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CIVIL PROCEDURE

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 JURISDICTION
1. There is what we call subject matter jurisdiction
2. Subject matter over the person of the plaintiff
3. Jurisdiction over the person of the defendant.
SUBJECT MATTER JURISDICTION
Note: Republic Act 7691
Case: Luis Gonzales vs. JGH land (November 2015)
Facts: Involves an intra corporate dispute. Pinagtatalunan dito
Intra corporate dispute, ngayon anong ginawa ng court? There
was a motion to dismiss saying that this court is not a special
commercial court. And because it is not a special commercial
court, that court had no jurisdiction, sabi niya hindi ka naman
court so wala kang jurisdiction so what did the court do? What
did the RTC do? The RTC dismissed the case.
Issue: WON there is jurisdiction
Note: please bear in mind this is what you call Special
Jurisdiction in relation to Original.
Ruling: From subject matter jurisdiction, as you know it is
conferred by law. Ang batas ang nagsasabi kung anong
husgado ang pwedeng humawak ng particular ng kaso. It is
only the law that confers jurisdiction.
How about exercise of jurisdiction? The Court said that an
RTC had jurisdiction for Intra corporate disputes. The RTC’s
jurisdiction for intra corporate disputes except that it is a
question of exercise of jurisdiction.
Can they exercise jurisdiction for special commercial courts?
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Answer: Exercise of jurisdiction is not a ground to dismiss the
case. In which case, nagkamali ng file, nagkamali din ‘yung
executive judge na hindi assign doon sa special commercial
court ‘di ba?
Dapat ba i-dismiss?
Answer: No. Because even under the intra corporate rules the
RTC has jurisdiction. But the SC said that it is just an exercise
of jurisdiction and therefore it should not result to a dismissal
of the case.
Remedy: That case should have been referred back to the
executive judge for further re-raffle or if there is no more
available Special Commercial Court in the next or nearest
judicial station, ‘yung pinakamalapit na judicial station, when I
say pinakamalapit na judicial station kunware ano QC then
Marikina. Depende na sa Executive Jusge ‘yun.
Note: Wrong exercise of jurisdiction does not lead to a
dismissal of the case.
Amounts to remember:
A. VALUE OF THE ESTATE
A. 1. In Metro Manila, exceeding 400,000.00 pesos
- Recovery of sum of money or any other claim involving
money, mahigit 400K RTC
A. 2. Outside of Metro Manila, exceeding 300,000.00.
- Mahigit 300K and Outside Metro Manila, RTC.
Note:
1. Distribution of estate, probate of the will, what determines
jurisdiction? It is the value of the estate.
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2. Marital claims
B. ASSESSED VALUE OF REAL PROPERTY
B.1 Amount exceeding 50,000.00 pesos in Metro Manila;
B.2 Amount exceeding 20,000.00 outside of Metro Manila.
Note: If may kaso sa Bar Exam involving title II, possession or
interest over real property; ito ang tatandaan niyo. Hindi ‘yung
500k and 300k.
Query: May kaso. Dinemanda regarding recovery of a piece of
land or recovery of possession; What determines jurisdiction?
Answer: Assessed value. Recovery over a piece of land,
recovery of possession.
Note: If it is purely an ejectment case, MTC. But if it involves
the real right of possession, accion publiciana, it is determined
by the assessed value of the property.
Query: How about quieting of title?
Answer:
Old rule: In the past prior to this case, or the case of Malana
vs Tappa sabi nila kahit “Quieting of Title” dictated by the
Assessed Value.
New Rule: Sabitsana vs Muertegui:
If it is Quieting of Title, it is always with the RTC.
In Rule 63: Declaratory relief.
There are two paragraphs in Section 1 Rule 63:
1. Refers to declaratory relief. Interpretation or determination
of validity of a will, deed, a written instrument or a law,
ordinance or governmental ordinance jurisdiction is with RTC.
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Case: Liga ng mga barangay vs Atienza, ‘yung mga ganyan
sasabihin mo, Court pwede bang pa-interpret mo ‘tong kaso
na ito, court pwede ang pa-interpret tong deed na ito? Paki-
interpret mo nga itong will na ito. Do you follow? Court, pak-
interpret mo nga ‘tong batas na ito, ordinansa na ito. That’s
declaratory relief. Where will you file? RTC.
2. Refers to other similar remedies.
Similar remedies:
A. Quieting of title;
B. Removal of cloud;
C. Reformation and consolidation.
Query: How about reformation?
Answer: Incapable of Pecuniary Estimation ‘yan eh; RTC.
Note: Basta incapable of pecuniary estimation, RTC ‘yun.
Query: How about judicial consolidation? Consolidation for
failure to redeem a Pacto de Retro sale.
Answer: That is all falling under the concept of incapable of
pecuniary estimation.
Query: How about expropriation?
Answer: Incapable of pecuniary estimation: RTC
Why? The law looks into the exercise of the right.
What is the difference of expropriation under the rules and that
of expropriation on eminent domain?
Eminent domain (Political law) is the concept, the procedure to
undertake that is by expropriation(Remedial law).
(See Far East Bank vs Shemberg and Ruby shelter case)
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Note: Tandaan niyo class kapag title II possession, basahin
niyo mabuti ‘yung tanong. Kasi class if the only intention is to
cancel a document, let’s say a Real Estate Mortgage, katulad
nitong Shemberg, Real Estate Mortgage. Ano ‘yun? It is not
capable of pecuniary estimation because it does not pass on
title.
So babasahin mo ‘yun, hindi porke’t may deed of sale or real
estate mortgage ay automatic ‘yun na assessed value.
Look for: What is the ultimate relief? (Look for the relief
prayed for.)
Note: If the ultimate relief is to pass on title, kunware pinapa-
cancel niya, rescission of Deed of Absolute Sale pero
effectively title is transferred back to you, ano ‘yun? Assessed
value kailangan mong i-determine. Pero kung ang gusto mo
lang based on the factual antecedent is to cancel the
document like a Deed of Sale, Deed of Assignment, Deed of
Real Estate Mortgage, without in any way transferring what?
Title II or possession, ano ‘yun? Incapable of pecuniary
estimation.
Query: How about in Family cases, annulment of marriage,
legal separation, nullity judicial separation of property, which
court has original jurisdiction?
Answer: RTC. Regardless of the value of the property of the
spouses, it is always with the RTC.
Query: How about custody?
Answer: RTC.
Query: How about violence against women and children?
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Answer: RTC. Hindi ‘yung criminal ha, ‘yung civil ang tinutukoy
ko.
Note: Ano pa? Jurisdiction ng RTC, those which would not fall
in any court. ‘yung hindi pumapatak sa kahit na anong
husgado. RTC ‘yun.
Note: Jurisdiction is conferred by law. For the judge to hear, try
and decide the case. So ‘yung judge na ‘yan walang halaga
kung walang batas na nagbibigay sakanya ng power to hear,
try and decide the case.
Now, for the judge to know whether he is to act within his
competent jurisdiction, ano? He has to look at the allegations
of the complaint, that is why there is also a concept that says
“jurisdiction is determined by the allegations of the complaint”.
Case: In one case, hindi nilagay sa complaint ‘yung assessed
value noong property. Basta sabi niya Recovery of
Possession. What did the court do? should that case be
dismissed? Yes. Because there is no way the judge can
determine if it has jurisdiction.
MTC JURISDICTION
- Opposite.
1. Therefore class if 400,000.00 lang sa Metro Manila: MTC.
2. 300,000.00 lang pababa outside of Metro Manila: MTC.
Assessed value
1. 50,000.00 below, Metro Manila: MTC
2. 20,000.00 below Outside Metro Manila: MTC.
Note: The following are dictated by the amounts:
1. Maritime claims
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2. That involving the estate of the deceased person
3. Distribution or probate. Ah class, ano ‘yun? That is dictated
by the amounts.
Query: How about in Ejectment cases?
Answer: For ejectment cases, this is under the Rule on
Summary Procedure; RA 7691. Regardless of the amount of
the claim or unpaid rentals: MTC.
Query: What is the jurisdiction in a summary procedure for civil
cases?
Answer: In Summary procedure in Metro Manila, not
exceeding 200,000.00 pesos. Outside of Metro Manila not
exceeding 100,000.00 pesos.
Query: What if the value of the estate subject of distribution or
the estate subject of the will to be probated is in the amount of
150,000.00 in Metro Manila because that is the place where
the decedent last resided at the time of his death? Will it fall
under the rule of summary procedure?
Answer: No. Pagdating sa estate class ang probate hindi sin-
summary procedure ‘yun. It has its special rules.
Query: Papaano naman ‘yung small claims?
Answer: Not exceeding 200,000.00 and please take note it
must be PURELY civil in nature.
Examples:
1. Contract of services
2. Contract of Sale
3. Contract of Mortgage.
4. Mga pautang or recovery of sum of money not exceeding
200,000.00.
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5. Liquidated, not unliquidated, damages.
6. Enforcement of amicable settlement in the barangay level
under the LGC.
Summary:
1. Jurisdiction of the RTC as conferred by law;
2. Subject matter jurisdiction.
Note: You know the jurisdiction of the MTC? Which is
generally the opposite of my discussion on the RTC, but you
will add to that ejectment cases. You will also have to take
note Summary Procedure, the amount of not exceeding
200,000.00 in Metro Manila and not exceeding 100,000.00
outside Metro Manila. And please bear in mind that even if the
estate is of small value, within those amounts, still it will not fall
under the Rule on Summary Procedure. When you talk of
small claims, not exceeding 200,000.00 and it should be
purely civil in nature.
Mamaya may tatandaan kayo sa filing fee, ano ‘yun?
Kailangan daw kapag sa mga small claims na ‘yan i-dedeclare
mo na you are a lending or banking institution otherwise ma-
didismiss ang kaso mo or you will also be declared in
contempt.
JURISDICTION OF THE COURT OF APPEALS
(Rule 46 Section 1)
1. Certiorari;
2. Prohibition;
3. Mandamus;
4. Quo Warranto;
5. Habeas Corpus;
6. Writ Amparo;
7. Writ of Habeas Data;
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8. AMLA; fees within the reglementary period. Now that is appellate
9. and all others where the law specially confers jurisdiction to jurisdiction.
the Court of Appeals.
JURISDICTION OF THE SUPREME COURT
Query: Do you have original cases in the Court of Appeals? (Rule 56 section 1.)
Answer: Yes. Kasi ‘yung mga sinabi ko these are all original 1. Certiorari;
cases in the Court of Appeals. 2. Prohibition;
3. Mandamus;
Query: Do you have an Ordinary Civil Action in the Court of 4. Quo Warranto;
Appeals? 5. Habeas Corpus;
Answer: No. 6. Disciplinary action against member of the bench, members
Note: Every Ordinary Civil Action should have a cause of of the bar, Actions against ambassadors, ministers and
action. Saan ang file nun? Trial Court, hindi nag-eentertain ministers plenipotentiary.
ang Court of Appeals ng kaso na Ordinary Civil Action.
However, the CA has what you call Original cases or Original Query: Does the SC have jurisdiction over the constitutionality
Jurisdiction. So meron original pero wala sa Ordinary civil of a law? Treaty? Executive agreement? Or an Ordinance?
action. Answer: Yes. Nasa Constitution.

Appealed cases
CA has jurisdiction.
Query: What do you mean by appellate jurisdiction?
Answer: It means only that an appellate court will acquire
jurisdiction under the following circumstance:
1. You file the appeal within the proper reglementary period;
2. You pay the documentary period within the proper
reglementary period.
Note:Those to requirements must be followed for an appellate
court to have an appellate jurisdiction.
Please bear that in mind. Nasa Rule 40 ‘yun section 5 at Rule
41 Section 4, makikita niyo ‘yan na you have to pay docket
Query: Does the SC have jurisdiction over the validity of a tax
imposition?
Answer: Yes. It is not in the Rules of Court it is in the
Consitution.
CONCURRENT JURISDICTION
Note: But please, bear this in mind, when you talk about
concurrent jurisdiction you will have to respect the hierarchy of
courts. Hindi pwedeng nasa RTC ka dumiretso ka sa SC on a
Rule 65 Certiorari, unless it is on what? A pure question of
law. Iba ‘yun, ‘yun ang tinatawag natin na concurrent
jurisdiction. But the very moment one court acquires

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jurisdiction it excludes other courts. That’s what you call
subject matter jurisdiction.
Note: Lack of jurisdiction over the subject matter is a ground
for a motion to dismiss.
Query: When do you raise lack of jurisdiction over the subject
matter?
Answer: In an answer or in a motion to dismiss under Rule 16.
Query: Paano kapag hindi napansin, hindi nabasa ‘yung
pleading; ngayon ko lang na-realize. Nagsagutan na, nag-pre
trial na. naku wala palang jurisdiction ‘tong husgado na ‘to”
can you file a motion to dismiss? Answer:
GR: YES. Because this is one of only four grounds that will
survive after the filing of a motion to dismiss or an answer.
Lack of subject matter jurisdiction could be raised at any time
even on appeal. That is the general rule. Kapag nakita mo “uy
walang jurisdiction” motion to dismiss. Okay nag-ttrial na
walang jurisdiction, motion to dismiss. Appeal na, walang
jurisdiction, motion to dismiss. But you have to remember that
is only the general rule.
EX: Until you are barred by laches on question of jurisdiction.
Case: Tijam vs Sibonghanoy
Facts: Ang ginawa kasi ng mga mokong na ‘yun, sumagot
nag-participate, sumali sa proceedings, umabot ng mahigit
isang dekada, tira dito, tira doon wala naman sinsabing lack of
jurisdiction. Tapos noong natalo, lack of jurisdiction. Kaya
lumabas ‘yang doktrina na ‘yan kasi inaabuso ‘yung question
of jurisdiction.
Ruling: The general rule, at anytime if the court has no
jurisdiction you can raise. But somehow they have abused it,
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so the SC placed an exception. Pero kapag, I have
participated in the proceedings, you have availed of remedies
under the law, you are barred by laches on questions of
jurisdiction. That is the case of Tijam vs Sibonghanoy.
Query: In summary procedure can you file a motion to dismiss
on the ground of lack of subject matter jurisdiction?
Answer: YES.
GR: Motion to dismiss is a prohibited pleading.
Ex: Subject matter jurisdiction or failure to refer the matter on
prior barangay conciliation.
Note: Sa small claims walang exception. Basta walang motion
to dismiss ng statements of claims, ang tawag nila doon
statement of claims. Sa summary procedure meron. Sa small
claims walang qualification, motion to dismiss statement of
claim is a prohibited pleading.
SPECIAL JURISDICTION
Note: that goes to the exercise of jurisdiction;
Examples on courts having special jurisdiction:
1. Family courts;
2. Special Commercial courts; (Intellectual property courts)
3. Drugs court
4. Environmental Courts.
- These Courts have their general and original jurisdiction,
except that there is a law that further gives the RTC special
jurisdiction. Hindi lang iniisip ng SC “Gusto ko siya special
court” there is a law, that gives the SC that power to create f to
assign special courts. For example, itong mga nasa harap ko
mga judge ng QC itong 3 row na ‘to. Dahil may mga batas na
sinasabi Drugs court, environmental court, small calims court.
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Ang gagawin ng SC mag-aassign siya, ito ito ito. So aside
from handling ordinary cases within his jurisdiction he is also
to handle special cases by reason of his special jurisdiction.
FILING FEES
-Ito naman jurisdiction over the person of the plaintiff.
( see Rule 1 section 5)
You need to file an action or a complaint to commence the
action.
Tandaan niyo may complaint ka kailangan magbayad ka ng
filing fees. For the court to have jurisdiction over your case and
over the plaintiff.
Note: Filing fees also have an impact on jurisdiction, subject
matter in a sense.
For purposes of illustration: When you file a complaint it has a
body, caption, relief or prayer.
For purposes of determining filing fees: The Clerk of Court will
only look at the prayer, wala siyang pakialam sa complaint mo
hindi naman siya judge eh. (See Manchester case)
Case: Manchester
The SC was confronted with that problem because of the habit
of lawyers trying to evade payment of filing fees.
FACTS: ‘yung nakalagay sa body iba nakalagay sa prayer.
Nakita niyo? Kasi alam hindi binabasa eh. Edi ‘yung prayer
ang liit noong filing fee, bayad siya ngayon eh nahuli. Ang
ginawa niya nag-amend. Pero hindi parin binayaran ng buo.
RULING: Even if you amend in the first place the court had no
jurisdiction so there was nothing to amend. Besides, there was
an intent to defraud the government. Kapag may intention
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to defraud the government, dismissed. Walang jurisdiction ang
husgado.
Note: Kapag nakita “ay niloloko nito ang gobyerno, ay
dismissed with intent to defraud” tandaan niyo kapag abogado
na kayo kahit walang intent to defraud gagamitin niyo ‘yan.
Para lang maperwisyo ‘yung kalaban niyo. Pero class, ang
totoong pag-gamit niyan kung meron intent to defraud. And
again an intent to defraud is a question of fact.
Case: Sun Insurance.
FACTS: More or less pareho lang. hindi nag-jive or hindi
pareho ‘yung body tsaka prayer except that in the Sun
Insurance case, the Court was more reasonable, liberal and
fair.
RULING: Sabi kasi ng court, okay nag-amend siya, hindi
naman daw kasi gustong lokohin ang Gobyerno eh. Binayaran
niya ng tama.
Note: Nakita niyo class? ‘yun ang difference. Therefore, class
if there is a question that refers directly to intent to defraud the
government Manchester ‘yun, ibig sabihin dismissed ‘yun. But
when it comes to a situation where there was no intent to
defraud the government like for example “kulang ang bayad
eh” Situations like this are covered by the Sun Insurance
(Read case of Rivera vs del Rosario nagtiwala ako sa’yo eh,
binayaran ko lang naman kung anong in-assess mo sabi niya
sa Clerk. So there is no intention to defraud the government.)
Note: In which case, if there is deficiency you will be allowed to
pay and there is no intent to defraud the government the first
scenario you will be required to pay within the proper
reglementary period or prescriptive period.
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(Prescriptive period that period when you are to enforce your
claim.)
Query: Are you to pay filing fees for a compulsory
counterclaim? How about permissive counterclaim?
(Rule 141 section 7)
Answer: The Sun Insurance case said kasi that you are to pay
filing fees for a permissive counterclaim. It did not cover
compulsory counterclaim because that was before the
amendment of Rule 141 in 2004. It was before 2004 when
Rule 141 was amended, so ang nakalagay lang sa
jurisprudence permissive; bayad kang filing fees. At that time
the provision of the rule clearly does not include compulsory
counterclaim as a claim where you will be assessed filing fees.
However, nang mag Rule 141 ang immediate impression
expressly stated d’yan sa provision, that you are to pay filing
fees on a compulsory counterclaim.
In compulsory counterclaim you are not required (Read case
of Korean Technologies(2008) sabi express ‘yung Rule 141
section 7, so students and professors read it as you are to
pay. But the SC clarified it in 2009 that there is no required
filing fees for a compulsory counterclaim.)
I. LIEN ON THE JUDGMENT AWARD
Query: In what instance can we say that there is a lien on the
judgment award?
Answer: In the following instances:
1. When the court awards something that is not claimed, nag-
award eh.
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2. The interest has accrued during the pendency of the case.
(Read case of Proton Filipina)
Note:Hindi porke’t hindi ka nagbayad entitled ka doon sa
pangatlong rule na ‘yun. Do you follow? Mag-kikick in lang
‘yung rule na ‘yun kung nag-award ‘yung Court ng hindi mo
hinigi. Or meron kang claims na nag-ripen doon sa pendency
noong action. But if this were claims which were already ripe
and already available to you at the filing of the complaint you
should have paid the same. Otherwise you would be faced
with either the Manchester or Sun Insurance
Case: Dual Metals vs. Security Bank:
FACTS: May finile na kaso, there was a subsequent
supplemental complaint. Sa unang case, dinemanda niya
‘yung bagko, so na-podlock, kaya lang may mga properties na
nakuha so nag-file siya ng supplemental complaint.
ISSUE: Do you need to pay filing fees for the supplemental
complaint? So that the court will acquire jurisdiction?
RULING: Yes. Kapag hindi mo binayaran ‘yung filing fees for
the supplemental complaints the court will only award on the
original complaint. Not the supplemental complaint, the court
will not award because you did not pay filing fees.
Case: Unicapital vs. Consing:
FACTS: Contains a situation of a metered claim for damages.
Kasi nagkalokohan. May mag-ina nagbenta ng lupa, hindi
naman pala kanila. Tapos nagdemandahan, nagalit ‘yung
kumapanya kasi binebentahan niyo ako ng lupa hindi mo
naman lupa. Ngayon hinahabol sila, the company wanted the
return of the money. Alam niyo naman ang collection ngayon,
tatakutin ka ‘di ba? Tatawagan ka? I-dedemand letter ka
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ganun. ‘yun and ginawa sakanila. So anong ginawa noong
mag-ina? Nag-file ng kaso, sabi nila ‘yung ginawa niyo sa’min
damages ‘yan at ‘yung bayad dapat d’yan 3M kada buwan.
Ang lupit ‘di ba? Metered claim nga eh. So sabi noong
Unicpital “aba teka lang, kalokohan ‘yan. Hindi naman pwede
‘yan, 3M kada buwan. That should be dismissed because of
what? Non-payment of the correct filing fees. You should’ve
paid”
RULING: Okay lang, that will be lien on the judgment award if
ever it is awarded.
Note: Gusto ko tandaan niyo class payment of filing fees has
an impact on jurisdiction of subject matter. Because sa subject
matter jurisdiction RTC has jurisdiction over cases incapable
of pecuniary estimation. Sa Rule 141, kapag incapable of
pecuniary estimation ang filing fee nun ay fixed amount. Kaya
lokong-loko sila d’yan sa incapable of pecuniary estimation,
like rescission, specific performance, annulment of Contracts.
Kasi ‘yun class fized amount ‘yun. Kaya lokong-loko sila.
Bakit? Makakatipid ka eh. So, sa subject matter jurisdiction,
incapable of pecuniary estimation sa filing fee importante din
‘yun kasi you have a fixed amount of filing fees.
Illustrative of the incapable of pecuniary estimation
Case: Mijares vs Ranada:
FACTS: The victims of the Human Rights violations won in a
foreign court in the court of Hawaii so they filed for an action
for enforcement of foreign judgment in Makati, so ang
pinagtatalunan dito ay filing fee, sabi dito noong nag-eenforce
ng judgment ‘yung mga victims, sila Mijares “ang bayad ko
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lang ho dito ay fixed amount. Because it is incapable of
pecuniary estimation” ano naman sabi ng estate of Marcos
“hindi, nakita mo naman milyon ‘yan eh, tapos sasabihin mo
hindi ‘yan capable of pecuniary estimation?” do you follow?
Anong ginawa ni Judge? “oo nga, capable of pecuniary
estimation” umakyat ‘yan ng SC nakita niyo? Anong ngayon
sabi ng SC? “Sandali nga, pag-usapan natin ‘yan” okay ikaw
petitioner sabi mo incapable of pecuniary estimation, hindi
naman eh kasi nakita mo may value nga naman. Sabi naman
niya dito sa claim ng estate of Marcos, hindi ka naman
completely tama eh. Bakit? Because if you look at Section 7;
“Those claims on the estate other than by judgment” eh ito
may judgment na eh, so hindi na dapat magbayad ng filing fee
ganun.
RULING: Those other claims arising from property, under
section 7, hanapin niyo parang C or B ata. You are still to pay
a fixed amount. Although, the SC did not sustain the claim for
purposes of filing fee, that it is incapable of pecuniary
estimation.
Query: Where to file enforcement of foreign judgment?
Answer: RTC.
II. INDIGENT
Case: Algura vs the Local Government of Naga:
Doctrine: This is the rule if someone claims that he is an
indigent you have to look at Rule 141 Section 19. That defines
today who is an indigent, (indigent is someone whose income
and that of his immediate family does not exceed double the
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monthly minimum wage and does not have real property with
FMV not exceeding 300,000.00 pesos).
RULING: If you fall exactly on the definition you are an
indigent. However, if your salary does not exceed the doubled
monthly minimum wage but you won real property because
you inherited a house worth 1M, labas ka sa definition niya,
you can still ask to be declared as an indigent.( Rule 3 Section
21)
Indigency test means that your income is not sufficient for your
food and shelter and other basic necessities, dapat i-convince
mo ‘yung court, that is left to the discretion of the court.(Rule 3
Section 19)
Query: Bakit gustong-gusto nila maging indigent?
Answer: Kasi hindi ka magbabayad ng filing fee but it will be a
lien on the judgment award. And libre ang transcript. At the
end of the day you will not pay filing fees for now but if you win
it will have lien on the award. But for our stenographers thank
you nalang.
Note: ‘yung standard of PAO that’s for purposes of them
handling the cases of litigants. PAO para ma-represent kita
meron silang standards doon in terms of monthly income,
status, employment. You will have to pass that test. But in the
eyes of the law, for purposes of filing fee iba ang uspaan.
Kapag filing fee ang pinag-uusapan kalimtan niyo ‘yung PAO.
‘yung sa PAO kung hahawakan ko or hindi ko hahawakan
‘yan. Kasi class pwede kong hawakan ‘yan pero sa standard
ng batas magbabayad ka padin ng filing fees. That’s different,
what we’re discussing is indigent for purposes of payment or
non-payment of filing fees in the meantime.
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Query: May filing fee ka ba sa Writ of Amparo?
Answer: Wala.
Query: May filing fee ka bas a Writ of Habeas Data?
Answer: Yes, unless you are an indigent.
Query: Paano if a person has claims exceeding 5 claims at a
single instance?
Answer: Kapag mahigit 5 ‘yung claim mo, 500 kada-claim
kapag mahigit 10 ang claim mo, kada-claim plus 100
(600,600,600) Maliwanag? kapag mahigit 15 ang claim mo
plus 100 ulit. (700,700,700)(See rule on small claims)
Note: What needs to be declared?
1. A banking or lending institution, otherwise dismissed and
held liable for contempt.
2. ‘Yung number of claims mo. Bakit? Makakaapekto ‘yun
class kasi ‘yung filing fees.
JURISDICTION OVER THE PERSON OF THE DEFENDANT
Query: How does the court acquire jurisdiction over the person
of the defendant?
Answer: Upon proper service of summons. Kailangan tama
‘yung paraan ng pag-summons. para easy guidance.
Query: Paano kung tao? Paano kung juridical entity ang
defendant?
Answer:
Individual: You have to serve it personally. If he refuses to
accept it, you will have to tender. if he is not there, you will
have to do a substituted service of summons.
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Juridical person: You have to distinguish domestic from
foreign.
Domestic (Section 11 of Rule 14)
president, general-manager, managing partner, corporate
secretary, treasurer corporate in-house counsel.
Foreign
(Section 12 Rule 14)
1. If he has authorized agents or representatives in the
Philippines doon mo ibbigay.
2. However, if it is not transacting business in the Philippines,
obviously wala siyang opisina dito, not transacting business in
the Philippines, this is section 12, Rule 14 second paragraph.
With leave of Court by Fax, email or other electronic means or
by other publications in the place where the defendant
corporation holds office. And service by registered mail in his
last known address.
3. That the service of summons be coursed through and with
the assistance of DFA.
