred thousand pesos (P100,000.00) or, in probate matters in Metro Manila,
where such gross value exceeds Two hundred thousand pesos (200,000.00);
(5) In all actions involving the contract of marriage and marital relations;

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-
judicial functions;

(7) In all civil actions and special proceedings falling within the exclusive original jurisdiction
of a Juvenile and Domestic Relations Court and of the Courts of Agrarian Relations as now
provided by law; and

(8) In all other cases in which the demand, exclusive of interests, damages of whatever kind,
attorney’s fees, litigation expenses, and costs or the value of the property exceeds One
 5

hundred thousand pesos (₱100,000.00) or, in such other cases in Metro Manila, where the
demand, exclusive of the abovementioned items exceeds Two hundred thousand pesos
(₱200,000.00).

Pursuant to Section 33, the MeTCs, MTCs, MCTCs shall, in civil cases, exercise exclusive original
jurisdiction:

(1) over civil actions and probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal property, estate, or
amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in
Metro Manila where such personal property, estate, or amount of the demand does not
exceed Two hundred thousand pesos (P200,000.00) exclusive of interest damages of
whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be
specifically alleged: Provided, That where there are several claims or causes of action
between the same or different parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action, irrespective of whether
the causes of action arose out of the same or different transactions;

(2) over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the
defendant raises the question of ownership in his pleadings and the question of possession
cannot be resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.

(3) in all civil actions which involve title to, or possession of, real property, or any interest
therein where the assessed value of the property or interest therein does not exceed Twenty
thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value
does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of
whatever kind, attorney's fees, litigation expenses and costs: Provided, That value of such
property shall be determined by the assessed value of the adjacent lots. (As amended by R.A.
No. 7691) (Maslag vs. Monzon, 698 SCRA 584, 17 June 2013.)

These jurisdictional amounts of exceeding ₱100,000.00 for RTCs outside of Metro Manila
and exceeding ₱200,000.00 in Metro Manila were already adjusted to ₱300,000.00 and
₱400,000.00, respectively, pursuant to Supreme Court Circular No. 21-99 dated April 15, 1999,
making effective on March 20, 1999 the provision of Section 5 of RA 7691 which provides:

SEC. 5. After five (5) years from the effectivity of this Act, the jurisdictional amounts
mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended
by this Act, shall be adjusted to Two hundred thousand pesos (₱200,000.00). Five (5) years
thereafter, such jurisdictional amounts shall be adjusted further to Three hundred thousand
pesos (₱300,000.00): Provided, however, That in the case of Metro Manila, the
abovementioned jurisdictional amounts shall be adjusted after five (5) years from the
effectivity of this Act to Four hundred thousand pesos (₱400,000.00).

14. Q. How is an action ascertained as one capable or not of pecuniary estimation? Which
court has the jurisdiction to try the case?

A. In determining whether an action is one the subject matter of which is not capable of
pecuniary estimation, the Supreme Court has adopted the criterion of first ascertaining the
nature of the principal action or remedy sought. If it is primarily for the recovery of a
sum of money, the claim is considered capable of pecuniary estimation, and whether
jurisdiction is in the Municipal Courts or in the Courts of First Instance (now Regional Trial
Court) would depend on the amount of the claim. However, where the basic issue is
something other than the right to recover a sum of money, where the money claim is
purely incidental to, or a consequence of, the principal relief sought, the Supreme Court
has considered such actions as cases where the subject of the litigation may not be
estimated in terms of money, and are cognizable exclusively by Courts of First Instance
(now Regional Trial Courts). (Ungria vs. Court of Appeals, 654 SCRA 314, 25 July 2011).
The criterion laid down in Singson vs. Isabela Sawmill (177 Phil. 575, 1979).

15. Q. In civil cases for recovery of real property, what is incumbent upon the plaintiff to
allege in the Complaint to determine which court has jurisdiction?

A. The assessed value must be alleged in the complaint to determine which court has
jurisdiction over the action. (Heirs of Telesforo Julao vs. De Jesus, 736 SCRA 596, 29
September 2014.)
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Based on Section 19(2) and Section 33(3) of B.P. 129, as amended, it is clear that in an action
for recovery of possession, the assessed value of the property sought to be recovered
determines the court's jurisdiction.

16. Q. What is the proper recourse of the RTC, which has no internal branch designated as
a Special Commercial Court, if a commercial case is filed before it and raffled in one
of its branches?

A. The proper recourse is to refer the case to the nearest RTC with a designated Special
Commercial Court branch within the judicial region. Upon referral, the RTC to which the
case was referred to should re-docket the case as a commercial case. And if the said RTC
has only one branch designated as a Special Commercial Court, it should assign the case to
the sole special branch. (Forest Hills Golf and Country Club, Inc. vs. Fil-Estate Properties,
Inc., supra; Gonzales vs. GJH Land, Inc. (formerly S.J. Land, Inc., 774 SCRA 242, 10
November 2015).

17. Q. What is the rationale of the doctrine of exhaustion of administrative remedies?

A. The doctrine of exhaustion of administrative remedies requires that before a party is

allowed to seek the intervention of the court, he or she should have availed himself or
herself of all the means of administrative processes afforded him or her. The premature
invocation of the intervention of the court is fatal to one's cause of action. The doctrine of
exhaustion of administrative remedies is based on practical and legal reasons. The
availment of administrative remedy entails lesser expenses and provides for a speedier
disposition of controversies. Furthermore, the courts of justice, for reasons of comity and
convenience, will shy away from a dispute until the system of administrative redress has
been completed and complied with, so as to give the administrative agency concerned
every opportunity to correct its error and dispose of the case. (Catipon, Jr. vs. Japson, 759
SCRA 557, 22 June 2015.)

18. Q. What is the effect of failure to exhaust administrative remedies?

A. The failure to exhaust administrative remedies is a ground for dismissal of the action.
(University of Santo Tomas vs. Sanchez, 626 SCRA 126, 29 July 2010; Maglalang vs.
Philippine Amusement and Gaming Corporation (PAGCOR), 712 SCRA 472, 11
December 2013; Regino vs. Pangasinan Colleges of Science and Technology, 485 Phil.
446, 2004).

19. Q. Can the respondent raise non-exhaustion of administrative remedies and forum
shopping at any time during the proceedings of the case?

A. No. In Tabino vs. Tabino (731 SCRA 372, 30 July 2014), it was held that petitioners may
not raise the issues of exhaustion of administrative remedies and forum-shopping, after
having voluntarily submitted themselves to the jurisdiction of the MeTC and the RTC trying
the ejectment case. Besides, these issues were raised for the first time before the Supreme
Court. As such, the Court said that they cannot be allowed to simultaneously attack and
adopt the proceedings or actions taken by the lower courts.

20. Q. What are the exceptions to the application of the doctrine of exhaustion of
administrative remedies?

A. The exceptions are the following:

(1) when there is a violation of due process,

(2) when the issue involved is purely a legal question,

(3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,

(4) when there is estoppel on the part of the administrative agency concerned,

(5) when there is irreparable injury,

(6) when the respondent is a department secretary whose acts as an alter ego of the President
bear the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
 7

(8) when it would amount to a nullification of a claim,

(9) when the subject matter is a private land in land case proceedings,

(10) when the rule does not provide a plain, speedy and adequate remedy, and

(11) when there are circumstances indicating the urgency of judicial intervention. (University
of Santo Tomas vs. Sanchez, supra.)

21. Q. What is the doctrine of primary jurisdiction? When is this rule applicable?

A. The doctrine of primary jurisdiction precludes the courts from resolving a controversy over
which jurisdiction was initially lodged with an administrative body of special competence.
It does not allow a court to arrogate unto itself authority to resolve a controversy, the
jurisdiction over which is initially lodged with an administrative body of special
competence. (Catipon, Jr. vs. Japson, supra; Heirs of Simeon Latayan vs. Tan, 776 SCRA
1, 2 December 2015.)

The rule on primary jurisdiction applies only where the administrative agency exercises
quasi-judicial or adjudicatory function. Thus, an essential requisite for this doctrine to
apply is the actual existence of quasi-judicial power.

22. Q. What is the doctrine of judicial stability or non-interference?

A. Under the doctrine of judicial stability or non-interference, no court can interfere by

injunction with the judgments or orders of another court of concurrent jurisdiction having
the power to grant the relief sought by injunction. The rationale for the rule is founded on
the concept of jurisdiction - a court that acquires jurisdiction over the case and renders
judgment therein has jurisdiction over its judgment, to the exclusion of all other coordinate
courts, for its execution and over all its incidents, and to control, in furtherance of justice,
the conduct of ministerial officers acting in connection with this judgment. (United Alloy
Philippines Corporation vs. United Coconut Planters Bank, 775 SCRA 147, 23
November 2015; Pacific Ace Finance Ltd. (PAFIN) vs. Yanagisawa (669 SCRA 270, 11
April 2012).

23. Q. When is jurisdiction by estoppel applicable?

A. The principle of estoppel on jurisdiction seemingly depends upon whether the lower court
actually had jurisdiction or not. Whenever it appears that the court has no jurisdiction over
the subject matter, the action shall be dismissed. If it had no jurisdiction, but the case was
tried and decided upon the theory that it had jurisdiction, the parties are not barred, on
appeal, from assailing such jurisdiction, for the same must exist as a matter of law, and may
not be conferred by consent of the parties or by estoppel. This defense may be interposed
at any time, during appeal or even after final judgment. (Calibre Traders, Inc. vs. Bayer
Philippines, Inc. 633 SCRA 34, 13 October 2010).

However, if the lower court had jurisdiction, and the case was heard and decided upon a
given theory, such, for instance, as that the court had no jurisdiction, the party who induced
it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position
– that the lower court had jurisdiction. Here, the principle of estoppel applies. The rule that
jurisdiction is conferred by law, and does not depend upon the will of the parties, has no
bearing thereon.

24. Q. What is the jurisdiction of the Court of Tax Appeal (CTA)?

A. Republic Act No. 9282 expanded the jurisdiction of the CTA and elevated its rank to that of
a collegiate court with special jurisdiction. This expanded jurisdiction of the CTA includes
its exclusive appellate jurisdiction to review by appeal the decisions, orders or resolutions
of the RTC in local tax cases originally decided or resolved by the RTC in the exercise
of its original or appellate jurisdiction.

The CTA likewise has exclusive jurisdiction over a special civil action for certiorari assailing
an interlocutory order issued by the RTC in a local tax case. Thus, it has the jurisdiction to
issue writs of certiorari or to determine whether there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the RTC in issuing an interlocutory
 8

order in cases falling within the CTA's exclusive appellate jurisdiction. (CE Casecnan
Water and Energy Company Inc. vs. Province of Nueva Ecija, 759 SCRA 180, 17 June
2015; City of Manila vs. Grecia-Cuerdo, 715 SCRA 182, 4 February 2014).

25. Q. From the adverse decision of the CTA Division, what is the proper mode of appeal?

A. Jurisdiction to review decisions or resolutions issued by the Divisions of the CTA is no

longer with the CA but with the CTA En Banc. This rule is embodied in Section 11 of RA
9282, which provides that:

SECTION 11. Section 18 of the same Act is hereby amended as follows:

SEC. 18. Appeal to the Court of Tax Appeals En Banc.– No civil proceeding
involving matters arising under the National Internal Revenue Code, the Tariff and
Customs Code or the Local Government Code shall be maintained, except as herein
provided, until and unless an appeal has been previously filed with the CTA and
disposed of in accordance with the provisions of this Act.

Thus, a party adversely affected by a resolution of a Division of the CTA on a motion for
reconsideration or new trial may file a petition for review with the CTA en banc. (TFS,
Incorporated vs. Commissioner of Internal Revenue, 618 SCRA 346, 19 April 2010.)

III.
CIVIL PROCEDURE
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RULE 1
GENERAL PROVISIONS

26. Q. What is the importance of the payment of the prescribed docket fees?

A. It is hornbook law that courts acquire jurisdiction over a case only upon payment of the
prescribed docket fee. It is settled jurisprudence that any decision rendered without
jurisdiction is a total nullity and may be struck down at any time, even on appeal before the
Supreme Court.

27. Q. What is the basis for the computation of the docket fee in a real action?

A. In cases involving real property, the fair market value of the real property in litigation
stated in the current tax declaration or current zonal valuation of the Bureau of Internal
Revenue, whichever is higher, or if there is none, the stated value of the property in
litigation x x x shall be the basis for the computation of the docket fees.

In Trayvilla vs. Sejas (782 SCRA 578, 1 February 2016), the Supreme Court held that the
petitioners should have observed the requirement under A.M. No. 04-2-04-SC relative to
declaring the fair market value of the property as stated in the current tax declaration or
zonal valuation of the Bureau of Internal Revenue (BIR). Since there was no such allegation
made in the Amended Complaint, then the value of the subject property as stated in the
handwritten document sued upon and restated in the Amended Complaint should be the
basis for determining jurisdiction and the amount of docket fees to be paid.

For purposes of computing the docket fee in real action and filing of the civil case, the
purchased value as indicated in the complaint shall be made as the basis in the absence of
a current tax declaration or zonal valuation of the BIR.

Rule 141 of the Rules of Court, as amended by A.M. No. 04-2-04-SC and Supreme Court
Amended Administrative Circular No. 35-2004, provides that:

For filing an action or a permissive OR COMPULSORY counterclaim,

CROSS-CLAIM, or money claim against an estate not based on judgment, or for filing
a third-party, fourth-party, etc. complaint, or a complaint-in-intervention, if the
total sum claimed, INCLUSIVE OF INTERESTS, PENALTIES, SURCHARGES,
DAMAGES OF WHATEVER KIND, AND ATTORNEY'S FEES, LITIGATION EXPENSES
AND COSTS and/or in cases involving property, the FAIR MARKET value of the
REAL property in litigation STATED IN THE CURRENT TAX DECLARATION OR
CURRENT ZONAL VALUATION OF THE BUREAU OF INTERNAL REVENUE,
WHICHEVER IS HIGHER, OR IF THERE IS NONE, THE STATED VALUE OF THE
PROPERTY IN LITIGATION OR THE VALUE OF THE PERSONAL PROPERTY IN
LITIGATION AS ALLEGED BY THE CLAIMANT x x x (Emphasis supplied)

RULE 2
CAUSE OF ACTION

28. Q. What is a cause of action? What are its essential elements?

A. A cause of action is an act or omission by which a person violates the right of another.
Its essential elements are as follows:

(1) plaintiff's right, which arises from or is created by whatever means, and is covered by
whatever law;

(2) defendant's obligation not to violate such right; and

(3) defendant's act or omission in violation of the such right and for which plaintiff's may seek
relief from defendant. (Pamaran vs. Bank of Commerce, 795 SCRA 430, 4 July 2016.)

29. Q. What is the distinction between a motion to dismiss for failure to state a cause of
action under Section 1(g) of Rule 16, and the one under Rule 33 of the Rules of Court?
A. 1) In the first situation, the motion must be made before a responsive pleading is filed;
and it can be resolved only on the basis of the allegations in the initiatory pleading.
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On the other hand, in the second instance, the motion to dismiss must be filed after
the plaintiff rested his case; and it can be determined only on the basis of the
evidence adduced by the plaintiff.

2) In the first case, it is immaterial if the allegations in the complaint are true or false;
however, in the second situation, the judge must determine the truth or falsity of
the allegations based on the evidence presented.

3) Stated differently, a motion to dismiss under Section 1(g) of Rule 16 is based on

preliminary objections made before the trial; while the motion to dismiss under
Rule 33 is a demurrer to evidence on the ground of insufficiency of evidence, and is
made only after the plaintiff rested his case. (Pamaran vs. Bank of Commerce,
supra.)

RULE 3
PARTIES TO CIVIL ACTIONS

30. Q. Who is a real party-in-interest?

A. A real party-in-interest is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit.

‘Interest’ within the meaning of the rules means material interest, an interest in issue and
to be affected by the decree as distinguished from mere interest in the question involved,
or a mere incidental interest. A real party-in interest is one who has a legal right. The action
must be brought by the person who, by substantive law, possesses the right sought to be
enforced. (Villondo vs. Quijano, 686 SCRA 694, 3 December 2012; Miñoza vs. Lopez,
648 SCRA 684, 13 April 2011.)

31. Q. Can a court or tribunal exercising quasi-judicial functions question the decision of an
appellate court which reversed its decision?

A. No. In Republic vs. Namboku Peak, Inc. (730 SCRA 64, 18 July 2014), the Supreme Court
held that the Secretary of Labor is not the real party-in-interest vested with personality to
file the petition.

It would have been the duty of the private petitioners to appear and defend the ruling of
the Secretary of Labor for they are the ones who were interested that the same be sustained.
Of course, they had the option not to pursue the case before a higher court, as what they did
in these cases. As to the Secretary of Labor, she was impleaded in the Petitions for Certiorari
filed before the CA as a nominal party because one of the issues involved therein was
whether she committed an error of jurisdiction. But that does not make her a real party-in-
interest or vests her with authority to appeal the Decisions of the CA in case it reverses her
ruling.

Under Section 1, Rule 45 of the Rules of Court, only real parties-in-interest who participated
in the litigation of the case before the CA can avail of an appeal by certiorari.

32. Q. ALDO Realty, a juridical entity engaged in renting out apartment buildings, owns the
ABC Building which consists of three (3) floors occupied by the Chua family, the
majority owner of the realty company. In front of the said building, there is an on-
going construction of HINGTO Hardware, owned by HINGTO family. The Chua and
Hingto families have a standing property boundary dispute. The Chua installed a
CCTV Camera right in front of the on-going construction. Thus, the Hingto lodged a
complaint with the Barangay as the camera invaded their right to privacy. As the
dispute was not settled amicably, they instituted a civil case in violation of Art. 26 (1)
of the Civil Code.

The Chua Family filed a motion to dismiss on the ground that they are not the real
party defendant as they are only renting the apartment building. Rule on the Motion
to Dismiss.
A. The Motion to Dismiss should be denied. The Chua Family is the real party defendant.
Although Aldo has a juridical personality separate and distinct from its stockholders,
records show that it is a family-owned corporation managed by the Chua family.
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The personalities of respondents and Aldo Realty seem to merge. ‘The Chua’s are merely
using the corporate fiction of Aldo as a shield to protect themselves from this suit. Thus, the
Chua’s are the proper parties to this suit. ((Hing vs. Choachuy, Sr., 699 SCRA 667, 26 June
2013.)

RULE 4
VENUE OF ACTIONS

33. Q. What is a real action?

A. A real action is an action affecting title to or possession of real property, or interest therein.
These include partition or condemnation of, or foreclosure of mortgage on, real
property. (Cabrera vs. Francisco, 704 SCRA 103, 28 August 2013.)

34. Q. Distinguish real action from personal action.

A. a) A real action is one affecting title to or possession of real property or interest

therein; all other actions are personal actions. Personal actions include those filed
for recovery of personal property, or for enforcement of contract or recovery of
damages for its breach, or for the recovery of damages for injury committed to a
person or property.

b) A real action must be filed in the proper court which has jurisdiction over the
subject real property, while a personal action may be filed where the plaintiff or
defendant resides, or if the defendant is a non-resident, where he may be found, at
the election of the plaintiff. Nevertheless, the parties may agree in writing to limit
the venue of future actions between them to a specified place. (Pamaran vs. Bank
of Commerce, 795 SCRA 430, 4 July 2016.)