Note: Even if the summons is improperly served but you
voluntarily submitted to the jurisdiction of the court, okay lang
na mali ‘yung service. “sir, paano nangyare ‘yun na I
voluntarily submitted to the jurisdiction of the Court?” aba,
improper service of summons sumagot ka. Hindi mo ni-raise
‘yung ground. Because the improper service of summons is
waivable. Lack of jurisdiction over the person of the defendant
unlike over the subject matter is waivable. Subject matter
jurisdiction is not waivable. Therefore, improper service of
summons sagot ka ng answer. Wala na. file ka ng motion for
extension of time to file an answer, wala ka na. Because you
TANNER NOTES
sought affirmative relief. Or you appeared in court without
qualifying your appearance, you are considered to have
submitted to the jurisdiction of the court.
Case: Dy vs Palamos:
(This is an illustration of hierarchy of courts or an exception on
the rule on hierarchy of courts.)
FACTS: ‘yung mag-asawa nang-utang ang ginawan collateral
vessel. Anong nangyare, tagal noong case. Sabi noong nag-
pautang wala ka na ha default ka na. sabi noong mag-asawa
hind ah hindi pa. so lumaban ‘yung mag-asawa inabot ng
halos 20 years. Umabot sa SC. Tama kayo walang default, so
eventually dapat ibalik sakanila ‘yung collateral kaya lang in
the span of 20 years lumubog ‘yung barko, inahon ‘yung
barko, napunta sa 3rd party. Ngayon noong binalik sa RTC
‘yung case for purposes of execution noong case, ang sinabi
you have to return the vessel. Ngayon sabi noong mag-asawa
sandali lamog na ‘yun bakit ko tatanggapin? Sabi noong
company babalik ko sa’yo kaya lang ito na ‘yun. ‘yan na ‘yung
condition. Sabi nila hindi pwede but the judge was
implementing what the court said right? Sabi sa Rule a
judgment is immutable and unalterable. A judge cannot
change the judgment of the SC if it has attained finality.
Whatever judgment it is. if it is final and executor it is
immutable or unalterable. Unless it is what? There are clerical
or typographical errors, the judgment is null and void, or it is a
nunc pro tunc judgment, okay? So ayaw niyang tanggapin.
Anong ginawa nila? From the RTC, they were not in
agreement with the finding of the judge kasi the judge simply
wanted to implement the decision. What they did, is instead of
going to the CA to question the writ of execution order granting
13
the writ of execution they went directly from the RTC to the
SC.
RULING: ‘di ba pinag-usapan natin kanina hierarchy of
courts? There are some exceptions. There are instances
where the court has allowed a direct resort to the SC from a
finding of the RTC, like from example the right of the party has
been extremely violated when it has been pending for quite
some time and in the interest of justice substantial rights will
be protected as in this case. Class ang tagal na eh, and the
SC felt or realized that it would be best that they decide this
now rather than simply dismissed the case. So the SC used an
exception to the rule on the hierarchy of courts.
Case: Nisperos vs Ducusin:
(Case on Primary jurisdiction)
FACTS: Si Nisperos dumiretso sa Court na dapat umakyat pa
sa Sec. of DAR. Pinag-aawayan dito is a tenanted land. Galing
sa Agency ng ng government, dapat from DARAB makyat sa
Secretary of DAR, dumiretso siya sa CA on a Rule 43.
ISSUE: Anong value ng primary jurisdiction?
RULING: The court will not dismiss but will refer it to the
agency who has primary jurisdiction and in this case Secretary
of DAR has primary jurisdiction. So I would want you to
remember the rule on Primary jurisdiction.
Case: Chua vs Alliance select foods (March 2017)
FACTS: Pinag-aawayan dito sa RTC stockholders meeting.
Sabi niya “tagal mo na ha, hindi ka pa nagtatawag ng
stockholders meeting”’yun sabi ng grupo ni Chua. Hindiiiii,
TANNER NOTES
ayaw nila mag-tawag ng stockholders meeting, delay delay
delay, because they wanted some resolutions to be approved
first before the stockholders meeting. You are entitled to one
stockholders meeting every year. So pumapalag sila Chua.
Nag-file ng case. Anong sabi nila? “sandali, gusto ko lang
annual stockholder meeting” so nagbayad sila para lang sa
calling ng stockholders meeting and they were required to pay
a little over 5,000.00 pesos. Ayan na the defendants “nooo,
you should have paid more. Ang laki ng shares mo dito sa
company na ‘to. Bayad ka ng malaking filing fee” kasi sabi niya
isa sa mga issues mo d’yan sa calling ng stockholders
meeting ‘yung investments ng other investors. You’re calling
for a sockholders meeting bayad ka ng malaki. ‘yung magaling
na RTC judge, kinagat. Dismissed! You did not pay the court
filing fees, eto pa malupit. Anong sabi? You intended to
defraud the government. Umakyat sa CA, anong sabi ng CA?
hindi, they did not intend to defraud the government but they
still have to pay. Ang laki. Mga 10M pinapabayad sakanila
gusto lang nila ng stockholders meeting. ‘yun lang gusto nila.
RULING: Umakyat sa SC. Anong sabi? “sandal, sandali” it is
incapable of pecuniary estimation. Ang gusto lang naman nila
ay tumawag ng stockholders meeting. ‘yun lang naman gusto
nila pero nakita mo ‘yung hirap na inabot nila? Para lang
humingi ng stockholders meeting.
Note:That case said that the oft-repeated case of **Lou Lim**
says that every proper, every intra-corporate dispute has a
property in litigation, kaya nagkagulo dahil sa **Lou Lim** case
eh. The Court said that the case is only an obiter. So sabi ng
court, gamit kayo ng gamit. Nakalagay doon, in an orbiter lahat
dawn g intra-corporate may property in litigation. So you have
14
to valueeverything. The SC said, in the light of their most
recent resolution in 2016, SC said hindi lahat ng intra-coprate
dispute may property in litigation. That was confirmed by the
case of Chua vs Alliance.
ACTIONS
2 Kinds of Civil actions
1. Ordinary;
A. Every ordinary civil action should have a cause of
action.
Cause of action is a right of the plaintiff.
B. There is a duty of the defendant to respect that right
C. There is a breach or violation.
Note: When you talk about Ordinary, lahat ng pag-aaralan
natin mamaya na procedure covered ‘yun. From the filing of
the complaintuntil execution covered ‘yun.
2. Special
- It is not covered by a cause of action except ejectment cases
particularly unlawful detainer where the SC said that there is a
cause of action. But generally when you talk about special civil
actions you don’t have a cause of action.
Examples:
1. Declaratory relief no breach required.
2. Interpleader, no breach committed. Why? Because you are
simply asking the court to determined the rights of the
conflicting parties.
TANNER NOTES
Hypo: There are 2 ladies claiming to be married to the
deceased and I am the insurance company to whom the
deceased obtained an insurance policy. Namatay na si Mr.A;
nagyon dalawa ‘yung lumapit sa’kin, sabi nila “ako asawa” do I
have a casue of action against them? No. who will file the
action? Me. I will file it in court. Why? So that they could
interplead. Why do they need to interplead? So, I will not be
vexed. Dahil kapag nagkamali ako, baka ako pa idemanda ng
mga ‘yan. I have no cause of action against them. I bring them
to Court so they can interplead and let the Court determine
their rights so that they will not sue me.
The difference between an Ordinary and Special is apparent
1. In Ordinary civil actions there is always a cause of action
(Note: memorize the elements of cause of action.)
2. In Special civil actions, it requires no breach.
Examples of special civil actions:
1. Does expropriation require a breach of contract?
- No. all that the government would like to do is to
identify that property which is needed for public
purpose. Then what? Then pay the just compensation,
you don’t need a breach.
2. How about partition under Rule 69 do you need a breach?
- No.
However, there is one where the SC categorically stated that
there is a cause of action. In the case of Macaslang vs
Zamora; here the SC said that in a lawful detainer cases there
15
is a cause of action. And the cause of action arises when the
lessee violates his obligation under the lease contract and that
despite demands he refuses to comply and vacate in which
case that gives rise to a cause of action.
In terms of procedure:
Ordinary: Follow the procedure to be discussed
Special: covered by special rules.
Query: What do you mean covered by special rules?
- If there is a question about declaratory relief, you go to
declaratory relief. If inadequate supplement it with
ordinary procedure
- If you have a case on partition, apply special rules and
if inadequate apply orinary suppleatorily
- If you talk of Interpleader, you go to the special rules
and if inadequate you go to the ordinary.
GR: Rules of Court applies in all court
EX: as otherwise provided for by law.
• (twin provision in Evidence) See RULE 128 sec 2. The
rules on evidence apply in all courts except as
otherwise provided for by law
What is a civil action?
• Tip: Memorize what a civil action is
It is necessary for an enforcement or protection of a right or
prevention or redress of a wrong. It practically covers
everything. When your right has been violated you want it
enforced or you wantyour right to be protected or in certain
instances you want the violation to stop or prevented or there
TANNER NOTES
are also instances when the wrong has already been
committed in which case you want redress from the court.
When do you say that an action is a criminal action?
- Is it when an action is instituted in the office of the
prosecutor? Is it when an action is instituted in the
office of the Ombudsman? is it a criminal action in that
point in time? NO
- It is a criminal action when the information is filed in
court and the state is ready to prosecute. At the level of
the Prosecutor or in the Ombudsman the procedure is
only for purposes of determining probable cause.
Whether it exists.
Can the office of the Prosecutor, in anticipation of a future
proceeding, conditionally examine the respondent who will be
an accused in a case? (In light of recent events; Mayor
Espinosa had an affidavit pero napatay, now can that affidavit
be used in a court of law?)
- You have to understand when you can conditionally
examine a witness.
- Rule 119 Sec 12, 13 & 15 a conditional examination
can ONLY apply when the case is already in Court.
Special Proceeding; it established a status or a right.
Why is there a provision in the rules of court that states that
the rules of court does not apply in election cases, land
registration cases, cadastral cases and insolvency cases?
- Because the law gave them their own rules and that
same law gave jurisdiction to the RTC.
- Omnibus code, Land Registration, Insolvency,
Cadastral gave jurisdiction to the courts but the
16
 procedure they would follow is not the Rule of Court
but their own rules. ONLY in events of inadequacy will
they apply the Rules of Court suppletorily
Liberal application of the Rules (Rule 1 Section 6)
Tip: if you can memorize it, memorize it.
- Remember that it does not mean that the law promotes
that you ignore the rules.
Explanation:
You file an appeal outside of the reglementary period, 3 days
late. File a motion without notice of hearing or a Petition under
Rule 65 without the duplicate original or certified true copy;
what is the effect? Depends on the thing that you did not do. in
all of these you will claim section 6 or the liberal application of
the rules.
• There is no hard and fast rule, it would depend on the
facts of the case. Even if you find a case similar to your
case there is no assurance that the court will grant it.
There is no assurance that the court will grant it, it is
left to the sound discretion of the court.
Makati Condominium vs Cullen (2013)
Doctrine: Jursidiction is determined by the allegations of the
complaint, it is not affected by the plea or the theory set up by
the defendant in an answer or a motion to dismiss.
Facts: Anong pinag-aawayan dito? Condominium corporation.
Inaalam dito anong may jurisdiction. HLURB ba?
Issue: The issue in this case was whether or not there is an
intra-corporate dispute and whether the court has jurisdiction.
Held: HLRUB has no jurisdiction
TANNER NOTES
RA 9904 or Magna Carta for Homowners Association
approved on January 7, 2010. Empowers HLRUB to hear and
decide intra-association and inter-association controvery
concerning Homeowners Association.
BUT the SC said this cannot be applied to Condominium
owners and corporation.
How to determine whether intra-corporate exists:
1. A relationship test
- It should be between the Corporation, Partnership or
Association and the Public (Corpo and Public)
- It should be between the Corporation, Partnership or
Association and the State insofar as the franchise or license is
concerned (Corpo and State)
- It should be between the Corporation, Partnership or
Association and its shareholders, partner and members
(Shaareholders among themselves)
- Among the Stockholders, Partners or Association themselves
(Corpo and Officers)
2. Nature of Controversy test
- The Controversy must not only be roted in the existence of
intra-corporate relationship, but must as well pertain to the
enforcement of the parties correlative rights and obligations
under the corporation code or regulatory rules
How many causes of action can you have in a single action?
- Yes. You can have as many causes of action in the
alternative or otherwise.
Can you have one cause of action but multiple cases?
- No. That is tantamonunt to splitting cause of action.
17
 - The pendency of one or judgment of the other will
cause the dismissal.
What is splitting cause of action?
- Forum Shopping
Can you have one case and just one cause of action?
- Yes.
Example 1: I have an action against Mr. A kasi hindi siya nag-
deliver nung mga pinangako niyang materials sa bahay ko.
There was a breach of contract. And because of that I suffered
actual damages, na-dely ‘yung pagpapagawa ko ng bahay ko.
Also, moral damages, I had sleepless nights, I was deeply
embarrassed in the community because the the construction
of my house has been there for 3 years. And exemplary
damages and of course Attorney’s fees because I had to hire a
good lawyer. How many causes of action do I have?
- Only one. The cause of action is counted from the
breach. ‘yun ang hahanpin mo. Not the number of
damages or attorney’s fees. It may seem like it has
many claims but it arises only from one breach.
Example 2: Mr. A borrowed money from B in the amount of
400K and he promised to pay B on January 30, 2017 then he
borrowed again 500K payable on March 30, 2017 and again in
the amount of 600K and payable on May 30, 2017. Comes
February 15, 2017 he has not yet paid the amount due;
Comes April 15, the promissory note in the amount of 500K
was not yet paid. How many causes of action do you have?
TANNER NOTES
- Considering that today is May 28, 2017 I have 2
Causes of Action. Let us say pass May 30 still no
payment; I have 3 causes of action.
- It is counted from the breach.
- So for incidental claims like damages or attorney’s fees
these are not causes of action.
Example 3: Same facts with Example 2; let’s say that today is
June 15, 2017. Am I compelled by law to bring it into a singular
action?
- No. But you can opt to have a joinder of action under
Section 5. Section 5 is not mandatory, it is up to you,
and this is the totality rule.
- For the 400K where to file it? MTC
- For the 500K and 600K? RTC
I have an action for specific performance can I join that action
with my Petition for Certiorari?
- No. Covered by special rules, hindi pwede paghaluin.
Can you join Certiorari, Prohibition and Mandamus?
- Yes. All covered by 65 as long as all requisites are
available.
Can you join in action for nullity of marriage an action for
adoption?
- No. They have separate rules.
Example 4:
Student 1 offered to build a building for Professor X for 35M
Student 2 offered Professor X to buy a land in Batangas for
5M, DP of 2M
18
Student 3 offered to make bags for Professor X for 100/bag
DP of 100K
Student 4 asked Professor X for a loan worth 300K
Student 5 borrowed Professor X’s car
Question: Can Professor X bring them in one action?
- No. Read first paragraph of Section 5. It is an action of
1 party against another. You have to read it in relation
to the next rule (Rule 3 section 6)
Question: Multiple parties, the question is did it arise in the
same transaction or series of transaction? Is there a
commonality of facts or law?
- No. there is no permissive joinder or parties.
What is Professor X’s option?
- To file an action against each one of them separately.
You cannot join them together
Note: if maraming plaintiff it should comply with Rule 3 Section
6. “It should arise from the same transaction or series of
transaction jointly, severally or in the alternative OR there is a
common fact or law”
Multiple causes of action under different jurisdiction.
Same facts as example 4
Rule 2 Section 5: for as long as one is with the RTC everything
goes to the RTC, unless the person opts to have it separately.
But if the person wants to join everything it should be with the
RTC, respecting the law on venue.
Example 5: A sells a land to B, after payment A refuses to
deliver the land. Therefore, A still has the possession of the
land. The assessed value of the property is 150K, located in
Paranaque. A is also indebted to B for 300K. Where should B
file an action?
TANNER NOTES
- RTC. Because the value exceeds 50K
Where is the venue?
- If it is a real action it should be filed in Paranaque
- If it is a personal action it should be where the Plaintiff
or Defendant resides at the option of the Plaintiff.
Note: If the Bar Exam question consists both a Real and
Personal action, you simply follow the rules. You go to the
RTC simply when the venue lies therein. Based on the
example given, can you file it in Paranaque? Yes. How about
the personal action? It’s okay, the rule says that for as long
one goes to the RTC and the venue lies therein.
City Trust case
This is an illustration of the cause of action
Facts: Mr. X has a bank account, he wanted to make an
investment and so he issued a check. He made sure that the
account was funded. However, the check bounced. So Mr.X
went to the bank and said that he had money, the bank replied
in the affirmative and asked Mr.X to deposit it again but it
bounced again. Later on it was realized that there were 2
persons with the same name. Mr. X sued the bank. RTC
dismissed the case for lack of damages incurred, CA reversed
the ruling and said that although Mr. X had contributory
negligence the proximate cause was the bank. SC reversed
the ruling and said that Mr. X had no cause of action.
Ruling: While you can say that there is breach, there was no
injury or damage.
Funa vs Agra
Then Secretary Agra as holding 2 positions, he was not only
the Solicitor General he was also the Secretary of Justice.
Funa filed a case on the ground that he was holding 2
19
positions at once which was unconstitutional. However, the
administration already changed so others said it was already
moot and academic.
SC: Even if it was already moot and academic the SC still
ruled on the case. The following are the exceptions:
1. There was grave violation of the constitution
2. Involves a situation of exceptional character and was of
paramount public interest
3. Constitutional issue raised required the formulation of the
controlling principles to guide the bench, the bar and public
4. It was capable of repetition yet evading review.
Here the SC used the 3rd one.
RULE 3
PARTIES
Outline:
1. Real Party in interest
- Someone who would benefit or suffer injury by reason of the
the action.
- Could be on the side of the plaintiff or defendant
Locus Standi – a right of appearance in a court of justice on a
given question. In private suits standing is governed by the
real party in interest; For public suits it is locus standi. The
difficulty in determining locus standi arises in public suits, here
the plaintiff who asserts a public right in assailing an illegal
official action does so as a representative of the public. That is
why the most common suit is a Taxpayer suit.
On what matters may Taxpayers, Voters, Concerned citizens
and legislators be given standing?
TANNER NOTES
A. When the cases involve constitutional issues
B. For Taxpayers, there must be a claim of illegal dispersal of
public funds or tax measure is unconstitutional
C. For Voters, there must be a showing of obvous interest in
the validity of election in question
D. For Concerned Citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early.
E. For Legislators, there must be a claim that the official action
complained of infringes upon the prerogatives of the
legislators. (David vs. Arroyo)
Araullo case (DAP)
SC: the definition of legal standing has evolved thru time. By
reason of the governmental act you suffered some personal
injury until such point that direct injury was no longer
necessary. During instances where it is of transcendental
importance; when it is for the public benefit or public good.
- Necessary or indispensable party?
Indispensable party: someone who should have been
impleaded in order to have a final determination of the case.
Necessary Party: Should be impleaded in order to have a
complete determination of the case
What if an Indispensable party was not impleaded despite
order of the court?
- Case will be dismissed
What if a Necessary party was not impleaded despite order of
the court?
20
 - There will only be a waiver of a right to claim against
the non-impleaded necessary party.
What if the court renders judgment in the absence of the
indispensable party?
- Judgment is Null and Void
What is the effect on the judgment if there was failure to
implead a necessary party?
- Judgment is valid
Mesina vs Fian (2014)
Can the heirs of Mesina, a non-juridical entity, be a party to the
case?
- Yes
If there is a question on the personality of a party, on whether
or not it is an indispensable party should it be dismissed
outright?
- According to the case there must be an order to
implead before dismissed for absence of an
indispensable party.
- Only after non-compliance with the order will the court
dismissed the case.
Intervention
Rule: If you look at RULE 19, someone who has legal interest.
Based on jurisprudence, you can only intervene at any time
before judgment is rendered in the Trial Court.
GR: Once judgment is already rendered there is no longer any
intervention allowed.
EX: If the intervenor is an indispensable party
Macawadib vs PNP
Example of an indispensable party
Facts: Petitioner should have retired already however he
argues that his birth certificate is wrong. His age was not 56
but rather 46. So he tried to amend his birth certificate, it was
accepted by the PNP. PNP started to wonder due to his
physical appearance as well as the SC in its ruling.
SC: Failing to implead the PNP, which is the agency directly
involved, will make the judgment null and void. PNP should
have been impleaded because of the interest of the PNP on
who should have retired.
Therefore, the judgement declaring him to be 10 years
younger than that stated in his Birth Certificate is null and void
not having impleaded PNP.
Note: In rule 108 kapag nagpacorrect ka ng entry sa Civil
Registar you would have to implead the registar. In one case if
it affects filiation or hereditary rights all other individuals who
would be affected should likewise be impleaded together with
the registrar.
Who can be parties to an action?
- Natural persons
- Juridical persons
- Entities authorized by law

Can you intervene in the CA or SC? Note: Section 15 ‘A Non-juridical entity’ can also be a party to
- Looyuko case and other similar cases. an action except that under section 15 a non-juridical entity

21
TANNER NOTES
cannot sue but can be sued under the name under which they
are known. – this is for the protection of the public for the
people na nanloloko, ‘yung sinasabing Corporation sila pero
hindi – if they answer they will have to disclose their true name
and addresses.
If you sue a non-juridical entity how do you issue summons?
Under Rule 14 Section 8, you have to serve summons to any
one of them or to a person in charge of the office.
If a court renders judgment against a non-juridical entity, will
they be held individually?
- Yes. Under Rule 36
A. Natural Persons
- Minor
- Married persons
- Representative capacity
- Class suit
A natural person is required to have capacity (Rule 8 Section
4) – Legal age
Can that capacity be questioned?
- Yes, in an answer. But it is not enough to specifically
deny, it is necessary for you to attach the necessary
documents to show that the person has no capacity.
Can a minor be a party to a case?
- Yes. Only if he is assisted. Therefore on his own, he
cannot institute it on his own. Either by the parent, the
guardian or a guardian ad litem.
TANNER NOTES
- As a Plaintiff, the Minor’s name should appear in the
case as he is the ulitimate beneficiary. If he is the
Defendant, the parent or guardian’s name should also
appear.
Rule: when you sue a married person, you should also
implead the spouse.
EX:
1. If it involves the exclusive property of the spouse (Wife-
Paraphernal Property; Husband- Capital)
2. If it involves the act of negligence of one spouse
3. If it involves the practice of profession
4. If it is a suit of one spouse against another
Note: Having been married is important also in Evidence
Marriage in Evidence
1. Marrital disqualification by reason of marriage alone as long
as there is a legal marriage.
2. Privileged communication by reason of marriage, if you are
legally married and there are communications received in
confidence.
Represented by another
- There must be a Special Power of Attorney, when one
acts in behalf of another and therefore he is an
attorney in fact.
Summons
- Priority is Personal Summons
- If it cannot be served personally, substituted service
22
What if it is a petition for a Writ of Amparo, how do you serve?
The writ not the summons
- Personally or substituted service if it cannot be served
personally. In the same way you serve summons.
Class suit
- There is a common or general interest
- They can sue and they can defend
2 things you should remember:
1. Is the interest diverse? Because the very moment it is clear
or it appears that the interest is diverse there is no class suit
2. Representation matter, it is representation as shown in the
case of MVRS publication vs. Islamic Da’wah. To be more
specific, adequacy of representation.
Note: Adequacy of Representation is not provided for by the
rules but by Jurisprudence.
Example:
A. Nakasakay tayo sa barko, lumubog ‘yung barko. Buhay si
Atty. Salvador, iba buhay iba patay. Ngayon nagsama-sama
tayo. Can we have a class suit? NO
- Are the interest diverse? Mas matanda si Atty, mas
matagal ang practice niya. Therefore, mas mataas ang
recovery niya.
B. Lahat ng Reviewees mga empleyado ni Atty. Sabi niya
sasarado na daw niya ‘yung company.
- First, rule on class suits does not apply to Labor Cases
- Second, if the employees sue Atty for illegal dismissal
the interest will likewise be diverse. May iba 6 mo. Iba
TANNER NOTES
20 years, iba managerial employees iba regular.
Therefore, the claims will vary.
- Everyone should be NAMED PARTIES because in a
class suit you can be represented, but when there are
diverse interest all must be impleaded. What you see
there is not a class suit but a joinder of causes of
actions.
- In a joinder of causes of action and there are multiple
parties, you have to pass the test of permissive joinder
of parties.
C. Sir, nag-invest ako ng 24K sabi sa’kin kikitain ko 5K every
month. Let’s say niloko kayo lahat, different value. Can you
have a class suit?
- No, you have different interests.
- BUT you can join together in one action. Joinder of
causes of action, joinder of parties.
Adequacy of representation
D. Islamic Da’wha case. Isang agency ng government sinara
‘yung publication office so about 500 government employees
were removed. Now, initially 60 employees filed soon
thereafter some executed quitclaims. Only 24 employees
remained. Now are they adequately represented? No.
E. Oposa vs Factoran is a classic example, in that case
matanda ka man or bata isa lang interest mo. ‘yun ay healty
environment
In a case instiututed by Home owners is that a class suit?
- No. it is an action in a representative capacity.
23
 - In the case of MIAA vs Rivera Homeonwers
Association, the petition filed with the Trial Court
sufficiently avers through its president, is suing in a
representative capacity as authorized under the Board
resolution attached to the petition.
Association of flood victims and Hernandez vs Comelec
- This is a case involving a party list.
- Nag-file sila ng petition sa Comelec pero ang allegation
nila “they are about to be incorporated”
Can they institute an action?
- No, unless they fall under those entities authorized by
law
- SC said that a non-juridical entity in the process of
incorporation cannot be a party to a case.
Is a misjoinder of parties a ground for dismissal?
- No.
Take note:
That a party can file a motion to drop or to severe or the court
motu propio
While you misjoin one or two parties but failed to include an
indispensable party, will it result to the dismissal of the case?
- Yes. Basta walang indispensable party ma-didissmiss
ang case. Ang kino-contemplate na misjoinder doon ay
hindi siya indispensable party kaya pwede siyang i-
drop.
What is a citizen suit?
TANNER NOTES
- It is not a class suit. From the case Oposa vs.
Factoran, those brought about by any Filipino citizen in
representation of others including Minors or
Generations yet unborn.Citizens suit are a reflections
of the fact that the right to a healthful and balanced
ecology is a shared right and not merely a personal
right. That’s why any Filipino citizen may file it.
B. Juridical Persons
- Capacity of a juridical person – Rule 8 Section 4 “that the
corporation is duly organized and existing under the law of the
Philippines if it is a domestic corporation or if it is a foreign
corporation in a foreign jurisdiction”
Can a domestic corporation sue and be sued?
- Yes.
Can a foreign corporation sue and be sued?
A. Doing business and has a license in the Philippines
- Yes. Because it has submitted itself in the jurisdiction
of the court or the Philippine laws
- Take note of Section 12 Rule 14 “Transacted”
- Copro law “Doing business and license”
B. Doing business BUT has no license.
General Rule: No, it can be sued but it cannot sue
Exception: If he is barred from raising it on the ground of
Estoppel.
Example: nakinabang ka ng nakinabang sakanya tapos noong
i-dedemanda ka sabi mo hindi pwede. You benefited from the
arrangement.
24
C. Isolated transaction, no regularity.
- It can sue, even in the absence of a license
- Yes
Note: When it comes to summons in domestic corporations it
is in section 11 Rule 14, if it is a foreign corporation section 12
of Rule 14.
Entities authorized by law
- Hindi kailangan incorporated but they are allowed by
law to sue or be sued.
Examples:
- Estate as represented by the executor or administrator
- Political parties, not necessarily incorporated but
accredited with the Comelec
- Labor organizations, not necessarily incorporated but
accredited with DOLE
Note: The payment of filing fees in environmental cases shall
be deferred until after final judgment. It is a lien on the
judgment award.