RULE 6
KINDS OF PLEADINGS

35. Q. Can a letter-complaint be considered as a pleading?

A. No. Section 1, Rule 6 of the Rules of Court defines pleadings as written statements of the
respective claims and defenses of the parties submitted to the court for appropriate
judgment. In Monsanto vs. Lim, 735 SCRA 252 (17 September 2014), the Regional
Director of the Home Development Mutual Fund (Pag-IBIG) requested the intervention of
Executive Judge of the RTC of Catbalogan, Samar on the alleged anomalous auction sale
conducted by a certain Sheriff. The Supreme Court stressed that the Pag-IBIG’s letter could
not be considered as a formal complaint or petition. First, the parties to the case were not
identified pursuant to Section 1, Rule 3 and Section 1, Rule 7. Second, the so-called claim or
cause of action was not properly mentioned or specified. Third, the letter miserably failed
to comply with the requirements of Rule 7, Rules of Court. The letter bore no caption; it was
not even assigned a docket number; the parties were not properly identified; the allegations
were not properly set forth; no particular relief is sought; in fact, only the intervention of
the Executive Judge Monsanto is requested; it was not signed by a counsel; and most of all,
there is no verification or certification against forum-shopping.

36. Q. What is a compulsory counterclaim?

A. A compulsory counterclaim is any claim for money or other relief, which a defending party
may have against an opposing party, which at the time of suit arises out of, or is necessarily
connected with, the same transaction or occurrence that is the subject matter of plaintiff’s
complaint. It is compulsory in the sense that it is within the jurisdiction of the court,
does not require for its adjudication the presence of third parties over whom the
court cannot acquire jurisdiction, and will be barred if not set up in the answer to
the complaint in the same case. Any other claim is permissive. (Calibre Traders, Inc. vs.
Bayer Philippines, Inc., 633 SCRA 34, 13 October 2010.)

37. Q. What are the tests to determine whether a counterclaim is compulsory or not?
A. Following are the test laid down by the Supreme Court to determine whether a
counterclaim is compulsory or not:

(1) Are the issues of fact or law raised by the claim and the counterclaim largely the same?
 12

(2) Would res judicata bar a subsequent suit on defendant's claims, absent the compulsory
counterclaim rule?

(3) Will substantially the same evidence support or refute plaintiff's claim as well as the
defendant's counterclaim?

(4) Is there any logical relation between the claim and the counterclaim, such that the conduct
of separate trials of the respective claims of the parties would entail a substantial
duplication of effort and time by the parties and the court? The fourth test is the
‘compelling test of compulsoriness’. (Calibre, Traders Inc. vs. Bayer Philippines, Inc.,
supra.)

RULE 7
PARTS OF A PLEADING

38. Q. Is the non-verification of a pleading jurisdictional in character?

A. No. The verification of a pleading is a formal and not a jurisdictional requirement. It is

intended to assure that the allegations in a pleading are true and correct. As such, the court
may order the correction of unverified pleadings, or it may act on them and waive strict
compliance with the rules. (Bacolor vs. VL Makabali Memorial Hospital, Inc. (790 SCRA
20, 18 April 2016),

39. Q. What is forum shopping?

A. Forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks
a favorable opinion (other than by appeal or certiorari) in another, or when he institutes
two or more actions or proceedings grounded on the same cause, on the gamble that one
or the other court would make a favorable disposition. (University of Santo Tomas vs.
Sanchez, 626 SCRA 126, 29 July 2010.)

Thus, the essence of forum-shopping is the filing of multiple suits involving the same parties
for the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment. It exists where the elements of litis pendentia are present
or where a final judgment in one case will amount to res judicata in another. (Bradford
United Church of Christ, Inc. vs. Ando, 791 SCRA 337, 30 May 2016; Commissioner of
Customs vs. Pilipinas Shell Petroleum Corporation (PSPC), 791 SCRA 82, 20 April
2016; Asia United Bank vs. Goodland Company, Inc., 645 SCRA 205, 9 March 2011.)

40. Q. Is there forum shopping if cases for unlawful detainer and action for recovery of
ownership are both pending?

A. There is none. The causes of action in the two cases are not identical or similar.

In the summary action of unlawful detainer, the question to be resolved is which party
has the better or superior right to the physical/material possession (or de facto possession)
of the disputed premises.

Whereas, in the action for recovery of ownership, the question to be resolved is which
party has the lawful title or dominical right (i.e., owner's right) to the disputed premises.

Thus, in Malabanan vs. Rural Bank of Cabuyao, Inc.,(2009) where the petitioner therein
asserted, among others, that the complaint for unlawful detainer against him must be
dismissed on grounds of litis pendencia and forum-shopping in view of the pending case for
annulment of an action for dacion en pago and for the transfer certificate of title in another
case, the Supreme Court reiterated the well-settled rule that a pending action involving
ownership neither suspends nor bars the proceedings in the summary action for
ejectment pertaining to the same property, in view of the dissimilarities or
differences in the reliefs prayed for. (Bradford United Church of Christ, Inc. vs. Ando,
supra.)
41. Q. What are the three (3) ways of committing forum shopping?

A. Under prevailing jurisprudence, forum shopping can be committed in three ways, to wit:
 13

(1) filing multiple cases based on the same cause of action and with the same prayer, the
previous case not having been resolved yet (litis pendentia);

(2) filing multiple cases based on the same cause of action and with the same prayer, the
previous case having been finally resolved (res judicata); or

(3) filing multiple cases based on the same cause of action but with different prayers (splitting
of causes of action, where the ground for dismissal is also either litis pendentia or res
judicata) (Commissioner of Customs vs. Pilipinas Shell Petroleum Corporation (PSPC),
supra; Asia United Bank vs. Goodland Company, Inc., supra.)

42. Q. What is the rationale for requiring the plaintiff/petitioner, not the counsel, to sign
the certification of non-forum shopping? What must be done if he could not do so?

A. The requirement that it is the petitioner, not her counsel, who should sign the certificate of
non-forum shopping is due to the fact that a "certification is a peculiar personal
representation on the part of the principal party, an assurance given to the court or other
tribunal that there are no other pending cases involving basically the same parties, issues
and causes of action. Obviously, it is the petitioner, and not always the counsel whose
professional services have been retained for a particular case, who is in the best position to
know whether she actually filed or caused the filing of a petition in that case.

However, if a petitioner is unable to sign a certification for reasonable or justifiable reasons,

she must execute an SPA designating her counsel of record to sign on her behalf. "A
certification which had been signed by counsel without the proper authorization is
defective and constitutes a valid cause for the dismissal of the petition.” (Anderson vs. Ho,
688 SCRA 8, 7 January 2013.)

43. Q. What is the present rule on the non-compliance with the requirements on, or
submission of defective, verification and certification against forum shopping?

A. In Heirs of Babai Guiambangan vs. Municipality of Kalamansig, Sultan Kudarat (798

SCRA 584, 27 July 2016), Bacolor vs. VL Makabali Memorial Hospital, Inc., supra, Jacinto
vs. Gumaru, Jr. (724 SCRA 343, 2 June 2014), the Supreme Court restated the
jurisprudential pronouncements in Altres vs. Empleo, (2208) on the non-compliance with
the requirements on, or submission of defective, verification and certification against forum
shopping, viz:

1) A distinction must be made between non-compliance with the requirement on or

submission of defective verification, and non-compliance with the requirement on or
submission of defective certification against forum shopping.

2) As to verification, non-compliance therewith or a defect therein does not necessarily

render the pleading fatally defective. The court may order its submission or correction
or act on the pleading if the attending circumstances are such that strict compliance with
the Rule may be dispensed with in order that the ends of justice may be served thereby.

3) Verification is deemed substantially complied with when one who has ample knowledge to
swear to the truth of the allegations in the complaint or petition signs the verification, and
when matters alleged in the petition have been made in good faith or are true and correct,

4) As to certification against forum shopping, non-compliance therewith or a defect

therein, unlike in verification, is generally not curable by its subsequent submission or
correction thereof, unless there is a need to relax the Rule on the ground of “substantial
compliance” or presence of “special circumstances or compelling reasons.”

5) The certification against forum shopping must be signed by all the plaintiffs or petitioners
in a case; otherwise, those who did not sign will be dropped as parties to the case. Under
reasonable or justifiable circumstances, however, as when all the plaintiffs or petitioners
share a common interest and invoke a common cause of action or defense, the signature of
only one of them in the certification against forum shopping substantially complies with the
Rule. (Pigcaulan vs. Security and Credit Investigation, Inc., 663 SCRA 1, 16 January
2012.)

6) Finally, the certification against forum shopping must be executed by the party-pleader, not
by his counsel. If, however, for reasonable or justifiable reasons, the party-pleader is unable
to sign, he must execute a Special Power of Attorney designating his counsel of record to
sign on his behalf.
 14

44. Q. If there are numerous petitioners who share common interest in the case, is the
signature of any one of them considered a substantial compliance of the verification-
certification requirement?

A. Yes. As a rule, the certificate against forum shopping must be signed by all plaintiffs or
petitioners; otherwise, those who did not sign will be dropped as parties to the case. Under
reasonable or justifiable situations, such as when the plaintiffs or petitioners share a
common interest and invoke a common cause of action or defense, the signature of one of
them in the certificate against forum shopping is considered substantial compliance with
the rules.

The requirement of strict compliance with the rules on filing of certificate against forum
shopping highlights the mandatory character of the submission of such certificate.
However, this mandatory requirement allows substantial compliance provided that
there are justifiable circumstances for the relaxation of the rules. (Bacolor vs. VL
Makabali Memorial Hospital, Inc., supra.)

45. Q. Is the subsequent filing of verification and certification of non-forum shopping by the
party considered as substantial compliance?

A. The subsequent filing of the certification duly signed by the petitioner himself should thus
be deemed substantial compliance, pro hac vice. (Anderson vs. Ho, supra.)

RULE 8
MANNER OF MAKING
ALLEGATIONS IN PLEADINGS

46. Q. Are charge invoices considered actionable document?

A. No. A document is actionable when an action or defense is grounded upon such written
instrument or document. In the case of Asian Construction and Development Corporation
vs. Mendoza (675 SCRA 284, 27 June 2012), the Supreme Court held that charge invoices
are not actionable documents per se as these only provide details on the alleged
transactions. These documents need not be attached to or stated in the complaint as these
are evidentiary in nature.

47. Q. What is ‘negative pregnant’ and its effect?

A. If an allegation is not specifically denied or the denial is a negative pregnant, the allegation
is deemed admitted. Where a fact is alleged with some qualifying or modifying language,
and the denial is conjunctive, a ‘negative pregnant’ exists, and only the qualification or
modification is denied, while the fact itself is admitted. A denial in the form of a negative
pregnant is an ambiguous pleading, since it cannot be ascertained whether it is the fact or
only the qualification that is intended to be denied. Profession of ignorance about a fact
which is patently and necessarily within the pleader's knowledge, or means of knowing as
ineffectual, is no denial at all. (Venzon vs. Rural Bank of Buenavista (Agusan Del Norte),
Inc., 704 SCRA 138, 28 August 2013.)

RULE 9
EFFECT OF FAILURE TO PLEAD

48. Q. Can the defense of lack of jurisdiction be raised even for the first time on appeal?

A. Yes. Under Section 1, Rule 9 of the Revised Rules of Court, defenses not pleaded either in a
motion to dismiss or in the answer are deemed waived, except for lack of jurisdiction, litis
pendentia, res judicata, and prescription, which must be apparent from the pleadings or the
evidence on record. In other words, the defense of lack of jurisdiction over the subject
matter may be raised at any stage of the proceedings, even for the first time on appeal. In
fact, the court may motu proprio dismiss a complaint at any time when it appears from the
pleadings or the evidence on record that lack of jurisdiction exists. (Heirs of Telesforo
Julao vs. De Jesus, 736 SCRA 596, 29 September 2014.)

49. Q. What is compulsory counterclaim?

A. A compulsory counterclaim is any claim for money or other relief, which a defending party
 15

may have against an opposing party, which at the time of suit arises out of, or is necessarily
connected with, the same transaction or occurrence that is the subject matter of plaintiff’s
complaint. It is compulsory in the sense that it is within the jurisdiction of the court, does
not require for its adjudication the presence of third parties over whom the court cannot
acquire jurisdiction, and will be barred if not set up in the answer to the complaint in the
same case. Any other claim is permissive. (Calibre Traders, Inc. vs. Bayer Philippines,
Inc., 633 SCRA 34, 13 October 2010.)

50. Q. Can a defendant be declared in default if there was no valid service of summons?

A. No. Settled is the rule that a defendant cannot be declared in default unless such declaration
is preceded by a valid service of summons. (Atiko Trans, Inc. vs. Prudential Guarantee
and Assurance, Inc., 655 SCRA 625, 17 August 2011.)

51. Q. What is excusable negligence?

A. Negligence, to be ‘excusable,’ must be one which ordinary diligence and prudence could not
have granted against. (Magtoto vs. Court of Appeals, 686 SCRA 88, 21 November 2012.)

RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS

52. Q. When can a party amend his pleading as a matter of right?

A. Under Section 2, Rule 10 of the 1997 Rules, a party may amend his pleading once as a matter
of right at any time before a responsive pleading is served. No motion to admit the same
was required; as the amendment is allowed as a matter of right, prior leave of court was
unnecessary. (Guntalilib vs. dela Cruz, 796 SCRA 1, 7 July 2016.)

53. Q. What is a supplemental pleading?

A. A supplemental pleading states the transactions, occurrences or events which took place
since the time the pleading sought to be supplemented was filed. A supplemental pleading
is meant to supply deficiencies in aid of the original pleading and not to dispense with or
substitute the latter. It does not supersede the original, but assumes that the original
pleading is to stand. (Loy, Jr. vs. San Miguel Corporation Employees Union-Philippine
Transport and General Workers Organization (SMCEU-PTGWO), 605 SCRA 212, 24
November 2009.)

RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

54. Q. What is the reckoning period of receipt of the Decision or Order for purposes of
Appeal?

A. Notice to counsel is an effective notice to the client, while notice to the client and not his
counsel is not notice in law. Therefore, receipt of notice by the counsel of record is the
reckoning point of the reglementary period. (Malixi vs. Mexicali Philippines, 792 SCRA
586, 8 June 2016.)

55. Q. What are the two ways of filing a pleading?

A. Pleadings may be filed in court either personally or by registered mail. In the first case, the
date of filing is the date of receipt. In the second case, the date of mailing is the date of
receipt. (Heirs of Numeriano Miranda, Sr. vs. Miranda, 700 SCRA 746, 8 July 2013.)

56. Q. Is the filing of pleadings through private courier allowed by the Revised Rules of
Court?

A. In Palileo vs. Planters Development Bank, 738 SCRA 2, 8 October 2014), the Supreme
Court held that service and filing of pleadings by courier service is a mode not provided in
the Rules.

57. Q. If a party filed a pleading in court through a private courier, instead of registered
mail, what would be its effect?
 16

A. It is an established jurisprudence that the date of delivery of pleadings to a private letter-

forwarding agency is not to be considered as the date of filing thereof in court; instead, the
date of actual receipt by the court is deemed the date of filing of that pleading. (Heirs of
Numeriano Miranda, Sr. vs. Miranda, supra.)

58. Q. What is a notice of lis pendens?

A. A notice of lis pendens is an announcement to the whole world that a particular real
property is in litigation, serving as a warning that one who acquires an interest over said
property does so at his own risk, or that he gambles on the result of the litigation over the
said property. (Dela Merced vs. Government Service Insurance System, 661 SCRA 83,
23 November 2011.)

RULE 14
SUMMONS

59. Q. How can the court acquire jurisdiction over the person of the defendant if it is a
domestic corporation?

A. When the defendant is a domestic corporation, service of summons may be made only upon
the persons enumerated in Section 11, Rule 14 of the Rules of Court. However, jurisdiction
over the person of the defendant can be acquired not only by proper service of summons
but also by defendant’s voluntary appearance without expressly objecting to the court’s
jurisdiction, as embodied in Section 20, Rule 14 of the Rules of Court. (Atiko Trans, Inc. vs.
Prudential Guarantee and Assurance, Inc., 655 SCRA 625, 17 August 2011.)

60. Q. How can the court acquire jurisdiction if the defendant is a foreign entity?

A. In Pioneer International, Ltd. vs. Guadiz, Jr.,(2007) the Supreme Court held that when
the defendant is a foreign juridical entity, service of summons may be made upon:

(1) its resident agent designated in accordance with law for that purpose;

(2) the government official designated by law to receive summons if the corporation does not
have a resident agent; or

(3) any of the corporation’s officers or agents within the Philippines.

Thus, in order for the court to acquire jurisdiction over the person of a defendant foreign
private juridical entity under Section 12, Rule 14 of the Rules of Court, there must be prior
valid service of summons upon the agent of such defendant. (Atiko Trans, Inc. vs.
Prudential Guarantee and Assurance, Inc., supra.)

61. Q. What are the instances which can be considered as voluntary submission to the
jurisdiction of the court?

A. In Palma vs. Galvez (2010) the Court reiterated the oft-repeated rule 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.
(Atiko Trans, Inc. vs. Prudential Guarantee and Assurance, Inc., supra.)

62. Q. Is the special appearance of the defendant questioning the jurisdiction of the court
considered as voluntary?

A. In Lhuillier vs. British Airways (615 SCRA 380, 15 March 2010), it was held that a special
appearance to question a court’s jurisdiction is not voluntary appearance. A defendant who
files a motion to dismiss, assailing the jurisdiction of the court over his person, together
with other grounds raised therein, is not deemed to have appeared voluntarily before the
court. What the rule on voluntary appearance means is that the voluntary appearance of
the defendant in court is without qualification, in which case he is deemed to have waived
his defense of lack of jurisdiction over his person due to improper service of summons.

RULE 15
MOTIONS
 17

63. Q. What is the concept of the Omnibus Motion Rule?

A. Under the Omnibus Motion Rule embodied in Section 8 of Rule 15 of the Rules of Court, all
available objections that are not included in a party’s motion shall be deemed waived.
(Home Development Mutual Fund [HDMF] vs. See, 652 SCRA 478, 22 June 2011.)

RULE 16
MOTION TO DISMISS

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.
(1a)

64. Q. What is the effect of the dismissal based on the grounds enumerated in Section 1,
Rule 16?

A. Except for cases falling under paragraphs (f), (h), or (i), the dismissal of an action based on
the above-enumerated grounds is without prejudice and does not preclude the refiling of
the same action. And, under Section l (g) of Rule 41, an order dismissing an action without
prejudice is not appealable. (United Alloy Philippines Corporation vs. United Coconut
Planters Bank, 775 SCRA 147, 23 November 2015.)

65. Q. What is the remedy of the party whose case was dismissed based on the enumerated
grounds under Section 1, Rule 16?

A. The proper remedy therefrom is a special civil action for certiorari under Rule 65. But, if
the reason for the dismissal is based on paragraphs (f), (h), or (i) (i.e., res judicata,
prescription, extinguishment of the claim or demand, and unenforceability under the
Statute of Frauds), the dismissal, under Section 5, of Rule 16, is with prejudice and the
remedy of the aggrieved party is to appeal the order granting the motion to dismiss.
(United Alloy Philippines Corporation vs. United Coconut Planters Bank, supra.)

66. Q. What is the duty of the trial court if a motion to dismiss a case or to withdraw
information is filed?
A. When a trial court is confronted to rule on “a motion to dismiss a case or to withdraw an
Information”, it is its “bounden duty to assess independently the merits of the motion, and
this assessment must be embodied in a written order disposing of the motion.” (Jose vs.
Suarez, 701 SCRA 466, 17 July 2013.)

RULE 17
DISMISSAL OF ACTIONS
 18

67. Q. What constitutes failure to prosecute?

A. To constitute failure to prosecute, his non-appearance must be equated with

unwillingness to proceed with the trial as when both plaintiff and counsel made: no
appearance at all, or with the assumption that plaintiff has already lost interest in
prosecuting his action, in the same way that should the ground for dismissal be delay, this
delay or failure to proceed must be for an unreasonable length of time beyond the
reasonable allowance which by judicial leniency litigant is normally entitled. (Laurel vs.
Vardeleon, 765 SCRA 362, 5 August 2015.)