Who are Real parties in interest when it comes to a contract?
GR: Those who signed or executed the contract.
EX: If the contract was executed in favor of a third party or a
contract Pour Autrui. In which case even if he is not a party, in
the strict sense, who exexcuted the agreement he is a real
party in interest in the event that his rights have been violated.
Is a co-owner of a credit an indispensable party?
TANNER NOTES
- In the case of Baloloy vs Hular and Adlawan SC said
that in a co-ownership, co-owners may bring actions
for the recovery of co-owned property without the
necessity of joining all other co-owners as co-plaintiff.
Because the suit is presumed to have been filed for the
benefit of his co-owners.
- In the case of De Guia vs CA, the SC said that Art. 487
of the Civil Code which provides that any of the co-
owners may bring an action for ejectment, cover all
action for recovery of possession. In this case, a co-
owner is not an Indispensable party only a necessary
party.
- In the case of Carandang vs De Guzman, for suits to
recover properties, all co-owners are real party in
interest. However, pursuant to Art. 487 anyone of them
may bring an action, any kind of action for the recovery
of any co-owned property. Therefore, only one of the
co-owners, mainly the co-owner who filed the suit for
recovery of the property, is an indispensable property.
The other co-owners who did not join is not an
indispensable party.
What is the nature of a corporate rehabilitation case? Is it an
ordinary civil action?
- Case of Exim trade vs Asia trust, the SC distinguished
an ordianary civil action from a rehabilitation case.
- An Ordinary civil case is an action instituted for the
enforcement or protection of a right or protection or
redress of a wrong. On the other hand, the
rehabilitation case is a special proceeding. Therefore, a
petition for rehabilitation need not state a cause of
25
 action. It is one that seeks to establish a status of a
party or a particular fact. The status or fact sought to
be established in a rehabilitation case is the inability of
the corporate-debtor to pay its debts when they fall due
so that a rehabilitation plan containing that a formula
for payment may be approved by the court in the end.
So there is no cause of action.
SUBSTITUTION (Rule 3, Sec. 16, 17 and 19)
Take note: This is a requirement of due process, it is not a
jurisdictional requirement.
- Under this rule ang pinag-uusapan lang kung SINO
ang party
Kinds of substitution:
1. Section 16
A Natural person dies, what are the requirements for sec tion
16 to apply?
1. A party dies. (Plaintiff or Defendant)
2. Death of party does not extinguish the action.
- If the action is purely personal such as that of support, wala
na ‘yung kaso.
- Or if the action is for the performance of an act (sing or
dance)
What is a duty of the lawyer? (Failure will result to a
disciplinary action)
A. Inform the court within 30 days of the fact of death.
- 30 days is counted from the fact thereof.
TANNER NOTES
- For example the party died on May 24, but the lawyer
had knowledge of the death only on June 4. When
should the 30 days be counted? From May 24 not June
4.
B. Name the legal representative/s
- Which can be choosen from an heir, executor or
administrator
Is the substitution complete?
- No. the court has to do something.
Duty of the Court:
- The Court should issue a notice requiring the substitute
or representative to appear and to order substitution.
Note: Notification alone will not result in the substitution.
What if the substitute or the representative does not appear?
- The court can order or require the opposing counsel to
name the substitute from the executor or administrator
only. Not including the heir.
Sir, paano kung na-notify ng lawyer pero hindi nag-issue ‘yung
judge ng order. Ngayon nag-render ng judgment, hindi
napansin ni judge. Is there a valid judgment? Judgment is null
and void.
- Brioso case. On one side 3 ‘yung parties, namatay
‘yung isa tapos nag-notify ‘yung lawyer pero hindi nag-
issue ng order ‘yung court ng substitution. The 2 other
members participated in the proceedings, attended the
26
 hearings, the cross-examination when necessary. Then
the court issued a judgment. Is the judgment valid?
Judgment is valid only as to the 2 other members but
void as to the other one where there was no successful
substitution. Remember this is a requirement of due
process.
Sir paano kapag nag-notice informing the court of the legal
representative but the court failed to issue an order of
substitution. However, the heir of the deceased participated in
the proceeding. Hindi na-complete ‘yung process pero the
representative actively participated. Is the judgment valid?
- Yes. Because the essence of substitution is due
process.
- Kapag binigyan ka ng chance to participate okay na
‘yun.
Section 20 (Not substitution)
When will this apply?
1. Here the defendant dies
2. The nature of the action is the recovery of money whether
express or implied.
What happens to the case?
- The case will continue, if it has not yet attained finality,
against the estate.
What will happen to the provisional remedies? Like
attachment, preliminary injunction, replevin?
- This will survive because the main action survives,
provisional remedies is an ancillary of the principal
actions.
TANNER NOTES
Note: In section 16 the substitute is an heir, executor or
administrator. In section 20 it is a very narrow provision, in a
sum of money action will continue against the estate. Parties
lang ang pinag-uusapan ha.
Rule 111, section 4
- This refers to an accused.
When will this apply?
1. Substitution will apply only to cases which are purely civil
2. Those which arise from other sources of obligation.
3. And independent civil action.
RULE: kapag ang case ay criminal case tapos namatay, wala
ng case. Kapag na-arraign na ‘yan both civil and criminal
arising from the delict wala na ‘yun. PERO kapag hindi pa na-
aarraign namatay wala na ‘yung criminal ‘yung civil sa estate.
You will now refer to Rule 3.
2. Section 17
- This provision presents a situation where the public
officer dies, resigns or ceases to hold office. Like
Secretary Robredo when he died.
What will happen to the cases?
What is required in order for the case to be dismissed?
- It should appear that the successor will maintain the
action of the predecessor. However, if there is no such
showing the successor must be given a notice and
opportunity to be heard whether he wants to continue
or maintain the act of his predecessor
27
3. Transfer of interest
Example: A sued B, while the case was pending, B transferred
his interest to C, his brother.
Can the court continue the case of A against B? Yes
Will here be valid judgment? Yes
Will it affect C? Yes
Can the Court order that C to be impleaded with B? Yes
Can the Court order C to substitute B? Yes
- Kahit walang substitution ‘yan the case continues
against B because C is B’s successor in interest he will
be affected by any judgment by the court. The failure to
substitute or the failure to implead does not make the
judgment null and void.
PARTY BECOMES INCAPACITATED OR INCOMPETENT
WHILE THE CASE IS PENDING
What happens to the case? The case will continue but he
should be assisted.
VENUE
Things to remember:
1. Personal action
2. Real action
(In personam and quasi in rem refers to the effect of judgment)
1. REAL ACTION
- Action will be instituted where the property or a portion
thereof is located.
- For ejectment cases, the rule on real action must also be
followed. (where the property is located)
TANNER NOTES
Query: Pwede ba kami magkasundo?
1. A is the plaintiff, residing in QC, rented his property located
in Cebu to B who maintains a business in Cebu but is residing
in Manila. However, B is no longer paying the rent. Where
should A file an action?
Answer: Cebu
2. Same facts. But under the contract of lease between A and
B “in the event of an action the parties have agreed to institute
an action exclusively in QC. Possible?
Answer: Yes. Based on section 4.There must be an
agreement before the filing of an action.
3. Same facts as number 2 but there are no words of
exclusivity. It was only stated that “the action must be filed in
QC” can an action be instituted in Cebu?
Answer: Yes. What was agreed upon is only an addition to
what the law provides.
4. A and B entered into a warehousing agreement. However,
there was a breach of contract by B. A resides in QC, B
resides in Manila. There was an agreement that in case of an
action it must be filed in Paranaque. Where can they institute
an action?
Answer: Paranaque or QC at the option of the plaintiff.
Exception: When the law provides for a different venue
Example:
28
1. For nullity of marriage, where the plaintiff or respondent
resides or where the conjugal home is located at the option of
the plaintiff.
2. For Adoption, where the Adopter resides.
3. For Quo Warranto, where the respondent or any of the
respondents reside.
4. A Petition for Perpetration of testimony or to have a
deposition taken. Under Rule 24, the place where the
prospective defendant resides.
5. Probate of will or distribution of estate, under Rule 74 it
provides that it can be instituted only where the decedent last
resided at the time of death
Construction industry arbitration:
- EO 1008
- Sabi doon na nagkasundo sa agreement that in case of
a dispute the arbitration will take place in Singapore
exclusively
- Example na-violate ang agreement, one of the parties
opted to file an action in the construction industry
arbitration in the Philippines. Can they do that? Despite
words of exclusivity? Yes. Because by law if any party
opts to file it in the construction industry arbitration
forget about the foreign arbitration. This is special only
for construction dispute. Hotama case confirms this.
2. PERSONAL ACTION
- Where the plaintiff or the defendant resides at the
option of the plaintiff.
- If there are multiple plaintiffs or defendant, where the
plaintiff or principal plaintiff resides or where the
TANNER NOTES
defendant or principal defendant resides at the option
of the plaintiff.
If there is a non-resident defendant
3 things to remember:
1. Personal actions: Place where the defendant resides or
where the defendant may be found at the option of the plaintiff
2. If it involves the personal status of the plaintiff: In the place
where the plaintiff resides
Example: nullity of marriage.
3. Property of a non-resident defendant: Place where the
property is located
Example: OFWs
Why is there a need to highlight the last 2?
- Because that has a direct relation to Rule 14 Section
15 (Extra-territorial service of summons)
Cases:
1. Paglaom case:
May 2 real estate mortgage tapos may restructuring
agreement, ‘yung unang real estate mortgage Cebu ang
nakalagay. ‘yung pangalawa blank. ‘yung restructuring
agreement has an exclusive venue in Manila (For example)
which will prevail?
Rulingr: The 3rd one, it is the most recent contract. It
supercedes the rest.
2. 2015 case of Briones vs CA:
May OFW na nag-mortgage ng lupa as early as 2007 pero
noong 2004 palang wala na siya dito. Apparently, may in-
execute daw siya na mortgage na hindi na niya nabayaran so
29
na-foreclose ‘yung property. Noong bumalik siya, nagtaka siya
kasi hindi naman daw siya nag-loan bakit siya mawawalan ng
property? Kaya nag-file siya ng case kung saan siya nakatira
hindi ‘yung place na naka-state sa contract kasi according to
him hindi naman siya ‘yung nag-excute noong contract, forged
daw ‘yung signature niya. Sabi noong bank “you have to follow
the venue stipulated” therefore since it was not followed the
case must be dismissed
Ruling: The effect of non-compliance of the venue stipulation
in the contract does not apply if you are not a party to the
contract. Meaning if your signature has been forged, that
contract is actually in dispute. Therefore, you cannot be bound
by the terms thereof. You are disowning the contract itself.
3. (Irene Marcos case, instructive when it comes to multiple
parties) Araneta vs CA:
Si Irene is a resident of Makati, filed an action in Ilocos to
enforce the terms of a trust agreement where she is the
named beneficiary. The defendant filed a motion to dismiss for
improper venue which was granted. However, while the Motion
for Reconsideration was pending, Irene’s lawyer filed an
amendment to include 3 more plaintiffs, just to tell the court
that the other plaintiffs were residing in Ilocos.
Ruling: It is not the numbers but it is based on who is the
principla plaintiff. In this particular case, the principal plaintiff is
Irene Marcos-Araneta because ultimately she is the only
beneficiaries the rest were only nominees.
The action instituted in Ilocos was dismissed for improper
venue.
4. Mr. A and B entered into a warehousing agreement, which
indicated a venue stipulation in Manila.A and B also had a
TANNER NOTES
catering contract, A committed a breach of the catering
contract so B sued him for the breach of the catering contract
and filed it in QC. A argues that there was an improper venue.
Is B bound by the venue stipulation?
Answer: No, because it is not covered by the agreement.
5. PBCom case:
May Loan agreement tsaka promissory note, ‘yung PN walang
venue stipulation. Hindi nabayaran ‘yung loan so ngayon nag-
demanda, but the problem is may venue stipulation ‘yung loan
agreement. Sabi noong isa wrong venue, sabi noong
complainant paano naging wrong venue eh wala naman
provision sa Promissory note na venue.
The PN had no venue stipulation but the main agreement or
the loan agreement had a venue stipulation. The action was
based on the PN.
Ruling: The terms of the loan agreement is intertwined with
that of the promissory note. And for that reason, the venue
stipulation in the loan agreement will apply to the promissory
note.
SUMMARY PROCEDURE
Procedure in the RTC is ordinary procedure.
MTC has:
For Ordinary procedure those whose claim does not exceed
400, 000 in Metro Manila and those claims exceeding 200,000
but not exceeding 400,000
For summary procedure and small claims: those whose claim
does not exceed 200,000 and below
30
Where should you file if parehong 200,000? Take note of the pleading may judgment. judgment.
person who will file the case. warrant.
It is at the option of the person who will file the case, it is just
that if you file under a small claim it is faster. Is a Reply No optional, Prohibited Reply or
Mandatory only if there are pleading Rejoinder is
Ordinary Summary Small new matters a Prohibited
Procedure Procedure Claims raised in the pleading
Complaint, Ordinarily no Yes, if they Yes, if the answer
can the court see that there court sees Pre-trial Attendance is Plaintiff is Plaintiff is
dismiss it is no basis that there important. absent, absent,
outright? really is no If Plaintiff is dismissed dismissed
basis absent he is Defendant is Defendant is
considered as absent, court absent,
Period to file 15 days which 10 days 10 days non-suited, the renders court
answer can be which cannot which case is judgment renders
extended under file an cannot file dismissed judgment
Rule 11 for extension an extension If the defendant
good reasons because it is because it is is absent,
subject to the a prohibited a prohibited plaintiff will be
discretion of pleading. pleading. allowed to to
court present
evidence ex
What if there The plaintiff can Cannot file a You cannot parte
is no answer file a motion to motion to file a Motion Order 1. Complaint 1. Complaint
declare in declare in to Declare in 2. Pre-Trial 2. Preliminary
default under default Default it is 3. Trial Conference
Rule 9 section because it is also a 4. judgment 3. Judicial
3. But the court a prohibited prohibited (Unless there is Affidavit or
may already pleading. The pleading; a requirement Position
render a court can the Court to submit a Paper
judgment based already may already memorandum) (Only in
on what the render a render a Criminal

31
TANNER NOTES
 cases that a
trial is
required in
order not to
violate his
right to due
process)
4. Judgment
• What is a prohibited pleading under summary
procedure halos same lang sa mga prohibited
pleadings under small claims. Ang difference lang
under summary procedure as a general rule you
cannot file a motion to dismiss, except when there is
lack of jurisdiction or failure to refer the matter to prior
barangay conciliation. Under Small claims you cannot
file a motion to dismiss, absolutely.
Cases:
1. January 2016 case of Fairland KnitCraft vs Po:
There was no answer to the complaint under Summary
Procedure, Can the Court render a judgment based in what
the pleading may warrant?
Sabi ng Defendant: hindi pwede ‘yan, dapat may
preponderance of evidence. Eh wala naman naka-attach doon
sa complaint
Ruling: Preponderance of evidence is not required at that point
in time. The provision of the law expressly requires that if you
did not file an answer the court can already render a judgment.
Preponderance of evidence will only matter if there is a
submission of judicial affidavits and position paper and exhibits
having been marked at that point but at at this point in time
TANNER NOTES
there was really no answer. There being no answer it did not
reach the point of submission of judicial affidavit and position
paper.
2. Republic vs Sunvar Realty:
There was a motion to dismiss, which is a prohibited pleading
under the summary procedure, but they insisted that the
ground is lack of jurisdiction. The Motion was denied,
defendant files a petition for Certiorari which is a prohibited
pleading. CA denied the same. The SC explains the
exceptions under the cases of Bayog and the case of Go
which was cited in ths case.
Ruling:
General Rule: Certiorari is a prohibited pleading
Exception:
1. The Defendant was not able to answer because he was
suffering from TB therefore the Court entertained a petition for
Certiorari (Case of Bayog)
2. The case was suspended for a long period of time because
the court refused to set the case for preliminary conference
and to proceed with the case, so the court said a petition for
certiorari was a proper remedy (Case of Go)
RULE 6 (PLEADINGS)
RULE 7 (PARTS OF PLEADINGS)
RULE 8 (ALLEGATIONS)
1. Kinds of pleadings
A. COMPLAINT: Raises your claims or specifically your
causes of action
B. ANSWER: Raises defenses.
32
 B.1 Negative defense: it specifically denies the claims
or cause of action, which is different from specific
denials under Rule 8 Section 10.
Example:
1. A sued B for recovery of sum of money in the amount of
400,000. B said “wala akong utang sa’yo bakit mo ‘ko
dinedemanda” that is a specific denial of the claim which is a
negative defense.
What is the difference between Negative Defense and Specific
Denials under Rule 8 Section 13?
- Under Rule 8 Section 13 it enumerates kinds of
Specific Denials
1. Specific Denial of the fact asserted or the allegation
asserted
- Allegation says Par.7 “I met Ms. X at Greenbelt 5 on October
7, 2015 to eat at Felly J, 2pm” if denied, you will day Par. 7 is
denied. Meaning, there is no truth to that statement. You can
say that “I am out of the country therefore it is impossible to
meet with her”
2. Specific Denial but admission of the rest of the allegation
(Qualified denial)
- Same example as that under number 1, you will say
“Paragraph 7 is denied as to the fact that we met at Felly J at
2pm, the truth of the matter is that we met at Via Mare at 6pm
on October 7, 2015”
3. Lack of Knowledge or information to form a belief as to the
truth thereof
TANNER NOTES
Rule of thumb: If it is within your knowledge and competence
you should deny it or confirm it.
• This is what happened in one of the Marcos Cases.
There was a claim that they have various Swiss
Accounts in conncetion with the forfeiture cases
against them.
• Marcos said: Lack of Knowledge or information to form
a belief as to the truth thereof. This amounts to an
admission
• The Court said that is not the way to deny it.
You can use this but only when there is really lack of
knowledge.
Example: There is an allegation of moral damages; sleepless
nights, anxiety, bismerched reputation. Claims 3 Million, lack
of knowledge or information. Because there is no way they
would be able to know that the person claiming it really had
any sleepless nights
PBCom vs Sps. Go
Sps. Go secured loans from the bank evidenced by 2 PN. The
loan was payable for 2 years, secured by a pledge agreemetn
covering shares of stocks in Evergotesco holdings. 2 years
later the shares of stocks plunged to less than .40 per share.
So it is no longer viable to maintain as a collateral on the part
of the Bank. The Bank notified Go that it was renouncing its
pledge agreement. Thereafter, the Bank alleged that Sps. Go
defaulted in the payment of 2 PN, having paid only 3
installments covering the months of September, November
and December of 1999.
PBCom said that the entire obligation was due and
demandable.
33
Sps. Go said in their answer that the promissory note referred
to in their complaint expressly state that the loan obligation is
payble for a period of `10 years, therefore it’s due date is in
2009 and not in 2001 as claimed by PBCom. Contrary to
PBComs claim, Go paid substantial payment in terms of
monthly payments. While demand is necessary such was not
complied with by PBCom.
PBCom later filed for a summary judgment.
(What is a summary judgment? Rule 35. There is no genuine
issue as to a material fact.) sabi ng PBCom in essence, ‘yung
Sps. Go walang i-dinispute therefore judgment should already
be issued without need of a trial. There was no genuine issue,
because there was no specific denial.
Ruling: SC said that there was special affirmative defenses
raised by the defendant. Since there were special and
affirmative defenses and there were issues as to the term and
demandability. There was no need for a summary judgment.
And because the summary judgment is denied the case
should proceed to trial.
General policy of the Court when it comes to Summary
Judgment:
For as long as there is an issue of fact, the Court will not
render a summary judgment. The Court will push the case to
trial.
B.2 Affirmative defense
- Though hypothetically admitting the material allegations of
the complaint it will nevertheless prevent or bar recovery.
Example:
TANNER NOTES
A sued Mr. B for recovery of sum of money in the amount of
1M. A made a demand but B did not pay, since B did not pay
A was constrained to file an action. In A’s complaint he said
that B executed a promissory note in the amount of 1M. B
indicated in the PN the due date which is 6 months or on July
30 of 2013. However, B even after due demand, failed to pay
the amount stated in the promissory note.
B’s answer:
“That he approached me” admitted.
“He agreed, there was a promissory note execiuted” admitted
“The due date on July 30, 6 months thereafter” admitted
“There was a demand letter” Admitted
- Imagine you admitted all of those, tapos na laban.
Wala ka na laban.
Walang defense sa answer ni B.
Example:
“Prescribe na ‘yan 20 years na ‘yan eh”
“Accommodation lang talaga ‘yung PN”
“Existence of fraud”
Any defense that will preven or bar recovery.
If there is an existence of an affirmative defense, what will you
do?
- You will file a judgment on the pleadings under Rule
34.
- Judgment on the pleadings means the answer does
not tender an issue or did not dispute anything, or
admitted the material allegations on the whole
complaint.
Can there be a partial judgment on the pleadings?
34
 - No, it is only a full judgment on the pleadings. Only the
plaintiff or complainant can file judgment on the
pleadings unlike in a summary judgment where the
plaintiff or the defendant can file a summary judgment.
C. COUNTERCLAIM
2 types:
1. Compulsory
- In the same nature as the principal claim and within the
coverage or jurisdiction of the court and would arise from the
same transaction. Therefore, if you separate this there would
be undue duplication of cases.
Because it is compulsory, do you need a certificate on non-
forum shopping? No, offshoot nga siya eh. Fruit lang siya
noong main case.
Example:
I sued A for a breach of contract. I was claiming for actual,
moral and exemplary. A said ‘huy hindi totoo ha’ gumawa siya
ng counter-claim of moral, exemplary and actual loss niya
because of the suit plus the fact that he needed to retain a
lawyer. Lahat ‘to compulsory. Kung hindi ko siya dinemanda
wala ‘yun.
It is a necessary consequence of the filing of the action.
Do you need to pay filing fees? No.
2. Permissive Counter-Claim
- It is something that is waived or barred because if by chance
you did not include it in your answer you just file a separate
complaint.
TANNER NOTES
Do you need a certificate of non-forum shopping?
- Yes, because in truth and in fact it is a separate action.
Do you need to pay filing fees?
- Yes.
Can a counterclaim exceed the jurisdiction of the court?
Example:
MTC, counterclaim mo 5M. Possible?
- No.
Note:
Counterclaim and the nature must be within the jurisdiction of
the Court
Paano kapag RTC?
- Okay lang kasi walang limit.
How does the death of a defendant during a pending case
affect the setting up of a compulsory or permissive
counterclaim?
Answer: the basic rule when it comes to compulsory
counterclaim under Rule 9 Section 2, if you failed to timely
raise it, it is barred.
- The death of the party does not affect the case, the
case remains to be perfectly alive.
At what stage?
1. Kapag nakasagot na siya bago siya mamatay, barred na
Remedy: Rule 11 sec 10, you can amend it if it was
inadvertently omitted.
2. Namatay bago naka-respond ng answer
35
Remedy: it is already the responsibility of the legal
representative
Note: Ang counterclaim class, hindi ‘yan pwedeng tumayo ng
walang answer. Kasama ‘yan ng answer.in the same manner
that you don’t need a leave of court for a counter claim but you
have to timely raise it otherwise It is barred compulsory. In
permissive the law does not cover waiver because it can stand
alone, for as long as it is within its prescriptive period
pwedekahit separate action ‘yun.
What happens to the counterclaim if the principal action has
been dismissed? (Pinga case 2006)
- If the main case is dismissed for whatever reason, the
counterclaim will survive. And will have to stand on
its own merits.
- In the case of Pinga, the SC did not make a distinction
between a compulsory and a persmissive. Sa
permissive you should have been required to pay filing
fees at the outset but for compulsory counterclaim
there is an impact if you don’t prosecute it on the same
action. Why? There is no filing fee for compulsory
counterclaim, if you fail to manifest it within a period of
15 days from the dismissal of the principal action.(Nag-
lapse ‘yung 15 days you are not prevented from filing a
separate action on your compulsory counterclaim, but it
is considered as an initiatory pleading therefore you
have to pay filing fees)
Where will it be prosecuted?
- You have to manifest it within a period of 15 days that
you intend to prosecute it on the same action.
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Otherwise, you have to prosecute it on a separate
action.
D. CROSSCLAIM
- Counterclaims and Crossclaims do not need any leave
of court
- Crossclaims must be made against a co-party to whom
the court has acquired jurisdiction.
- Crossclaims apply only if there are multiple parties on
either side.
E. THIRD PARTY COMPLAINT
- Do you need leave of court? YES
- An answer to a third party complaint must be filed
within 15 days because it is treated less like any other
complaint
Why is there a need for a third party complaint?
- Because the person you are bringing into the case is
someone that the court has not yet acquired
jurisidiction
Example:
A sued B (Original parties)
B brings in C. B needs to ask for a leave of court because B as
against A he is the Defendant but as against C he is the third
party plaintiff, and C is the third party defendant.
Do you need to file an answer to a counterclaim and
crossclaim?
- Yes, within 10 days (Rule 11)
36
F. REPLY
- Is it a mandatory pleading? No.
Purpose: To meet the new matters raised in an answer,
usually affirmative defenses. Therefore, if you decide not to
make a reply, the new matters are deemed controverted or
disputed.
Query: What if there was an actionable document attached, do
you need to file a reply?
Answer: Yes, to meet the actionable document. If it is not true,
if it is forged, you have to specifically deny it under oath.
Otherwise, it is deemed as admitted that amounts judicial
admission.
G. STRATIGIC LAW SUIT AGAINST PUBLIC
PARTICIPATION
- A defense that you can raise in an environmental case.
- Form of an affirmative defense in environmental cases.
Note: it is a legal action filed, you are saying that the action
was filed to harass or vex you, or exert undue pressure
against you or against any person, institution or the
government to prevent you from enforcing environmental laws.
- Before the court can proceed it will ascertain if indeed it
was a slapp. Because if its is, the case will be
dismissed.
Query: Can allegations be stricken off?
Answer: Yes. If it is any of the following:
1. Only for purposes of delay
2. The allegations were scandalous or indecent
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3. Allegations are impertinent or immaterial
Query: Can a Third Party Defendant file a Counterclaim?
Answer: Yes.
Query: Can the Counterclaim of the Third Party Defendant be
also against the Principal Plaintiff?
Answer: Yes.
RULE 7
PARTS OF A PLEADING
Important things to remember:
1. Signature
2. Verfication
3. Certificate on Non-Forum Shopping
Note:
Absence of a Certificate has a different consequence than that
of non-compliance or false certificate. Under Non-compliance
meron kang mga commitments na hindi mo na-follow, kapag
false there is a willful assertion of falsehood which can expose
you to charges of perjury. Kapag actual forum shopping,
maaring may certificate ka pero talagang nag foforum shop ka.
I. SIGNATURE
Note: If there is a counsel of record, that lawyer will have to
sign the pleading. When the lawyer signs he attests to the fact
that he has read the same and that it is correct based on his
knowledge, information and belief. It is also not interposed for
purposes of delay.
37
Paano kung dahil sa pagmamadali mo, nag-file kayo ng
pleading ng walang pirma?
- Filing an unsigned pleading produces no legal effect.
However, you can convince the court that by reason of
inadvertence in some good reason, the court may in its
reasonable exercise of discretion consider the pleading
as filed.
What if you make a scandalous or indicent allegation?
- Lawyer can be held administratively liable
What if the lawyer changes his address without informing the
court?
- Lawyer can be held administratively liable
II. VERIFICATION
Is verification and the certification the same?