68. Q. When can the dismissal of the case be made under Section 3, Rule 17?

A. A case may be dismissed on the ground of non-prosequitur, if, under the circumstances, the
plaintiff is chargeable with want of due diligence in failing to proceed with reasonable
promptitude. (Auza, Jr. vs. MOL Philippines, Inc., 686 SCRA 66, 21 November 2012.)

RULE 18
PRE-TRIAL

69. Q. What is the duty of the parties during the pre-trial?

A. To obviate the element of surprise, parties are expected to disclose at a pre-trial conference
all issues of law and fact which they intend to raise at the trial, except such as may involve
privileged or impeaching matters. The determination of issues at a pre-trial conference
bars the consideration of other questions on appeal. (Land Bank of the Philippines vs.
Oñate, 713 SCRA 678, 15 January 2014.)

RULE 19
INTERVENTION

70. Q. Can an intervenor appeal the decision of a case where he was denied by the trial
court to intervene?

A. The right to appeal applies only to the denial of his intervention. Not being a party to the
case, a person whose intervention the court denied has no standing to question the decision
of the court but only the trial court's orders denying his intervention, not the decision itself.
(Republic vs. Heirs of Diego Lim, 788 SCRA 62, 4 April 2016.)

RULE 23
DEPOSITIONS PENDING ACTION

71. Q. What are the instances when defendant can take depositions?

A. The two instances are as follows:

(1) After the court has acquired jurisdiction over the defendant or the property subject of the
action; and

(2) After an answer has been served.

Both instances presuppose that the court has already acquired jurisdiction over the
defendant. (Disini vs. Sandiganbayan, 623 SCRA 354, 5 July 2010.)

RULE 25
INTERROGATORIES TO PARTIES

72. Q. Can the adverse party be called to the witness stand?

A. As a rule, in civil cases, the procedure of calling the adverse party to the witness stand is
not allowed, unless written interrogatories are first served upon the latter. This is
 19

embodied in Section 6, Rule 25 of the Rules of Court. (Afulugencia vs. Metropolitan Bank
& Trust Co., 715 SCRA 399, 5 February 2014.)

73. Q. What is the purpose of the prohibition in Section 6, Rule 25?

A. The provision seeks to prevent fishing expeditions and needless delays. Its goal is to
maintain order and facilitate the conduct of trial.

It will be presumed that a party who does not serve written interrogatories on the adverse
party beforehand will most likely be unable to elicit facts useful to its case if it later opts to
call the adverse party to the witness stand as its witness. Instead, the process could be
treated as a fishing expedition or an attempt at delaying the proceedings; it produces no
significant result that a prior written interrogatories might bring.

Another reason for the rule is that by requiring prior written interrogatories, the court may
limit the inquiry to what is relevant, and thus prevent the calling party from straying or
harassing the adverse party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or
harassment; it likewise prevents the calling party from conducting a fishing expedition or
bungling its own case. Using its own judgment and discretion, the court can hold its own in
resolving a dispute, and need not bear witness to the parties perpetrating unfair court
practices such as fishing for evidence, badgering, or altogether ruining their own cases.
Ultimately, such unnecessary processes can only constitute a waste of the court’s precious
time, if not pointless entertainment. (Afulugencia vs. Metropolitan Bank & Trust Co.,
supra.)

RULE 35
SUMMARY JUDGMENTS

74. Q. When can there be a summary judgment?

A. The Rules of Court allows the rendition of a summary judgment if the pleadings, supporting
affidavits, depositions and admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. There can be no summary judgment where
questions of fact are in issue or where material allegations of the pleadings are in dispute.
(Loy, Jr. vs. San Miguel Corporation Employees Union-Philippine Transport and
General Workers Organization [SMCEU-PTGWO], 605 SCRA 212, 24 November 2009;
Ferrer vs. Diaz, 619 SCRA 226, 23 April 2010.)

75. Q. What is a genuine issue?

A. A ‘genuine issue’ is an issue of fact which requires the presentation of evidence as

distinguished from a sham, fictitious, contrived or false claim. When the facts as pleaded
appear uncontested or undisputed, then there is no real or genuine issue or question as to
the facts, and summary judgment is called for. (Adolfo vs. Adolfo, 753 March 580, 18
March 2015.)

76. Q. What is the purpose of summary judgment?

A. Summary judgment is a procedural devise resorted to in order to avoid long drawn out
litigations and useless delays. (Ferrer vs. Diaz, supra.)

77. Q. Distinguish judgment on the pleadings from summary judgment.

A. Judgment on the pleadings is proper where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party’s pleading.

Summary judgment, on the other hand, will be granted if the pleadings, supporting
affidavits, depositions, and admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.

RULE 36
 20

JUDGMENTS, FINAL ORDERS

AND ENTRY THEREOF

78. Q. The court renders judgment according to Section 1, Rule 36 of the Rules of Court.
What then is the rationale for promulgating A.M. No. 07-4-15-SC,1 to provide for the
Rules of Procedure in Election Contests relative to the writing of a decision?

A. In Dangan-Corral vs. Commission on Elections (612 SCRA 498, 12 February 2010), the
Court made a comparison of the said Rules. Section 1 of Rule 36 merely states: "A
judgment or final order determining the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him, and filed with the clerk of court."

In the Rules of Procedure in Election Contests, however, Section 2 of Rule 14 states:

Section 2. Form of decision in election protests.– After termination of the revision

of ballots and before rendering its decision in an election protest that involved such revision,
the court shall examine and appreciate the original ballots. The court, in its appreciation of
the ballots and in rendering rulings on objections and claims to ballots of the parties, shall
observe the following rules:

(a) On Marked Ballots– The court must specify the entries in the ballots that
clearly indicate that the intention of the voter is to identify the ballot. The specific markings
in the ballots must be illustrated or indicated;

(b) On Fake or Spurious Ballots– The court must specify the COMELEC
security markings that are not found in the ballots that are considered fake or spurious;

(c) On Stray Ballots– The court must specify and state in detail why the ballots
are considered stray;

(d) On Pair or Group of Ballots Written by One or Individual Ballots Written

by Two– When ballots are invalidated on the ground of written by one person, the court
must clearly and distinctly specify why the pair or group of ballots has been written by only
one person. The specific strokes, figures or letters indicating that the ballots have been
written by one person must be specified. A simple ruling that a pair or group of ballots
has been written by one person would not suffice. The same is true when ballots are
excluded on the ground of having been written by two persons. The court must likewise
take into consideration the entries of the Minutes of Voting and Counting relative to illiterate
or disabled voters, if any, who cast their votes through assistors, in determining the validity
of the ballots found to be written by one person, whether the ballots are in pairs or in
groups; and

(e) On Claimed Ballots– The court must specify the exact basis for admitting
or crediting claimed votes to either party. (Emphasis supplied)

The Court said that the word "must" is used in the above-quoted rule, thus, clearly
indicating the mandatory -- not merely directory -- nature of the requirement of what the
decision should contain. The specific rules on the contents of decisions in election contests
were formulated so that the decision could, by itself, be taken as a valuable aid in
expeditiously deciding on appeal incidents peripheral to the main case.

79. Q. What is the effect of a final and executory decision?

A. Once a decision or order becomes final and executory, it is removed from the power or
jurisdiction of the court which rendered it to further alter or amend it. It thereby
becomes immutable and unalterable and any amendment or alteration which substantially
affects a final and executory judgment is null and void for lack of jurisdiction, including the
entire proceedings held for that purpose. An order of execution which varies the tenor of
the judgment or exceeds the terms thereof is a nullity. (National Power Corporation vs.
Tarcelo, 734 SCRA 413, 8 September 2014.)

80. Q. Explain the doctrine of finality of judgment or immutability of judgment.

A. Under the doctrine of finality of judgment or immutability of judgment, a decision that has
acquired finality becomes immutable and unalterable and may no longer be modified in any

1 Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials.
 21

respect even if the modification is meant to correct erroneous conclusions of fact or law
and whether it was made by the court that rendered it or by the highest court of the
land. (Genato vs. Viola, 611 SCRA 677, 5 February 2010; Solidbank Union vs.
Metropolitan Bank and Trust Company (680 SCRA 629, 17 September 2012;
Montemayor vs. Millora, 654 SCRA 580, 27 July 2011; Bank of the Philippine Islands
vs. Coquia, Jr., 646 SCRA 215, 23 March 2011; Palileo vs. Planters Development Bank,
738 SCRA 2, 8 October 2014.)

81. Q. What are the two-fold purpose of the doctrine of immutability and ulalterability of
final judgments?

A. The doctrine of immutability and unalterability serves a two-fold purpose, namely:

(a) to avoid delay in the administration of justice and thus, procedurally, to make orderly
the discharge of judicial business; and

(b) to put an end to judicial controversies, at the risk of occasional errors, which is precisely
why the courts exist. (Teaño vs. Municipality of Navotas, 784 SCRA 63, 15 February
2016.)

82. Q. What are the exceptions to the doctrine of finality of judgment?

A. The only recognized exceptions are as follows:

a) correction of clerical errors;

b) the so-called nunc pro tunc entries which cause no prejudice to any party;

c) void judgments; and

d) whenever circumstances transpire after the finality of the decision rendering its execution
unjust and inequitable. (Genato vs. Viola, supra; Bank of the Philippine Islands vs.
Coquia, Jr., supra.)

83. Q. What is a void judgment?

A. A void judgment or order has no legal and binding effect, force or efficacy for any purpose.
In contemplation of law, it is non-existent. Such judgment or order may be resisted in any
action or proceeding whenever it is involved. It is not even necessary to take any steps to
vacate or avoid a void judgment or final order; it may simply be ignored. (Republic vs.
Benigno, 753 SCRA 135, 11 March 2015.)

84. Q. Can a non-party to a case be bound by the judgment of the court?

A. It is well-settled that no man shall be affected by any proceeding to which he is a stranger,

and strangers to a case are not bound by a judgment rendered by the court. Due process
requires that a court decision can only bind a party to the litigation and not against one who
did not have his day in court. (Malixi vs. Maxicali Philippines, supra)

85. Q. Distinguish Amended Judgment from Supplemental Judgment.

A. In Esquivel vs. Alegre, (1989) the Court made the distinction, viz:

In an amended and clarified judgment, the lower court makes a thorough study of the
original judgment and renders the amended and clarified judgment only after considering
all the factual and legal issues. The amended and clarified decision is an entirely new
decision which supersedes the original decision.

Whereas, supplemental decision does not take the place or extinguish the existence of the
original. As its very name denotes, it only serves to bolster or adds something to the
primary decision. A supplement exists side by side with the original. It does not replace
that which it supplements. (Associated Anglo-American Tobacco Corporation vs. Court
of Appeals, 619 SCRA 250, 23 April 2010.)

RULE 39
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
 22

86. Q. In what intances can there be errors in execution of judgments and what is the
available remedy?

A. During execution proceedings, errors may be committed such that the rights of a party may
be prejudiced, in which case corrective measures are called for. These may involve
instances where—

(1) the Writ of Execution varies the judgment;

(2) there has been a change in the situation of the parties making execution inequitable or
unjust;

(3) execution is sought to be enforced against property exempt from execution;

(4) it appears that the controversy has never been subject to the judgment of the court;

(5) the terms of the judgment are not clear enough and there remains room for interpretation
thereof; or

(6) Writ of Execution was improvidently issued, or is defective in substance, or was issued
against the wrong party, or the judgment debt has been paid or otherwise satisfied, or the
writ was issued without authority.

In such event, one of the corrective measures that may be taken is the quashing of the Writ
of Execution. (Araullo vs. Office of the Ombudsman, 711 SCRA 570, 4 December 2013.)

87. Q. If an appeal has been duly perfected, can a partial execution be issued as a matter of
right? What is required for the issuance of the writ of execution?

A. When an appeal had been duly perfected, execution of the judgment, whether wholly or
partially, was not a matter of right, but of discretion provided good reasons therefor
existed. The compelling grounds for the issuance of the writ must be stated in a special
order after due hearing. Aside from the existence of good reasons, the rules also require
that the motion for partial execution should have been filed while the trial court still had
jurisdiction over the case. (Associated Anglo-American Tobacco Corporation vs. Court
of Appeals, 619 SCRA 250, 23 April 2010.)

EXECUTION PENDING APPEAL IN

ELECTION CASES

Section 11, Rule 14 of the Rules of Procedure in Election Contests

88. Q. What is the legal basis of the execution pending appeal in election contest cognizable
by the Regional Trial Court?

A. The case of Dangan-Corral vs. Commission on Elections (612 SCRA 498, 12 February
2010), is instructive in this respect. Rule 14 of the Rules of Procedure in Election Contests
states:

Sec. 11. Execution pending appeal.– On motion of the prevailing party with
notice to the adverse party, the court, while still in possession of the original
records, may, at its discretion, order the execution of the decision in an election
contest before the expiration of the period to appeal, subject to the following rules:

(a) There must be a motion by the prevailing party with three-day notice to
the adverse party. Execution pending appeal shall not issue without prior
notice and hearing. There must be good reasons for the execution pending
appeal. The court, in a special order, must state the good or special reasons
justifying the execution pending appeal. Such reasons must:

(1) constitute superior circumstances demanding urgency that will

outweigh the injury or damage should the losing party secure a
reversal of the judgment on appeal; and

(2) be manifest, in the decision sought to be executed, that the

defeat of the protestee or the victory of the protestant has
been clearly established.
 23

(b) If the court grants an execution pending appeal, an aggrieved party shall
have twenty working days from notice of the special order within which
to secure a restraining order or status quo order from the Supreme Court
or the Commission on Elections. The corresponding writ of execution shall
issue after twenty days, if no restraining order or status quo order is
issued. During such period, the writ of execution pending appeal shall be
stayed.

89. Q. What is a valid exercise of discretion in granting execution pending appeal in

election contest?

A. A valid exercise of discretion to allow execution pending appeal requires that it must
be manifest in the decision sought to be executed that the defeat of the protestee and
the victory of the protestant have been clearly established. The Rules of Procedure in
Election Contests now embody this doctrine, which the Comelec has in the past given value
to and used in resolving cases before it, and which has formed part of our jurisprudence.
(Dangan-Corral vs. COMELEC, supra.)

90. Q. What is the purpose of giving notice through posting and publication under Section
15 (c) of Rule 39?

A. The purpose of giving notice through posting and publication under Section 15(c) of Rule
39 is to let the public know of the sale to the end that the best price or a better bid
may be made possible to minimize prejudice to the judgment debtor. (Dalangin vs.
Perez, 695 SCRA 86, 3 April 2013.)

91. Q. During public auction of the property under execution, what amount should be
credited to the judgment debtor?

A. Drawing from Section 19, Rule 39 of the Rules of Court which states that "all sales of
property under execution must be made at public auction, to the highest bidder," it
naturally follows that the highest bid submitted is the amount that should be
credited to the account of the judgment debtor. (Genato vs. Viola, 611 SCRA 677, 5
February 2010.)

92. Q. What is res judicata?

A. Res judicata means a matter adjudged; a thing judicially acted upon or decided; a thing or
matter settled by judgment. It denotes that a final judgment or decree on the merits by a
court of competent jurisdiction is conclusive of the rights of the parties or their privies in
all later suits on all points and matters determined in the former suit. (Solidbank Union
vs. Metropolitan Bank and Trust Company, 680 SCRA 629, 17 September 2012.)

93. Q. What is the concept of res judicata as a bar to prior judgment?

A. In its concept as a bar by prior judgment under Section 47(b) of Rule 39 of the Rules of
Court, res judicata dictates that a judgment on the merits rendered by a court of
competent jurisdiction operates as an absolute bar to a subsequent action involving
the same cause of action since that judgment is conclusive not only as to the matters
offered and received to sustain it but also as to any other matter which might have
been offered for that purpose and which could have been adjudged therein. (Bank of
the Philippine Islands vs. Coquia, Jr., 646 SCRA 215, 23 March 2011; Bradford United
Church of Christ, Inc. vs. Ando, 791 SCRA 337, 30 May 2016; Bank of the Philippine
Islands vs. Coquia, Jr., supra.)

APPEALS

RULE 40
APPEAL FROM MUNICIPAL
TRIAL COURTS TO THE
REGIONAL TRIAL COURTS

94. Q. Explain the doctrine of fresh period rule?

 24

A. To standardize the appeal periods and afford litigants fair opportunity to appeal their cases,
the Court ruled in Neypes vs. Court of Appeals(2005) that litigants must be given a fresh
period of 15 days within which to appeal, counted from receipt of the order dismissing a
motion for a new trial or motion for reconsideration under Rules 40, 41, 42, 43 and 45 of
the Rules of Court. This ruling, as the Court have said in Fil-Estate Properties, Inc. vs.
Homena-Valencia, (2008) retroactively applies even to cases pending prior to the
promulgation of Neypes on September 14, 2005, there being no vested rights in the rules
of procedure. (Duarte vs. Duran, 657 SCRA 607, 14 September 2011; See also Heirs of
Francisco Bihag vs. Heirs of Nicasio Bathan, 723 SCRA 499, 23 April 2014.)

95. Q. In what courts shall the fresh period rule apply?

A. The "fresh period rule" shall also apply to:

1. Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial
Courts;

2. Rule 42 on petitions for review from the Regional Trial Courts to the Court of
Appeals;

3. Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and

4. Rule 45 governing appeals by certiorari to the Supreme Court.

The new rule aims to regiment or make the appeal period uniform, to be counted from
receipt of the order denying the motion for new trial, motion for reconsideration (whether
full or partial) or any final order or resolution. (Go vs. Sunbanun, 642 SCRA 367, 9
February 2011.)

RULE 41
APPEAL FROM THE REGIONAL
TRIAL COURTS

96. Q. What is the remedy of a party where the judgment is based on a compromised
agreement?

A. From the express language of Rule 41, a decision based on a compromise agreement is
immediately final and executory and cannot be the subject of appeal, for when parties enter
into a compromise agreement and request a court to render a decision on the basis of their
agreement, it is presumed that such action constitutes a waiver of the right to appeal said
decision. While there may have been other remedies available to assail the decision,
the proper remedy is to institute a special civil action under Rule 65. (Pasco vs. Heirs
of Filomena de Guzman, 625 SCRA 342, 26 July 2010.)

97. Q. What is the effect of the dismissal based on Section 1(g), Rule 41? What is your
remedy?

A. Under Section l(g) of Rule 41, an order dismissing an action without prejudice is not
appealable. The proper remedy therefrom is a special civil action for certiorari under Rule
65. (United Alloy Philippines Corporation vs. United Coconut Planters Bank, 775
SCRA 147, 23 November 2015.)

98. Q. What are the two (2) modes of appeal of RTC Decision or Resolution on issues of fact
and law?

A. There are two modes of appealing an RTC decision or resolution on issues of fact and law,
to wit:

1) The first mode is an ordinary appeal under Rule 41 in cases where the RTC exercised
its original jurisdiction. It is done by filing a Notice of Appeal with the RTC.

2) The second mode is a petition for review under Rule 42 in cases where the RTC exercised
its appellate jurisdiction over MTC decisions. It is done by filing a Petition for Review with
the CA. Simply put, the distinction between these two modes of appeal lies in the type of
jurisdiction exercised by the RTC in the Order or Decision being appealed. (Maslag vs.
Monzon, 698 SCRA 584, 17 June 2013.)
 25

99. Q. Can certiorari be availed of as a substitute of appeal?

A. No. Certiorari is a limited form of review and is a remedy of last recourse. It is proper only
when appeal is not available to the aggrieved party. (Home Development Mutual Fund
[HDMF] vs. See, 652 SCRA 478, 22 June 2011.)

100. Q. What is the remedy of a party in case of Order of Execution?

A. Section 1(f) Rule 41 of the Rules of Court explicitly provides that no appeal may be taken
from an order of execution, the remedy of an aggrieved party being an appropriate special
civil action under Rule 65 of the Rules of Court. (BPI Employees Union-Metro Manila vs.
Bank of the Philippine Islands, 658 SCRA 127, 21 September 2011.)

101. Q. What is the period for filing a Notice of Appeal?

A. It is basic and elementary that a Notice of Appeal should be filed within fifteen (15) days
from notice of the judgment or final order appealed from. (Heirs of Numeriano Miranda,
Sr. vs. Miranda, 700 SCRA 746, 8 July 2013.)

102. Q. Is payment in full of docket and other lawful fees by the appellant an indispensable
requirement in order to perfect an appeal?

A. Yes. In Gipa vs. Southern Luzon Institute, 726 SCRA 559 (18 June 2014) citing Gonzales
vs. Pe, (2011) the Court’s explanation anent the requirement of full payment of docket and
other lawful fees under Section 4, Rule 41 was reiterated, viz:

In Far Corporation vs. Magdaluyo, as with other subsequent cases of the same
ruling, the Court explained that the procedural requirement under Section 4 of
Rule 41 is not merely directory, as the payment of the docket and other legal
fees within the prescribed period is both mandatory and jurisdictional. It
bears stressing that an appeal is not a right, but a mere statutory privilege. An
ordinary appeal from a decision or final order of the RTC to the CA must be made
within 15 days from notice. And within this period, the full amount of the
appellate court docket and other lawful fees must be paid to the clerk of the
court which rendered the judgment or final order appealed from. The
requirement of paying the full amount of the appellate docket fees within the
prescribed period is not a mere technicality of law or procedure. The payment of
docket fees within the prescribed period is mandatory for the perfection of
an appeal. Without such payment, the appeal is not perfected. The appellate
court does not acquire jurisdiction over the subject matter of the action and the
Decision sought to be appealed from becomes final and executory.

CROSS-REFERENCE

Further, under Section 1(c), Rule 50, an appeal may be dismissed by the CA, on its own motion or
on that of the appellee, on the ground of the non-payment of the docket and other lawful fees within the
reglementary period as provided under Section 4 of Rule 41. The payment of the full amount of the docket
fee is an indispensable step for the perfection of an appeal. In both original and appellate cases, the court
acquires jurisdiction over the case only upon the payment of the prescribed docket fees. (Gipa vs.
Southern Luzon Institute, supra.)

103. Q. If the appeal required is merely by notice of appeal, when should the notice of appeal
be filed?

A. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection
of the appeals filed in due time and the expiration of the time to appeal of the other
parties. Each party only has at most 15 days from their receipt of the final order to appeal
it. (Associated Anglo-American Tobacco Corporation vs. Court of Appeals, 619 SCRA
250, 23 April 2010.)

104. Q. Explain the doctrine of residual jurisdiction.

A. This stage is reached upon the perfection of the appeals by the parties or upon the approval
of the records on appeal, but prior to the transmittal of the original records or the records
on appeal. In either instance, the trial court still retains its so-called residual jurisdiction to
 26

issue protective orders, approve compromises, permit appeals of indigent litigants,

order execution pending appeal, and allow the withdrawal of the appeal. (Angeles vs.
Court of Appeals, 735 SCRA 82, 15 September 2014.)

RULE 42
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO
THE COURT OF APPEALS

105. Q. Explain the right to appeal fully.

A. The right to appeal is neither a natural right nor is it a component of due process. It is a
mere statutory privilege, and may be exercised only in the manner and in accordance with
the provisions of law. This being so, an appealing party must strictly comply with the
requisites laid down in the Rules of Court. Deviations from the Rules cannot be tolerated.
The rationale for this strict attitude is not difficult to appreciate as the Rules are designed
to facilitate the orderly disposition of appealed cases. In an age where courts are bedeviled
by clogged dockets, the Rules need to be followed by appellants with greater fidelity. Their
observance cannot be left to the whims and caprices of appellants. (Boardwalk Business
Ventures, Inc. vs. Villareal, Jr., 695 SCRA 468, 10 April 2013.)

106. Q. What is the effect of non-compliance with the procedures under Sections 1 and 2 of
Rule 42?

A. Under Sections 1 and 2, Rule 42 of the 1997 Rules of Civil Procedure, a party desiring to
appeal from a decision of the RTC rendered in the exercise of its appellate jurisdiction may
file a verified petition for review with the CA, submitting together with the petition a
certification on non-forum shopping. Under Section 3 of the same Rule, the failure of the
petitioner to comply with any of the foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the petition shall be sufficient
ground for the dismissal thereof. (Mathaeus vs. Medequiso, 783 SCRA 143, 3 February
2016.)

107. Q. What are the guideposts in determining the necessity of attaching pleadings and
portions of the record to petitions under Rules 42 and 65 of the 1997 Rules of Civil
Procedure?

A. For the guidance of the CA, in Galvez vs. Court of Appeals, (2013) the Court held that there
are three guideposts in determining the necessity of attaching pleadings and portions of the
record to petitions under Rules 42 and 65 of the 1997 Rules, to wit:

First, not all pleadings and parts of case records are required to be attached to the
petition. Only those which are relevant and pertinent must accompany it. The test of
relevancy is whether the document in question will support the material allegations in the
petition, whether said document will make out a prima facie case of grave abuse of
discretion as to convince the court to give due course to the petition.

Second, even if a document is relevant and pertinent to the petition, it need not be
appended if it is shown that the contents thereof can also be found in another
document already attached to the petition. Thus, if the material allegations in a position
paper are summarized in a questioned judgment, it will suffice that only a certified true
copy of the judgment is attached.

Third, a petition lacking an essential pleading or part of the case record may still be given
due course or reinstated (if earlier dismissed) upon showing that petitioner later
submitted the documents required, or that it will serve the higher interest of justice
that the case be decided on the merits.

The guideposts reflect that the significant determinant of the sufficiency of the attached
documents is whether the accompanying documents support the allegations of the petition.

108. Q. What is the purpose of the requirement under Section 2(d), Rule 42 that the required
annexes be appended to the petition?
 27

A. The annexes mentioned in Section 2(d) of Rule 42 are required to be appended to the
petition in order to enable the Court to determine even without consulting the record if the
petition is patently without merit or the issues raised therein are too insubstantial to
require consideration, in which case the petition should be dismissed outright, or whether
there is a need to require the respondent to comment on the petition. Thus, more often than
not, the Court has resolved petitions for review under Rule 42 without unnecessary
movement of the original record of the case which could entail not only undue delay but
also the possibility of the record being lost in transit. (Maravilla vs. Rios, 767 SCRA 522,
19 August 2015.)

109. Q. Is it required to attach all the pleadings and documents filed before the lower court
as Annexes to the Petition?

A. No. Section 2 of Rule 42 does not require that all the pleadings and documents filed before
the lower courts must be attached as annexes to the petition. Aside from clearly legible
duplicate originals or true copies of the judgments or final orders of both lower
courts, it merely requires that the petition be accompanied by copies of pleadings
and other material portions of the record as would support the allegations of the
petition. Section 3 empowers the CA to dismiss the petition where the allegations
contained therein are utterly bereft of evidentiary foundation. Since the CA gave due course
to respondent’s Petition for Review and proceeded to decide it on the merits, it can be fairly
assumed that the appellate court is satisfied that respondent has sufficiently complied with
Section 2 of Rule 42. (Yuki, Jr. vs. Co, 606 SCRA 211, 27 November 2009.)

RULE 43
APPEALS FROM THE COURT
OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS

JURISDICTION OF THE COURT OF TAX APPEALS (CTA) PURSUANT TO R.A. NO. 9282 (An Act
Expanding the Jurisdiction of the Court of Tax Appeals (CTA), Elevating Its Rank to the Level of a
Collegiate Court with Special Jurisdiction and Enlarging Its Membership, Amending for the Purpose
Certain Sections or Republic Act No. 1125, As Amended, Otherwise Known as the Law Creating the
Court of Tax Appeals, and for Other Purposes, approved on 30 March 2004

SECTION 7. Jurisdiction.— The CTA shall exercise:

a. Exclusive appellate jurisdiction to review by appeal, as herein provided:

1. Decisions of the Commissioner of Internal Revenue in cases involving

disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in
relation thereto, or other matters arising under the National Internal Revenue or other laws
administered by the Bureau of Internal Revenue;

2. Inaction by the Commissioner of Internal Revenue in cases involving

disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in
relations thereto, or other matters arising under the National Internal Revenue Code or
other laws administered by the Bureau of Internal Revenue, where the National Internal
Revenue Code provides a specific period of action, in which case the inaction shall be
deemed a denial;

3. Decisions, orders or resolutions of the Regional Trial Courts in local tax

cases originally decided or resolved by them in the exercise of their original or appellate
jurisdiction;
4. Decisions of the Commissioner of Customs in cases involving liability for
customs duties, fees or other money charges, seizure, detention or release of property
affected, fines, forfeitures or other penalties in relation thereto, or other matters arising
under the Customs Law or other laws administered by the Bureau of Customs;

5. Decisions of the Central Board of Assessment Appeals in the exercise of its

appellate jurisdiction over cases involving the assessment and taxation of real property
originally decided by the provincial or city board of assessment appeals;

6. Decisions of the Secretary of Finance on customs cases elevated to him

automatically for review from decisions of the Commissioner of Customs which are adverse
to the Government under Section 2315 of the Tariff and Customs Code;
 28

7. Decisions of the Secretary of Trade and Industry, in the case of

nonagricultural product, commodity or article, and the Secretary of Agriculture in the case
of agricultural product, commodity or article, involving dumping and countervailing duties
under Section 301 and 302, respectively, of the Tariff and Customs Code, and safeguard
measures under Republic Act No. 8800, where either party may appeal the decision to
impose or not to impose said duties.

b. Jurisdiction over cases involving criminal offenses as herein provided:

1. Exclusive original jurisdiction over all criminal offenses arising from

violations of the National Internal Revenue Code or Tariff and Customs Code and other laws
administered by the Bureau of Internal Revenue or the Bureau of Customs: Provided,
however, That offenses or felonies mentioned in this paragraph where the principal amount
o taxes and fees, exclusive of charges and penalties, claimed is less than One million pesos
(P1,000,000.00) or where there is no specified amount claimed shall be tried by the regular
Courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules
of Court to the contrary notwithstanding, the criminal action and the corresponding civil
action for the recovery of civil liability for taxes and penalties shall at all times be
simultaneously instituted with, and jointly determined in the same proceeding by the CTA,
the filing of the criminal action being deemed to necessarily carry with it the filing of the
civil action, and no right to reserve the filling of such civil action separately from the criminal
action will be recognized.

2. Exclusive appellate jurisdiction in criminal offenses:

a. Over appeals from the judgments, resolutions or orders of the Regional

Trial Courts in tax cases originally decided by them, in their respected
territorial jurisdiction.

b. Over petitions for review of the judgments, resolutions or orders of the

Regional Trial Courts in the exercise of their appellate jurisdiction over tax
cases originally decided by the Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts in their respective jurisdiction.

c. Jurisdiction over tax collection cases as herein provided:

1. Exclusive original jurisdiction in tax collection cases involving final and

executory assessments for taxes, fees, charges and penalties: Provided, however, That
collection cases where the principal amount of taxes and fees, exclusive of charges and
penalties, claimed is less than One million pesos (P1,000,000.00) shall be tried by the proper
Municipal Trial Court, Metropolitan Trial Court and Regional Trial Court.

2. Exclusive appellate jurisdiction in tax collection cases:

a. Over appeals from the judgments, resolutions or orders of the Regional

Trial Courts in tax collection cases originally decided by them, in their
respective territorial jurisdiction.

b. Over petitions for review of the judgments, resolutions or orders of the

Regional Trial Courts in the Exercise of their appellate jurisdiction over tax
collection cases originally decided by the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts, in their
respective jurisdiction.

SECTION 11. Who May Appeal; Mode of Appeal; Effect of Appeal.— Any party adversely
affected by a decision, ruling or inaction of the Commissioner of Internal Revenue, the
Commissioner of Customs, the Secretary of Finance, the Secretary of Trade and Industry or
the Secretary of Agriculture or the Central Board of Assessment Appeals or the Regional Trial
Courts may file an appeal with the CTA within thirty (30) days after the receipt of such
decision or ruling or after the expiration of the period fixed by law for action as referred to in
Section 7(a)(2) herein.

Appeal shall be made by filing a petition for review under a procedure analogous to that
provided for under Rule 42 of the 1997 Rules of Civil Procedure with the CTA within thirty (30) days
from the receipt of the decision or ruling or in the case of inaction as herein provided, from the
expiration of the period fixed by law to act thereon. A Division of the CTA shall hear the appeal:
Provided, however, That with respect to decisions or rulings of the Central Board of Assessment
Appeals and the Regional Trial Court in the exercise of its appellate jurisdiction appeal shall be made
by filing a petition for review under a procedure analogous to that provided for under rule 43 of the
1997 Rules of Civil Procedure with the CTA, which shall hear the case en banc.
 29

All other cases involving rulings, orders or decisions filed with the CTA as provided for in
Section 7 shall be raffled to its Divisions. A party adversely affected by a ruling, order or decision of
a Division of the CTA may file a motion for reconsideration of new trial before the same
Division of the CTA within fifteens (15) days from notice thereof: Provide, however, That in
criminal cases, the general rule applicable in regular Courts on matters of prosecution and
appeal shall likewise apply.

No appeal taken to the CTA from the decision of the Commissioner of Internal Revenue or
the Commissioner of Customs or the Regional Trial Court, provincial, city or municipal treasurer or
the Secretary of Finance, the Secretary of Trade and Industry and Secretary of Agriculture, as the
case may be shall suspend the payment, levy, distraint, and/or sale of any property of the taxpayer
for the satisfaction of his tax liability as provided by existing law: Provided, however, That when in
the opinion of the Court the collection by the aforementioned government agencies may jeopardize
the interest of the Government and/or the taxpayer the Court any stage of the proceeding may
suspend the said collection and require the taxpayer either to deposit the amount claimed or to file
a surety bond for not more than double the amount with the Court.

In criminal and collection cases covered respectively by Section 7(b) and (c) of this Act, the
Government may directly file the said cases with the CTA covering amounts within its exclusive and
original jurisdiction.

x-x-x-x-x

SECTION 18. Appeal to the Court of Tax Appeals En Banc.— No civil proceeding involving
matter arising under the National Internal Revenue Code, the Tariff and Customs Code or the Local
Government Code shall be maintained, except as herein provided, until and unless an appeal has
been previously filed with the CTA and disposed of in accordance with the provisions of this Act.

A party adversely affected by a resolution of a Division of the CTA on a motion for

reconsideration or new trial, may file a petition for review with the CTA en banc.

DECISION OF THE CTA (EN BANC) IS APPEALABLE TO THE SUPREME COURT VIA RULE
45 AND NOT TO THE COURT OF APPEALS

SECTION 19. Review by Certiorari.— A party adversely affected by a decision or ruling of

the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant
to Rule 45 of the 1997 Rules of Civil Procedure.

110. Q. Is there an appeal from the adverse decisions in administrative disciplinary cases of
the Office of the Ombudsman?

A. Yes. It is settled jurisprudence that appeals from decisions of the Office of the Ombudsman
in administrative disciplinary cases should be taken to the Court of Appeals under
the provisions of Rule 43, in line with the regulatory philosophy adopted in appeals from
quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure. (Araullo vs. Office of
the Ombudsman, 711 SCRA 570, 4 December 2013; Contes vs. Office of the Ombudsman,
698 SCRA 129 (10 June 2013).

111. Q. Can the Court of Appeals grant a Second Motion for Extension to File an Appeal by
Petition for Review? For how many days will the party be allowed to do so?

A. The CA, after it has already allowed petitioner an extension of 15 days within which to file
a petition for review, may only grant a further extension when presented with the most
compelling reason but the same is limited only to a period of 15 days. Technical rules
may be relaxed only for the furtherance of justice and to benefit the deserving. (Barangay
Dasmariñas vs. Creative Play Corner School, 640 SCRA 294, 24 January 2011.)

PROCEDURE IN
THE COURT OF APPEALS

RULE 44
ORDINARY APPEALED CASES

112. Q. What is the purpose of the appellant’s reply?

 30

A. The purpose of a reply is to deny or allege facts in denial of new matters alleged by way of
defense in the answer. It is not the office or function of a reply to set up or introduce a new
issue or to amend or amplify the Petition. (Gipa vs. Southern Luzon Institute, 726 SCRA
559, 18 June 2014.)

113. Q. Is the failure to furnish appeal brief to the opposing counsel a ground for the outright
dismissal of the appeal? If not, what shall be the duty of the court in this regard?

A. In Go vs. Chaves, the failure to serve a copy of the appellant’s brief to two of the adverse
parties was a mere oversight, constituting excusable neglect. A litigant's failure to furnish
his opponent with a copy of his appeal brief does not suffice to warrant dismissal of that
appeal. In such an instance, all that is needed is for the court to order the litigant to furnish
his opponent with a copy of his brief. Anent the failure to append a copy of the assailed
judgment, instead of dismissing the appeal on that basis, it is more in keeping with equity
to simply require the appellants to immediately submit a copy of the Decision of the lower
court rather than punish litigants for the reckless inattention of their lawyers.

114. Q. What questions may be raised on appeal?

A. A court with appellate jurisdiction can review both the facts and the law, including
questions of jurisdiction. It can set aside an erroneous decision and even nullify the same,
if warranted. Appeal is a speedy remedy, as an adverse party can file its appeal from a final
decision or order immediately after receiving it. A party, who is alleging that an appeal will
not promptly relieve it of the injurious effects of the judgment, should establish facts to
show how the appeal is not speedy or adequate. (V.C. Ponce Company, Inc. vs.
Municipality of Parañaque, 685 SCRA 117, 12 November 2012.)

It has to be noted however that, it is settled that new issues cannot be raised for the first
time on appeal or on motion for reconsideration. (Montaño vs. Verceles, 625 SCRA 405,
26 July 2010; Carique vs. Philippine Scout Veterans Security and Investigation
Agency, Inc., 770 SCRA 567, 16 September 2015.)

RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT

115. Q. When can there be question of law and question of fact?

A. In Bernales vs. Heirs of Julian Sambaan (610 SCRA 90, 15 January 2010), citing the case
of Manila Bay Club Corporation vs. Court of Appeals,(1995) the Supreme Court said that
for a question to be one of law, it must involve no examination of the probative value of the
evidence presented by the litigants or any of them. There is a question of law when the
doubt or difference arises as to what the law is pertaining to a certain state of facts.

On the other hand, there is a question of fact when the doubt arises as to the truth or the
falsity of alleged facts.

116. Q. What is the remedy of a party aggrieved by the decision of the Court of Appeals?
A. The remedy of a party aggrieved by a decision, final order, or resolution of the CA is to file
a Petition for Review on Certiorari under Rule 45 of the Rules of Court, which is a
continuation of the appellate process over the original case. (Mendez vs. Court of Appeals,
672 SCRA 200, 13 June 2012.)

117. Q. What findings of the appellate court are conclusive with the Supreme Court under
Rule 45?

A. In the exercise of its power of review, the findings of fact of the CA are conclusive and
binding and consequently, it is not our function to analyze or weigh evidence all over
again. Where the factual findings of both the trial court and the Court of Appeals coincide,
the same are binding on the Supreme Court. (Nicolas vs. People, 790 SCRA 680, 20 April
2016; Bernales vs. Heirs of Julian Sambaan, supra.)