Answer: No (Fuji Television vs Espiritu, 2014)
Verification is an affidavit under oath or an attestation under
oath that a party has read the pleading or complaint or the
initiatory pleading that the contents of which are true and
correct based on his personal knowledge or authentic
documents on record. Therefore, as a rule only the party can
sign because only the party has personal knowledge of the
case. If it is a juridical entity the officer of the corporation will
attest to the fact that he has authentic documents on record.
Should all pleadings be verified?
- No. Only when the law requires it to be verified. Such
as ejectment cases, cases under interim relief, Petition
for Review (Rule 42, 43, 45) Petition for Certiorari
TANNER NOTES
(Rule 65), initiatory pleadings with provisional
remedies.
Should an ordinary complaint be verified?
- No.
Is the requirement of a verification jurisdictional?
Answer: No, in fact jurisprudence has continuously said that a
verification could be corrected by an amendment because it is
not jurisdictional.
Who signs it?
GR: The party
Note: If there are multiple parties all of them will have to sign.
Ex: mere exceptions and these are all substantial compliance
1. Hindi naka-pirma lahat ng may interest sa family home,
okay na daw sabi ng SC. (Case of Olarte)
2. Mag-asawa hindi naka-pirma isa lang (DAR case)
- In all these cases they have what you call common interest.
Can a lawyer sign for the client?
Many extensions were granted for the filing of the petition for
review by counsel because the client was in the US. When the
petition was already filed the Certification against Non-forum
shopping was signed by the Counsel on behald of the client.
Thus, the case was dismissed.
Issue: WON the clients prayer for the relaxation of the rules on
certificate against non-forum shopping
Held: No, there was no justificable reason on this case as to
relax the rule on certification against non-forum shopping. The
need to abide by the rules of court and procedural
38
requirements it imposes has been constantly underscored by
this court. One of this procedural requirement is the certificate
against non-forum shopping which time and again has been
declared as basic, necessary and mandatory. To this Court the
said period is more than enough to execute an SPA before the
nearest PH Consulate, the requirement that it is the Client and
not the Counsel who signs the certificate 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
tribunal that there are no other pending cases involving
basically the same parties, issues and causes of action.
Can an SPA take the place of a Secretary Certificate?
- In our jurisdiction if it is a juridical entity the authority is
given in a resolution and embodied in a secretary
certificate. But in the case of Fuji Television vs Arlene,
this is an example of a foreign juridical entity, in some
jurisdiction, their officers has been given the power to
delegate and in some to delegate someone to sign for
and in behalf of the Corporation in another jurisdiction.
III. CERTIFICATE
Requirement of a certificate under oath together with the
initatory pleading appended or annexed to and filed
simultaneously.
What is the Effect kapag walang certificate?
- It will result to the dismissal of the case without
prejudice.
Can it be refilled?
- Yes, but you have to pay another filing fee
TANNER NOTES
Paano kung may certificate ka, annxed and filed
simultaneously PERO false ‘yung certificate?
- You can be held liable for indirect contempt and
without prejudice to any criminal or administrative
complaint
- Case will be dismissed with prejudice
Paano kapag non-compliance?
- Even non-compliance i-dedemanda ka ng mga ‘yan.
They will hold you for indirect contempt and for criminal
or administratively liable.
What do you mean by non-compliance?
- Sabi mo “I commit to update the court of the status
thereof” or “I commit to inform the Court of the fact of
existence of other cases within a period of 5 days”
kapag hindi mo ginawa ‘yan, you can be sued.
Paano kapag willful and deliberate forum shopping?
- Case is summarily dismissed with prejudice. Can also
be liable for direct contempt
How will they know?
- Allegations are identical or parties are the same, etc.
Cases:
Ong vs. CA
Ruling: There is a distinction between prohibition against
forum shopping and a certification requirement is too
elementary not to be understood. To reiterate, compliance with
the certification against forum shopping is separate from and
independent of the avoidance of the act of forum shopping
itself. There is a difference in the treatment between failure to
39
comply with the certification requirement and violation of the
prohibition against forum shopping, not only in the terms of
imposable sanction but also in the manner of enforcing the
same.
What is the test of forum shopping?
- Litis Pendentia and Res Judicata
Crus vs Caraos
Facts: Sabi forum shopping daw, nag-cite pa ng requisites,
which are the following:
1. Identity of parties or atleast such parties which will represent
the same interest in both actions
2. Identity of right asserted and relief prayed for, the relief
being founded on the same facts.
3. Identity of the two proceeding particulars such that any
judgment in one action regardless of which party is successful
amounts to res judicata.
Yung case na-dismissed pero not under those grounds
provided for in Rule 16 sec 1, (f) res judicate or statute of
limitation (h)payment, waiver or abandonment (I)
unenforceable under the statute of frauds. Why is this
relevant? Because if it was dismissed under any of these
grounds hindi na pwede i-refile.
They made a case against the refilling, sabi nila forum
shopping daw
RULING: It is not controverted that the allegations of the
respective complaints in civil case no 951387 and civil case no
961387 are similarly worded and are identical in all relevant
details including typographical errors except for the additional
allegations in support of respondents prayer for preliminary
TANNER NOTES
injunction in the first case. It is similarly not disputed that both
actions involve the same transaction, same essential facts and
circumstances and raise identical cause of action.
To recapitulate, the CA ruled that the dismissal of the first case
was not based on Rule 16 sec 1 (F)(H)(I) which grounds
should have prevented the respondents from prosecuting the
same case. With that the appellate court reasoned that the
dismissal of the first case was without prejudice. SC agreed
with this.
Iglesia ni Kristo vs Ponferada
RULING: The Court applied the rule on substantial compliance
because of commonality of interest of all parties with respect
to the subject of the controversy. There being common
interest, a signature of a handful was accepted by the Court by
reason of substantial compliance.
Who has the authority to sign the certificate on non-forum
shopping?
- Must be signed by all Plaintiffs or Petitioners in the
case and the signature of only one of them is
insufficient. Thus, when all the Petitioners herehave
common interest or invoke a common cause of action
in certain instances as in this case they recognize that
the absence of some will not result to a dismissal of the
case (Cua vs Vargas)
GR: All will have to sign
EX: however, if there is commonality of interest a signature of
one of them will be accepted by the Court.
40
Query: Should a petition for issuance of a Writ of possession
contain a Certificate on Non-Forum Shopping?
Answer: No.
Case of PTA of St. Matthew Academy vs Metrobank
FACTS: There was a foreclosure and a refusal to surrender
possession over the property that was foreclosed by
Metrobank. There was a Petition for the issuance of a Writ of
Possession, so sabi ng school “uy kulang walang Certificate
on Non-Forum Shopping”
RULING: There is no need, though it was captioned as a
petition for the issuance of a writ of possession in truth, it is
just a motion. A petition or a motion for the issuance of a Writ
of Possession is just a motion, it is not an action. It does not
seek a relief, enforce a right nor seek protection of a right. It is
for all intents and purposes seeking the possession of the
property. Therefore, a Certificate is not required.
Query: Can the court take judicial notice of cases pending in
another court?
Answer: As a rule, the Court cannot.
Query: Can the Court take judicial notice of cases falling under
its own courts?
Answer: General rule is No. Unless the parties consent. If the
parties do not consent even if it is there in it’s own sala the
Court cannot take judicial notice.
Query: Can the Court take judicial notice of the published
decisions of the SC?
Answer: Yes, Mandatory judicial notice
TANNER NOTES
Facts: Dalawang case, pinag-aawayan nila lupa. Sabi ni A
‘yung lupa na in-abandon ng river or ‘yung river bed akin ‘yan.
Sabi ni B, accretion ‘yan eh. Ngayon ‘yung RTC case final and
executory na and the other case was very much alive. Now,
the case that was already final and executory was being
referred to the pending case. The other party was saying that
the Court cannot take judicial notice of that RTC case.
RULING:
1. There is what you call effect of judgment (Rule 39 Sec 47
(b) res judicata (c) preclusion of issue or concluiveness of
judgment) both can bar, but res judicata is a bar of further
litigating involving the same matter already passed upon by
the Court. But preclusion of issue is only a bar in litigating an
issue that has been previously resolved in another case.
SC said na ‘yung RTC case final na ‘yan, hindi na nga in-
appeal eh. Ang tanong if the Court can take judicial notice and
the answer is YES. Kahit RTC lang ‘yun.
2. You have heavily discussed this case in the pending
proceeding, you cannot just disclaim the existence of the case.
Note: Referral to a case is not prohibited if it is final and
executory (‘yung bawal 2 pending na case)
Points to remember:
1. If it is a final judgment of the SC any court can take judicial
notice
2. If it is a final and executory judgment by a lower court, the
court can take judicial notice
41
What is not allowed?
GR: Taking judicial notice of cases pending in another Court.
Even if it is pending under the same court
EX: Parties consent
Query: Can a lawyer be authorized by a juridical entity to sign
a certificate of non-forum shopping?
Answer: Certification on Non-Forum Shopping may be signed
for or on behalf of a Corporation by a specifically authorized
lawyer who has knowledge of the facts required to be
disclosed, it does not require any consular certification if the
Petitioner is a foreign entity.(Shangrila vs Developer Group of
Companies)
Note: if it is duly authorized by a foreign corporation you do not
need to have it consularized, you should only have it
consularized (Rule 119) for acts of soverign authority in a
foreign country and presented before Philippine Courts.
Query: Will Forum shopping apply in disbarment cases?
Answer: No.
Query: How about resort to a provisional relief in court in terms
of arbitration cases?
Answer: The pendency of an arbitral proceeding does not
foreclose result to the Courts for provisional relief. Your resort
to a provisional relief in the event of a pending arbitration case
is not forum shopping.
IV. ACTIONABLE DOCUMENTS
(Rule 8 Section 7 and 8)
A filed a complaint and made an attachment.
TANNER NOTES
Query: Is the attachment in the complaint considered as a
judicial admission?
Answer: The mere attachment does not make it a judicial
admission. It will only amount to a judicial admission when the
defendant fails to specifically deny under oath the actionable
document.
Why there is a need to specifically deny?
- Because if not that document as to its genuineness or
execution is admitted. Ang sinasabi mo “ay valid ‘yung
pirma niya, ‘yung execution pati notarization niyan
totoo” – all requirements of execution ay totoo.
Note: If a document is not specifically denied under oath you
don’t need to authenticate it. Kasi admitted na ‘yun eh.
However, it does not mean na talo na ‘yung case. The
admission is only limited to the genuiness and due execution.
Case:
Equitable card network vs Capistrano (2012):
FACTS: There was no specific denial under oath, only special
and affirmative defenses.
Si Mrs. Capistrano, nagulat siya, siya pala ay may Credit Card
tapos may balance pa. so hinabol siya ng BDO (Equitable
card) sabi niya “hindi naman ako nag-aapply ng Credit Card”
BDO sued her. However, she did not specifically deny the
document under oath. RTC said “admitted ‘yun hindi mo ng
dineny eh”
RULING: While there was a general denial the document was
not signed by her and that was not her signature there were
42
special and affirmative defenses that would show that there
should be no recovery.
Query: How do you allege an actionable document?
Answer:
2 ways:
1. State the substance in body of complaint and attach a copy
of the original or the original
2. By reproducing in the body of the complaint a copy of the
document
Permanent Savings vs Velarde
FACTS: There was a complaint with an actionable document.
The answer shows that respondent did not specifically deny
that he signed the loan documents what he merely stated in
his answer was that the signature appearing at the back of the
PN seems to be his. He also denied liability on the PN as he
did not allegedly receive the amount. Also, that it did no t
reflect the true intent of the parties. Respondent reiterated his
allegations in his denial under oath. The PN assuming that it
exists and bears the genuine signature of the Defendant the
same did not bind him and did not truly express the true
intention of the parties.
ISSUE: WON the denial is a specific denial
RULING: The denial do not constitute an effective specific
denial. In the early case of Songko vs Elner, the Court
expounded on how to deny the genuineness and due
execution of an actionable document.
The defendant must declare under oath that he did not sign
the document or otherwise false or fabricated. Neither does
the statement in the answer to the effect that the instrument
TANNER NOTES
was procured by fraudulent representation raised any issue in
its genuiness or due execution.
It effectively eliminated any defense on authenticity and due
execution. As respondents answer shows that he failed to
specifically deny under oath the genuineness and due
execution of the PN and its documents it amounts to an
admission.
Case of Camptin* (4e 11:20)
A denial is not specific simply because it is qualified as
specific. A general denial does not become specific by the use
of the word “Specifically” when the matters of whether the
defendant alleges having no knowledge or information to form
a belief are plainly and necessarily within the defendant’s
knowledge his alleged ignorance or lack of information will not
be considered as a specific denial.
Rule of thumb:
If its lack of information to form a belief, if it is within his
knowledge he has to deny it. His feigning ignorance will not
amount to a specific denial
Note: in one case, it was held that when respondent makes
specific denials of a material allegation without setting forth the
substance of the matters relied upon to support its denial when
such matters were plainly within its knowledge and the
Defendant could not logically pretend ignorance said
Defendants fails to properly tender an issue.
Note: Mistake and fraud under Rule 8 will have to be alleged
with particularity. A general averment is not enough.
43
Hindi mo pwede sabihin sa Court na B defrauded you without
telling the Court how he defrauded you. ‘yun ‘yung duty mo sa
Court.
Note: Malice, intent, knowledge or other conditions of the mind
must be generally averred.
Do you need to state that the court acted within its competent
jurisdiction?
- No, the general averment that a decision has been
rendered by the Court will suffice.
- This should be read together with disputable
presumptions uner Rul 113. If the Court has rendered
its decision, the Court is presumed to have acted within
its competent jurisdiction. When the Court has
rendered its decision, it is presumed that the issues in
the case have been passed upon by the Court.
Note:
1. All grounds and objections not raised in an answer or a
motion to dismiss are considered waived. Except lack of
jurisdiction, subject matter jurisdiction, litis penentia, res
judicata and statute of limitation
2. If you failed to timely raise a counterclaim it will be barred.
Remedy is an amendment under Rule 11 Sec 10
RULE 9
EFFECT OF FAILURE TO PLEAD
DEFAULT
3 things to remember:
1. Default under Rule 9
TANNER NOTES
Note: when there is failure to file a responsive pleading or an
answer and there was a motion to declare you in default, that
is Default under Rule 9
2. General default
- This happens when there is no specific defendant.
- Usually present in actions in rem
Example: action for registration of land.
3. As in Default
- During Pre-trial and the Defendant is absent, the Plaintiff may
be allowed to present evidence ex parte.
Query: Does it mean that if the Defendant did not file an
answer, the Defendant should automatically be declared in
default?
Answer: No, you have to remember 2 things.
1. That the Defendant did not file a responsive pleading or an
Answer within the reglementary period
2. There is proof of such failure
Example:
- Si A ‘yung Defendant, ang due date ay Friday. Having
received it 15 days ago, which started when the client
received summons. Si A nag-file ng Answer by
registered mail. If B is the Plaintiff can he file an action
to declare A in default?
Note: There are instances where you file it thru registered
mail. Which means you will not receive it today but in 5 or 7
days later but that does not mean that the Defendant did not
file an answer.
44
Query: If there is a motion to declare, assuming it complied
with all the requisites, in default can the Court already render a
judgment?
Answer: Yes, based on what the pleading may warrant or
presentation of evidence ex parte.
REMEDY:
1. Declared in Default: File a motion to lift order of Default
which is under oath, on the ground of Fraud; Accident;
Negligence; Mistake; Excusable neglect or meritorious
defense.
What do you mean by Fraud?
- (Extrinsic Fraud) one which prevented you from
participating in the proceedings.
What do you mean by Mistake?
- Mistake of fact
- Example is filing in with the wrong court or it was
missing in the mail.
Paano kapag sinabi niya na mali ang bilang niya ng
reglementary period, mistake?
- No.
Excusable Negligence
- It is something that the court can excuse you from not
gross neglect.
PARTIAL DEFAULT
- It happens when there are multiple parties.
Can you file an action to declare them in default?
- Yes0
Can the Plaintiff be allowed to present evidence partially?
- No, because there are answering Defendants.
Therefore, they can present evidence to two answering
defendants and whatever evidence they present can
be considered for the non-answering defendants the
Court may appreciate it.
Note: Presentation of evidence ex parte does not apply of
there is an answering defendant.
Query: Is there Default in annulment, nullity or legal separation
cases?
Answer: None.
If there is no answer what happens to the case?
- The matter will be referred to a Prosecutor to
determine if collusion exists, if there is none, the
records will be forwarded back to the court for Pre-trial.
Query: What is your remedy in the event of a judgment by
default?
Judgment by default means you were previously been
declared in default, you did not file a motion to lift the order of
default, youwere just given notices of proceedings; now, not
having participated the court rendered a judgment.
Answer: ( see Lina vs CA)
1. Within the reglementary period you could file an appeal or
motion for new trial
2. If the judgment is final and executory, file a petition for relief
from judgment under Rule 38
3. If there was grave abuse of discretion amounting to lack or
excess of jurisdiction you can do Rule 65
Note: You can also file annulment of judgment.
AS IN DEFAULT
Query: What is your remedy to as in Default?
Answer: Not found in the rules but in jurisprudence
Case: Saguid vs CA (2003)

45
TANNER NOTES
Ruling: You can file for a motion for reconsideration on the
ground of Fraud; Accident; Mistake and Excusable Neglect.
But you need not state that you have a meritorious defense.
Because having reached pre-trial obciously you already have
an answer.
Query: Can the absence in a hearing be the basis of Default?
(Monson vs Relova case)
Answer: It is even worse when the Court issues an order not
denominated as an orer of default, but provides for the
application of effects of default. Such amounts to the
circumvention of the rigid requirements of a default order.
In the case at bar, petitioner had not failed to file their answer
neither was noticesent to Petitioner that she would be
defaulted or that the effects of default shall be imposed upon
her.
Mere none appearance of Defendants at an ordinary hearing
and to adduce evidence does not constitute default; when they
have already filed their answer to the complaint within the
reglementary period.
Note: You have to be very careful with the case of Monson
because kunware defendant ka during pre-trial absent ka,
there will be presentation of evidence ex parte.
Query: Does this mean that Defendants can get away with
failing to attend hearing despite due notice?
Answer: No, it will not. We agree with Petitioner that such
failure to attend when committed during hearing dates for the
presentation of the complainants evidence will amount to his
or her waiver to object and to cross examine. However, it
would not amount to a waiver of Defendant’s right to present
evidence during trial (Monson vs Relova)
TANNER NOTES
Note: Under the judicial affidavit rule ‘pag Defendant absent
(meaning it was the Plaintiff’s time to present evidence) and
ther was already a judicial affidavit submitted in Court; The
non-appearing Defendant through Counsel waives his right to
cross examine.
Query: Paano kapag absent repeatedly ‘yung Defendant on
his day of presentation of evidence?
Answer: Defendant may waive her right to present evidence
because of repeated absence.
AMENDMENT
Query: Can you amend the complaint when at the outset it has
no cause of action?
Answer: (See Turner case)
Facts: where he was claiming dividends. At that time there
was no retained earnings yet. Sabi noong Company the case
is premature, so Turner amended the complaint
Ruling: You cannot amend just to put a cause of action when
at the outset there was no cause of action.
Query: Paano kung may cause of action pero you will
substantially alter the cause of action, can you substantially
amend?
Answer: Yes. (Rule 10 sec 3) Subject to the discretion of the
Court. (Lisam enterprises case)
As a matter of right: You can amend the Complaint before the
Answer
By leave of Court: If there was already an answer
46
Rule: • This allows you to amend the pleading to conform with
- Kapag walang cause of action = no amount of the evidence.
amendment can cure it
- What if there was a cause of action but because of Covers 2 scenarios
some circumstances there was a need to alter the 1. Other party does not object
cause of action = Yes Effect: Amendment can even be effected even after judgment

Note: 2. Other party objects

1. Amendment as a matter of right
2. Amendment with leave of Court, if there was already an
answer (Left to the discretion of the Court)
3. Typographical or clerical amendments (Formal
amendments)
- can be effected by the Court Motu Propio or upon motion of
party.
4. Amendment to conform with the evidence
(Rule 10 Sec 5)
Remember: For every factual proposition it will have to be
supported by evidence (Rule 128 Sec 1)
Evidence is the means sanction by proceedings by the rules in
a judicial proceeding to establish the truth as to a matter of
fact.
(Rule 8 Sec 1)
Every pleading should make a plain and concise statement of
ultimate facts
(Rule 10 sec 5)
When there is variance between what is alleged and what was
proven
Effect: Left to the discretion of the Court
Note: In both cases judgment is valid
RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Case: Pagcor vs. Lopez
Let me start with, I recall I was discussing rule 10, let
me give you the case of Pagcor vs. Lopez the very important
thing I want you to remember is this: “can you change your
cause of action?” meaning you have filed a case already
later you realized ayaw ko, parang mali cause of action ko,
can I change that?
The answer is yes. In this particular case to clearly
illustrate, the original complaint filed was for specific
performance, specific performance and injunction with prayer
for temporary restraining order and preliminary injunction.
Now, after some time the complaint was amended for what? to
a complaint for recovery of sum of money, so naging some of
money yung recovery niya originally injunction siya tapos ano
naging sum of money. Here why was there an amendment?
Because the plaintiff has provided funds for pre operating

47
TANNER NOTES
expenses and working capital, so dito class nagkaroon ng
adjustment sa complaint. Dinagdag nila yung pre-operating
expenses and what, capital.
Case: Do All Metals (2012)
Now, my next question would be this, considering that
there was an amended complaint, is the court considered
to have acquired jurisdiction on the amended complaint?
Okay, If you recall last time I was discussing a supplemental
complaint, remember? For those of you who were able to
follow my discussion, I was discussing a supplemental
complaint you remember the case of Do All Metals that’s a
2012 case. It’s in that case that the court clearly stated that if
it’s what, a supplemental complaint because it is brought about
by new events on occurrences after the filing of a complaint,
then you have to file what? You have to pay filing fees
otherwise the court never acquired jurisdiction on the
supplemental complaint but the court acquired jurisdiction in
the original complaint, walang problema yun, but the court
cannot award on the claims arising from the supplemental
complaints, maliwanag?
Ang tanong dito class kung may jurisdiction ba sa
amended complaint? There is an original complaint and there
was an amended complaint, okay. The court said yes, it has
jurisdiction over the amended complaint as it had acquired
jurisdiction over the case when it was originally filed and the
corresponding docket fee was paid. However, class ah this
case is clearly applicable to the facts of this case.
Paano kung ganito ang tanungin sainyo sa bar, okay,
nag adjust, because of the amendment from injunction to
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recovery of sum of money tumaas yung claim, do you follow?
nag adjust ka eh tumaas yung claim oh paano mo sasagutin
yun? Nag adjust ng claim eh sir sabi dito, pinaliwanag dito sa
pagcor aba’y original complaint may jurisdiction ang husgado,
tama? Yung supplemental complaint iba yun because that’s a
new complaint all together now going back to this, it is what?
an amended complaint, did the court acquire jurisdiction? The
answer is yes. Now, how should you answer it? if there are
amounts far higher than the original complaint that would
change the nature of the demandable relief, you will have to
follow the sun insurance case, ano yun? For as long as you
pay the difference within the prescriptive period. Magkaiba
yung original complaint, magkaiba yung ano supplemental
complaint. Magkaiba yung treatment nun so you have to read
that carefully, the question.
Now, let me now proceed to another point, okay. If you
would recall class, last time, I’ve made mention about liberal
application of the rules, correct? Do you remember that is in
Rule 1 Section 6, remember that?
Case: De Lima vs. Gatdula (2013)
I will give you a case class, the De Lima vs. Gatdula, a
2013 case, why am I calling your attention on this? Alam niyo
na yung liberal application as we explained that the technical
rule should not apply. However, class I am citing this case to
give you example of grounds when the court entertained a
liberal application to the rules, okay? There are specific
grounds in this case, in the case of De Lima what did they
say? The court adopted the policy of liberally construing its
rules, in order to promote just, speedy, and inexpensive
48
disposition of action, the rules can be suspended on the
following grounds:
1. Matters of life, liberty, honor, or property,
2. existence of special or compelling circumstances,
3. The merits of the case,
4. A cause not entirely attributable to the fault or
negligence of the party favored by the rules,
5. Lack of showing that the review is merely frivolous and
dilatory,
6. Lastly, the other party will not be unjustly prejudiced
Case: Licomsen vs. Abayensa (2013)
Now, let me call your attention also class to another case, the
case of Licomsen vs Abayensa this is a 2013 case. This case
said, this case echoed the rule, what is the rule? Grounds
raised in an answer or in a motion to dismiss are considered
as what? Waived. It echoed that rule. Grounds that are raised
in an answer or in a motion to dismiss are considered waived
except:
1. lack of jurisdiction over the subject matter,
2. litis pendencia,
3. res judicata,
4. statute of limitations.
Now let me ask you this question, another related case,
question: can a court dismiss a case motu proprio? The
answer is yes, on the same grounds. Okay? On the same
grounds. The court can dismiss a case motu proprio on the
same grounds.
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Case: Padilla vs Espina
Now, can you file a motion to dismiss on an
amended complaint? This was touched in the case of Padilla
vs. Espina, okay. There was an amended complaint and the
filing of the motion to dismiss was questioned. The court said:
“considering the original complaint has already been
superseded, then you can file a motion to dismiss on an
amended complaint”
Let me now look at this next point the case of Lui
Enterprises vs. Zuellig Pharma, this is a 2014 case lui
enterprises vs zuellig pharma dalawang bagay class ang
binaggit dito sa Lui Enterprises, one is interpleader, ito
talagang kaso interpleader ang isa kaya ko to sina-cite, eh sir
ang layo pa nitong interpleader nayan, tama malayo pa iyon,
and the other one is default. Okay, so dalawa yung matter na
tinotouch dito. Let me touch first on the matter of default. Yun
yung pinaka malapit na rule na dinidiscuss natin eh, what did it
say? But of course I would have to give you the facts of the
case para pag discuss ko sainyo ng interpleader maaalala
niyo yung facts of the case. So what happened in this case?
Case: Lui Enterprises vs. Zuellig Pharma (2014)
FACTS: May nag pa-upa, Lui Enterprises was leasing a
property in Mindanao, nag papaupa siya, ang umuupa ay
Zuellig Pharma, a pharmaceutical firm. Ngayon ang nag ano
may utang si Lui Enterprises tapos hindi nila mabayaran so si
PB Com kukunin na niya yung property gusto niyang
iforeclose ang ginawa ni Lui Enterprises ay dacion, dacion
yung ginawa niya, dacion ko na yan. Okay, inadvice yung
Zuelling Pharma na okay doon na ako magbabayad but for
some reason Lui Enterprises changed its mind. Sabi ng Lui
49
“hindi sa akin ka na mag bayad.” Eh anong ineexpect mo edi
litung-lito yung nangungupahana diba? Kanino ako
magbabayad sayo ba o sa kanya? So, that’s the problem.
So you have 2 cases here: one was an interpleader
sabi ng ano sabi nino ng Zuellig Pharma “paki determine niyo
nga po iyung rights nito sino yung dapat kong bayaran?”
Ganun, ngayon Lui Enterprises filed on the other hand, what?
An action to annul the dacion in payment.
HELD:
Okay, so dalawa yung kaso niyan so papasok dito sa
interpleader yung sub issue na pangatlo, ano yun? Sabi niya,
forum shopping, forum shopping. Litis pendencia. So sagutin
ko yun muna, meron bang forum shopping? Litis pendencia,
sabi niya “Uy! Nag file ako ng interpleader ah!” nag file ka ng
interpleader, nag file si Zuellig Pharma ang nag file ng ano
sino? Nung nullification of the dacion in payment, Lui
Enterprises. Oh, ngayon dapat masagot niyo ito. Is there
forum shopping, litis pendencia? Wala.