Moreover, factual findings of administrative bodies charged with their specific field of
expertise, are afforded great weight by the courts, and in the absence of substantial showing
that such findings were made from an erroneous estimation of the evidence presented, they
are conclusive, and in the interest of stability of the governmental structure, should not be
 31

disturbed. (Angeles vs. Bucad, 730 SCRA 295, 21 July 2014; See also Philippine Science
High School-Cagayan Valley Campus vs. Pirra Construction Enterprises, 803 SCRA
137, 14 September 2016; Jose vs. Novida, 728 SCRA 552, 2 July 2014; Nahas vs. Olarte,
724 SCRA 224, 2 June 2014; Apo Cement Corporation vs. Baptisma, 674 SCRA 162, 20
June 2012; Hipolito, Jr. vs. Cinco, 661 SCRA 311, 28 November 2011.)

118. Q. Can the party aggrieved by the decision of the Court of Appeals avail of the remedy
under Rule 65 instead of Rule 45?

A. As a rule, if the remedy of an appeal is available, an action for certiorari under Rule 65 of
the Rules of Court, which is an original or independent action based on grave abuse of
discretion amounting to lack or excess of jurisdiction, will not prosper because it is not a
substitute for a lost appeal.

There are, however, exceptions to this rule, to wit:

1) when public welfare and the advancement of public policy dictate; (Associated Anglo-
American Tobacco Corporation vs. Court of Appeals, 619 SCRA 250, 23 April 2010.)

2) when the broader interest of justice so requires;

3) when the writs issued are null and void;

4) when the questioned order amounts to an oppressive exercise of judicial authority;

5) when, for persuasive reasons, the rules may be relaxed to relieve a litigant of an injustice not
commensurate with his failure to comply with the prescribed procedure;

6) when the judgment or order is attended by grave abuse of discretion; or

7) in other meritorious cases. (Bureau of Internal Revenue vs. Court of Appeals, 741 SCRA
536, 24 November 2014.)

8) When there is divergence between the findings of facts of the NLRC and that of the CA, there is
a need to review the records. (Leo’s Restaurant and Bar Café vs. Bensing, 806 SCRA 596, 19
October 2016; Santos vs. Integrated Pharmaceutical, Inc., 796 SCRA 211, 11 July 2016;
Alilin vs. Petron Corporation, 725 SCRA 342, 9 June 2014; Ang vs. San Joaquin, Jr., 703
SCRA 269, 7 August 2013.)

9) When the questioned order amounts to an oppressive exercise of judicial authority.

(Associated Anglo-American Tobacco Corporation vs. Court of Appeals, supra.)

119. Q. What is the jurisdiction of the Supreme Court in cases brought to it from the Court of
Appeals under Rule 45?

A. The jurisdiction of the Supreme Court in cases brought before it from the CA via Rule 45 is
generally limited to reviewing errors of law that may have been committed by the lower
court. (Litex Glass and Aluminum Supply vs. Sanchez, 757 SCRA 206, 22 April 2015;
Orix Metro Leasing and Finance Corporation vs. Mangalinao, 664 SCRA 87, 25
January 2012; Titan Construction Corporation vs. David, Sr., 615 SCRA 362, 15 March
2010.)

“Appreciation of evidence” or factual errors which are not within the province of a petition
for review on certiorari under Rule 45. (Roque vs. People, 755 SCRA 20, 6 April
2015;Subic Bay Legend Resorts and Casinos, Inc. vs. Fernandez, 736 SCRA 667, 29
September 2014.)

120. Q. What are the exceptions to the rule that a petition for review should raise only
questions of law?

A. There are recognized exceptions to the rule, as reiterated in Jose Yulo Agricultural
Corporation vs. Davis (764 SCRA 589, 3 August 2015), such as:

(1) when the findings are grounded entirely on speculations, surmises or conjectures; (Perla vs.
Baring, 685 SCRA 101, 12 November 2012.)

(2) when the inference made is manifestly mistaken, absurd or impossible;

 32

(3) when there is grave abuse of discretion;

(4) when the judgment is based on a misapprehension of facts; (Saso vs. 88 Aces Maritime
Services, Inc., 772 SCRA 189, 7 October 2015; Ico vs. Systems Technology Institute, Inc.,
729 SCRA 439, 9 July 2014.)

(5) when the findings of fact are conflicting;

(6) 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;

(7) when the findings are contrary to those of the trial court;

(8) when the findings are conclusions without citation of specific evidence on which they are
based; (Silos vs. Philippine National Bank, 728 SCRA 617, 2 July 2014.)

(9) 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;

(10) when the findings of fact are premised on the supposed absence of evidence and contradicted
by the evidence on record; or

(11) when the CA manifestly overlooked certain relevant facts not disputed by the parties, which,
if properly considered, would justify a different conclusion. (Republic vs. Pasicolan, 755
SCRA 495, 15 April 2015.)

121. Q. In an action for quieting of title, the issue to be resolved is who, between the parties,
has a better right to the challenged property. Adversely affected by the decision of
the trial court and affirmation by the CA, a petition for review was brought to the
Supreme Court under Rule 45. Is the action proper? Explain.

A. A petition to review the decision of the CA is not a matter of right but of sound judicial
discretion. It has been repeatedly held that the jurisdiction of the Court in cases brought
before it from the CA is limited to reviewing errors of law; findings of fact of the appellate
court are conclusive upon the Court, as it is not its function to analyze and weigh the
evidence all over again. However, there are recognized exceptions to the rule. When the
petitioner has not shown that the case falls under any of the recognized exceptions, the
Court shall respect the findings of the CA. (Jose Yulo Agricultural Corporation vs. Davis,
supra.)

122. Q. Can the Supreme Court exercise its jurisdiction under Rule 45 when an issue
involving the admissibility of evidence is brought before them, such as when the
petitioners assail the appellate courts’ rejection of their evidence (as to the
contractual intent) as inadmissible under the Best Evidence Rule? Explain.

A. In Marquez vs. Espejo (629 SCRA 117, 25 August 2010) the Supreme Court held that the
question involving the admissibility of evidence is a legal question that is within the Court’s
authority to review. Even if it were a factual question, the Court is not precluded to review
the same.
123. Q. How is the principle of Rule 45 applied in labor cases?

A. As a rule, the Court is not a trier of facts and only questions of law are reviewable under a
Rule 45 Petition. This principle applies with greater force in labor cases where the Supreme
Court has consistently held that findings of fact of the NLRC are accorded great respect and
even finality, especially if they coincide with those of the Labor Arbiter and are supported
by substantial evidence. Judicial review by the Court does not extend to a reevaluation of
the sufficiency of the evidence upon which the proper labor tribunal has based its
determination. Factual issues are beyond the scope of this Court’s authority to review on
certiorari. Nonetheless, this rule admits of exceptions including instances where the
findings of the lower courts or tribunals are contradictory with the other. (Angeles vs.
Bucad, 730 SCRA 295, 21 July 2014.)

In Magsaysay Maritime Corp. vs. Cruz (792 SCRA 344, 6 June 2016), the Supreme Court
was compelled to resolve the factual issues and examine the evidence on record in view of
the opposing positions of the Labor Arbiter and the CA, on one hand, and the NLRC on the
other. (See also Doehle-Philman Manning Agency, Inc. vs. Haro, 790 SCRA 41, 18 April
 33

2016; Heirs of the Late Delfin Dela Cruz vs. Philippine Transmarine Carriers, Inc., 756
SCRA 141, 20 April 2015.)

124. Q. What is the extent of the Supreme Court’s review over labor cases, under Rule 45?

A. In testing for legal correctness, the Court views the CA Decision in the same context that the
petition for certiorari it ruled upon was presented to it. It entails a limited review of the acts
of the NLRC, of whether it committed errors of jurisdiction. It does not cover the issue of
whether the NLRC committed any error of judgment, unless there is a showing that its
findings and conclusion were arbitrarily arrived at or were not based on substantial
evidence. (New Filipino Maritime Agencies, Inc. vs. Datayan, 774 SCRA 677, 11
November 2015; Philippine Transmarine Carriers, Inc. vs. Aligway, 770 SCRA 609, 16
September 2015.)

While the strict inquiry on the correctness of evaluation of evidence is not required in
a certiorari proceeding, it is still necessary to determine that the conclusions of labor
tribunals were supported by substantial evidence. This is because a decision unsupported
by substantial evidence is a judgment rendered with grave abuse of discretion. (Etom, Jr.
vs. Aroma Lodging House, 774 SCRA 141, 9 November 2015.)

125. Q. Can the Supreme Court pass upon the issue on vitiation of consent to the execution
of amicable settlement in a Petition for Review on Certiorari?

A. In Lacson vs. MJ Lacson Development Company, Inc. (637 SCRA 505, 8 December 2010),
it was held that vitiation of consent to the execution of amicable settlement is a question of
fact that entails re-evaluation of factual findings which the Court cannot pass upon in a
Petition for Review on Certiorari. A question of fact x x x exists when the doubt or difference
arises as to the truth or falsehood of facts or when the query invites calibration of the whole
evidence considering mainly the credibility of the witnesses, the existence and relevance of
specific surrounding circumstances, as well as their relation to each other and to the whole,
and the probability of the situation.

126. Q. Is the existence of bad faith a question of law that may be raised on appeal via Rule
45 to the Supreme Court?

A. In Meyr Enterprises Corporation vs. Cordero (734 SCRA 253, 3 September 2014), the
Supreme Court held that the existence of bad faith is a question of fact and is evidentiary;
it requires that the reviewing court look into the evidence to find if indeed there is proof
that is substantial enough to show such bad faith. This being the case, the appeal by petition
for review on certiorari under Rule 45 must fail because a question of fact cannot properly
be raised in a petition for review on certiorari.

127. Q. If the case is on appeal to the Supreme Court, can the appellee introduce new
arguments to modify the appealed judgment? What would be the proper remedy?

A. No. Settled is the rule that a party is barred from assailing the correctness of a judgment
not appealed from by him. In an appeal, an appellee may argue only to sustain the appealed
judgment, but not introduce arguments that would modify the same; in order to do that, he
likewise should have seasonably filed an appeal. The rule is rooted in the presumption that
a party who did not interpose an appeal is satisfied with the judgment rendered by the
lower court. (Maersk-Filipinas Crewing, Inc. vs. Jaleco, 771 SCRA 163, 21 September
2015: One Network Rural Bank, Inc. vs. Baric, 718 SCRA 169, 5 March 2014; Cañedo
vs. Kampilan Security and Detective Agency Inc., 702 SCRA 647, 31 July 2013; Libcap
Marketing Corp. Vs. Baquial, 727 SCRA 520, 30 June 2014.)

128. Q. Can points of law, theories, issues and arguments not brought to the lower court be
raised on appeal?

A. No. Settled is the rule that points of law, theories, issues and arguments not brought to the
attention of the lower court need not be considered by a reviewing court, as they cannot be
raised for the first time at that late stage. Basic considerations of fairness and due process
impel this rule. (Andres vs. Sta. Lucia Realty & Development, Incorporated, 768 SCRA
56, 24 August 2015; Bautista vs. Civil Service Commission, 625 SCRA 251, 22 July
2010.)
 34

129. Q. What is the exception to the rule that in appellate proceedings, the reversal of the
judgment on appeal is binding only on the parties in the appealed case and does not
affect or inure to the benefit of those who did not join or were not made parties to
the appeal?

A. An exception to the rule exists where a judgment cannot be reversed as to the party
appealing without affecting the rights of his co-debtor, or where the rights and liabilities of
the parties are so interwoven and dependent on each other as to be inseparable, in which
case a reversal as to one operates as a reversal as to all. This exception, which is based on a
communality of interest of said parties, is recognized in this jurisdiction. (Romero vs.
Singson, 764 SCRA 620, 3 August 2015.)

130. Q. When can the party be excused from complying with the material data rule under
Section 4(b) of Rule 45?

A. Failure to comply with the rule on a statement of material date in the petition may be
excused if the date is evident from the records. (Sy vs. Fairland Knitcraft Co., Inc., 662
SCRA 67, 12 December 2011.)

131. Q. Is the non-attachment of material portions of the record in a petition for review
under Rule 45 fatal to the petitioner?

A. No. Petitioners’ failure to attach the material portions of the record that would support the
allegations in the Petition is not fatal. In F.A.T. Kee Computer Systems, Inc. vs. Online
Networks International, Inc.,(2011) the Supreme Court held that such a requirement
failure to attach material portions of the record was not meant to be an ironclad rule such
that the failure to follow the same would merit the outright dismissal of the petition. In
accordance with Section 7 of Rule 45, ‘the Supreme Court may require or allow the filing of
such pleadings, briefs, memoranda or documents as it may deem necessary within such
periods and under such conditions as it may consider appropriate.’ More importantly,
Section 8 of Rule 45 declares that if the petition is given due course, the Supreme Court may
require the elevation of the complete record of the case or specified parts thereof within
fifteen (15) days from notice. (Robern Development Corporation vs. People’s Landless
Association, 693 SCRA 24, 11 March 2013.)

RULE 47
ANNULMENT OF JUDGMENTS
OF FINAL ORDERS
AND RESOLUTIONS

132. Q. When is the remedy of annulment of judgment available?

A. In Teaño vs. Municipality of Navotas (784 SCRA 63, 15 February 2016), the Supreme
Court said that annulment of judgment is an exceptional remedy in equity that may be
availed of when ordinary remedies are unavailable without fault on the part of the
petitioner. As aptly explained by the Court in Dare Adventure Farm Corporation vs.
Court of Appeals, (2012) a petition for annulment of judgment is a remedy in equity so
exceptional in nature that it may be availed of only when, other remedies are wanting, and
only if the judgment, final order or final resolution sought to be annulled was rendered by
a court lacking jurisdiction or through extrinsic fraud. Yet, the remedy, being exceptional in
character, is not allowed to be so easily and readily abused by parties aggrieved by the final
judgments, orders or resolutions. The Court has thus instituted safeguards by limiting the
grounds for the annulment to lack of jurisdiction and extrinsic fraud, and by prescribing in
Section 1 of Rule 47 of the Rules of Court that the petitioner should show that the ordinary
remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer
available through no fault of the petitioner.

Thus, it stressed that the remedy of annulment of judgment is only available under certain
exceptional circumstances as this is adverse to the concept of immutability of final
judgments. Hence, it is allowed only on two grounds, i.e., extrinsic fraud and lack of
jurisdiction. (Mangubat vs. Morga-Seva, 775 SCRA 312, 23 November 2015.)

133. Q. Explain the two (2) grounds for annulment of judgment under Rule 47?
 35

A. Annulment of judgment must be based only on the grounds of extrinsic fraud and of lack
of jurisdiction.

Extrinsic fraud is that which prevented the aggrieved party from having a trial or
presenting his case to the court, or used to procure the judgment without fair submission
of the controversy. On the other hand, lack of jurisdiction involves the want of jurisdiction
over the person of the defending party or over the subject matter of the case. (Teaño vs.
Municipality of Navotas, supra.)

134. Q. What is the principle of laches?

A. The principle of laches or 'stale demands' ordains that the failure or neglect, for an
unreasonable and unexplained length of time, to do that which by exercising due diligence
could or should have been done earlier— negligence or omission to assert a right within a
reasonable time, warrants a presumption that the party entitled to assert it has abandoned
it or declined to assert it. (Mangubat vs. Morga-Seva, supra.)

135. Q. What should be shown in a petition for annulment of judgment on the ground of lack
of jurisdiction?

A. In Mangubat vs. Morga-Seva, supra, it was held that in a petition for annulment of
judgment based on lack of jurisdiction, petitioner must show not merely an abuse of
jurisdictional discretion but an absolute lack of jurisdiction. Lack of jurisdiction means
absence of or no jurisdiction, that is, the court should not have taken cognizance of the
petition because the law does not vest it with jurisdiction over the subject matter.
Jurisdiction over the nature of the action or subject matter is conferred by law.

136. Q. Can an action for revival of a judgment modify, alter, or reverse the original
judgment, which is already final and executory? Explain.

A. No. An action for revival of a judgment cannot modify, alter, or reverse the original
judgment, which is already final and executory.

An action for revival of judgment is a new and independent action. It is different and distinct
from the original judgment sought to be revived or enforced. As such, a party aggrieved by
a decision of a court in an action for revival of judgment may appeal the decision, but only
insofar as the merits of the action for revival is concerned. The original judgment, which is
already final and executory, may no longer be reversed, altered, or modified. (Heirs of
Numeriano Miranda, Sr. vs. Miranda, 700 SCRA 746, 8 July 2013)

137. Q. Which court has jurisdiction over a petition for revival of judgment?

A. RTC has jurisdiction over the Petition for Revival of Judgment. It may be filed either in
the same court where said judgment was rendered or in the place where the plaintiff or
defendant resides, or in any other place designated by the statutes which treat of the venue
of actions in general. It is settled that once jurisdiction has been acquired, it is not lost until
the court shall have disposed of the case in its entirety. (Heirs of Numeriano Miranda, Sr.
vs. Miranda, supra.)

RULE 50
DISMISSAL OF APPEAL

138. Q. Can the Court of Appeals dismiss an appeal even when the filing of the appellant’s
brief was caused by the trial court and the respondents?

A. In Republic vs. Benigno (753 SCRA 135, 11 March 2015), the Supreme Court cited
Beatingo vs. Gasis, and held that the power conferred upon the CA to dismiss an appeal
for failure to file an appellant’s brief is discretionary. The CA’s application of Section 1(e)
of Rule 50 is proper.

139. Q. What is the consequence of a wrong mode of appeal?

A. An appeal erroneously taken to the Court of Appeals shall not be transferred to the
appropriate court but shall be dismissed outright. (Maslag vs. Monzon, 698 SCRA 584, 17
June 2013.)
 36

RULE 52
MOTION FOR RECONSIDERATION

140. Q. Can a party file a Motion for Extension of Time to file Motion for Reconsideration?

A. No. In V.C. Ponce Company, Inc. vs. Municipality of Parañaque (685 SCRA 117, 12
November 2012), it was held that the period to file a Motion for Reconsideration is not
extendible. Based on Rule 52 of the Rules of Court and Rule 7 of the 2002 Internal Rules of
the Court of Appeals (IRCA), a party has 15 days from its receipt of the Decision, to file a
motion for reconsideration, an appeal, or a motion for new trial. Failure to file the necessary
pleading within the reglementary period would render the CA Decision final and executory.
Since the period to file a Motion for Reconsideration is not extendible, the Motion for
Extension of Time to File Motion for Reconsideration did not toll the reglementary period.

The Court has pronounced strict adherence to the rule laid down in Habaluyas
Enterprises, Inc. vs. Judge Japson (1986) that:

No motion for extension of time to file a motion for new trial or reconsideration
may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial
Courts, and the Intermediate Appellate Court (now Court of Appeals).

PROVISIONAL REMEDIES

RULE 58
PRELIMINARY INJUNCTION

141. Q. What is injunction?

A. Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or

refrain from doing a certain act. It may be the main action or merely a provisional remedy
for and as an incident in the main action. (United Alloy Philippines Corporation vs.
United Coconut Planters Bank, 775 SCRA 147, 23 November 2015; See also Republic
vs. Cortez, Sr., 769 SCRA 267, 7 September 2015.)

142. Q. Distinguish a main action for injunction from the provisional or ancillary remedy of
preliminary injunction.

A. Under the law, the main action for injunction seeks a judgment embodying a final
injunction which is distinct from, and should not be confused with, the provisional remedy
of preliminary injunction, the sole object of which is to preserve the status quo until
the merits can be heard. A preliminary injunction is granted at any stage of an action or
proceeding prior to the judgment or final order. It persists until it is dissolved or until the
termination of the action without the court issuing a final injunction. (United Alloy
Philippines Corporation vs. United Coconut Planters Bank, supra.)

143. Q. Distinguish prohibitory from mandatory injunction?

A. Prohibitory injunction requires a party to refrain from doing a particular act, whereas,
mandatory injunction, which commands a party to perform a positive act to correct a
wrong in the past.

A writ of preliminary mandatory injunction, however, is more cautiously regarded because

it commands the performance of an act. (Sy vs. Autobus Transport Systems, Inc., 686
SCRA 707, 3 December 2012.)

144. Q. When can the court refuse the relief of injunction prayed for by the party?

A. In Golding vs. Balatbat, (1917) the Supreme Court held that the writ of injunction should
never issue when an action for damages would adequately compensate the injuries caused.
The very foundation of the jurisdiction to issue the writ rests in the probability of
irreparable injury, the inadequacy of pecuniary compensation, and the prevention of the
multiplicity of suits, and where facts are not shown to bring the case within these
conditions, the relief of injunction should be refused. (Power Sites and Signs, Inc. vs.
United Neon, 605 SCRA 196, 24 November 2009.)
 37

145. Q. What is the obligation of a party upon whom the injunction was issued against?

A. An injunction or restraining order must be obeyed while it remains in full force and effect
until the injunction or restraining order has been set aside, vacated, or modified by the
court which granted it, or until the order or decree awarding it has been reversed on appeal.
The injunction must be obeyed irrespective of the ultimate validity of the order, and no
matter how unreasonable and unjust the injunction may be in its terms. (Pacific Ace
Finance Ltd. [PAFIN] vs. Yanagisawa, 669 SCRA 270, 11 April 2012.)

146. Q. In case of acts done in violation of a standing injunction, what is the remedy of the
party in whose favor the injunction was issued?

A. Jurisprudence holds that all acts done in violation of a standing injunction order are
voidable as to the party enjoined and third parties who are not in good faith. The party, in
whose favor the injunction is issued, has a cause of action to seek the annulment of the
offending action. (Pacific Ace Finance Ltd. [PAFIN] vs. Yanagisawa, supra.)

147. Q. What are the requisites for the issuance of the writ of preliminary injunction?

A. It must be issued only upon a clear showing that the following requisites are established:

(1) the applicant has a clear and unmistakable right that must be protected;

(2) there is a material and substantial invasion of such right; and

(3) there is an urgent need for the writ to prevent irreparable injury to the applicant. (Sy
vs. Autobus Transport Systems, Inc., supra.)

(4) there is no other ordinary, speedy, and adequate remedy to prevent the infliction of
irreparable injury. (Aldover vs. Court of Appeals, 706 SCRA 188, 23 September 2013.)

SPECIAL CIVIL ACTIONS

RULE 63
DECLARATORY RELIEF AND
SIMILAR REMEDIES

148. Q. Who has jurisdiction over a suit for quieting of title?

A. The Regional Trial Court has jurisdiction over the suit for quieting of title. It is clear under
the Rules that an action for quieting of title may be instituted in the RTCs, regardless of the
assessed value of the real property in dispute. Under Rule 63 of the Rules of Court, an action
to quiet title to real property or remove clouds therefrom may be brought in the
appropriate RTC. (Sabitsana, Jr. vs. Muertegui, 703 SCRA 145, 5 August 2013.)

RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON
ELECTIONS AND THE COMMISSION ON AUDIT

149. Q. What is the issue to be resolved in a petition for certiorari under Rule 64 in relation
to Rule 65 of the Revised Rules of Court?

A. The primordial issue to be resolved is whether the respondent tribunal committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
resolution. And as a matter of policy, the Court will not interfere with the resolutions of the
Comelec unless it is shown that it had committed grave abuse of discretion. Thus, in the
absence of grave abuse of discretion, a Rule 64 petition will not prosper. Jurisprudence, on
the other hand, defines grave abuse of discretion as the "capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough;
it must be grave. Grave abuse of discretion has likewise been defined as an act done
contrary to the Constitution, the law or jurisprudence. (Arnado vs. Commission on
Elections, 767 SCRA 168, 18 August 2015.)
 38

150. Q. What is the effect of filing a Rule 64 Petition to the Supreme Court to the pending
motions in the COMELEC?

A. In Cayago vs. Lina,(2005) it was held that once a party elevates the case before the
appellate tribunal, the appellant is deemed to have abandoned the unresolved motion
which remains pending with the tribunal of origin. It is not right for a party who has
affirmed and invoked the jurisdiction of a court in a particular matter to secure an
affirmative relief, to afterwards make a volte face and deny that same jurisdiction.

RULE 65
CERTIORARI, PROHIBITION
AND MANDAMUS

151. Q. When can a government agency be considered to have adjudicatory functions? What
is the effect of its Decision in the performance of its adjudicatory functions?

A. A government agency performs adjudicatory functions when it renders decisions or awards

that determine the rights of adversarial parties, which decisions or awards have the same
effect as a judgment of the court. These decisions are binding, such that when they attain
finality, they have the effect of res judicata that even the courts of justice have to respect. As
held in one case, judicial or quasi-judicial function involves the determination of what the
law is, and what the legal rights of the contending parties are, with respect to the matter in
controversy and, on the basis thereof and the facts obtaining, the adjudication of their
respective rights. In other words, the tribunal, board or officer exercising judicial or quasi-
judicial function must be clothed with power and authority to pass judgment or render a
decision on the controversy construing and applying the laws to that end. (Villanueva vs.
Palawan Council for Sustainable Development, 691 SCRA 556, 25 February 2013.)

152. Q. What is the principal function of a Petition for Certiorari?

A. A Petition for Certiorari lies only to correct acts rendered without or in excess of
jurisdiction or with grave abuse of discretion. In Aldover vs. Court of Appeals (706 SCRA
188, 23 September 2013), the Supreme Court held that its principal office is only to keep
the inferior court within the parameters of its jurisdiction or to prevent it from committing
such a grave abuse of discretion amounting to lack or excess of jurisdiction.

153. Q. In filing a Petition for Certiorari under Rule 65, is it necessary to attach documentary
evidence?

A. In Power Sites and Signs, Inc. vs. United Neon (605 SCRA 196, 24 November 2009), the
Court said that a plain reading of the provision indicates that there is no specific
enumeration of the documents that must be appended to the petition, other than a
certified true copy of the assailed judgment, order, or resolution.

The Supreme Court has emphasized that not all pleadings and parts of case records are
required to be attached, but only those which are material and pertinent that they may
provide the basis for a determination of a prima facie case for abuse of discretion. (Go
vs. Sunbanun, 642 SCRA 367, 9 February 2011.)

154. Q. What are the requisites in order that a petition for certiorari shall prosper?

A. Certiorari is a limited form of review and is a remedy of last recourse. It is proper only when
appeal is not available to the aggrieved party. (Home Development Mutual Fund [HDMF]
vs. See, 652 SCRA 478, 22 June 2011.)

Moreover, Rule 65 petitions for certiorari are extraordinary remedies available only when
there is grave abuse of discretion amounting to lack of jurisdiction and the petitioner has
no other plain, speedy, and adequate remedy for correcting such abuse. (Disini vs.
Sandiganbayan, 623 SCRA 354, 5 July 2010; See also Bureau of Internal Revenue vs.
Court of Appeals, 741 SCRA 536, 24 November 2014.)

155. Q. Describe “grave abuse of discretion” referred to under Section 1, Rule 65?
 39

A. Grave abuse of discretion refers to such "capricious or whimsical exercise of judgment as is

equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility. (Estate of Soledad Maninang vs.
Court of Appeals, 653 SCRA 543, 6 July 2011; Philippine National Bank vs. DKS
International, Inc., 610 SCRA 603, 22 January 2010.)

156. Q. What constitute grave abuse of discretion in the decision of a quasi-judicial body like
the NLRC to warrant a Petition for Certiorari under Rule 65?

A. In Capili vs. Philippine National Bank (796 SCRA 235, 11 July 2016), the Supreme Court
held that: In order that the extraordinary writ of certiorari be issued against a court or
quasi-judicial body, it is necessary to prove that such court or tribunal gravely abused its
discretion, which connotes "a capricious and whimsical exercise of judgment as; is
equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and
gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.

157. Q. What is the indispensible ingredient in a valid petition for certiorari, prohibition and
mandamus?

A. In Candelaria vs. Regional Trial Court, Branch 42, City of San Fernando, Pampanga
(730 SCRA 1, 14 July 2014), it is to be stressed that in every special civil action under Rule
65, a party seeking the writ whether for certiorari, prohibition or mandamus, must be able
to show that his or her resort to such extraordinary remedy is justified by the absence of an
appeal or any plain, speedy and adequate remedy in the ordinary course of law. He must
allege in his petition and establish facts to show that any other existing remedy is not
speedy or adequate. Further, a petition for certiorari under Rule 65 does not include review
of the correctness of a board or tribunal’s evaluation of the evidence but is confined to
issues of jurisdiction or grave abuse of discretion. (De Guzman vs. Gonzales III, 616 SCRA
546, 26 March 2010.)

158. Q. Is filing of a Motion for Reconsideration a condition sine qua non for filing a petition
for certiorari?

A. Yes. Rule 65 states that where a motion for reconsideration or new trial is timely filed,
whether such motion is required or not, the petition shall be filed not later than 60 days
counted from the notice of the denial of the motion. This can only mean that even though a
motion for reconsideration is not required or even prohibited by the concerned
government office, and the petitioner files the motion just the same, the 60-day period shall
nonetheless be counted from notice of the denial of the motion. The very nature of
certiorari – which is an extraordinary remedy resorted to only in the absence of plain,
available, speedy and adequate remedies in the course of law – requires that the office
issuing the decision or order be given the opportunity to correct itself. Quite evidently, this
opportunity for rectification does not arise if no motion for reconsideration has been filed.
(Philtranco Service Enterprises, Inc. vs. Philtranco Workers Union-Association of
Genuine Labor Organizations [PWU-AGLO], 717 SCRA 340, 26 February 2014.)

159. Q. In labor cases, is the filing of a Motion for Reconsideration also an indispensable
requirement in a Petition for Certiorari under Rule 65?

A. Yes. In Philippine National Bank vs. Arcobillas (703 SCRA 226, 7 August 2013), after
PNB received a copy of the NLRC Decision, it did not file any Motion for Reconsideration
such that the said Decision became final and executory. Instead, PNB went directly to the
CA to assail the NLRC Decision through a Petition for Certiorari under Rule 65 of the Rules
of Court which the said court took cognizance of. The Supreme Court held that PNB’s failure
to file a Motion for Reconsideration with the NLRC before filing its Petition for Certiorari
before the CA is a fatal infirmity.

160. Q. Will the finality and thereafter entry of judgment preclude the filing of a Petition for
Certiorari under Rule 65? Explain.
 40

A. No. In Philippine National Bank vs. Arcobillas, supra, the High Court recognizes that the
finality of the NLRC’s Decision does not preclude the filing of a Petition for Certiorari under
Rule 65 of the Rules of Court. That the NLRC issues an entry of judgment after the lapse of
ten (10) days from the parties’ receipt of its Decision will only give rise to the prevailing
party’s right to move for the execution thereof but will not prevent the CA from taking
cognizance of a Petition for Certiorari on jurisdictional and due process considerations.
However, it is a well-established rule that a Motion for Reconsideration is an indispensable
condition before an aggrieved party can resort to the special civil action for certiorari. The
rationale for the rule is that the law intends to afford the NLRC an opportunity to rectify
such errors or mistakes it may have committed before resort to courts of justice can be had.

161. Q. What is the remedy of an aggrieved party from the decision or resolution of the
Secretary of Labor?

A. The remedy is to timely file a motion for reconsideration as a precondition for any
further or subsequent remedy, and then seasonably file a special civil action for
certiorari under Rule 65 of the 1997 Rules on Civil Procedure. There is no distinction:
when the Secretary of Labor assumes jurisdiction over a labor case in an industry
indispensable to national interest, he exercises great breadth of discretion in finding a
solution to the parties’ dispute. The authority of the Secretary of Labor to assume
jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry
indispensable to national interest includes and extends to all questions and controversies
arising therefrom. The power is plenary and discretionary in nature to enable him to
effectively and efficiently dispose of the primary dispute. This wide latitude of discretion
given to the Secretary of Labor may not be the subject of appeal.

162. Q. What is the remedy of a party from the adverse resolution of the Secretary of Justice?

A. It has been held that the remedy of a party desiring to elevate to the appellate court an
adverse resolution of the Secretary of Justice is a petition for certiorari under Rule 65. A
Rule 43 petition for review is a wrong mode of appeal. (Barangay Dasmariñas vs.
Creative Play Corner School, 640 SCRA 294, 24 January 2011.)

163. Q. Are there exceptions to the rule that a Motion for Reconsideration is an
indispensable condition before an aggrieved party can resort to the special civil
action for certiorari?

A. Yes. Jurisprudence has laid down exceptions when the filing of a Petition for Certiorari is
proper notwithstanding the failure to file a Motion for Reconsideration, such as:

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

(b) where the questions raised in the certiorari proceedings have been duly raised and passed
upon by the lower court, or are the same as those raised and passed upon in the lower court;

(c) where there is an urgent necessity for the resolution of the question and any further delay
would prejudice the interests of the Government or of the petitioner or the subject matter
of the action is perishable;

(d) where, under the circumstances, a Motion for Reconsideration would be useless;

(e) where petitioner was deprived of due process and there is extreme urgency for relief;

(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such
relied by the trial court is improbable;

(g) where the proceedings in the lower court are a nullity for lack of due process;

(h) where the proceeding was ex parte or in which the petitioner had no opportunity to object;
and

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

164. Q. Is direct resort to the Supreme Court under Rule 65 allowed without violating the
doctrine of hierarchy of courts?
 41

A. No. In Candelaria vs. Regional Trial Court, Branch 42, City of San Fernando, Pampanga,
supra, the Supreme Court held that the petitioners violated the principle of hierarchy of
courts. This is against the well-settled principle dictating that a petition for certiorari
assailing the interlocutory orders of the RTC should be filed with the Court of Appeals and
not directly with the Supreme Court.

It was held in Rayos vs. City of Manila (2011) that indeed, the Supreme Court, the Court
of Appeals and the Regional Trial Courts exercise concurrent jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction. However,
such concurrence in jurisdiction does not give petitioners unbridled freedom of choice of
court forum.

165. Q. What is the limitation of the filing of a Petition for Certiorari in the Court of Appeals
under Rule 65?

A. The filing of a Petition for Certiorari under Rule 65 of the Rules of Court before the CA is
limited only to the correction of errors of jurisdiction or grave abuse of discretion on
the part of the trial court. A special civil action for certiorari is an independent action,
raising the question of jurisdiction where the tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction. (Sea Lion Fishing Corporation
vs. People, 646 SCRA 272, 23 March 2011.)

166. Q. What is the period for filing a petition for certiorari under Rule 65?

A. Section 4, Rule 65 of the Rules of Court provides that a special civil action for certiorari
should be instituted within 60 days from notice of the judgment, order, or resolution, or
from the notice of the denial of the motion for reconsideration of the judgment, order, or
resolution being assailed. The 60-day period, however, is inextendible to avoid any
unreasonable delay, which would violate the constitutional rights of parties to a speedy
disposition of their cases. Thus, strict compliance of this rule is mandatory and imperative.
But like all rules, the 60-day limitation may be relaxed "for the most persuasive of reasons,"
which must be sufficiently shown by the party invoking liberality. (Philippine Long
Distance Telephone Company vs. Ocampo, 729 SCRA 335, 9 July 2014.)

167. Q. Can the period for filing a Petition for Certiorari under Rule 65 be subject to Motion
for Extension?

A. Yes. In Republic vs. St. Vincent de Paul Colleges, Inc.,(2012) the Court had the occasion
to settle the seeming conflict on various jurisprudence touching upon the issue of whether
the period for filing a petition for certiorari may be extended. Under exceptional cases,
and as held in Domdom vs. Third and Fifth Divisions of the Sandiganbayan, the 60-day
period may be extended subject to the court’s sound discretion.

Then in Labao vs. Flores,(2010) the Court laid down some of the exceptions to the strict
application of the 60-day period rule, thus:

There are recognized exceptions to their strict observance, such as:

(1) most persuasive and weighty reasons;

(2) to relieve a litigant from an injustice not commensurate with his failure to comply
with the prescribed procedure;

(3) good faith of the defaulting party by immediately paying within a reasonable time
from the time of the default;

(4) the existence of special or compelling circumstances;

(5) the merits of the case;

(6) a cause not entirely attributable to the fault or negligence of the party favored by the
suspension of the rules;

(7) a lack of any showing that the review sought is merely frivolous and dilatory;

(8) the other party will not be unjustly prejudiced thereby;

 42

(9) fraud, accident, mistake or excusable negligence without appellant’s fault;

(10) peculiar legal and equitable circumstances attendant to each case;

(11) in the name of substantial justice and fair play;

(12) importance of the issues involved; and

(13) exercise of sound discretion by the judge guided by all the attendant circumstances.

Thus, there should be an effort on the part of the party invoking liberality to advance a
reasonable or meritorious explanation for his/her failure to comply with the rules.
(Thenamaris Philippines, Inc. [Formerly Intermare Maritime Agencies, Inc.] vs. Court
of Appeals, 715 SCRA 153, 3 February 2014.)

168. Q. Can heavy pressure of work be considered as compelling reason to justify a motion
for an extension of time to file a petition for certiorari?

A. It is settled jurisprudence that heavy pressure of work is not considered compelling reason
to justify a request for an extension of time to file a petition for certiorari. Heavy workload
is relative and often self-serving. Standing alone, it is not a sufficient reason to deviate from
the 60-day rule. In Yutingco vs. Court of Appeals, therein petitioners’ counsel cited heavy
workload in seeking the court’s leniency. However, the same was rebuffed by the Court
ratiocinating that such "circumstance alone does not provide the court sufficient
reason to merit allowance of an extension of the 60-day period to file the petition for
certiorari. Heavy workload ought to be coupled with more compelling reasons such as illness
of counsel or other emergencies that could be substantiated by affidavits of merit. (Heirs of
Ramon B. Gayares vs. Pacific Asia Overseas Shipping Corporation, 676 SCRA 450, 16
July 2012.)

169. Q. Is the Petition for Certiorari dismissible for failure to implead the trial court as
required by Section 5 of Rule 65?

A. The Supreme Court, in the case of Heirs of Babai Guiambangan vs. Municipality of
Kalamansig, Sultan Kudarat (798 SCRA 584, 27 July 2016), held that it is not fatal.
Accordingly it said, in Abdulrahman vs. The Office of the Ombudsman for Mindanao,(
2013) that "neither the misjoinder nor the non-joinder of parties is a ground for the
dismissal of an action," particularly a Petition for Certiorari under Rule 65; the CA
should simply order that a party be impleaded in the case.

170. Q. Is the filing of reply and other subsequent pleadings mandatorily required by the
court in giving due course to a petition for certiorari under Rule 65?

A. No. Section 6, Rule 65 of the Rules of Court provides that before the court gives due
course to a petition for certiorari, it may require the respondent to file a comment to the
petition. Afterwards, the court may require the filing of a reply and such pleadings as it may
deem necessary. In turn, Section 8 of Rule 65 states that after the comment or other
pleadings are filed or the period for their filing has expired, the court may require the
parties to file memoranda.

It is thus clear that the filing of a reply and other subsequent pleading, as well as
memoranda, is subject to the sound judgment of the court. The word 'may' when used in
a statute is permissive only and operates to confer discretion. (Etom, Jr. vs. Aroma
Lodging House, 774 SCRA 141, 9 November 2015.)

171. Q. In a petition for certiorari under Rule 65 with the Court of Appeals, will it admit a
pleading filed out of time?