First, the parties are not identical. The causes of action
are not the same. In fact, if you talk of an interpleader there
are no causes of action, are you aware of that? In an
interpleader there are no causes of action. You only ask the
court to determine the rights of the parties, requiring the
parties to interplead among themselves. Yun lang yun, so that
you will not be vexed.
Okay now, on the matter of the default, anong nangyari
dito? Aba class, tandaan niyo…while the period, while the
provision of the law on the lifting of the default, motion to lift
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order of default, does not provide for a period. You can check
that out in Rule 10, ah in Rule 9. Mayroon bang period to file
a motion to lift an order of default? On the ground of
fraud, mistake, accident, and excusable neglect?, is there
a period? Tignan niyo sa section 3 subsection b yun ata,
tignan niyo. May period to file a motion to lift an order of
default? Wala diba? Walang nakalagay. Therefore, if there is
no period you have to do it within a reasonable time, right?
Anong nangyari dito sa case ng Lui Enterprises? Ang
magaling, finilie na niya ng ano…motion to lift order of default
after a period of 1 year. Okay? Mahigit isang taon matapos
siya mag file ng motion to lift order of default sa kasong ito.
Anong sabi ng court? No, considering that the period has been
more than a year and you did not give sufficient reason, sabi
ng court, I will not set aside the order of default.
Case: Sy vs. CA
Okay, let us now move on to this. Ito class ah, this is an
interesting case because I mentioned to you amendment to
conform to evidence, you remember? Parang doon tayo halos
magtapos eh. So I’ll give you examples of this, because I’ll
give you this because this is important the case of Sy vs. Court
of Appeals, anong sabi ng court? Since the issue, in this case
the issue was support, the case of Sy vs. CA, was tried with
the implied consent of the parties, it should be treated in all
respects as if it was raised in the pleadings and since there
was no implied consent even if no motion had been filed and
no amendment had been ordered, the courts hold the trial
court validly rendered the judgment.
I will repeat. In simple words sinabi dito because in this
action for support the issue was discussed in the trial, and
50
therefore there was already an implied consent. Sabi dito bat
ko sayo sinasabi, dito walang amendment eh. Triny, nag hear,
nag presentation ng evidence. Magkaiba to that which was
provided for in the pleading right? So the court says “ since
there was an implied consent, even if there was no motion…”
oh no motion, walang finile na motion ah, Section 5 Rule 10
“even if there is no motion and no amendment had been
ordered…” walang motion, wala pang amendment order!
Anong sabi ng court? “the Supreme Court holds that the trial
court validly rendered a judgment on the issue” so there was
an issue that was not stated in the pleading, that was tried,
evidence was presented, there was no objection. Do you
follow? There was implied consent and because of the implied
consent it is made part of the record even without a motion
and what and an order of amendment. And even if there was
no such motion or order of amendment the court says what
“the judgment was validly rendered”
Case: Tribiana vs. Tribiana
Ito naman class, tignan natin. How about a failure of
a party to comply with a jurisdictional defect? An
amendment alleging compliance with a condition precedent is
not a jurisdictional matter. Take not ah, an amendment
alleging compliance with the condition precedent is not a
jurisdictional matter, Tribiana vs. Tribiana, neither does it alter
the cause of action of a petition for habeas corpus. We have
held that in cases where the defect consists of merely “failure
to state compliance with the condition precedent” the trial court
should order the amendment of the complaint. Okay ah!
“failure to state compliance with the condition precedent”, first
anong tatandaan niyo, it is not jurisdictional, second if it is only
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“failure to state compliance with the condition precedent” the
trial court can order an amendment.
Case: Swagman vs. CA
Okay now, let us look at the case of Swagman vs.
Court of Appeals, this is a good example of amendment to
conform with evidence if no cause of action at the time of the
filing. So ito, at the time of the filing ano? Sa Swagman case,
walang cause of action, okay, walang cause of action. Can
you amend the pleading to conform with the evidence
under Section 5? Naalala niyo ba yung Section 5? Yung
section 5 class, what was alleged was different from that which
was that proven in the trial. Correct? Magkaiba siya and based
on the provisions of the law, you have two ways:
1. If the other party does not object, the court can allow
an amendment to conform with the evidence.
2. If the other party objects, that is left to the discretion of
the court.
Now, in this case ang tanong class papaano kung walang
cause of action sa simula pa lamang. Sa simula pag mag file
ng complaint, wala. According to the Trial Court and sustained
by the Court of Appeals, this section allows a complaint that
does not state a cause of action. To be cured, the evidence
presented must be without objection during the trial. Ito yung
subject ng question kasi ang ginawa ng trial court, pwede.
Sabi ng trial court, pwede kahit walang cause of action ‘yan.
Ma cucure naman ‘yan eh. Amendment to conform with
evidence. What did the Court say? Ang tanong dito sa
Swagman napaka importante. Wala akong cause of action.
Wala na nga akong cause of action, pwede raw i-ammend to
conform with the evidence?
51
HELD:
Such interpretation of Section 5 Rule 10 of Civil
Procedure is erroneous. Amendments of pleadings are
allowed under Rule 10 of the 1997 Rules in order that the
actual merits of the case may be determined in the most
expeditious and inexpensive manner devoid of technicalities.
However, the curing effect under Section 5 is applicable only if
a cause of action exists.
‘Yan ang tandaan niyo class. Yung Section 5 kasi ‘yan,
curing ‘yan eh. It will only apply if a cause of action exists at
the time the complaint is filed. But the complaint is defective
for failure to allege the essential facts. So there was a cause of
action except that the complaint was defective as to the
allegation on essential facts.
Thus, in Roces vs. Jalandoni the Court said: This Court
upheld the Trial Court in taking cognizance of an otherwise
defective complaint which was later cured during trial. In that
case however, take note, in the case of Roces vs. Jalandoni,
there was in fact a cause of action. The only problem was the
insufficiency of the allegations. It thus follows that the
complaint’s cause of action has not yet accrued. A cause of
action that has not yet accrued cannot be cured or remedied
by an amendment or supplemental pleading. Maliwanag yun
noh, I think maliwanag yun. Matapos lahat ng sinabi kong ito
ano lang ang tatandaan niyo? Ang complaint dapat may cause
of action ‘yun. Kapag walang cause of action yun di mo pwede
ammendahin para lagayan mo ng cause of action.
Pangalawang gusto kong tandaan niyo, yung curing
effect, Rule 10 Sec. 5 di mo pwedeng iapply, Nag-aapply lang
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yung curing effect ng Rule 10 Section 5 kung may cause of
action – yung amendment to conform with evidence.
Before we leave Rule 10, allow me to touch on
Supplement. Tapos pupunta ako sa Bill of Particulars.
SUPPLEMENT
Ito yung rule sa Supplement, and I would like you to
memorize this. You file a supplement because there are
events, transactions, or occurrences that have taken place
after the filing of the pleading that is sought to be
supplemented.
Illustration:
Ganito yung supplement, class. File ako ngayon. Ang
fi-nile ko ngayon ay recovery of 500,000 pesos because he’s
not paid when due. Ngayon, fi-nile ko na. Nagbayad na rin ako
ng filing fees. Ngayon, sa pagkutkot ko ng gamit ko – Fi-nile ko
let’s say, last Friday, June 2. Nagkukutkot ako ng gamit nakita
ko may utang pa pala ito sa akin. May PN pa ‘to ah. Yung PN
na ‘to ay nung November 2015 pa. Nakapag file ako ng
complaint for 500,000, nakapag bayad ako ng filing fees, okay
na may complaint na ako. Ngayon, sa pag-aayos ko Nakita ko
na may PN pa pala ‘to. Eh medyo malaki – Magkano? 250,000
rin. What will I do? Will I file an amendment to a complaint
or will I file a supplement? I will file an amendment. An
amendment is effected if the facts that you would want to
introduce are already available at the time of the filing of the
complaint sought to be amended. Buhay na ba ‘yun? Oo.
Andun na yun eh. Ang supplement iba.
52
Supplement is proper for events that have taken place after.
For example, nag file ako ng complaint – 500,000. May mga
taong ganun eh, may mga kaibigan ako na ganun eh – Na
nautangan na, magpapautang pa rin. Nilapitan ako sabi –
Pare, talaga lang kailangan eh. May hinahabol akong business
para mabayaran ko ‘yang 500,000 mo. Utang na loob mo pang
pautangin siya para mabayaran ka niya. Pag ininvest ko ‘yan,
bayad pati yung 500,000 mo. Sabi ko, sige sige papautangin
kita magpunta ka sa Lunes sa opisina, mag Promissory note
ka. Tapos ang aga niya sa opisina. Sabi niya: Pare, babayaran
ko ‘yan in 30 days, come July 5 bayad ko na ‘yan. Yan
nakalagay sa PN. Dumating na July 14, 30, wala. What will I
file? I will file a supplemental complaint. If you want to include
it. Pero if ang tanong is: Pwede ko ba i-file separately ‘yan?
Of course!!! Remember: That has its own cause of action.
Ulitin ko. May dalawa kang option dun: Pwede kang mag-file
ng supplemental complaint pero bayad ka ng filing fees OR file
ka ng separate complaint. Kaya lang pag nag-file ka ng
separate complaint, one is in the RTC because its 500,000
and the other 250 so where will you file it? MTC. Ganun lang.
Tanungin ko kayo class, Are there instances wherein the
Court can order an amendment without an application?
May mga instances ba na wala kang fi-nile na motion pero ang
court ay nag-iissue ng amendment? YES. If there is a motion
to dismiss. Pag nag file ka ng motion to dismiss, you’ll find that
under Rule 16, the court can either grant it, deny it, or can
order an amendment. Pwedeng sabihin ng Court na ang labo
ng complaint mo, baguhin mo na nga lang ‘yan. The Court can
also order an amendment without an application for an
amendment in this instance: if there is a motion for bill of
particulars. If there is a motion for bill of particulars and the
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court sees that the complaint is so vague, insufficient in terms
of the allegations. The court may simply say na i-amend mo na
nga lang ‘yan. Although, the court may order the submission of
a motion of bill of particulars.
Few more points. When is an amendment a matter of right?
before an answer. Icocompare ko ‘to sa criminal ah.
Amendment is a matter of right before an answer. Take note
before an answer, icocompare ko ito sa criminal. Sa madaling
salita, ito mag slaslide ako sa criminal. Sa madaling salita,
basta walang sagot lahat pwede mong gawin. Wala pang
sagot eh. Pwede mo baguhin cause of action mo. Baguhin mo
gusto mo. Baguhin mo matter of form. Because there is no
anwer. And what you need to file is only a notice to amend, not
a motion to amend. Bakit? Kasi karapatan mo eh. Basta
karapatan mo, uulitin ko yung salitang notice na ‘yan in at least
2 more rules – in rule 17 later on and rule 23. Tandaan mo
‘yan, basta karapatan mo, notice. After an answer, what will
you file? A motion that is left to the discretion of the court.
Let me compare this with CRIMINAL. So pwede niyo tingnan
‘yan sa Rule 110 Section 14. You look at it. Kasi may mga
ugali… ang mga studyante kapag nakarinig ng amendment
ang iaapply nila Rule 10, di nila binabasa minsan criminal
proceudre. Even lawyers commit that mistake. Tingnan ko
kung masasagot niyo ito. I had a hearing last week, pre-trial
akin ang akusado. Sabi ko, asan ang private complainant. Ay
wala eh, ‘di nakarating pero may special power of attorney
naman ako eh. Is that correct? Hindi nga kailanga yun eh!
Class, bakit hindi kailangan? Because the private complainant
is only the witness of the State. His presence is not even
53
required during pre-trial. And therefore, the special power of
attorney that he is what – presenting – is not even necessary.
Ang kailangan mo lang dun ay akusado. Hindi mon a
kailangan ng private complainant. Kung gusto niya manood
dun, edi manood siya. Testigo siya ng pamahalaan eh di
naman siya kailangan dun as he is only concerned as to the
civil aspect. Kahit nga sa arraignment hindi siya kailangan dun
eh. Wag lang na may plea bargaining. Kunwari I’ll plea for a
lesser offense. Pero hindi siya kailangan. Usual mistake yan
ng abogado and ng law student.
Pangalawang mistake ng law student, kailangan ba mag
submit ng pre-trial brief? Hindi! Ang kailangan mong dalhin
dun ay sarili mo. Kung gusto mo, gumawa ka, Pero hindi
required yun. That’s for your personal consumption.
Eh papaano kung absent, madi-dismiss ba ang kaso? Eh
hindi nga siya kailangan, edi hindi dapat madi-dismiss. Class,I
had to mention that because I have to discuss briefly an
amendment in criminal.
Yung mga lawyers kasi yung mga kaibigan ko sinasabi na
yung mga ibang topics kasi ng law hindi na nababasa yan kasi
ending na ng semester yan. Kaya hindi na nila alam ‘yang
topic. Which is true sometimes.
Kung sa civil, ang reference point mo ay answer. Sa criminal
ang reference point mo ay plea. Tanong natin: Anong pwede
mong gawin before plea? Aba’y lahat pwede mong gawin.
You could amend as to matters of form and matters of
substance. Karapatan mo yun. Nakalagay yun sa batas. Of
course sa totoong buhay kahit na yan ay as a matter of right,
TANNER NOTES
bago ka mag before a plea ay magoobject sayo ang akusado.
For academic purposes, karapatan mo yun.
After plea, pwede ka pa ba mag amend? Only as to matters
of form for as long as it would not prejudice the rights of the
accused. Memorize. You have to memorize it this way. Kasi
kapag tinanong yan, dapat kumpleto ang sagot. Ano ibig
sabihin nun? Edi kapag ma-prejudice ang rights ng akusado,
hindi pwede.
For example, may mali po yung information may typographical
error. Or ang edad ng akusado ay mali ho yung 21, ang edad
niyan ay 11. That would prejudice the rights of the accused.
Statutory rape or rape. Ang bigat ng parusa nun. Kesa sa rape
ng 21 years old. So formal lang yun, but it will prejudice the
rights of the accused.
For example, wala naming typographical error. Sabi ng
prosecutor, baguhin ko ko yung ano, yung, dapat ho kasi yan
eh hindi ho gramo lang yan eh…kilogram.” Sandali, drugs yan.
Mas mahaba kulong pag binago. Di ba? That would prejudice
the rights of the accused. Wait, it may appear to be what?
Typographical error. It may appear to be form. Pero yung
gramo nakalagay five grams, let’s say, “hindi ho mali yan hindi
gramo yan, five kilos.” Aba mabigat yan. Yan yun. Di niyo
makakalimutan yun.
Class ano pa pwede mangyari before plea? Dito lang ako sa
Section 14 para di kayo malito. Kasi alam ko di niyo pa
nababasa yung iba sa inyo.
54
What else can you do before plea? This is in connection
with amendment. What else can you do before plea? You
could DOWNGRADE. Alam niyo class yung downgrade?
Murder-homicide. Frustrated homicide-serious physical
injuries. Nakita niyo? Downgrade. Pwede yun basta before
plea. But class, take note there are procedural requirements:
1. upon motion,
2. with notice to the offended party and
3. with leave of court.
Ano pa before plea? I’m just on that Section. Ano pa?
EXCLUSION. Anong exclusion? Itong limang student sa harap
ko ang lahat ng accused. Itong lima accused sa information,
pero yung isa sabit. Exclude na natin. Why? Because we
cannot prove the case against her. Can you do that before
plea? Yes. Sir eh bakit bumabagsak yan sa amendment? Eh
class pag dinowngrade mo, babaguhin mo yun. Pag inexclude
mo, babaguhin mo yung information. Do you follow? Ida-drop
mo siya eh. That is what? Downgrading. But please bear in
mind that because there is yet no plea while you are excluded
double jeopardy will NOT attach. Tandaan niyo yan ha, kasi
wala ka pang plea pwede kang i-exclude. Ibig sabihin, at some
future time kung may ebidensiya laban sayo, pwede kang
idemanda. Okay?
Let’s move on. Isa na lang tapos discuss ko na bill of
particulars. Basta class meron comparison or may equivalent
provision sa criminal ico-compare ko ha?
Now, let us look at. Sir, ano pa kailangan mo idiscuss dito?
Meron pa class. SUBSTITUTION. “Sir, diniscuss na natin yan
last week eh.” Rule 3 Section 16. Tama? Class, Rule 110,
TANNER NOTES
Section 14 refers to SUBSTITUTION OF INFORMATION.
Okay? Tandaan niyo. Wag kayo magugulat pag lumabas sa
bar exam yun. Sabihin mo, “What is substitution of
information?” Magagalit ka pa sa examiner. Mali yung tanong,
misleading. May iba pa jan sasabihin, it’s a trick question.
Anong trick question? Substitution of information. Yes. The
information can be substituted if the prosecution is convinced
that they cannot prove the case. Take note. Substitution.
Now, ang tatandaan niyo sa criminal, this is my last point
before I discuss bill of particulars. Class tandaan niyo, sa
criminal ang sina-substitute lang ay INFORMATION. Okay?
Wala rito na substitution of what? ACCUSED. Gusto niyong
pumalit? But class, let me call your attention. Open to Rule
111 Section 4. And I think that’s the second paragraph. You
see a provision similar to, nakita niyo? Second or third
paragraph. You see a similar paragraph as in Rule 3 Section
16. Notice of the lawyer of the fact of death and then the court
will order what? Substitution. It is similar to Rule 3. So sir you
are wrong, there is substitution of the accused. Look at the
word. Do they use the word accused? Okay, now let us be
very clear. Tandaan niyo to, very simple. What is
contemplated under that provision,—the substitution is NOT a
substitution of an accused by reason of a delict. Ang kino-
contemplate ng provision na yan ay what?
a. Law,
b. Contract,
c. Quasi-contract,
d. Quasi-delict.
e. Independent civil actions or
f. those arising from other sources of obligation
55
 So class, yung mga kaso, ito lang ang tandaan niyo kasi yan
superfluous yan jan (pertaining to the provision) . That’s
superfluous, dapat yan hindi nakalagay jan. So there’s a
tendency that the student will be mislead na kapag namatay
ang accused may mga notice requirements pa ko. Class hindi,
kapag involving a delict yan, tapos na kaso patay na wala na
gusto makipagpalit. Kahit gaano mo kamahal yun, di ka
makikipagpalit. Kasi makukulong ka eh, nakuha niyo yun?
Yung pinag-uusapan jan, kita niyo may qualification yung
Section 4—those arising from what? Other sources of
obligation and independent civil actions. To that extent class,
ang tinutukoy na ito (Law, Contract, Quasi-contract,
Quasi-delict) is what? A civil case. Hindi siya criminal. Civil
siya kaya lang ipinilit isaksak dun sa Section 4. You see that
class? So don’t be confused. Kasi tricky ang tanong na yan.
Pag tinanungan kayo ng ganitong situation class kasi possible
lumabas yung tanong na ito: Namatay ang accused. Pag
tinanong kayo na namatay ang accused and tingnan niyo na-
arraign na ba yung accused. Yung agad ang hanapin niyo sa
question. Na-arraign na ba? Nakapag-plea na? Pag may
accused na namatay ang hanapin mo, na-arraign na yan or
nakapag enter plea? Pag yan ay nakapag enter ng plea, listen
to this, pag namatay ang accused and its arising from the
delict, its the crime as you know once the criminal action is
instituted the civil is likewise instituted. Correct? Yun yun eh,
kakabit yun. Pag namatay ang accused na-arraign na at
nakapag enter na ng plea, ano magyayari? The civil and
the criminal are both what? EXTINGUISHED. Sabihin mo,
sir ang unfair naman. Yan ang sabi ng batas. Tapos na yun
pag na-arraign na namatayan kahit anong laki ng estafa niyan.
Class, delict eh. Basta namatay siya after plea, goodbye tapos
TANNER NOTES
na kaso. Although patay na siya, wala na rin yung civil niya.
Nakita niyo class. Unless it’s arising from other sources of
obligation or in some independent civil action. Buhay yun. Am I
clear class?
Pag ang accused namatay bago plea ano? The criminal
case will be DISMISSED as to the delict. How about the
civil? Buhay siya. Kasi hindi pa na-arraign eh. And it will
proceed against the estate. Yan lang class ang play niyan.
Bantayan niyo yun. Pag may tinanong na accused ay namatay
ang tanungin niyo 1. Ano nature? Civil ba talaga yan or yung
criminal case? 2. Nakapag-plea na ba yun? Pag nakapag-
plea, masasagot niyo yun. Yun ang una niyong hahanapin.
Let’s move on. I will just give you a brief rundown of the
periods. Periods tayo. Bibigyan ko kayong rundown before we
go to bill of particulars.
RULE 11
WHEN TO FILE RESPONSIVE PLEADINGS
What are the periods? Period to file an answeris a period of
15 days. Can you file an extension in ordinary civil action?
Can you file an extension of time? Of course. Tingnan niyo
dun sa Rule 11 last Section—subject to the discretion of the
court. Unlike summary procedure, unlike small claims, a
motion for extension is what? A prohibited pleading. In
ordinary procedure you can file a motion for extension but it is
subject to the discretion of the court. You cannot assume that
if you file a motion for extension the court will grant your
motion for extension. Yung ang basic rule na tatandaan niyo.
56
Now let me ask you this question, ito exercise: I filed a
complaint, “Dami ko pa ginagawa eh” the defendant filed a
motion for extension of time. Nung inaaral ni defentdant “Uy
improper service of summons to ah” so defendant thereafter
filed a motion to dismiss on the ground of lack of jurisdiction
over the person of the defendant.
Dapat alam niyo itong sagutin at this point. Should the
motion to dismiss be granted? No. Dun sa mga nagtataka
kung bakit No ang sagot, ipaliliwanag ko. Because class this
ground is waivable. Babalik ka dun sa Rule 9. Lahat ng
grounds class, pag di mo na-raise yan, waivable. Eh yung lack
of jurisdiction over the person of the defendant, waivable yun.
Sir, pano naging waivable? Eh nag-file ka kaya ng motion for
extension. So? Extension lang eh. Di ba yung iba makulit, kasi
extension lang. When you filed a motion for extension you
sought affirmative relief. Ayun yun. Sabi mo, “Your honor
pwede po bang humingi ng extension? Ako ay magfa-file.”
Tapos mamaya sasabihin mo “eh wala naman kayong
jurisdiction eh”, bakit ka humingi ng extension? Nakuha niyo.
You have submitted to the jurisdiction of the court. So please
be very careful.
Periods. Of course if it is a juridical entity, a period of?
Foreign juridical entity, a period of 30 days.
How about a third-party complaint? 15 days.
How about a counterclaim, cross-claim? 10 days.
How about an amendment as a matter of right? Ibig sabihin
katulad ng paliwanag ko kanina, if it is amendment as a matter
TANNER NOTES
of right ano yun? Wala pang previous answer yun.
Amendment as a matter of right is as if you have filed an
original complaint. How many days? 15 days.
How about amendment with leave of court? 10 days from
receipt of notice. Take note, its shorter if its with leave of court.
But technically, it’s not really short. Why? Alam niyo ba kung
bakit? Ito class, listen, “Sir, bakit?” And I have extensively
discussed amendment and now I recall if you, I would have to
ask you this if you know—do you need to attach the
amended complaint to the notice to amend or the motion
to amend? The answer is YES you need to attach it. Because
how can the court act on it if you don’t attach it? Do you
follow? You have to attach it together with the amendment
already. That is why class, I was telling you a while ago even if
its 10 days on amendment with leave of court, it’s practically a
longer period. Why? Because you’ve already received a copy
of the amendment except that you’re waiting for the order of
the court requiring you to what? To file an answer. Kaya
matagal. If the court acts after 6 months, if the court acts after
2 months, you effectively have that period of time to study that
complaint. Do you follow?
Now, let’s look at a supplemental complaint. The period to file
an answer supplemental complaint is within a period of 10
days from notice, same rule—from receipt of the order.
My last point before I start with bill of particulars would be this.
Is failure to raise a counterclaim waivable? Under Rule 9
Section 2, a counterclaim that is not raised is BARRED. So
you cannot raise it anymore. Take note, you cannot raise it
57
anymore. But you have a remedy. You would file an
amendment.
How about a permissive counterclaim that was not
raised? Is it barred? Permissive nga eh, pwede yun na
separate na complaint. It will not be barred. Now let me ask
you this question, kaya lang hindi ito kasama sa bar pero
counterclaim to so I have to mention this. Ano yun? Claim on
the estate. Kasi hindi kasama di ba? But I have to discuss this
is in relation to counterclaim. If there is a claim against the
estate, of course the clerk of court will give a notice to all
claimants to lay their claim within a certain period of time. Now
if you failed to raise a claim within that period of time, you
claim is forever barred. Unless it is what? There is an
exception to the rule—unless the administrator or executor of
the estate sues you in which case you could raise it as a
counterclaim ganun yun. Kasi baka ganun na complication ang
ibigay sa counterclaim. Basta tandaan niyo, sa claim against
the estate there is a period of time for a money claim. If you
don’t raise the claim within that period of time, the claim is
barred forever. However, if the administrator or executor sues
you even if you fail to give a notice then you could raise it as a
counterclaim.
RULE 12
BILL OF PARTICULARS
Let me now touch on Bill of Particulars. What about bill of
particulars? Ito yun class, importante. Bill of particulars is in
Rule 12. Is there bill of particulars in criminal cases? Yes.
That is in Rule 116 Section 9. Meron din class. May bill of
particulars sa criminal, may bill of particulars sa civil.
TANNER NOTES
Now, let me give you this example, madali lang to ilang
sections, hindi porket maikli yung sections nay an eh madali
intindihin: Is a motion for bill of particulars the same as a
bill of particulars? No. Magkaiba yun class.
A motion for bill of particulars seeks the other party, the
plaintiff, to make his allegation what? Clearer. Kaya ka nagfa-
file ng motion for bill of particulars. A bill of particulars is
prepared by who? If the motion is prepared by the defendant,
the bill of particulars is prepared by the plaintiff if the court
grants the motion for bill of particulars. Do you follow? Yan ang
procedure class. And nagfa-file ng motion for bill of particulars
ay defendant. Anong sinasabi ng defendant? Let me give you
an example: Sabin ng defendant “Plaintiff, malabo ang
complaint.” Is it enough to say that it is vague? That it is
not clear? The answer is NO. You will have to identify specific
paragraphs which you claim is vague. The specific paragraphs
you claim are what? DEFECTIVE. Is that enough? NO. You
have to identify not only the defects but you will have to state
the details desired. Tandaan niyo yun. Gusto ko yun ang
tatandaan niyo. You should not only state the vagueness or
the paragraphs which are unclear. You have to state the
details desired. Maliwanag class?
Ganon yon. Hindi niyo lang pupwede-- alam niyo nature ng
tao, ano nature ng tao? Nature ng tao mamintas. Nature yan
lalo na ngayon ang dami nyo rito. Ang dami niyong new
friends no? Ang dami niyo ring pinupulaan. Maniwala kayo sa
akin. Lalo na kapag lunch. Lalo na kapag ano, diba tama ako?
You identify the defects. Kala niya gwapo siya o. Ano ganon
no. Akala nya gwapo sya o. Diba ganon. You identify the
defects but of course, you cannot tell the person the details
58
desired. Alam mo gwapo ka sana kung ganito ka eh. Alam mo
mas maganda ka kung ganito ka eh. That's it. That's what the
provision requires. You identify the defects in the paragraph or
in the complaint and what--tell the court and the other party the
details desired. For example, can you follow? It does not end
by saying --"oy di vague" anong vague? Sabihin mo bat vague
para magkaalaman tayo ano gusto mo gawin. That is why as I
mentioned to you a while ago, the court can order what? An
amendment. Ang daming--ang gulo gulo nyan---amend mo na
lang-- or the court could order the issuance of bill of particulars
responding to every paragraph and the details desired to be
what-- clarified. Ganon yun. Let me give you an example.
Bigyan ko kayo ng example. Pinakasimpleng example.
May estudyante ako na nandito hopefully naalala. Kundi
naalala either tulog o absent. I'll give you an example. May
kaso ako--recovery of possession of personal property.
Babawiin ko na yung kotse ko na hiniram mo ng isang taon na
di mo pa binabalik. Di mo binabalik. Okay? Ngayon. Yung
complaint ko meron namang caption merong allegations tapos
yun paragraph 8 sabi ko that the motor vehicle is 1998 yellow
Honda civic. Do you follow? It's a 1998 Honda civic. If you see
that in a complaint for recovery of possession of personal
property--what will you do? Okay what will you do? Well, one
option is you could file a motion to dismiss saying that there is
no cause of action. The complaint states no cause of action
because the object is not identifiable. Okay? Or mas mabait
ka--kasi ako di ko gagawin yon.--mas mabait ka--magfifile ako,
ako ang defendant magfifile ako ng motion for bill of
particulars. Nakuha nyo? Sasabihin ko, sir bat ka magfifile ng
motion for bill of particulars? Listen I will file what? I will say
motion for bill of particulars paragraph 8 is defective. These
TANNER NOTES
are the things that I need. Plate number, make, color, engine
no., chassis no. Do you follow? Yun ang details desired.
Now, remember this. A bill of particulars is not a mandatory
pleading. Tandaan niyo yon ah. A motion for bill of particulars
is not a mandatory pleading. Therefore, class, hindi mo
kailangang ifile yan. Kaya nga sinabi ko sa inyo, you have a
number of options right? You have a number of options.
Pwede ka magfile ng motion to dismiss. Pwedeng pabayaan
mo maganswer ka. Do you follow? O pangatlo, kung gusto mo
o, you file a motion for a bill of particulars. Of course, I'm the
defendant, I don't want the complaint to be clear. Diba? Ako
defendant e. Kaya sinsasabi ko this is not mandatory. This
would depend on the defendant. Are we clear?
Now there is this bar question, can you deny the motion for
Bill of particulars outright? This was a bar question, class.
Ano? Sigurado class kapag nagtanong ako ngayon, pinasulat
ko yan sa inyo, ang sagot pwedeng yes pwedeng no. May
mga sagot sa inyo na this is--it requires a hearing because
due process is required. Class codal yan. Nasa section 2.
Once a motion for bill of particulars is filed it will be referred by
the clerk of court of the Judge who can what? Grant it or deny
it outright. Nakita nyo? The Judge can grant it or deny it
outright. Wag nyo na pahirapan. Nung nakita--nun lumabas
yan sa bar exams sabi ko--o alam nyo ba kami class nun
lumabas yan sa bar exams maybe more than 5 years ago.
Ang ginawa ko matry nga ito sa mga estudyante ko. Totoo.
Tinry ko yung tanong na yon. Sabi ko can it be denied? Tama.
Kung ano anong sagot nakuha mo. Kung ano anong sagot
nakuha mo. Binobola ka e. Ang pinakamaraming bola yung
59
due process. Because there must be hearing--opportunity to
be heard. Mga standard clauses na yan kapag di alam ang
sagot. Ganon. Pero ang sagot simple.
Kaya class I've been telling you no, you read the law. Because
class that will be very effective maniwala kayo sa akin.
Kunwari nagreview kayo ngayon nagbabasa kayo. Before you
come in the morning. Basahin niyo yung code kasi
marereinforce yan e. Matatandaan niyo na. Whatever is not
clear, a ito lang pala example niyan. Kita niyo amendment to
conform with the evidence, alam niyo na diba? Ah yun lang
pala yon. Now you know the provisions but if you haven't read
the provision and if they change the facts a little bit. You will
not be able to answer. Tandaan niyo yan. Ang code ang susi
sa remedial. Yan ang susi. Di ko pinopromote na code lang
basahin nyo. Pero class alam niyo yan pag dating ng pre week
yan baka code ka na lang. Tandaan niyo, kasi una, that's the
last sunday, pangalawa pagod ka na. Kaya dapat ngayon
class, nagdidiscuss na sa tingin niyo importante. Para kapag
pre week niyo, ihihighlight nyo na yon, and then if you attend
the pre week maririnig nyo na mga special sections na
sasabihin nya marereinforce lahat yon. Ganon yon. Wag mo
gagawin yung upo-upo lang ako dito. Ganyan ganyan ka dun
tapos bahala na sa pre-week. ay goodluck! Kasi class pagod
ka na e. Tandaan nyo yan. On the 4th sunday pagod ka na
kailangang systematic ang review mo. Ngayon inidentify mo
yung sections pag sinabi-- na ito important, markahan mo.
Markahan mo yan. Tapos tingnan mo. Kasi class meron
talagang mga tanong dun lang umikot-- may mga question na
dun lang umiikot sa topic na yun. Tandaan mo yon. Tandaan
mo lang para kapag ano-- madali mo-- ah naiintindihan ko--
madali mo balikan. Wag mo sabihin yung tuloy tuloy.
TANNER NOTES
Nagrereview na rin kayo e umaatend na din kayo ng review
classes--ganoon gawin nyo i suggest and that might help you.
Okay?
So let's move on. We are clear about the example motion for
bill of particulars no. Can it be denied outright? Yes eh class in
a case decided by the court, si judge, ano ginawa ni judge?
Wala naman nagaapply ng motion for bill of particulars aba e
nag-issue ng order for bill of particulars walang nagaapply ah.
The judge motu propio required an order for bill of
particulars, is that possible? No. The judge cannot take it
upon himself to order the parties to file a motion for bill of
particulars. Hindi pwede. Kailangan may magmotion. Hindi
pupwede na judge will say order for bill of particulars. It is not
possible.
Case: Republic vs. Sandiganbayan, Marcos et al
The case of Republic vs Sandigan the case of the Marcoses,
okay? This is the case of Marcoses in the Sandiganbayan.
Syempre namatay na si Ferdinand Marcos, ang naging
administrador ng estaten niya-- syempre nakademanda nanay
niya, nakademanda estate niya, siya at nakademanda si
bongbong at estate, so namatay na yung father niya of course.
Ngayon, class di sila sumasagot nakatanggap sila ng
summons. Listen. Ngayon anong nangyare? Nakatanggap sila
ng summons di sila sumasagot, nun namatay na yung father
naging administrador si bongbong okay? Nagfile ngayon sila
bongbong thru the estate ng Motion for bill of particulars but
please bear in mind that there was already an order of default.
Tandaan nyo. Yung salient facts nito. Yung importanteng facts
dito meron ng default, nagfile pa ng motion for bill of
particulars.
60
Remember the period to file a motion for bill of particulars is
the period of 15 days. Hindi 5 days. 15 days the reglementary
period to file an answer. Ang nagyare defaulted na sila, hindi
sila sumagot, summons were already served, hindi sila
sumasagot. So they were declared in default. Correct?
Thereafter, when he was appointed the administrator of the
estate tru counsel they filed a motion for bill of particulars.
Kuha nyo? Theoretically, dapat hindi napwede iyon. Ano sabi
ng court? Inaksyonan ng court yung motion for bill of
particulars ng sandiganbayan. Ginrant e. Nakita nyo? Sabi ng
supreme court, dahil ginrant na yung motion for bill of
particulars effectively wala ng default. Ginrant na yung motion
for bill of particulars e. Because the motion for bill of
particulars was granted the order of default is considered as
set aside although there was no order to set aside.
Tandaan nyo yon. special yon. Kasi class you only file a
motion for bill of particulars within the reglementary period, if
you don't you can't file it anymore.
Now, next question, can you still file a motion for bill of
particulars if you already filed an answer? NO. Alam mo
nang purpose ng bill of particulars e. Para makasagot ka ng
tama, e sumagot ka na e. Kaya ka nagfifile ng motion for bill of
particulars --pakiliwanagan nyo para makasagot ako. Eh ang
ginawa mo sumagot ka, tas nagfile ka ng bill of particulars, di
pwede ok? Sumagot ka na e.
Now, let us play around with this. Papano class, nagfile ang
defendant, motion for bill of particulars. The court granted it.
Sabi ng court, okay granted. Ngayon the plaintiff did not file
the bill of particulars. The court granted the motion for bill of
particulars issued an order requiring the plantiff to file what?
TANNER NOTES
Bill of particulars but the plaintiff did not file. What happens to
the case? According to the case of Verata vs Sandiganbayan,
the case should be what? The case will be dismissed. That is
consistent in that case of Ferata vs Sandiganbayan. That is
not a new case, it cited Rule 17 sec. 3 failure to comply with
an order of the court. Hindi ka nagcomply sa order e.
Maliwanag yun class sa Ferata vs Sandiganbayan. That is not
a criminal case that is a forfeiture. Tandaan nyo yan.
Eh papaano class kung ganito--what if it was granted. Ok? It
was granted and the plaintiff syempre the option of the plaintiff
is to file bill of particulars, correct? What if class, the plaintiff
disagrees? What is his remedy? Is the grant for a motion of
bill of particulars a final judgment or an interlocutory
order? Okay padadaliin natin to. Whether it be a grant or
denial, it is an interlocutory order. Therefore, your remedy if
you disagree, if it was tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction, you file what? 65,
of course, you still have to file a motion for reconsideration.
Ok? Take note of that.
Now, let us say, class. Let us look at the other side. What if it
was denied? The motion for bill of particulars is denied.
What are the options available to the defendant? The
defendant can simply file an answer if it is denied. Pwede na
sya sumagot, sabi ng court mali ka e, or he could file what? A
motion for reconsideration. If it is tainted with grave abuse of
discretion you could do 65. ok? You could do 65.
Ito na lang class, tingnan natin to. Let's see if you know how to
count the period because this same period, this is the way to
compute also for a motion to dismiss. The period for a motion
61
to dismiss ok class? Kapag lumabas ito sa bar exams yang
pagcocompute na yan, tandaan nyo class a ito. Eh alam ko
naman natatandaan nyo e. Ito yung master na master nyo.
Exclude the first, include the last. Ay ayan ang master na
master nyo diba? Tingnan natin kung effective yan, ok? Alam
na alam ko yang mga habit ng estudyante yung mga favorite
nila alam ko e.
Let's look at this. Let us say the summons and the complaint
was served on June 1, ok? Natanggap mo ngayong June 1,
your reglementary period to file an answer or any responsive
pleading including a bill of particulars is when? Ok. You have
15 days reglementary period okay? You have until June 16.
Ok. Tingnan natin ha. Let us say, class, you filed a motion for
bill of particuars on June 7. How many days more left? Sir,
simpleng simple yan math. Math major nga ako e. Sige yung
mga magagaling dyan. Ilan? 7 mo finile. 9 days? Kasi nga
naman, 8, 9, 10, 11, 12, 13, 14, 15, 16. Simple nga naman
okay. 9. So here, you start counting on June 8, right? Tama?
Sabi nya 9, ilagay natin dito. Sino pa may ibang sagot? Yung
iba 10. O sige o. Sangayon ba kayo sa 10? Okay sino pa? 11?
Sobra. Ibang bilang na yun class. O ano pa? Sino gusto 8?
Ano sagot?
Ang sagot e nakasulat. Wala sa rule 12 nasa Rule 22. On
interruptions ok? May provision ang interruptions hindi lang
kailangan niyo exclude the first include the last. Ok? May iba
pang rule na kailangang alam niyo. Ok? Ano ang rule na yon?
Rule ng interruptions because class when you file a motion for
bill of particulars and in the same manner you filed a motion to
dismiss, you also file what? A motion that interrupts the
running of the period. Nakuha nyo? The period is interrupted
TANNER NOTES
how many days more do you have? Ah sabi nya kasi it should
be granted. Of course, in some future time. Oh sige let us say,
baka kulang yung facts e, nagrant ng August ayon. Of course,
iba yung issuance, iba yung receipt niyo. Kasi yung period
niyo tumatakbo lang kapag natanggap niyo, nalaman niyo.
Pagaaralan natin mamaya yon. Kung issuance yon. Hindi
tumatakbo period.
Let us say it was issued on august 15, immaterial. But you
received it on August 18 ito yung received, okay? Maliwanag
ba class yung facts? Okay… “Sir kahit maliwanag hindi ko rin
alam yung sagot eh”. Okay, di ko naman masagot. Okay…
when… of course, you know that the period starts to run on
recepit, August 18, correct? How many days more do you
have? 10? Okay, doon muna tayo sa pinakabasic. Tama yon,
10. Yung nagtataka bakit 10. The act that caused the
interruption which is on the 7th is not counting is not counted in
the determination of the period. Therefore, ang bilang niyan 7,
8, 9, 10, 11, 12, 13, 14, 15, 16. The act that caused the
interruption is not excluded in the counting of the period.
Okay now, ngayong na-determine mo na ano na sampu. Na-
determine mo na sampu papaano mo ngayong bibilangin kung
natanggap mo ng 18. Doon mo ipapasok ung “exclude the
first”. Ayun, doon mo ipapasok yun “exclude”. So, natanggap
ko ng 18… 19, 20, 21, 22, 23, 24, 25, 26, 27, 28. Nakuha
niyo? Kailangan mo munang alamin kung ilang remaining
period mo. Malalaman mo iyon if you apply the period the Law
on Interruptions. Maliwanag? Huwag niyong birahin kaagad.
Now, ngayon siyempre pag nagpractice na kayo nakalimutan
niyo na ako diba pag nagpractice na kayo nakalimutan niyo na
62
ako babalik kayo sa paraan ng pagbibilang niyo diba tama?
But you don’t have to worry class kasi you always have an
advantage of 1 day eh kasi kung siyam kayo ng siyam pasok
kayo sa period pero mali yan pag sa bar exam question.
Nakita niyo? Pero pag practitioner na kayo tama papasok at
papasok ka sa period di ka mauubusan pero sa bar exam
question class you have to be accurate nakita niyo. The act
that caused the interruption hindi kasama iyon kaya sampung
araw. Pero yung rule ng exclude the first include the last yon
lang from the time of receipt bilang ka.
Okay now… Kanina class may sumagot sa akin na ano how
many days do you file a motion for bill of particulars? May
nakita akong nagsabi ng 5… okay. Papano? Okay let me
illustrate filed it on June 13 the motion for bill of particulars
how many days more do you have? Yan ang 5. In all cases,
you have 5 days. Hindi mo kailangan hindi baka may
magsalilta sa inyo, “Sir, the fresh period rule” utang na loob
hindi iyon kasali okay? Hindi… Mamaya iyon sa MR okay?
Ang gagaling ng mga analysis eh! Mabigat okay! Hindi nag-
aapply ang fresh period rule. So, nakuha niyo na ha! Okay
now let’s move on… Class another point, so okay na yan I
think naiintindihan niyo na yan. Alam niyo na yung concept bill
of particulars, alam niyo na rin yung period, alam niyo na rin
yung denial and grant noh?
Now, there’s just one point class that I need to call your
attention on there’s a provision in there that says that the
effect of failure to comply with the bill of particulars. You see
that? Is that section 3 or 4? Okay, it tells you class that if you
failed to comply with the bill of particulars allegations in the
complaint can be stricken off. Yes, this could happen subject
TANNER NOTES
to the discretion of the court in the same manner that if the
complainant does not comply the court can also what?
Dismiss it in accordance with Rule 17, Section 3. Okay now,
my last point class my last reminder is this, please bear in
mind: first, it’s not a mandatory pleading okay, is not a
mandatory pleading. I would want you to remember that it’s
not a mandatory pleading and, therefore, it is left to your own
decision to file it… it’s a matter of strategy. Let us now move
on to Rule 13.
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND
OTHER PAPERS
Rule 13 na tayo class. Of course, ang didiscussin ko dito
unang una yung pinakafavorite ninyo. Priority of service! Alam
niyo iyon? Priority of service is personal service, okay?
Let us look at this, class ang priority ng service is personal.
Let me explain, this is Rule 13, Section 11. Liwanagin natin ito.
This appears to be harmless pero pwede ito itanong parang
harmless provision. Let me illustrate it for you
Whether by service or by filing, service or filing should be
made personally, okay? Ganon iyon! “Hindi sir, meron akong
alam registered mail makinig muna kayo dito kaya ko
sinisimulan ditto. Para magkasundo tayo alam mo iyong mga
estudyante ipipilit yan eh minsan eh. Ang rule class, yan ang
policy ngayon ng batas na kung kaya mong i-serve personally
gawin mo kung kaya mong i-file personally, gawin mo. Nakita
niyo? And if you cannot do it personally, what should you
do? You should make an explanation. Take note, there should
63
be an explanation! I don’t know if you have seen pleadings
some of you may have seen pleadings and you always see
that “EXPLANATION” that if you cannot serve it personally you
will have to explain to the court why you cannot serve it
personally.
Like for example, “because of lack of available messengers,
service is made by registered mail” okay? “Because of lack of
available messengers, filing is made by registered mail” okay?
Or “because of equally urgent filings on this day and limited
man power, service is made by registered mail” that is the rule
today. So class ngayon, ang rule kung mafafile mo personally
maserserve mo personally gawin mo iyan pag hindi mo
kayang gawin yan magpaliwanag ka. “Oh sir, anong naman
ang effect kung hindi ako nagpaliwanag?” The pleading
that you file produces no legal effect… Okay take note of that,
“The pleading that you file produces no legal effect”. That’s
very serious class let me give you a run down… “Sir, ayan
naman pala eh edi i-refile ko!” Bigyan ko kayo ng example:
1. Motion for Reconsideration – wala kang explanation
(hindi ko pa pinaguusapan ang Notice of Hearing dito
class ha ang sinsabi ko lang wala kang explanation) is
considered not as not filed. Anong effect nun? The
reglementary period is not interrupted. Therefore, the
judgment becomes final and executory because it is
not considered as filed it produced no effect.
2. A Petition – A petition for review under Rule 42, a
petition for review under Rule 43, a petition for review
on certiorari and appeal to the Supreme Court under
Rule 45, Rule 65 a petition for certiorari – without an
explanation, what happens? It produces no effect. It
TANNER NOTES
will be what? Your petition will be denied, it will be
dismissed.
Nakita niyo gaano ka-seriousness niyan? Ganon ka-serious
iyan. Mag-isip na kayo ng kahit anong motion ng kahit anong
ifi-file mo. “Eh sir, papaano kung yung motion for extension
of time lang naman ako eh” oh edi made-default ka, nakuha
niyo? Ganon yun, it produces no legal effect if you have no
explanation and that is what I want you to remember sa
pagdiscuss ko ng Rule 13 yan ang una kong gusto niyong
tandaan because that is the policy of the law today except for
those originating from the court. Hindi mo na irerequire ang
husgado magpaliwanag… “bakit paliwanag niyo nga ho bakit
niyo sinerve sa amin yan”, gusto mo ba ma-contempt? Okay,
it’s a clear provision basahin iyo diba nasa provision “except
for those originating from the court”. Pero priority of service,
ang service and filing is personal.
Next ngayon, siguro kailangan bigay ko sainyo maikling maikli
yung reason behind the law kung bakit yan nagkaganyan para
hindi kayo pag nagka- after sometime maalala niyo pa rin.
Class the reason really was the practice of lawyers alam niyo
ung practice ng abogado dati and I was a new lawyer then
because that was in 1997 eh alam mo ang trabaho ng
abogado noon alam mo yun trabaho ng abogado? Kunyari ito
building, condominium, meron mga offices dito kalaban kong
abogado siya magkabuilding naman kami noon ipapadala pa
by registered mail. Hindi, totoo iyan! Magkatabing building ano
iyan? Registered mail! Nagkita nagbatian pa, “Pare!” Tapos
pagdating sa office sa messenger, “Oh padala mo ito by
registered mail” oh sige, pupunta sa mas malayo sa post office
64
nakita niyo? That’s why we have that rule today. Ang rules of
court nag-aadjust sa needs of the time.
Nakita niyo yung ano although it’s not covered by your bar
exams nakita niyo ung continuous trial effective September…
September 1, 2017. Class, that’s all of these changes are
brought about by experience of the court. Kasi problema eh.
And as we move along dito sa hapon mapa-explain ko sa inyo
sa pre-trial ang dami nilang regulations sa pre-trial because of
actual experience problema eh so aadjustin nila. This is one
example. So nakita niyo, priority of service.
Now having said that class this is now time to explain I would
not be helping you if what they say, what is proof of service
what is this NO. I want you to understand this Rule 13
because Rule 13 is another boring rule, okay? Let me illustrate
this for you. Let me start with, class tignan niyo ito: What is
the mode or manner of fiiling? Kung kayo magfafile sa
husgado ano yong paraan para kayo mag-file? Personal,
very simple. When you talk of personal, you bring the pleading
in court and then you have it received by the clerk of court the
clerk of court receives it stamps and then signs and puts the
date that is personal filing. And the other one is by Registered
mail. Sir, papaano ung ordinary mail. Hindi sila umiintindi ng
ordinary mail class. Bakit? Because the court would not know
when you actually filed it. Hindi nila alam eh. And remember,
when you filed by registered mail the date of mailing is the
date of filing yun ang maganda sa registered mail kahit hindi
nila nabasa ngayon ang deadline matanggap nila 10 days
later, 7 days later… filed on time iyon, registered mail. Okay?
TANNER NOTES
Now, sa service class if you look on the provision what does it
say? Sabi nila, you could serve personally or by mail… tama?
And when you say by mail, it can be by ordinary mail or by
registered mail. Yan class lahat ng discussion niyo diyan diyan
lang dapat umikot.
Siyempre, ang una kong didisucssin sa inyo dito what is the
proof of filing? Anong patunay na iyong dokumento ay
nasa husgado? Of course, pag Personal diba Personal Filing.
Pag personal, what is your proof? Class, your proof is it
appears on the records of the case that is your primary proof.
Tama ba ako? Class hindi iyon… “Ay sir yung may tatak!”
Hindi! Sandali lang! Alam niyo iyon… ang tanong doon
pagpunta mo nandoon dapat nasa records nila iyon that is the
proof that it was personally filed.
Now, if it does not appear on the records of the case and
it happens class it happens it does not appear on the
records of the case ano? If it does not appear on the records
of the case that is when you need your copy with the stamp
acknowledgment. That is your proof that it was duly filed.
So the first one is, it appears on the records of the case wala
tayong pinagtalunan nun… “Sir, bakit mayroon bang records
na nawawala sa husgado?” Ohhhh yess. Alam yan ng mga
nagtratrabaho sa husgado whether wittingly or unwittingly
ganoon iyon may nawawala yan diba? Meron yan talagang
nililigaw ka so class kaya importante iyon the proof is
appearing on the record and the second is one is what the one
with the pleading with the acknowledgment of the clerk of
court. Maliwanag?
65
Now, how about registered mail what is the proof? Ah Ito
madali ito: Affidavit of the person okay mailing of course that is
the process server of the court and the registry receipt that is
the proof.
How about personal class? Dito tayo sa service… Service
class is different if you’re talking of filing class, you are talking
of the party in relation to the court. Nakita niyo iyon? The party
in relation to the court (I file in relation to the court). Now when
you talk of service class you talk of the party in relation to
other parties or the party in relation to other courts whose
decision is subject of review. Ganon iyon! Because you also
serve in certain instances in certain petitions the court that
rendered the decision is what? Should be served with copy
their pleadings. Okay now, so when you talk of personal
service what is personal service? Under the provision of the
personal service under the provision of the law is by leaving a
copy in his residence to a person of sufficient age and
discretion residing therein.
Class, please be remind that under Rule 13 that is
PERSONAL… under Rule 14 that is SUBSTITUTED. Class
tatandaan niyo pag may bar exam question at ang bar exam
question ay talagang summons kalimutan niyo itong
discussion ko ha! Kalimutan niyo ha. Baka sabihin mo, “Okay
na yan Sir lahok lahok lang iyan!” Lahok rin yung grade mo!
Hindi pwedeng halong halo nakuha niyo? Naiintindihan niyo
class? Pag may tanong nakita niyo summons question ito
kalimutan mo itong discussion ko… Rule 13 eh. Yung
paguusapan natin sa Rule 14 yun ang dapat niyong tatandaan
mamaya. So ito ang laro dito ang paguusapan natin filing,
TANNER NOTES
service. Pero outside of this everything on filing except
SUMMONS pag Summons pinaguusapan, Rule 14 tayo.
Now let’s look at this, residence second service to a person in
charge of his office, okay? 8 in the morning til 6 in the
afternoon. Office… personal service by mail okay? By mail,
alam niyo naman ang ordinary mail. Ang ordinary mail is yung
may sello. Okay now, registered mail now class ha just briefly
for those who had no experience on a registered mail. Okay
illustrate ko lang para may sense itong portion na ito I keep on
harping on registered mail eh and it is in the provision of the
law.
Ang registered mail ganito lang iyon… pupunta ka sa post
office nakalagay sa envelope ilalagay mo yan sa envelope
ipapadala mo sa kabila ngayon magbabayd ka kaya may
registry receipt… may resibo tapos bibigyan ka nila ng kasing
laki ng class card ang tawag mo doon ay return card, okay?
So ang matatanggap mo sa kanila resibo registry receipt at
yung return card na hindi mo iuuwi na isasama mo doon sa
dokumento mo ilagagay mo ung address sa return card… “Sir,
bakit?” Kasi pag natanggap niya ibabalik sa iyo yung return
card kaya ang tawag doon return card.
Nakita niyo? Ang ibabalik na lang sa iyo, yung return card, yun
na lang yung ibabalik sa iyo. Pero class if the document is not
received by the addressee, the entire document together with
the return card will be returned to you. Nakita niyo? Ganon
yung system na yun. And the purpose of this is to be able to
track down where the document is, and who received this, and
the date that you received this.
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Now, one or two of you may be interested in asking me this
question, and I would like to give a very straightforward
answer. Sasabihin niyo, “Sir, eh mayroong LBC.” Ayan. “Sir,
may LBC. May express mail.” The Supreme Court has clearly
declared that it is not one among those provided under Rule
13. There is no way by which—although class, alam natin that
there is a tracking number. Ako pag ano, alam ko, tracking
number, bibigay ko lang yung tracking number, mahahalo mo.
But class, still, it is not yet an accepted mode of service under
the Rules of Court. However, in Quezon City, accepted na
‘yan. Quezon City has a rule of its own in terms of litigation
practice. But for the purposes of the Bar, class, pag tinanong
sa iyo iyan, proper ba yung service don? Hindi. LBC. Express
mail, hindi. Hindi contemplated ng Rule 13.
Although, class, I will have to tell you this, ginagamit namin
iyan. Ginagamit namin ‘yon. “Sir, paano?” Pag nagmamadali
ako, gusto kong makita ng judge kagad, or ng court, at bago
lasunin ng kalaban ko ang babasa. Nakita niyo yun? Bago
niya lasunin yung paglalalagay dun, ang gagawin ko, mag-
eexpress mail ako para tanggap niya bukas, pero ireregistered
mail ko pa rin yung official. Tapos magmamanifest na lang ako
na pinadala ko sa iyo yung LBC para mabasa ninyo pero
pinadali rin po namin yung registered mail. Official yung
registered mail, eh. Pero padadalhan kita, para—alam mo,
may ibang abogado will take advantage of it eh. Para makita
ng husgado kaagad. That’s how it is. But it’s not yet an
accepted mode under the Rules, okay? Although, dapat, class,
inaamend na nila yan. Yun ang totoo. Dapat inaamend na nila
to include express mail. But for now, wala pa siya, Okay? Now
let’s move on. Okay, are we clear?