A. Yes. In Areno, Jr. vs. Skycable PCC-Baguio (611 SCRA 721, 5 February 2010), the Court
said that a close scrutiny of Section 6, Rule 65 of the Rules of Court, which grants
discretionary authority to the CA in ordering parties to file responsive and other pleadings
in petitions for certiorari filed before it, will reveal that such rule is merely directory in
nature. This is so because the word "may" employed by the rule shows that it is not
mandatory but discretionary on the part of the CA to require the filing of pleadings which
it deems necessary to assist it in resolving the controversies. In the same way, the
 43

admission of any responsive pleading filed by party-litigants is a matter that rests largely
on the sound discretion of the court. At any rate, rules of procedure may be relaxed in the
interest of substantial justice and in order to afford litigants maximum opportunity for the
proper and just determination of their causes. Strict adherence to technical adjective rules
should never be unexceptionally required because a contrary precept would result in a
failure to decide cases on their merits. The CA could not have erred in admitting the
comment, albeit filed late, when it viewed that the interest of justice would be better served
by the policy of liberality.

172. Q. Did the Court of Appeals violate the Constitution when it denied a Motion for
Reconsideration without indicating its legal basis?

A. In Areno, Jr. vs. Skycable PCC-Baguio, supra, it was held that: While it is provided in
Section 14, Article VIII of the Constitution, that no petition for review or motion for
reconsideration of a decision of the court shall be refused due course or denied without
stating the legal basis thereof, this requirement, however, was complied with, when the CA,
in its resolution denying petitioner’s motion for reconsideration, stated that it found no
cogent reason to modify, much less reverse itself.

173. Q. Is the filing of a petition for certiorari stay the proceedings of a pending case?

A. No. The pendency of a special civil action for certiorari instituted in relation to a pending
case does not stay the proceedings therein in the absence of a writ of preliminary
injunction or temporary restraining order. Rule 65, Section 7 of the 1997 Rules is clear
on this.

The public respondent shall proceed with the principal case within ten (10) days from the
filing of a petition for certiorari with a higher court or tribunal, absent a temporary
restraining order or a preliminary injunction, or upon its expiration. Failure of the public
respondent to proceed with the principal case may be a ground for an administrative
charge. (Silverio, Sr. vs. Silverio, Jr., 730 SCRA 152, 18 July 2014; Juliano-Llave vs.
Republic, 646 SCRA 637, 30 March 2011.)

RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE

174. Q. Is the issuance of Writ of Possession ministerial in a judicial foreclosure proceeding?

A. As a general rule, the issuance of a writ of possession is ministerial. However, in

Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation (606
SCRA 159, 27 November 2009), the Supreme Court cited the case of Sulit vs. Court of
Appeals, (1997) where the Court withheld the issuance of the writ considering the peculiar
circumstances prevailing in said case.

In Sulit, the Court withheld the issuance of a writ of possession because the mortgagee
failed to deliver the surplus from the proceeds of the foreclosure sale which is equivalent
to approximately 40% of the total mortgage debt. Sulit was considered as an exception
to the general rule that it is ministerial upon the court to issue a writ of possession
even during the period of redemption. The Court explained that equitable
considerations prevailing in said case demand that a writ of possession should not issue.

In the subsequent case of Saguan vs. Philippine Bank of Communications, (2007)

however, the Court clarified that the exception made in Sulit does not apply when the
period to redeem has already expired or when ownership over the property has already
been consolidated in favor of the mortgagee-purchaser. In other words, even if the
mortgagee-purchaser fails to return the surplus, a writ of possession must still be issued.
(Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation,
supra.)

175. Q. How should the proceeds of the sale be disposed in a judicial foreclosure?

A. The application of the proceeds from the sale of the mortgaged property to the mortgagor’s
obligation is an act of payment, not payment by dation; hence, it is the mortgagee’s duty to
return any surplus in the selling price to the mortgagor. Perforce, a mortgagee who
exercises the power of sale contained in a mortgage is considered a custodian of the fund,
 44

and, being bound to apply it properly, is liable to the persons entitled thereto if he fails to
do so. And even though the mortgagee is deemed a trustee for the mortgagor or owner of
the equity of redemption. (Metropolitan Bank & Trust Co. vs. Lamb Construction
Consortium Corporation, supra.)

176. Q. What is the consequence of mortgagee’s failure to deliver the surplus proceeds of the
foreclosure sale?

A. In Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation,
supra, the Court held that the failure of the mortgagee to deliver the surplus proceeds does
not affect the validity of the foreclosure sale. It gives rise to a cause of action for the
mortgagee to file an action to collect the surplus proceeds.

177. Q. Can the mortgagor recover the surplus proceeds while there is a pending case of
annulment of the foreclosure proceedings?

A. No. It bears stressing that the collection of surplus is inconsistent with the annulment of
foreclosure because in suing for the return of the surplus proceeds, the mortgagor is
deemed to have affirmed the validity of the sale since nothing is due if no valid sale has been
made. It is only after the dismissal of complaint for annulment or when the foreclosure sale
is declared valid that the mortgagor may recover the surplus in an action specifically
brought for that purpose. However, to avoid multiplicity of suits, the better recourse is for
the mortgagor to file a case for annulment of foreclosure with an alternative cause of action
for the return of the surplus, if any. (Metropolitan Bank & Trust Co. vs. Lamb
Construction Consortium Corporation, supra.)

CROSS-REFERENCE

ACT NO. 3135

AN ACT TO REGULATE THE SALE OF PROPERTY UNDER SPECIAL POWERS INSERTED

IN OR ANNEXED TO REAL-ESTATE MORTGAGES

178. Q. Is notice a necessary ingredient in extrajudicial foreclosure of mortgage under Act

No. 3135?

A. It has been consistently held that unless the parties stipulate, “personal notice to the
mortgagor in extrajudicial foreclosure proceedings is not necessary because Section 3 of
Act 3135 only requires the posting of the notice of sale in three public places and the
publication of that notice in a newspaper of general circulation. (Lim vs. Development
Bank of the Philippines (700 SCRA 210, 1 July 2013; In Metropolitan Bank and Trust
Company vs. Wong, (2001)

179. Q. What is fatal to the validity of the notice and the sale pursuant thereto?

A. Errors or omissions in the notice of sale which are calculated to deter or mislead
bidders, to depreciate the value of the property, or to prevent it from bringing a fair
price. Simple mistakes or omissions are not considered fatal to the validity of the
notice and the sale made pursuant thereto. (Certeza, Jr. vs. Philippine Savings Bank,
614 SCRA 442, 5 March 2010.)

180. Q. In an auction sale of extrajudicially foreclosed real property, is it required to have at

least two (2) bidders?

A. No. In Certeza, Jr. vs. Philippine Savings Bank, supra, the Supreme Court said that
pursuant to A.M. 99-10-05-0, as amended by the Resolutions of January 30, 2001 and
August 7, 2001, the then Court Administrator (now Associate Justice of this Court)
Presbitero J. Velasco, Jr., issued Circular No. 7-2002 dated January 22, 2002 which
became effective on April 22, 2002.

The use of the word "bids" (in plural form) does not make it a mandatory requirement to
have more than one bidder for an auction sale to be valid. A.M. No. 99-10-05-0, as amended,
no longer prescribes the requirement of at least two bidders for a valid auction sale.
 45

181. Q. What is the redemption period of the mortgagor in case of extrajudicial foreclosure
of mortgage under Act No. 3135? What is the right of the purchaser during the said
redemption period?

A. A debtor has one year from the date the Certificate of Sale is registered with the
Register of Deeds within which to redeem his property. During the one-year
redemption period, the purchaser may possess the property by filing a petition for the
issuance of a writ of possession before the court, upon the posting of a bond. (Sombilon vs.
Garay, 726 SCRA 397, 16 June 2014.)

182. Q. What is the duty of the RTC in case the foreclosed property is not redeemed after the
lapse of the one (1) year period?

A. Upon the expiration of the period to redeem and no redemption was made, the purchaser,
as confirmed owner, has the absolute right to possess the land and the issuance of the writ
of possession becomes a ministerial duty of the court upon proper application and proof of
title. (Gatuslao vs. Yanson, 746 SCRA 520, 21 January 2015.)

183. Q. In case the foreclosed property is in the hands of a third party after the lapse of the
one (1) year redemption period, is the duty of the RTC still ministerial to issue the
writ of possession? Explain.

A. No. Where the extrajudicially foreclosed real property is in the possession of a third party
who is holding the same adversely to the judgment debtor or mortgagor, the RTC’s duty to
issue a writ of possession in favor of the purchaser of said real property ceases to be
ministerial and, as such, may no longer proceed ex parte. In such a case, the trial court must
order a hearing to determine the nature of the adverse possession. For this exception to
apply, however, it is not enough that the property is in the possession of a third party, the
property must also be held by the third party adversely to the judgment debtor or
mortgagor, such as a co-owner, agricultural tenant or usufructuary. (Gatuslao vs. Yanson,
supra; Parents-Teachers Association [PTA] of St. Matthew Christian Academy vs.
Metropolitan Bank and Trust Co, 614 SCRA 41, 2 March 2010.)

184. Q. Is the ex parte petition for issuance of writ of possession a judicial process?

A. No. This ex parte petition for the issuance of a writ of possession under Section 7 of Act No.
3135 is not, strictly speaking, a "judicial process" as contemplated in Article 433 of the Civil
Code. As a judicial proceeding for the enforcement of one's right of possession as purchaser
in a foreclosure sale, it is not an ordinary suit by which one party "sues another for the
enforcement of a wrong or protection of a right, or the prevention or redress of a wrong.

In Idolor vs. Court of Appeals, (2005) the Court described the nature of the ex
parte petition for issuance of possessory writ under Act No. 3135 to be a non-litigious
proceeding and summary in nature. As an ex parte proceeding, it is brought for the benefit
of one party only, and without notice to, or consent by any person adversely interested. It
is a proceeding where the relief is granted without requiring an opportunity for the person
against whom the relief is sought to be heard. It does not matter even if the herein
petitioners were not specifically named in the writ of possession nor notified of such
proceedings.

185. Q. Is a Petition for Issuance of Writ of Possession considered as initiatory pleading that
needs to be accompanied by a Verification-Certification for Non-Forum Shopping?

A. No. In Spouses Arquiza vs. Court of Appeals,(2005) it was held that an application for a
writ of possession is a mere incident in the registration proceeding which is in substance
merely a motion, and therefore does not require such a certification.

186. Q. What is the remedy of the mortgagor, in an extra-judicial foreclosure, if there is a

question as to the regularity of the issuance of the writ of possession?

A. In De Gracia vs. San Jose, (1954) Since the writ of possession had already been issued, the
proper remedy is an appeal and not a petition for certiorari, in accordance with the ruling
in Metropolitan Bank and Trust Company vs. Tan (2008) and Government Service
Insurance System vs. Court of Appeals (1989) As long as the court acts within its
jurisdiction, any alleged errors committed in the exercise of its discretion will amount to
 46

nothing more than mere errors of judgment, correctable by an appeal if the aggrieved party
raised factual and legal issues; or a petition for review under Rule 45 of the Rules of Court
if only questions of law are involved. (Parents-Teachers Association [PTA] of St. Mathew
Christian Academy vs. Metropolitan Bank and Trust Co., supra.)

187. Q. Will the pending action for annulment of foreclosure of mortgage a bar to the
issuance of writ of possession?

A. No. In Gatuslao vs. Yanson, supra, it was settled that the issuance of a writ of possession
may not be stayed by a pending action for annulment of mortgage or the foreclosure itself.
(BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., 2011.) This
is in line with the ministerial character of the possessory writ. (Bank of the Philippine
Islands vs. Tarampi, 2008).

RULE 70
FORCIBLE ENTRY
AND UNLAWFUL DETAINER

188. Q. What is the scope of an ejectment case?

A. An ejectment case is not limited to lease agreements or deprivations of possession by force,

intimidation, threat, strategy, or stealth. It is as well available against one who withholds
possession after the expiration or termination of his right of possession under an express
or implied contract, such as a contract to sell. (Union Bank of the Philippines vs.
Philippine Rabbit Bus Lines, Inc., 795 SCRA 444, 4 July 2016.)

189. Q. Who may file a case of forcible entry?

A. Under Section 1, Rule 7 of the Rules of Court, a case of forcible entry may be filed by “a
person deprived of the possession of any land or building by force, intimidation, threat,
strategy, or stealth. (Heirs of Rogelio Isip, Sr. vs. Quintos, 678 SCRA 104, 1 August
2012.)

190. Q. What is the basic inquiry in a case of forcible entry?

A. In cases of forcible entry, "the possession is illegal from the beginning and the basic inquiry
centers on who has the prior possession de facto. (Heirs of Rogelio Isip, Sr. vs. Quintos,
supra.)

Possession de facto [i.e., the physical possession of a property], and not possession de jure is
the only issue in a forcible entry case. This rule holds true regardless of the character of a
party’s possession, provided that he has in his favor priority in time. x x As used in forcible
entry and unlawful detainer cases, ‘possession’ refers to "physical possession, not legal
possession in the sense contemplated in civil law. (Villondo vs. Quijano, 686 SCRA 694,
3 December 2012.)

191. Q. Can public lands be subject of forcible entry cases?

A. Yes. The Supreme Court said that even public lands can be the subject of forcible entry cases
as it has already been held that ejectment proceedings may involve all kinds of land. Thus,
in Villondo vs. Quijano, supra, while the parties are fighting over the possession of a
government land, the courts below are not deprived of jurisdiction to render judgment
thereon. Courts must resolve the issue of possession even if the parties to the ejectment suit
are mere informal settlers.

192. Q. Who may file a case of unlawful detainer?

A. Under Section 1, Rule 7 of the Rules of Court, “a lessor, vendor, vendee, or other person
against whom the possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of any contract, express
or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or
other person may at any time within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such possession, together with damages
 47

and costs.” (Union Bank of the Philippines vs. Philippine Rabbit Bus Lines, Inc., supra.)

193. Q. Who has prior possession in an unlawful detainer case and when does it become
unlawful?

A. In Pro-Guard Security Services Corporation vs. Tormil Realty and Development

Corporation (729 SCRA 206, 7 July 2014), the Supreme Court held that:

In unlawful detainer cases, the defendant is necessarily in prior lawful possession of the
property but his possession eventually becomes unlawful upon termination or expiration
of his right to possess. In other words, the entry is legal but the possession thereafter
became illegal.

194. Q. In a case of unlawful detainer, what must the plaintiff allege in the complaint?

A. In Union Bank of the Philippines vs. Philippine Rabbit Bus Lines, Inc., supra, the
Supreme Court said that, in such cases, it is sufficient to allege in the plaintiff’s complaint
that:

1) The defendant originally had lawful possession of the property, either by virtue of a
contract or by tolerance of the plaintiff;

2) Eventually, the defendant's possession of the property became illegal or unlawful

upon notice by the plaintiff to defendant of the expiration or the termination of the
defendant's right of possession;

3) Thereafter, the defendant remained in possession of the property and deprived the
plaintiff the enjoyment thereof; and

4) Within one year from the unlawful deprivation or withholding of possession, the
plaintiff instituted the complaint for ejectment.

195. Q. Which court has jurisdiction if the plaintiff alleged in the complaint for ejectment
that the dispossession has lasted for more than one year?

A. It is the RTC and not MTC as the dispossession is more than one-year period to bring a case
for forcible entry had expired. The remedy is the plenary action of accion publiciana, which
may be instituted within 10 years.

It is an ordinary civil proceeding to determine the better right of possession of realty

independently of title. It also refers to an ejectment suit filed after the expiration of one year
from the accrual of the cause of action or from the unlawful withholding of possession of
the realty. (Padre vs. Badillo, 640 SCRA 50, 19 January 2011.)

196. Q. What is the rationale for requiring the jurisdictional facts to be alleged in the
complaint for ejectment suit?

A. The Court has already clarified in Delos Reyes vs. Odones (2011) that: The requirement
that the complaint should aver, as jurisdictional facts, when and how entry into the
property was made by the defendants applies only when the issue is the timeliness
of the filing of the complaint before the MTC x x x. This is because, in forcible entry
cases, the prescriptive period is counted from the date of defendants’ actual entry into the
property; whereas, in unlawful detainer cases, it is counted from date of the last demand
to vacate. Hence, to determine whether the case was filed on time, there is a necessity to
ascertain whether the complaint is one for forcible entry or for unlawful detainer; and since
the main distinction between the two actions is when and how defendant entered the
property, the determinative facts should be alleged in the complaint. (Dela Cruz vs. Capco,
719 SCRA 291, 17 March 2014.)

197. Q. What is the jurisdictional amount of trial courts in civil cases involving realty or
interest therein outside Metro Manila?

A. In civil cases involving realty or interest therein not within Metro Manila, the MTC has
exclusive original jurisdiction only if the assessed value of the subject property or
interest therein does not exceed ₱20,000.00.
 48

Thus, if the assessed value of the property subject matter of the case is ₱26,940.00, and
more than one year had expired after the dispossession, jurisdiction properly belongs to
the RTC.

198. Q. Distinguish ejectment from recovery of possession and/or ownership.

A. The distinction between a summary action of ejectment and a plenary action for recovery
of possession and/or ownership of the land is well-settled in our jurisprudence. What really
distinguishes an action for unlawful detainer from a possessory action (action publiciana)
and from a reinvindicatory action (action reinvindicatoria) is that the first is limited to the
question of possession de facto. An unlawful detainer suit (action interdictal) together with
forcible entry are the two forms of an ejectment suit that may be filed to recover possession
of real property. Aside from the summary action of ejectment, action publiciana or the
plenary action to recover the right of possession and action reinvindicatoria or the action
to recover ownership which includes recovery of possession, make up the three kinds of
actions to judicially recover possession.

In Vda. de Villanueva vs. Court of Appeals, (2001) the Court held that a judgment in a
case for forcible entry which involved only the issue of physical possession (possession de
facto) and not ownership will not bar an action between the same parties respecting title
or ownership, such as an accion reinvindicatoria or a suit to recover possession of a parcel
of land as an element of ownership, because there is no identity of causes of action between
the two. (Bradford United Church of Christ, Inc. vs. Ando, 791 SCRA 337, 30 May
2016.)

199. Q. How is tolerance defined in an unlawful detainer case?

A. Tolerance or toleration is defined as ‘the act or practice of permitting or enduring

something not wholly approved of, while tolerated acts are "those which by reason of
neighborliness or familiarity, the owner of the property allows his neighbor or another
person to do on the property; they are generally those particular services or benefits which
one’s property can give to another without material injury or prejudice to the owner, who
permits them out of friendship or courtesy. (Pro-Guard Security Services Corporation
vs. Tormil Realty and Development Corporation, supra.)
200. Q. What is the effect of withdrawal of tolerance to occupy a certain property?

A. With regard to the effects of withdrawal of tolerance, it is settled that: A person who
occupies the land of another at the latter’s tolerance or permission, without any contract
between them, is necessarily bound by an implied promise that he will vacate upon
demand, failing which a summary action for ejectment is the proper remedy against
him. His status is analogous to that of a lessee or tenant whose term of lease has expired
but whose occupancy continued by tolerance of the owner. In such a case, the date of
unlawful deprivation or withholding of possession is to be counted from the date of
the demand to vacate. (Pro-Guard Security Services Corporation vs. Tormil Realty
and Development Corporation, supra.)

201. Q. What are the requisites in order that an action for unlawful detainer will prosper?

A. In Manzanilla vs. Waterfields Industries Corporation (730 SCRA 104, 18 July 2014), the
Supreme Court citing the case of Fideldia vs. Sps. Mulato, (2008) held that:

the purpose of bringing an unlawful detainer suit, two requisites must concur:

(1) there must be failure to pay rent or comply with the conditions of the lease, and

(2) there must be demand both to pay or to comply and vacate.

The first requisite refers to the existence of the cause of action for unlawful detainer, while
the second refers to the jurisdictional requirement of demand in order that said cause of
action may be pursued. Implied in the first requisite, which is needed to establish the cause
of action of the plaintiff in an unlawful detainer suit, is the presentation of the contract of
lease entered into by the plaintiff and the defendant, the same being needed to establish the
lease conditions alleged to have been violated.
 49

Thus, in Bachrach Corporation vs. Court of Appeals,(1998) the Court held that the
evidence needed to establish the cause of action in an unlawful detainer case is (1) a lease
contract and (2) the violation of that lease by the defendant.

202. Q. What does actual possession mean in contemplation of ejectment cases?

A. In Heirs of Rogelio Isip, Sr. vs. Quintos, supra, the Supreme Court cited the case of Reyes
vs. Court of Appeals (1999) in defining actual possession, to wit:

Actual possession of land consists in the manifestation of acts of dominion over it of such a
nature as those a party would naturally exercise over his own property. It is not necessary
that the owner of a parcel of land should himself occupy the property as someone in his
name may perform the act. In other words, the owner of real estate has possession, either
when he himself is physically in occupation of the property, or when another person who
recognizes his rights as owner is in such occupancy. This declaration is in conformity with
Art. 524 of the Civil Code providing that possession may be exercised in one’s own name or
in the name of another.

In the case of Dalida vs. Court of Appeals, (1982) it was held that a mere caretaker of a
land has no right of possession over such land.

203. Q. What would be the disposition of the court if the issue of ownership is raised?

A. The only issue in an ejectment case is the physical possession of real property—
possession de facto and not possession de jure.

Thus, where the parties to an ejectment case raise the issue of ownership, the courts may
pass upon that issue to determine who between the parties has the better right to possess
the property. However, it must be emphasized that “the adjudication of the issue of
ownership is only provisional, and not a bar to an action between the same parties
involving title to the property.”(Dela Cruz vs. Capco, supra.)

204. Q. Can the allegation in the Answer that there was implied or new lease divest the MeTC
of its jurisdiction over the case?

A. No. The allegation of existence of implied new lease or tacita reconduccion will not divest
the MeTC of jurisdiction over the ejectment case. It is an elementary rule that the
jurisdiction of the court in ejectment cases is determined by the allegations pleaded in the
complaint and cannot be made to depend upon the defenses set up in the answer or
pleadings filed by the defendant. This principle holds even if the facts proved during trial
do not support the cause of action alleged in the complaint. In connection with this, it is well
to note that in unlawful detainer cases the elements to be proved and resolved are the facts
of lease and expiration or violation of its terms.

In Mid-Pasig Land Development Corporation vs. Court of Appeals (2003), the Court
ruled that the MeTC is clothed with exclusive original jurisdiction over an unlawful detainer
case even if the same would entail compelling the plaintiff therein to recognize an implied
lease agreement. (Yuki, Jr. vs. Co, 606 SCRA 211, 27 November 2009.)

205. Q. Will the defense of tenancy automatically divest the MTC of its jurisdiction over an
ejectment case?

A. In Ofilada vs. Andal (748 SCRA 211, 26 January 2015), the Supreme Court answered in
the negative. It held that: Evidence is necessary to prove the allegation of tenancy. “The
principal factor in determining whether a tenancy relationship exists is intent. Tenancy is
not a purely factual relationship dependent on what the alleged tenant does upon the land.
It is also a legal relationship.

An allegation of tenancy before the MTC does not automatically deprive the court of its jurisdiction.

206. Q. Will the case of unlawful detainer be suspended due to another case filed by the
defendant to enforce his right of preemption?
 50

A. No. In Wilmon Auto Supply Corp. vs. Court of Appeals, (1982) it was categorically held
that an action for unlawful detainer cannot be abated or suspended by an action filed by the
defendant-lesseee to judicially enforce his right of preemption. (Yuki, Jr. vs. Co, supra.)

20.7 Q. In resolving the issue of possession in an ejectment case who is preferred, the
registered owner with Torrens title or the transferee under an unregistered Deed of
Sale?

A. In Endaya vs. Villaos (782 SCRA 374, 27 January 2016), the Supreme Court cited several
rulings when it held that: In resolving the issue of possession in an ejectment case, the
registered owner of the property is preferred over the transferee under an unregistered
deed of sale.

208. Q. Is Motion to Dismiss permissible in cases covered by the Rules of Summary

Procedure?

A. In the case of Victorias Milling Co., Inc. vs. Court of Appeals (622 SCRA 131, 29 June
2010), the Supreme Court emphasized that:

The Rule on Summary Procedure, by way of exception, permits only a motion to dismiss
on the ground of lack of jurisdiction over the subject matter but it does not mention the
ground of lack of jurisdiction over the person. It is a settled rule of statutory construction
that the express mention of one thing implies the exclusion of all others. Expressio unius est
exclusio alterius. From this it can be gleaned that allegations on the matter of lack of
jurisdiction over the person by reason of improper service of summons, by itself, without a
convincing showing of any resulting substantive injustice, cannot be used to hinder or stop
the proceedings before the MCTC in the ejectment suit.

With more reason, such ground should not be used to justify the violation of an express
prohibition in the rules prohibiting the petition for certiorari.

209. Q. What is the purpose of the rule on summary procedure?

A. The purpose of the Rule on Summary Procedure is to achieve an expeditious and

inexpensive determination of cases without regard to technical rules. (Victorias Milling
Co., Inc. vs. Court of Appeals, supra.)

210. Q. Is a petition for certiorari prohibited under the Rule on Summary Procedure? Why?

A. In Victorias Milling Co., Inc. vs. Court of Appeals, supra, the SC said that: Weighing the
consequences of continuing with the proceedings in the MCTC as against the consequences
of allowing a petition for certiorari, it is more in accord with justice, the purpose of the Rule
on Summary Procedure, the policy of speedy and inexpensive determination of cases, and
the proper administration of justice, to obey the provisions in the Rule on Summary
Procedure prohibiting petitions for certiorari.

211. Q. What is the ministerial duty of the court when a judgment becomes final and
executory?

A. When a judgment becomes final and executory, it is the ministerial duty of the court to issue
a writ of execution to enforce the judgment. (Palileo vs. Planters Development Bank,
738 SCRA 2, 8 October 2014.)

212. Q. When is execution of judgment a matter of right?

A. Execution will issue as a matter of right (a) when the judgment has become final and
executory; (b) when the judgment debtor has renounced or waived his right of appeal; or
(c) when the period for appeal has lapsed without an appeal having been filed. (Palileo vs.
Planters Development Bank, supra.)

213. Q. What stage of the proceedings in ejectment may be stayed by perfecting an appeal,
posting of supersedeas bond and periodically depositing the rentals?

A. In Philippine National Bank vs. DKS International, Inc. (610 SCRA 603, 22 January
2010), the Supreme Court cited the ruling in Uy vs. Santiago, (2000) that it is only the
 51

execution of the MeTC or Municipal Trial Courts’ judgment pending appeal with the RTC
which may be stayed by compliance with the requisites provided in Section 19, Rule 70 of
the Rules of Court.

RULE 71
CONTEMPT

214. Q. Is the filing of a pleading by a party litigant insinuating derogatory and malicious
statements against the Judge constitute contempt?

A. Yes. In Cruz vs. Gingoyon (658 SCRA 254, 28 September 2011), the Supreme Court held
that: A pleading containing derogatory, offensive or malicious statements submitted
to the court or judge in which the proceedings are pending is equivalent to
“misbehavior committed in the presence of or so near a court or judge as to interrupt
the proceedings before the same” within the meaning of Rule 71, §1 of the Rules of
Court, and therefore, constitutes direct contempt.

215. Q. Define contempt of court.

A. Contempt of court is defined as a disobedience to the court by acting in opposition to

its authority, justice, and dignity. It signifies not only a willful disregard or disobedience
of the court’s order, but such conduct which tends to bring the authority of the court and
the administration of law into disrepute or, in some manner, to impede the due
administration of justice. It is a defiance of the authority, justice, or dignity of the court
which tends to bring the authority and administration of the law into disrespect or to
interfere with or prejudice party-litigants or their witnesses during litigation. (Digital
Telecommunications Philippines, Inc. vs. Cantos, 710 SCRA 514, 25 November 2013.)

216. Q. Can a respondent be convicted for indirect contempt based on the pleadings alone?

A. No. In the case of Silverio, Sr. vs. Silverio, Jr. (730 SCRA 152, 18 July 2014), it was held
that the respondent in an indirect contempt charge may not be convicted on the basis of
written pleadings alone.

Sections 3 and 4, Rule 71 of the Rules of Court, specifically outline the procedural requisites
before the accused may be punished for indirect contempt. First, there must be an order
requiring the respondent to show cause why he should not be cited for contempt. Second,
the respondent must be given the opportunity to comment on the charge against him.
Third, there must be a hearing and the court must investigate the charge and consider
respondent's answer. Finally, only if found guilty will respondent be punished accordingly.
The law requires that there be a charge in writing, duly filed in court, and an opportunity
given to the person charged to be heard by himself or counsel. What is most essential is that
the alleged contemnor be granted an opportunity to meet the charges against him and to
be heard in his defenses. This is due process, which must be observed at all times.

217. Q. How is the charge for indirect contempt initiated?

A. The case of Ladano vs. Neri (685 SCRA 134, 12 November 2012) is instructive in this wise:

A charge for indirect contempt, such as disobedience to a court’s lawful order, is initiated
either motu proprio by order of or a formal charge by the offended court, or by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. It cannot be initiated by a mere motion.

218. Q. Where should the charge for indirect contempt be filed?

A. Sections 4 and 5, Rule 71 of the Rules of Court state, respectively, that proceedings for
indirect contempt may be initiated motu proprio by the court against which the contempt
was committed and where the charge for indirect contempt has been committed against a
Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed
by it, the charge may be filed with such court.

Contempt proceedings are sui generis and are triable only by the court against whose
authority the contempts are charged; the power to punish for contempt exists for the
 52

purpose of enabling a court to compel due decorum and respect in its presence and due
obedience to its judgments, orders and processes and in order that a court may compel
obedience to its orders, it must have the right to inquire whether there has been any
disobedience thereof, for to submit the question of disobedience to another tribunal would
operate to deprive the proceeding of half its efficiency.

Section 4, Rule 71 of the Rules of Court provides, in effect, that a charge for indirect
contempt must be filed with the court contemned. Although this provision is permissive
in nature, in the event of concurrent jurisdiction over cases of contempt of court, it would
be a good practice to acknowledge the preferential right of the court against which the act
of contempt was committed to try and punish the guilty party. (Angeles vs. Court of
Appeals, 735 SCRA 82, 15 September 2014.)

219. Q. Is a contempt charge a criminal action?

A. No. Contempt is not a criminal offense. However, a charge for contempt of court partakes
of the nature of a criminal action. Rules that govern criminal prosecutions strictly apply to
a prosecution for contempt. In fact, Section 11 of Rule 71of the Rules of Court provides that
the appeal in indirect contempt proceedings may be taken as in criminal cases.

The SC further said that: An alleged contemner should be accorded the same rights as that
of an accused. Thus, the dismissal of the indirect contempt charge against respondent
amounts to an acquittal, which effectively bars a second prosecution. (Digital
Telecommunications Philippines, Inc. vs. Cantos, supra.)

220. Q. For contempt against quasi-judicial bodies, where should the charge be filed?

A. In the case of Trinidad vs. Fama Realty, Inc. (792 SCRA 295, 6 June 2016), it was held
that:

Where contempt is committed against quasi-judicial entities, the filing of contempt charges
in court is observed only when there is no law granting contempt powers to these quasi-
judicial entities.

The Supreme Court, citing the case of Robosa vs. National Labor Relations Commission
(First Division, 2012), explained that Rule 71 of the Rules of Court does not require the
labor arbiter or the NLRC to initiate indirect contempt proceedings before the trial court.
This mode is to be observed only when there is no law granting them contempt powers. As
is clear under Article 218(d) of the Labor Code, the labor arbiter or the Commission is
empowered or has jurisdiction to hold the offending party or parties in direct or indirect
contempt.

Thus, it applies to the HLURB as well; to restate, where contempt is committed against
quasi-judicial entities, the filing of contempt charges in court is allowed only when these
quasi-judicial entities are not by law granted contempt powers. Executive Order No. 648,
the HLURB Charter, grants the HLURB Board the power to cite and declare any person,
entity or enterprise in direct or indirect contempt "whenever any person, entity or
enterprise commits any disorderly or disrespectful conduct before the Commission or in
the presence of its members or authorized representatives actually engaged in the exercise
of their official functions or during the conduct of any hearing or official inquiry by the said
Commission, at the place or near the premises where such hearing or proceeding is being
conducted with obstruct, distract, interfere or in any other way disturb, the performance of
such functions or the conduct of such hearing or proceeding;" or "whenever any person,
enterprise or entity fails or refuses to comply with or obey without justifiable reason, any
lawful order, decision, writ or process of the Commission.
 53

IV.
SPECIAL PROCEEDINGS

221. Q. What is the purpose of the Rules on Writ of Kalikasan?

A. The Rules on Writ of Kalikasan was issued by the Supreme Court pursuant to its power to
promulgate rules for the protection and enforcement of constitutional rights, in
particular, the individual’s right to a balanced and healthful ecology. (Paje vs. Casiño,
749 SCRA 39, 3 February 2015.)

222. Q. What is the nature of the Writ of Kalikasan?

A. Section 1 of Rule 7 provides that the writ is a remedy available to a natural or juridical
person, entity authorized by law, people’s organization, nongovernmental organization, or
any public interest group accredited by or registered with any government agency, on
behalf of persons whose constitutional right to a balanced and healthful ecology is
violated, or threatened with violation by an unlawful act or omission of a public official
or employee, or private individual or entity, involving environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces. (Paje vs. Casiño, supra.)

223. Q. What is the purpose of the Writ of Kalikasan?

A. As a special civil action and thus, conceptualized as an extraordinary remedy, it aims to

provide judicial relief from threatened or actual violation/s of the constitutional right
to a balanced and healthful ecology of a magnitude or degree of damage that
transcends political and territorial boundaries. It is intended “to provide a stronger
defense for environmental rights through judicial efforts where institutional arrangements
of enforcement, implementation and legislation have fallen short” and seeks to address the
potentially exponential nature of large-scale ecological threats. (Paje vs. Casiño, supra.)

224. Q. If the petition is granted, what are the reliefs that the court may grant under the writ?

A. Within sixty (60) days from the time the petition is submitted for decision, the court shall
render judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:
 54

(a) Directing respondent to permanently cease and desist from committing acts or neglecting
the performance of a duty in violation of environmental laws resulting in environmental
destruction or damage;

(b) Directing the respondent public official, government agency, private person or entity to
protect, preserve, rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity to
monitor strict compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or entity
to make periodic reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners.

225. Q. Can the validity of an Environmental Compliance Certificate (ECC) be challenged via
a writ of kalikasan?

A. Yes. The writ of kalikasan is principally predicated on an actual or threatened violation of

the constitutional right to a balanced and healthful ecology, which involves environmental
damage of a magnitude that transcends political and territorial boundaries. A party,
therefore, who invokes the writ based on alleged defects or irregularities in the issuance of
an Environmental Compliance Certificate (ECC) must not only allege and prove such defects
or irregularities, but must also provide a causal link or, at least, a reasonable connection
between the defects or irregularities in the issuance of an ECC and the actual or
threatened violation of the constitutional right to a balanced and healthful ecology
of the magnitude contemplated under the Rules.

226. Q. What is the evidentiary value of the expert’s testimony in environmental cases?

A. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the
court in view of all the facts and circumstances in the case and when common
knowledge utterly fails, the expert opinion may be given controlling effects. The
problem of the credibility of the expert witness and the evaluation of his testimony is left
to the discretion of the trial court whose ruling thereupon is not reviewable in the absence
of an abuse of that discretion. (Paje vs. Casiño, supra.)

227. Q. Can a party raise question of fact on appeal of environmental cases to the Supreme
Court?

A. Yes. Section 16, Rule 7 of the Rules of Procedure for Environmental Cases expressly
provides that:

Section 16. Appeal.– Within fifteen (15) days from the date of notice of the adverse
judgment or denial of motion for reconsideration, any party may appeal to the Supreme
Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact.

The Rules on Writ of Kalikasan allow the parties to raise, on appeal, questions of fact— and,
thus, constitutes an exception to Rule 45 of the Rules of Court— because of the
extraordinary nature of the circumstances surrounding the issuance of a writ of
kalikasan. (Paje vs. Casiño, supra.)

228. Q. In environmental cases, can the court suspend its rules in order to render substantial
justice?

A. Yes. A court has the power to suspend its rules of procedure in order to attain substantial
justice so that it has the discretion, in exceptional cases, to take into consideration matters
not originally within the scope of the issues raised in the pleadings or set during the
preliminary conference, in order to prevent a miscarriage of justice. In the case of Paje vs.
Casiño, supra, the importance of the signature cannot be seriously doubted because it goes
into the consent and commitment of the project proponent to comply with the conditions
of the ECC, which is vital to the protection of the right to a balanced and healthful ecology
of those who may be affected by the project.
 55

229. Q. Cite the differences between a Rule 65 certiorari petition and Rule 7 kalikasan
petition.

A. Justice Velasco, in his concurring opinion in Paje vs. Casiño, supra, has this to say: The
advent of A.M. No. 09-6-8-SC brought about significant changes in the procedural rules that
apply to environmental cases. The difference on eight (8) areas between a Rule 65
certiorari petition and Rule 7 kalikasan petition may be stated as follows:

1. Subject matter. Since its subject matter is any “unlawful act or omission,” a Rule 7 kalikasan
petition is broad enough to correct any act taken without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction which is the subject
matter of a Rule 65 certiorari petition. Any form of abuse discretion as long as it constitutes
an unlawful act or omission involving the environment can be subject of a Rule 7 kalikasan
petition. A Rule 65 petition, on the other hand, requires the abuse of discretion to be “grave.”
Ergo, a subject matter which ordinarily cannot properly be subject of a certiorari petition
can be subject of a kalikasan petition.

2. Who may file. Rule 7 liberalized the rule on locus standi, such that availment of the writ of
kalikasan is open to a broad range of suitors, to include even an entity authorized by law,
people’s organization or any public interest group accredited by or registered with any
government agency, on behalf of persons whose right to a balanced and healthful ecology is
violated or threatened to be violated. Rule 65 allows only the aggrieved person to be the
petitioner.

3. Respondent. The respondent in a Rule 65 petition is only the government or its officers,
unlike in a kalikasan petition where the respondents may be a private individual or entity.
4. Exemption from docket fees. The kalikasan petition is exempt from docket fees, unlike in
a Rule 65 petition. Rule 7 of RPEC has pared down the usually burdensome litigation
expenses.

5. Venue. The certiorari petition can be filed with (a) the RTC exercising jurisdiction over the
territory where the act was committed; (b) the Court of Appeals; and (c) the Supreme Court.
Given the magnitude of the damage, the kalikasan petition can be filed directly with the
Court of Appeals or the Supreme Court. The direct filing of a kalikasan petition will prune
case delay.

6. Exhaustion of administrative remedies. This doctrine generally applies to a certiorari

petition, unlike in a kalikasan petition.

7. Period to file. An aggrieved party has 60 days from notice of judgment or denial of a motion
for reconsideration to file a certiorari petition, while a kalikasan petition is not subject to
such limiting time lines.

8. Discovery measures. In a certiorari petition, discovery measures are not available unlike
in a kalikasan petition. Resort to these measures will abbreviate proceedings.

It is clear that a kalikasan petition provides more ample advantages to a suitor than a Rule
65 petition for certiorari. A petition for a writ of kalikasan is a special version of a Rule 65
petition, but restricted in scope but providing a more expeditious, simplified and
inexpensive remedy to the parties.
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