TANNER NOTES
Completeness of Service
Okay, ordinary, you know that ordinary—you know, registered
mail. Now, let us look at completeness of service. When is it
complete? Ganyan class dapat ang ano niyo, tapos kasunod
diyan ano proof. When is it complete? Actual delivery. Tama
iyon. Pag personal, actual delivery, complete siya. Actual
delivery. Pag nadeliver siya, complete siya. Eh, ito, class, yung
ordinary mail? When is it complete? After the lapse of 10 days.
After the lapse of 10 days. Makalampas ang sampung araw,
class, ano na siya. “Eh, sir, bakit ganon? Eh mismo nga tayo
di natin alam kung kailan matatanggap eh.” Kaya ganun ang
batas. Parang.. padala mo, sabay dasal: sana matanggap
niya, ganon. Kaya nga, kita niyo, hindi nilagay dito sa filing
‘yan eh, kasi magkaka problema ang husgado. Dito nilagay sa
service, kasi they understand that there are still areas in the
Philippines where there is no registered mail facility. Padala
mo, regular mail, pero it’s considered as completely received
after the lapse of 10 days. Okay, eh yung ano, yung registered
mail? Actual receipt or expiration of the period of 5 days from
first notice, whichever comes first. Okay. Whichever comes
first. Now, class this is very important, this is very important,
because in our system, postal system, if there is a registered
mail, dalawa na ang paraan ngayon. Either dalhin sa iyo
mismo, there are some postal offices in the locality, dadalhin
sa iyo mismo yung registered mail, or some, you will still only
receive what? A notice that you have a registered mail, and
then you have what? Five days to claim it. Okay? If you don’t,
ganito kasi system dyan, pag nakatanggap ka ng notice, hindi
inintindi, makakatanggap ka ulit, pangalawa. Pag pangatlo,
may notice ka, hindi mo pa rin inintindi, ngayon, ibabalik nila
‘yon. Why? Because the habit of some people is if they receive
67
a notice that they have a registered mail, they will not claim it.
Bakit? Alam nila it is an official document. That’s why you have
that provision of law. Actual receipt or expiration of the period
of 5 days from first notice. If you don’t claim it, it is considered
as what? Completely served. Okay.
Proof of Receipt of Service
What is the proof? Ano naman ang patunay? Nasusundan
niyo, class? Ganon lang yan. Wag niyo pahirapin yang
provision na iyan, madali lang ito. Okay. The next is proof. Ano
patunay, class, na natanggap? What is the proof of service?
Ayan, class ha, tatlo iyan. Nakita niyo? Tatlo iyan. What is the
proof of service? Written acknowledgement. Am I right? Okay,
written acknowledgement. And it’s very clear if I am serving it
on the other party, and you’ve seen this, to some of you who
are working: paki receive mo nga dito sa kopya ko. Written
acknowledgement: pakireceive mo nga. That is proof of
personal service. What’s the second way? What’s the second
way: official return.
What do you mean by official return? Class, tandaan niyo—
listen, okay, I hope you do still follow: while I said a while ago
that it is the court, the party in relation to the court filing, right?
And when I say a while ago, that this is what, service in
relation to the co-party, correct? This Rule 13 also
contemplates what? Another kind of service that is in Section
9. That is what: service originating from the court. “Sir, what?”
Decisions, notices, final judgment, tama ba, Section 9? Yes.
And class, when you are talking of the service originating from
the court, not a co-party, service is made by: personal, if it’s
originating from the court, or by—(writes registered mail on
TANNER NOTES
board) nakita niyo class kaibahan? Ito, co-parties, ito, parties.
Co-parties, or of course, the court who is a correspondent,
nakita niyo?
You see the difference? Dito (service originating from a co-
party) may ordinary mail, dito (service originating from the
court) wala. This is originating from the court. Section 9. Now,
and why do I need to highlight Section 9? Because of this,
class: as I said, one way is written acknowledgement, the
second way is official return. What is the value of official
return? Because of, what, service originating from the court.
For services originating from the court, by personal service,
class, there should be, what: an official return. Who prepares
that? The sheriff. The process server. “Ah, pumunta po ako sa
bahay, ito po yung prinesenta ko, may writ of attachment po
ako, may writ of execution—“ Do you follow? Official return.
Not a written acknowledgement, it’s an official return.
And the third one is what? The third proof, personal proof:
affidavit of the person serving. Bakit? Because there are
instances, class, take note: there are instances that the
recipient or the addressee refuses to accept. There are such
instances. “Ayaw ko tanggapin yan, di ko tatanggapin yan.”
Okay? The person serving would have to prepare an affidavit.
Okay? That’s the third.
What is the proof? Of what: ordinary mail? What is the proof of
ordinary mail? The proof of ordinary mail is an affidavit, okay,
of the person mailing. What is the proof of registered mail?
Ayan, nadiscuss ko na iyan. Class, tatlo, ano yon? Tatlo yan:
registry receipt, affidavit of the person mailing, and what?
Affidavit of the person mailing and? Return card.
68
Now, let me ask you this question—yan ah, dito registered
mail, return card—now, as I’ve mentioned to you a while ago,
as I’ve mentioned to you a while ago, anong sabi ko? What will
you do—I said that the return card will return to you? Kaya nga
return card, right? Will return to the sender, the return card—
what will you do with the return card? Based on the provision
of the law, you will have to file it in court: the return card.
Okay? But as you know, for those of you who have worked in
offices, the return card—there are so many return cards in the
offices. There are so many return cards in the offices. “Sir,
they don’t follow it?” No, they don’t file it anymore because the
court did not require it of them. And aside from that, the other
party has responded to all of your motions so obviously, he
received it. The judge will no longer ask for the, what, return
card. But on instances that there is a problem about whether
or not he receives it, the judge will look for it. “Where is the
return card?” Do you follow?
Now, let us say, what if not only the return card was returned,
but also what, the entire document? What is your duty? This is
important, class, ah, what is your duty, what if the entire
document together with the return card was returned? Okay,
what should you do? This is what you should do, class: not
only do you file the return card together with the unclaimed
document—the return card and the unclaimed document—but
before you file it, you would have to first.. what? Secure from
the post office a certification: the reason for the return. So ang
kasama non, hindi lamang ang dokumentong binalik, hindi
lang yung return card, pati yung ano? Certification from the
post office. If the reason was “change address,” “no longer
located,” do you follow? “No known person in the locality,” it
should appear in the certification of the post office, together
TANNER NOTES
with that certification, the unclaimed document plus the return
card, you submit it in court, okay? You have to submit it in
court.
Now, my last question before we take a break is this—my last
question is: is there substituted service? Is there substituted
service? Then, after the break, I will give you some cases. Is
there substituted service? Okay. This is what I’ll tell you para
hindi lang siya hanging, and then I will discuss when I return:
there is substituted service in Rule 13. And substituted under
Rule 13, that is Section 8, is different from Rule 14. Okay?
Ngayon, under Rule 13, class, there is proof of failure of what?
Personal service and service by mail. There is proof of such
failure and what will you do? The unserved document will have
to be filed in court. You will have to prepare an affidavit and
the unserved document will have to be filed in court. That is,
what, substituted service. Okay, class?
Service under Rule 13
I was discussing, before the end of the class, um, service
under Rule 13. Now, again, I would like to remind you that if
there’s a Bar exam question on summons, you do not apply
Rule 13, you apply Rule 14. Now let me give you a few cases
for us to do some exercises.
The first one, class is service to—to whom should service be
made if there is a counsel of record? If there is a counsel of
record, should service of any notice, decision or order
originating from the court be made upon the counsel of record,
or should be made to the party? This was answered in the
case of Republic v. Caguioa.
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Case: Republic v. Caguioa
What did it say? Service of pleadings, petition should be
served on counsel of the party. Now, under our rules of
procedure, service of the petition on the party, when the
parties represented by a counsel of record, okay, service to a
party is a patent nullity. Ayan ha, is a patent nullity, and is not
binding upon the party wrongfully served.
And class, this is a reality ha. There are times that the court
would serve upon, or some other parties would serve upon the
party and would also serve upon the counsel. The period,
class, would only commence on whether it originates from the
court, or it’s a service of a petition to the other party that
requires you to do something, right? The period only starts to
run, when? When the copy, the notice or the petition is
received by the counsel of record.
This rule, however, sabi ng court, is a procedural standard that
may admit exceptions. And this is how they worded it, ha:
when faced with, and I quote, “compelling reasons of
substantive justice, which is manifest in the petition and in the
surrounding circumstances of the case.” I will repeat: the
general rule is service to the counsel of record, if there is
counsel of record. And therefore, if service made upon the
party, it is a patent nullity. Therefore, it is a wrong service.
Ganon, sa madaling salita, it’s a wrong service. Now, but
however, this case mentioned, what—an exception. And the
exception, I will quote, is: when faced with compelling reasons
of substantive justice, okay? And the circumstances of the
case.
TANNER NOTES
Case: Mindanao Terminal and Brokerage Service
Let me give you, class, the case of Mindanao Terminal and
Brokerage Service. The case of Republic v. Caguioa is a 2013
case. We now have a 2012 Mindanao Terminal v. CA. This is
very interesting, class, because, tignan niyo to ha, very
interesting case, what happened: Mindanao Terminal has a
case, um, Mindanao Terminal is a case and a grantee of
authority from the Philippine Ports Authority. Okay? So they
had this—the case:
Mindanao Terminal and the Philippine Ports Authority. The
Philippine Ports Authority won the case. It reached the—they
won in the RTC, it was elevated in the CA, ito na yung
problema, sa service. The CA served the notice and the
decision by registered mail. Pinadala ng husgado ng CA by
registered mail.
And for those of you who know the processes of the CA, and
this is not provided for in the rules, it is the duty of counsel of
record to inform the court within 5 days the date of the receipt.
Ganun yun sa CA. So if I receive a decision now, whether it’s
favorable or adverse to me, I will have to make what, a
compliance within a period of 5 days. Kailangan ko maggawa
ng compliance. Paggawa ko ng compliance, dapat sinabi ko
“on such and such a date, I received a copy of the decision.”
What happened here? The decision and its notice was served
upon the lawyer of Mindanao Terminal, Atty. Dizon. And Atty.
Dizon, was, based on the record of the CA, was holding office
in Prestige Tower. Okay? And when the CA started checking
on whether or not Atty. Dizon received it, it appears that a
70
certain Virgie Cabrera, front desk receptionist of Prestige
Tower, received it. So time went by, it was almost a year after,
that Atty. Dizon filed a motion for reconsideration because the
CA after having checked that the receptionist of his building, of
the building where he holds office who received the copy of
the decision, the CA considered the reglementary period to
have lapsed, not having received a motion for reconsideration.
Are the facts clear? Ganon, no, di siya nakatanggap. So sabi
ng CA, final and executory na yan. Now, almost 8 months to a
year after, Atty. Dizon filed a motion for reconsideration with a
request for setting aside of entry of judgment. Sabi niya, “hindi
pa ho final yan.”
He argued that he did not receive the decision of November
2002, and it is without doubt that the reglementary period to
appeal has not commenced, and therefore, the decision is not
final and executory. That was his contention. Okay? Dahil may
opisina siya, natanggap ng receptionist, tama? Apparently,
class, he has already changed his address; lumipat na pala
siya ng opisina.
Ngayon, so the question here is whether the CA’s decision
that the notice was properly served upon Mindanao Terminal’s
counsel was correct. Yun ang tanong, tama ba yung finding ng
CA na yung natanggap na talaga ni Atty. Dizon yun. And this
is where we will apply Section 9 and Section 10; according to
this case, Section 9 and Section 10 of Rule 13. Okay? Tignan
niyo yun, class ha, Section 9, I’ve mentioned this here, you
see: service of decisions, final orders or resolution. It is by
personal service or by registered mail.
TANNER NOTES
Now, according to the court, class, the first point is crucial for
the service of judgment. Serves as the reckoning point to
determine whether a decision has been appealed within the
reglementary period. In the absence of the appeal, the
decision is, as a consequence, final. Ito yung explanation ng
court, ha. In this case, the copies of the decision were sent via
registered mail to the counsels. The copy for Atty. Dizon, ito
yung abugado, was received by Cabrera on December 2002,
December 4. However, Atty. Dizon failed to inform the CA of
his change of address, so he changed his address to Padilla
Building in Ortigas Avenue. Okay?
Now, from his old building, Prestige Tower in Emerald Avenue.
The record shows, according to the court, that he only
informed the CA of his change of address on November 12,
2003. This was almost one year after the entry of judgment
was made. So siya yung may problema, nakita niyo?
Natanggap niya, ngayon he’s ano eh, he’s feigning ignorance
of the receipt eh. Sabi niya, nagpalit ako ng opisina eh, nung
siguro nung naamoy niya na mayroon nang finality, end of
judgment, that was when he filed a motion for reconsideration
to set aside the entry of judgment.
But the thing is, class, the court noticed, “sandali, mahigit one
year eh, after nag end yung judgment when you informed us of
the change of address.” Sabi niya. What did the court say: also
months prior to the filing of the change of address, he filed a
motion for reconsideration. So nauna yung motion for
reconsideration niya before a change of address, which, to the
court, was conspicuous. Okay? Meaning, the same address
where the post office delivered the CA decision. Meaning,
when you file the motion for reconsideration, that motion for
71
reconsideration still bears the old address. Okay. Sabi ng
court: here, Atty. Dizon has no one to blame but himself,
okay? For allowing his client to lose a multi-million case.
So in simple words—nakita niyo? Nagkatalo sa service. Class,
wag niyong bibiruin yan, ganun ka importante ito. Kasi yung
service ng decision sa Section 9, sa counsel of record,
maliwanag yun diba? So tatakbo yung period. Dito, natanggap
niya sa opisina niya, okay? Tumakbo yung reglementary
period. Therefore, he cannot feign ignorance that he did not
receive it. The pertinent provision is Section 9, okay?
Case: FEU vs. FEU NRFM
Now, let us now move on to—okay, let me now touch on
another matter. Still on—before I discuss lis pendens, ayan ah,
lis pendens. You remember lis pendens? Okay? Dapat, ha.
Let me discuss the case of, uh—two more cases and then I’ll
move onto lis pendens. What is this: the case of FEU v. FEU
NRFM, okay?
This is illustrative of Section 9, this is very illustrative. Ang
tanong dito, class, ang nangyari sa kaso na ‘to, in very simple
words: there was an assumption of jurisdiction order from the
Secretary of Labor. Okay? Tandaan niyo ‘to ha, this is a labor
case, assumption of jurisdiction order. Ang ginawa dito ng
service, class, ipinost sa pader yung order. Hindi sinerve by
personal service, hindi rin sinerve by registered mail. Nakita
niyo? Basta tandaan niyo, pag originating from the court, or an
agency, ano yon? Personal service or by registered mail
unless the particular quasi-judicial agency has its own rules,
and that would prevail. But as a rule, decisions from the court
TANNER NOTES
is by personal service or by registered mail. Posting is not
allowed; posting of orders is not allowed.
Case: Aberca vs. Ver
Now, let me now touch on the next one: the case of—my last
case on service would be Aberca v. Ver. Okay? This is a very
tricky ruling, a very tricky ruling because I will not go through
the long facts because this is a case involving the old—it
involves the most trusted general of the Late Ferdinand
Marcos: General Ver.
And before the fall of Marcos, they were sued for human rights
violations and a lot of violations in the court of Quezon City.
This case did not move for more than two decades, there was
difficulty serving summons on Ver and the rest of the
defendants. In fact, the case was already dismissed, it was
reinstated, do you follow? And because of the difficulty serving
summons, the court ordered upon request that there will be
what? That the notice to answer, listen, not the summons, not
the summons, ha, I repeat. That the notice to answer be
published, okay? Notice to answer be published. So this is
where the Supreme Court was faced with a problem. The
Supreme Court was faced with a problem. “Sandali, notice to
answer eh, dapat summons, diba? Pwede ka bang
magpublish?” O, tignan niyo yan, originating from the court,
originating from the court, ano yan, pwede ka bang
magpapublish? No. Unless—a publication of a judgment, if
there has been one previous service of summons by
publication. Eh yun, notice to answer eh.
72
Nakita niyo? Sabi ng Supreme Court, mali, hindi pwede.
Actually, that is a mixed application of the rules, eh. What the
RTC of Quezon City did, it was not summons, but a notice to
answer that was published—which, applying Section 9, is a
wrong mode of service of something that originates from the
court. Are we clear, class? Okay.
Lis pendens
Let us now move onto lis pendens. Punta na tayo class sa—
okay. Let us touch on lis pendens. Class, it’s just one
paragraph—how many sections do you have, just one no? Isa
lang ba? Okay, isa lang. Tignan niyo to class ha: notice of lis
pendens is not litis pendentia. Notice of lis pendens is not
litis pendentia. Notice of lis pendens is an annotation. An
annotation is, by its wording, by the phrase itself means, a
notice, okay? A notice that the property is subject of a pending
litigation. That the property is subject of a pending litigation.
And please bear in mind, the action should involve title to,
possession, or interest over a real property. Tandaan niyo yun.
And later on, I will give you examples: title to, possession, or
interest over real property. Therefore, class, that any other
case, that any case can be subject of a notice of lis pendens.
I’ll give an example: you have a contract with me, you have a
contract to construct my house. It has been more than a year,
you have not been performing. I sued you for damages with
specific performance. Specific performance with damages.
Sabi ko, “hoy buuin mo na itong bahay tapos bayad ka na sa
kin ng damages.” Can I cause the annotation of a notice of lis
pendens? Kita niyo, may natitigilan sa inyo. The answer is no.
TANNER NOTES
You have to look at the root case, the principal action. Ano ba
yung principal action niyo: specific performance lang eh. It
does not involve title to, possession or interest. Hindi ako
pwedeng mag-annotate ng lis pendens ng lahat ng bahay
niya, nakuha niyo? It doesn’t make sense eh. Hindi ko
pwedeng pa-annotate yung mga properties niya sa provinces
to cover my possible damages because the action does not
involve property. That is the only time that you could file a
notice of lis pendens.
Case: Gonzales
Now, let me just give you a few cases and then I’ll give you the
procedure. Let me ask you this question, the Gonzales case: it
says here the subsequent annotation of lis pendens could not
defeat the rights of the mortgagee or the purchaser at the
auction sale who derived their rights under a prior mortgage
validly registered. So, it only means that a notice of lis
pendens cannot defeat an existing annotation, or an existing
encumberance. Notice by itself, is pure and simple, what?
Notice. Ganun lang yun. It’s a notice to the public that this
property is subject of litigation. The court further said, “the
settled rule is that auction sale retroacts to the date of
registration of the mortgage, putting the auction sale beyond
the reach of any intervening lis pendens, sale, or attachment.
(Okay?) A contrary rule would make a prior registration of a
lien meaningless.” So therefore, class, you have to take note
that a lis pendens will not erase an existing mortgage or
encumberance. And class, take note, if the sale, okay, was
prior to the annotation of lis pendens, obviously it is what?
Priority in time. It is priority in time.
73
Now, let me give you, this is, to my mind, the leading case on
the matter when it comes to the nature of the action. Okay,
when it comes to the nature of the action. The case of Atlantic
Erectors v. Herbal Cove. Ano sabi? “By express provision of
law, the doctrine of lis pendens does not apply to:
attachments, levies of execution, or the proceedings for
probates of will, or for administration of the estate of deceased
persons.” Sabi yun. “It is held generally, that the doctrine of lis
pendens has no application to a proceeding in which the only
object sought is the recovery of a money judgment.” Take
note, ha? Kasi, class, ang kasong ito, is a sum of money case,
itong Atlantic Erectors. Kasi may kontrata, hindi nagawa yung
kontrata, okay, construction contract, hindi nagawa nangyari
eh. Dinemanda. Tapos nagpa-annotate ng lis pendens, hindi
pwede yon. Nakita niyo?
The Court said, generally, the doctrine of lis pendens has
no application in a proceeding which the only object
sought is recovery of a money judgment though the title
or right of possession to property be incidentally affected.
Take note, ah, of that last line. Even if it is incidentally
affected, as in this case. Kasi, dito class, yung may property
pinaconstruct, eh hindi naman natapos. So ang ginawa,
nagrecovery of sum of money tapos magpapa-lis pendens
ako. Hindi pwede. Sabi ng court, it is essential that the
property be directly affected. Directly affected, not only
incidentally ah. As where the relief sought in the action or suit
includes the recovery of possession, enforcement of a lien,
and adjudication between conflicting claims of title/possession
or the right to possession to a specific property. Pag may lis
pendens question, tanungin niyo ano ba yung nature ng
TANNER NOTES
kaso. If its other than an action involving title, possession
of interest over real property directly affecting the title,
forget about it. It should be directly affecting the title,
possession of interest. If title is only incident thereto, forget
about lis pendens.
Purpose of Lis pendens
Case: St. Mary of the Woods
According the case, to keep the properties in litigation in
the power of the Court until litigation is terminated and
prevent the defeat of judgment by subsequent alienation.
Class ganito yun, kaya tinatatakan yan, whoever deals with
the property is placed on notice that should there be a
judgment on the case, it would be subject to the decision of
the case. Kunyari binili mo, alam mo na may kaso, binili mo
pati kaso. Ganon lang kasimple yun. Kaya ang property na
may lis pendens, ang baba ng presyo. Kahit anong ganda ng
property nay an, pag may lis pendens yan ang baba ng presyo
kasi pati kaso binibili mo dun eh. Kasi pag natalo yung kaso,
talo ka din, you are divested of your right. So it is to protect the
property so that even if there is a subsequent alienation, the
buyer is put on notice.
To announce to the whole world that a particular property is in
litigation and serves as a warning that one who acquires an
interest over said property does so at his own risk. Mismong
jurisprudence nagsasabi, you want to deal with this property?
–at your own risk. And jurisprudence also says and he
gambles on the result of the litigation. Sumugal ka eh, gusto
mo mababa, may mga taong ganyan, class na “ayan feeling
ko mura eh, bilin ko yan kahit may lis pendens yan” May iba
74
nga dyan, they will fund the litigation kasi makukuha nilang
mura yung property. Lets say 50 million, binenta sa kanila ng 5
million okay na yan pare ilalaban ko lang. Tapos siya
magffund ng litigation. Pag nanalo siya, okay. Pero pag talo,
goodbye 5 million. Nakita niyo? Yun ang purpose ng lis
pendens. To give notice to the rest of the world and the
risk if you buy it. That’s why usually the prices are very low.
Another example of that practice, class, not necessarily a lis
pendens is a notice on delinquency payment of condominium
assessments. Yung dues, pag hindi mo binayaran yan, the
condominium developer, papatatakan yan sa local
government. If after a certain period of time, if you don’t pay it,
ibebenta nila yan. Based on the value of the unpaid
assessment. Ngayon, meron diyan marami na naghihintay
lang ibenta yan. Bibilin nila condominium, 200,000 pesos
based on the unpaid dues, or 500,000 pesos, but they are
willing to take even the litigation. Mura eh. O ngayon binili mo
pati litigation, idedemanda ka dyan. Halagang 5 million, binili
mong 500,000. Kung hindi ka naman hahabulin, edi okay. So
that is the risk. And that is similar to lis pendens.
Next, more accurately, according to the Court, forum
shopping is the institution of two/more suits in different
courts. Either simultaneously, or an order to ask the court to
rule on this matter. Now, that was mentioned because of
multiple cases involving this case.
Now, let me ask you this, which court has the power to cancel
the notice of lis pendens? Okay bago ko ipaliwanag yan,
unahin muna natin, how do you cause the annotation of a
notice of lis pendens? Do you need an order from the
court? No. Napakadaling magfile ng notice of lis pendens.
TANNER NOTES
You file a case in the morning, you pay the required docket
fees, it now has a docket number. In the afternoon, prepare a
letter addressed to the Register of Deeds where the property
is located. Describe your case, describe the property, and
explain why there should be a notice of lis pendens and then
ipadal niyo sa Register of Deeds. Lis pendens. Ganon ka
simple yon. Kung gano kabilis i-entrada yon, is another thing.
But that is the only requirement, you do not need an order
from the Court. You only need an order from the Court to
have the lis pendens cancelled. The harder part is to cancel
it. To cause its annotation, madali lang yon. Any written
memorandum would suffice to annotate it.
Cancellation of Lis pendens
1. If the annotation is for the purpose of molesting the title
of the adverse party.
2. If the annotation is not necessary to protect the title of
the party who caused it to be recorded
Now, sagutin na natin yung tanong kanina. Sino nga ba ang
pwede magcause ng annotation ng lis pendens. RTC? RTC
has jurisdiction to cancel it. CA? CA can cancel it. CA can also
reinstate it.
Now, let me ask you this question, does the notice of lis
pendens affect the merits of the case? No.
Case: Vicente vs. Avera
According to the case, the notice of lis pendens neither affects
the merits of the case, nor creates a right or a lien. It serves to
protect the real rights of the registrant while the case involving
real right is pending resolution. While the notice of lis pendens
75
remains on a certificate of title, the registrant could rest secure
that he would not lose the property or any part of it during
litigation. Oh take note ah, it does not create a right or a lien. It
doesn’t even put you on a better stead during litigation. It
doesn’t affect the merits of the case. It’s a pure and simple
notice. By this reason, the Court has pronounced that the
purchaser who buys registered land with full notice of the fact
that it is in litigation, stands in the shoes of the vendor and his
title is subject to the incidents of the pending litigation. So ang
nangyari ditto class, binili ko na may notice of lis pendens, I
step into the shoes of the vendor. Then I would be subject to
the outcome of the case.
Case: Heirs of Lopez
When you talk of a lis pendens, does it mean that it is a
judicial proceeding? Is it required that it be a judicial
proceeding? Yes. This is answered in the Case of Heirs of
Lopez, it should be a judicial proceeding.
In one case decided by the Court, there was a petition to annul
the title filed with the LRA, and a notice of lis pendens was
caused to be annotated. Is that the litigation contemplated by
the rule? No. Keep in mind that the notice of lis pendens may
involve actions that deal only with title and possession but also
with use or occupation. So, still on the Case of Heirs of Lopez,
hindi lang siya title or possession, it also extends to use or
occupation of the property. The litigation directly involved the
specific property that is affected by a judgment. Let me
enumerate when the notice of lis pendens is appropriate.
Lis pendens is appropriate/can be subject of annotation:
1. Action for recovery of possession of real estate
TANNER NOTES
2. Action to quiet title
3. Action to remove clouds
4. Action for partition
5. Any other proceeding of any kind in Court (according to
Heirs of Lopez) –a catch-all phrase which must be in
Court directly affecting title to land or the use or
occupation thereof, or the buildings thereon
Lis pendens can’t be subject of annotation:
1. Preliminary attachment
2. Probate of will
3. Levies on execution
4. Proceedings for administration of estate of deceased
person
5. Proceeding in which the only object is a recovery of a
money judgment –as I told you Atlantic Erectus Case
And now let me quote for you, from the Heirs of Lopez, a
notice of lis pendens should contain a statement of the
institution of an action or proceeding, the court where the
same is pending. Not in any other agency, but in the Court.
The Register of Deeds denied the application of lis pendens
because the application was bereft of the original petitioner
complaint upon which the office can base its action. Why?
Because it is only in consulta with the LRA.
Now, Im done with lis pendens. Let’s move on, summons na
tayo.
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 RULE 14
SUMMONS
Tulad ng sinabi ko sa inyo, kalimutan niyo na ngayon yung
Rule 13. Hindi naman completely ha. Sa discussion lang na to.
Wag nyo ihalo.
Under Rule 3, who can be parties to an action? Natural
person, juridical persons, entities authorized by law, and we
added one more, non-juridical entities.
Simulan natin sa tao. Let us look at a natural person as a party
to a case. How do you serve summons? Rule is personally.
Yun ay kung Makita ka. Dito nagtataguan because you need
proper service of summons for the Court to acquire jurisdiction
over the person of the defendant. Now let me ask you this
question, do you need proper service of subpoena for the
prosecutor to acquire jurisdiction over the person of the
respondent in the case before the office of the
prosecutor? No. Codal yan, RULE 112, SECTION 3 (d).
Pagdating sa piskalya, ang kasong kriminal, 'pag hindi mo
sinagot, mas gusto ng kalaban mo. Ako nagccomplain,
dinemanda kita, sumumpa ako dun, tapos pinadala sayo yung
subpoena, tapos sinabi ng abogado mo "Huwag mong
tanggapin", wrong advice yun. Bakit? With or without your
counter affidavit, the prosecutor can already render a
resolution. In fact, the complainant wants that you will not
answer. Bakit ko sinasabi? Ganyang ganyan ang nangyari kay
De Lima diba? Sinabi n'ya diba? "Hindi ako sasagot. Bakit ako
sasagot? Eh di nag-submit ako sa jurisdiction n'yo?" 'Yun nga
ang gusto nila eh – 'wag ka sumagot. Bakit? Preliminary
investigation is not a constitutional right that could even be
dispensed with. 'Pag hindi ka sumagot, sorry ka. You see?
TANNER NOTES
When the information was filed in court, ang sabi ng judge,
"Hindi ka sumagot eh, probable cause lang ang kailangan ko.
Hindi ko dinismiss. Eh wala kang sagot eh." With all due
respect, hindi ko kinikwestyon yung judgment ng abogado
roon (De Lima). Pero that good only for political purposes – for
messaging. Pero' yun dapat, sinagot. Para kahit saan umabot
'yun, meron kang sinagot. Kahit umakyat sa court of appeals,
umakyat sa supreme court, walang magagawa ang judge kasi
wala kang sagot. Eh wala kang sagot, ni wala kang paliwanag.
Dun at dun babalik 'yun. Sasabihin nila, "It would be better.
Your rights will not be violated. There will be due process.
Ibabalik ko sa'yo. Balik ko lang sa RTC 'yan eh. Eh di mag-trial
ka. Defend mo sarili mo. Kaya lang in the mean-time, kulong
ka. That's a non-bailable offense eh."
Why did I explain this to you? Because you might be confused
about a summons and a subpoena. Magkaiba 'yun. 'Yung
summons, the court acquires jurisdiction by accord. Ibig
sabihin na-acquire ko ang jurisdiction mo, nag-submit ka sa
jurisdiction ng husgado, proceed tayo. Subpoena is a
compulsory process. Di ka sumagot, problema mo. Hindi
problema ng fiscal 'yun. The prosecutor will resolve with or
without your counter-affidavit. 'Pag hindi ka sumagot, tutuluyan
ka nila. Ibig sabihin, may resolution na, may information pa
Personal. Ideally, it's personal. Pero what if, you saw him
today.
"Hinahanap ko po si Pedro Santos."
"Ako nga."
"May ibibigay lang po sana ako sa inyo na summons."
"Ayaw ko."
77
What will you do? Tender. Personal. 'Pag ayaw tanggapin,
there is refusal -- mag-ttender ka. Wala sa batas (ang mode)
ang pag-tender. It depends on the circumstance of the case.
Kaya lang of course, that should be in a decent and proper
way.
Substituted Service
Saan pumapasok ang substituted service? Note: Kapag
personal, may subsituted service. "Sir, bakit? 'Pag juridical ba
walang substituted?" Wala. Because, if it is a juridical person,
you can only serve upon the president, general manager,
managing partner, corporate secretary, treasurer, in-house
counsel (please memorize, that is a closed list).
When do you do a substituted service? This is SECTION 7,
RULE 14. This is time to compare it substituted service on rule
13. There's a big difference. In substituted service under rule
13, there is proof of failure of personal service and service by
registered mail. And because there is failure of such service,
you bring the document to the court. 'Yun ang service
(definition from rule 13). Dito (rule 14), iba. You will have to
establish the impossibility of personal service. So how would
you know if there is impossibility of personal service? From the
sheriff's return (section 4 of rule 14). It is the duty of the sheriff
to deliver within 5 days a copy of the sheriff's return to the
plaintiff. Bakit pa kailangan bigyan (ang plaintiff)? Para makita
ng plaintiff kung tama ang pinagagawa ng sheriff. Immediately
if you spot it na may problema ang ginawa ni sheriff, pwede
mo'ng ipaulit 'yun.
For example in a bar question, someone visited the house of
the defendant:
TANNER NOTES
"Andyan po ba si Mr. A?"
"Nako wala po, umalis. Pumunta sa kaibigan n'ya."
"Pwede po ba na iiwan ko na sa inyo? Sino po ba kayo?"
"Asawa po ako."
"Sige po iwan ko na sa inyo."
Case: Manotoc
Question, is there a substituted service of summons? The
answer is no. Because according to jurisprudence, in the case
of Manotoc and other similar cases, there should have been
repeated attempts to serve at least 3 times in 2 separate
dates/days. Hindi pwedeng isang beses lang, ayos na. Just to
illustrate, pumunta ako ngayong umaga, ako ang sheriff, if
wala, hindi ko pwede i-substituted service. Balik ako bukas,
pwede. Pangalawa palang 'yun. Pag wala siya, balik pa rin
ako. 'Yun ang magastos sa plaintiff. Although, part of your
filing fee is the service fee of the summons. However, in
practice, ang nag-aadvance niyan ay yung plaintiff, para lang
tumakbo ang kaso. Kasi otherwise, the case will linger without
the summons having been served. And what is the
consequence of a summons is not served for an unreasonable
a length of time? 'Yung mga nagttrabaho sa husgado, alam
'yan. Tatlong buwan na hindi pa nasserve ang summons.
Naka-apat na buwan na, hindi pa rin nasserve. What will
happen? The court will dismiss the case for failure to
prosecute.
As I was telling you, it all goes back to the sheriff's return.
Because the sheriff's return will tell you whether there is or
78
there is not a proper substituted service. Impossibility of in rem? Class, as you know, when you talk of an in rem
personal service (emphasis). action, it is an action that affects the rest of us. Let me give
you an example of an action in rem. An action where there is
Now, as I have stated a while ago, service under rule 14 must
no defendant or respondent is an action in rem, like, land
be made personal. But if there is an impossibility of service, it
registration. A civil forfeiture case is an action in rem.
(substituted service) can be made in his residence, to a person
of sufficient age and discretion residing therein. And according How about an action quasi in rem? It is that which is found
to the case of Manotoc, a person of sufficient age and in Section 15, which refers to the extraterritorial service of
discretion should be of age of majority. And according to the summons. If you look at action in rem quasi in rem, what does
case, the person must be able to speak and understand it say? That which involves the personal status of the plaintiff.
English, which I don't agree to be necessary requirement. There is a similar provision on Rule 4 in Venue. And the other
one is that which involves the property of a non-resident
Also, service can be made in the office, to a person in charge
defendant, or anything that involves a property, or an interest
of the office, only to a president or a general manager. If it
over property, whether actual or contingent. Now, even if you
cannot be served personally, the summons should be served
look at Modes of Service (under Section 15) – extraterritorial.
to the president or general manager. What is the purpose of
Ito kaibahan, generally: the mode of service in Section 15 is
this? So that the person who will receive the summons, for and
personal. Kahit in rem or quasi in rem iyan, personal pa rin
in behalf of the defendant, knows what is the consequence of
iyan. Katulad ng in personam. So kapag ang defendant mo ay
the receipt of the summons. And he could properly forward it
tao, ipepersonal mo. Kaya lang, class, kung makita mo sa
to him to take proper action. Kaya it is required. Ang dami kasi
Pilipinas. Kasi what section 15 covers is extrateritorrial –
na mga kaso na itinatago sa cabinet, itinatabi lang. Because
personally outside. Kapag nakita mo dito personally, okay. So
they don’t understand the nature of the summons.
even if it is in rem or quasi in rem, if you could serve it
Next thing. Can there be a substituted service of summons personally, that is ideal.
if the defendant does not reside in the Phiippines? For
Now, the thing with in rem and quasi in rem situations is that
substituted service to take place, at the very minimum, the
service could be effected by publication. Because it is
defendant resides in the Philippines. The general answer is
important of the court to acquire jurisdiction if it involves real
no. But there is an exception from where the resident spouse
property over the res. The service of summons to the
was designated by the non-resident spouse as the attorney-in-
defendant, although the subject matter of the action is the
fact in another action. That is the exception. You could serve it
property over the res, is only necessary to comply with the
to that resident spouse by substituted service.
requirement of due process. Importante, yung jurisdiction dun
Now, let me ask you this class. This is okay if it is an action in sa property.
personam. What if it is an action in rem or an action quasi

79
TANNER NOTES
That is why one of the exceptions to the requirement of service
of summons prior to, or contemporaneous with, is if there is a
writ of attachment. One of the exceptions is, in rem or quasi in
rem action.
Therefore, class, kasi ang rule, in order for the writ of
attachment to become effective, it summons should be
served kasabay ng order of attachment. The order of
attachment, together with the writ, cannot be served ahead of
the summons. Because the court should first acquire
jurisdiction over the person of the defendant. Kaya ang
requirement ng batas, as provided for in RULE 57, SECTION
5, summons should be served simultaneously. Prior to,
mauuna yung summons or sabay-sabay sila. (prior to or
simultaneously yung summons)
Attachment
Problema yan! Don’t worry paliliwanag ko sainyo. When i say
attachment, this is as simple as this, the purpose is (1) to
secure the judgment - ibig sabihin sa tingin ko, baka manalo
ako at baka pagdating ng araw yung panalo ko ay maging
walang halaga, bakit? Binenta nya yung property, tinakbo na
nya yun, so i need to apply for writ of attachment, ok?
Now, the phrase under Section 5, Rule 57 is very important -
“service of summons prior to or contemporaenous with” -
bakit yan importante? Kasi class, when I file a complaint under
our rules, I could also file for a writ of attachment. Kasabay! So
kapag naggawa ako ng complaint, as a provisional remedy,
Icould apply for a writ of attachment. Now, under our rules, if it
is part of initiatory pleading, kasama ng complaint, this
TANNER NOTES
application for attachment, which is part of the complaint, can
be granted by the court ex parte. Kuha niyo? Ex parte, ibig
sabihin, ‘pag kita ni judge na pwede under the grounds on
Rule 57, Section 1 or magpa-hearing siya without the other
party participating, pwede, and the judge what? Grants it. Now
meron ka ng order, then the court will issue a writ of
attachment.
The order is different from the writ, but of course, before the
writ is implemented, post ka muna ng bond. So sasabihin ng
judge, post ka muna ng bond, that will secure the other party
eh. Ok, then, nagpasok ka ng bond, kumpleto ka na, tama?
Ngayon kailangan na iserve yung complaint, meron ka ng
order at writ, yun yung value ng service of summons prior to or
contemporaenous with. The writ and the order cannot come
ahead of the summons. Because how can it come ahead
of the summons, if the court should first acquire
jurisdiction. Yun yon class! Kailangan may jurisdiction muna,
that’s why the provision says service of summons prior to
(mauna summons) or contemporaenous with (sabay-sabay).
Kung kayo tatanungin ano mas gusto niyo? (Class: Sabay-
sabay) Yes. Sabay-sabay, gulatin mo. Kasi class kapag nauna
yung summons, alam na niya na nagpapa-attachment to. Kaya
gusto mo sabay-sabay. That is the reason. So, you see now,
sasagutin ko na yan. Di ba sabi ko sainyo, there’s one
exception. May exception kasi dun. In rem, quasi in rem
action. Kasi class, the requirement of service of summons
prior to or yung sabay-sabay is that required in rem and quasi
in rem or instances when substituted service cannot be
effected. Bakit? What is important is the jurisdiction over the
res. Ok? Yun yung importante.
80
Are we clear on that? Sa in personam, simple noh? Tao.
Tanong ko ngayon, pwede bang magkaroon ng publication
sa in personam? Pwede ba magkaroon ng action? Can there
be service of summons by publication? YES! Ok! But under
the following conditions. Ano yun? Unang tandaan niyo,
basahin niyo, it says ‘any action’. Class, under the present
state of the law and per jurisprudence, when we say ‘any
action’, it includes in rem, quasi in rem, in personam. Yun na
yun and that was declared in the San Miguel Case and other
similar cases. Past circa 1997.
Case: San Miguel case
Kasi class, under the old rule, ay wag ko na banggitin, baka
kasi yung iba sainyo ang maalala yung old rule eh. Tapos
mamaya may mangangalabit na naman, alam mo may
sinasabi si sir eh. Kaya wag na! Magugulo lang kayo eh, ok!
Kaya dun na tayo sa (New) rule. Hindi ko na ididistinguish.
Ok? Ano nga yung rule? In rem, quasi in rem, in personam.
Ok? Pasok yun dun. Pero yung in personam, class, let’s us
say whereabouts of the defendant is unknown or the
defendant is not known, you could serve summons by
publication. Ok? Ganun lang yun class. Meron kang kaso,
kilala mo yung defendant pero di mo alam kung san nakatira,
pwede ka magpapublication under Section 14. Maliwanag?
Meron kang kaso, ang naka-designate is the ‘debtor’ with no
name, if you follow the provisions of the law, it’s possible, but
honestly, it’s hard to locate such person, if it’s an action in
personam. Very hard. But again, the provisions of the law now
allows. Ok?
TANNER NOTES
Let us now move on. So, this is personal. You know now
personal, substituted service.
Juridical Service
Let us now move on to juridical. Ok! Hopefully, class, kapag
nakita niyo yung tanong, huwag kayo magworry, tingnan niyo
kung sino yung defendant muna. Hanapin niyo muna
defendant. Kapag kahanap mo ng defendant, at tao, alam mo
na yun (personal). Kapag mas mahirap ang tanong or mahirap
hanapin yung defendant, tingnan mo, ano ba yan, in
personam, in rem, quasi in rem. Are we clear? Kasi makikita
mo yun if he’s outside the Philippines, Section 15 will apply. If
he’s in the Philippines except that he is unknown, section 14
will apply. So person.
Let us look at Juridical Person (JP).
Of course, when you talk about JP under the rules, you have
domestic and foreign. Ok! Madali lang to class. Summons.
Madali lang to. Humihirap lang ito kapag hinalo mo. Wag mo
hahaluin, class. Ok!
Kapag Domestic, ang gusto ko lang tandaan niyo, Section
11.
Then i’ll give you a case. I’ll give you 2 cases then i’ll explain
para matandaan niyo. Ano yun? Service to the President,
General Manager, Managing Partner, Corporate Secretary,
Treasurer, In House Counsel. Alright? Alam niyo naman yung
presidente di ba? So di ko na paliliwanag, patu ang General
Manager, Managing Partner and Treasurer. Ang Corporate
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Secretary, class, is not a secretary. A Corporate Secretary is
a person in charge with the corporate documents. To some
students, he is the one preparing the minutes. More than
preparing the minutes, the Corporate Secretary is in charge
with the corporate records.
Who is an In-house Counsel? In simple words, para alam
niyo ang distinction, an In-house Counsel is employed by the
company. Yan ang in-house counsel. Yung mga nasa law
office, yung mga sina-subcontract, tulad kami, lalapitan para
humawak ng kaso, ano kami? Outside Counsel kami. Ang
kailangang kaibigan namin ay yung mga In-house Counsel.
Bakit? Kasi, sila ang nagbibigay ng kaso samin (hahahahaha).
There are cases that they (In-house counsel) know that they
will not handle, that’s why they distribute it to outside counsel,
and summons can only be served upon the In-House Counsel,
not to outside counsel. An in-house counsel is employed.
Let me give you a few variations of this. Bakit kelangan may
variations? Class, depende kasi sa kompanya. Bakit? Meron
iba isa lang ang In-house Counsel, no doubt sakanya. Tulad
ng mga bank, sino pinakamataas jan? Vice president - legal
who is the head of the legal department. He’s the In-house
Counsel. Kasi class, siya ang head, 15 ang abogado or let’s
say BPI, may head tapos may 20 na abogado, so sakanya
(head). Ok? In-house Counsel. But, there are also instances
that a corporation agrees to be served summons. Meron din
ganung company, na alam na alam niya na magkakakaso siya
at para hindi na maabala yung mga officers niya, meron silang
magrereceive na department ng summons. Tatanggapin niya
kahit anong klaseng summons. Do not bother the President,
General Managers, etc., they will not contest the proper
TANNER NOTES
service of summons. But again, you have to take note, the
service should only be made upon the In-house Counsel. Yun
ang tatandaan niyo. That is an exclusive list (pointing to
Section 11 in the board).
Case: Cathay Metal Corporation vs. Laguna West
Multipurpose Cooperative (2014).
FACTS: So let me give the case of Cathay Metal Corporation
vs. Laguna West Multipurpose Cooperative (2014). Anong
nangyari dito, class? Medyo magulo ito. This is in connection
with the land ownership award brought about by land reform.
May mga farmer beneficiaries sa lupa, syempre maliliit na
putol ng lupa yun, class and syempre yung mga farmers na
yan, hindi naman lahat yan may financial capacity to develop
the land.
So ang nangyari dito, class, there’s a cooperative na sila yung
nagpapatakbo nung mga lupa na yun, they group all of these
lands together. They (cooperative) had an arrangement with
the farmer beneficiaries. Unknown to the cooperative, eto
palang mga farmer beneficiaries nag-enter na ng irrevocable
right to buy the land with Cathay Metal Corporation. Yung mga
lupa pala nung mga beneficiary na yun ay nakipagsara na
pala. So, they cannot sell it immediately because there’s a
holding period. So, nakipagkasundo pala sila sa Cathay Metal
na ibebenta nila sa kanila. After sometime, ibenenta na nga sa
Cathay Metal. So ngayon, nalaman ngayon nung cooperative.
So, ang ginawa ng Laguna West, they annotated an adverse
claim on the titles. After the sale was completed between
Cathay Metal and the Beneficiaries, a petition to cancel the
adverse claim was filed.
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Now, sabi dito, the petition was served by registered mail and
the summon ‘daw’ was served. Upon petitioner’s motion, sabi
ng court, RTC issued an order declaring petitioner’s
substituted service. So, there was a substituted service.
Petitioner (Cathay Metal) was later allowed to present
evidence ex parte. The court agreed that there were
substituted service. Imagine, it’s a COOPERATIVE ha,
SUBSTITUTED SERVICE. Listen! Upon learning that a case
involving its adverse claim is pending, the cooperative through
an officer filed the manifestation in motion alleging that they
did not receive the copy of the summon and the petition, that it
moved that the summon be served (They give the address.) in
Narra Avenue, Looc, Calamba, Laguna. So after, receiving the
manifestation, the court requires the service of summons.
However, syempre ayaw ng Cathay Metal ito, they filed a
motion for reconsideration arguing that the case is already
submitted for decision because there was already an ex parte
presentation of evidence. RTC issued a decision granting the
Cathay Metal’s petition for cancellation of the adverse claim.
ISSUE: The question is whether Laguna West was properly
served with summons or notices of hearing for the cancellation
of the adverse claim.
HELD:
The Supreme Court said NO. The contention of Cathay Metal
was on the articles of incorporation of Laguna West, there’s a
different address and according to the Cooperative Code of
the Philippines, it is mandated to have an official post address
to which notices must be sent.
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Sabi ng Cathay Metal, according to the Cooperative Code, the
notice should be sent to their postal address, and ginawa
naman namin. So that’s the argument of Cathay Metal.
The Court said that the Cooperative Code provisions may
govern matters related to the activities of the cooperatives
however they are not procedural rules that will govern court
processes. A Cooperative Code provisions requiring
cooperatives to have official postal address to which notices
must be sent cannot take the place of the rule on summons,
according to the court.
This is not to say that notices cannot be sent to cooperatives
in accordance of the Cooperative Code. Notices may be sent
to cooperative official address, however, service of notices or
summons sent to the official address, in accordance to the
Cooperative Code, may not be used as a defense for
violations of procedures under Section 11.
Sabi ng court, it (Section 11) provides that the rules on service
of summons upon juridical entity, it is established that the
enumeration on Section 11 of Rule 14 is EXCLUSIVE.
Service of summons upon persons other than those
enumerated in Section 11 is invalid, even substantial
compliance is not sufficient service of summons. Ganyan
kahigpit itong Section 11. That’s why Section 11 should be
memorized.
Now, this provision does not limit the service to the officers’
place of residence or offices. Therefore, the court said here
that you look for the officers enumerated, whether in their
homes or offices. If summons may not be served upon these
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persons personally, summons may be served upon any officer
wherever they may be found. So sabi nila, hanapin niyo itong
nasa Section 11 ha, hanapin niyo sa opisina nila or hanapin
niyo sa bahay nila. Kapag wala sila dun, hanapin niyo kung
saan sila makikita.
Now, look at this. Petitioner Cathay Metal insisted that they
should not be made to inquire further as to the whereabouts of
the cooperatives, after attempts to serve the summons to its
known address as alleged in its article of incorporation. The
rule does not provide that it needs to do so, according to the
court. However, it provides for service by publication.
This is where the court applies Section 14 also. But, class, I
tell you, mahirap mong i-apply ito kasi yung Section 14,
generally yan, individual yan eh. You do not generally apply
Section 14 to a corporation. It is questionable to use Section
14 on corporation when whereabouts unknown because that it
a juridical entity. Para sainyo, ang gusto kong tandaan niyo,
Section 11! Tama naman yung sinabi nila dito, but i’m not just
comfortable with the discussion on Section 14. This is not a
matter of acquiring, sabi ng court, of juridiction over the person
of the respondent, this being an action in rem.
So here, take note, if it’s a corporation, Section 11 -
Service upon the officers in their residence or
whereabouts.
Natural Person Case: Sancho
Now, let me ask you this question, how about a natural
person (bumalik lang ng kaunti), is it necessary that the
TANNER NOTES
summons be served only to the defendant in his address
indicated in the complaint? In the case of Sancho, it was
provided that summons can be served to the defendant
wherever he may found in the Philippines. Ok, so kapag TAO,
wherever he may be found. Kunwari may nakalagay na
address sa complaint (New Manila, for example) pero alam na
lagi kang tambay sa Manila Peninsula, pwede pa rin i-serve
summon dun sa Manila Peninsula.
Let me give you the facts of the case. Ang nangyari dito, may
kaso yung mag-asawa, maraming kaso. Hindi maserve-serve
yung summons. Natunugan nung sheriff na may kaso sa
Branch ganito yung mag-asawa, so ang ginawa nung sheriff
pumunta sa Branch na yun to serve the summons and it was
serve successfully. Since yung mag-asawa kasama yung
attorney nila, pinakita nila sa attorney yung summons.
Syempre pasikat si attorney, sabi nya mali daw yung service
at need pang dalin sa address na nakalagay sa complaint.
Kaya yun yung naging issue nung case. Kaso ang sabi ng
Supreme Court, it can be served anywhere the defendant may
be found. Kahit na nakatambay-tambay ka lang jan, hindi mo
address, class, it could be served upon you.
Case: Mason vs. Columbus Bus
Now let me give you another case. The case of Mason v.
Columbus Bus. This is a case involving a mix of default and
application of RULE 14, SECTION 11. Let me give you the
facts. Columbus Bus was sued by the lessor of Columbus Bus,
where they park their buses. Summons was served upon the
clerk of Columbus bus. She received the summons and she
kept it to herself. She did not forward it to the officers of the
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corporation. Those enumerated under Section 11. She kept it
to herself. The corporation Columbus Bus was declared in
default. And because they were declared in default, Columbus
Bus was only entitled to the notices of the proceedings, and
they cannot participate in the proceedings. Remember Rule 9;
they are entitled to notices but they cannot participate in the
proceedings.
Now, all the notices she received, she also kept it. Then, the
court rendered a judgment. This time, a default judgment. Last
meeting, I discussed the remedies for a default judgment. One
remedy is appeal, another is motion for a new trial during the
reglementary period. If it is already final and executory you
could file a petition for relief of judgment. You could also file
under Rule 65 if there was grave abuse of discretion.
In this case, Columbus Bus opted to file a Rule 65. The case
of grave abuse of discretion was elevated to the Court of
Appeals. One of the contentions of Columbus Bus in the Court
of Appeals was, sabi niya, hindi proper ang service of
summons. Therefore, they never acquired jurisdiction over
Columbus Bus. Columbus Bus was insisting on the application
of Section11. Sabi nila improper daw dahil ang tumanggap ay
clerk lang. The CA said yes. The summons was not properly
served, and the case proceeded until judgment. When it
reached the Supreme Court on appeal by Mason, the SC said,
CA you are correct, Section 11 will apply. However, the
Supreme Court further said, that proceedings after the service
of defective summons is considered as null and void.
Now I would want to discuss this carefully. Sir, hindi ba sinabi
niyo waivable? Hindi nga nila winaive e. Waiver will only
apply if you participated in the proceedings. If you did not
TANNER NOTES
question if you submitted pleadings, in this case they did not,
as they were not aware of it. In fact, they raised the improper
service of summons the first time in the Court of Appeals. The
SC said, tama, section 11 applies. However, the proceedings,
from the improper service of summons until judgment is null
and void. The Supreme Court asked to remand the records to
the trial court for proper service of summons. So I want you to
remember class that while service of summons is waivable,
meaning you accepted it even if it is defective and you filed an
answer, you received it and you sought an affirmative relief, or
you simply voluntarily submitted to the jurisdiction of the court.
But in the case, there was none. The SC ruled that there was
no jurisdiction over Columbus Bus. Section 11.
Section 12
Now, let us discuss Section 12. So kapag may tanong sa Bar
Exams class, nakita niyo agad na may foreign juridical entity,
kalimutan niyo na agad Section 11. Section 12 na ‘yan
kaagad.
What is the basic rule? If it is a foreign juridical entity any
officer and its transacting business, look at the first paragraph
of Sec 12 of Rule 14. Does it say ‘doing business’? No, it says
‘transacting business’. Of course, if you are transacting
business it is possible that you have an agent or
representative in the Philippines. Therefore, service could be
made upon any officer or a resident agent in the Philippines.
Now, may second paragraph. Many sa inyo walang second
paragraph. One paragraph lang yung iba. This was an
amendment in 2011. Look at the second paragrapgh. Does it
say “transacting”? No, it says “not registered.” Kasi ito yung
mga situations na you’ve dealt with foreign corporations na
85
walang opisina dito, they’re not doing business in the
Philippines. Sir is it possible? Yes. Isolated transcations. Let’s
say you’ve dealt with a foreign company by buying a
helicopter. Let’s say you’ve dealt with a foreign company that
purchased condominium in the Philippines within the 60-40
arrangement. Let us say that there was a suit, how can you
serve summons on a foreign corporation? You serve it upon
any officer transacting business dito, ‘yun ang primary. To
anyone of them found in the Philippines. If the scenario is it is
not transacting business here, it is not registered here, the
second paragraph will apply. You will have to seek leave of
court. It is not automatic.
There are a number of options available for you. You can
request service of summons by electronic means, for as long
as proof is generated. Pwedeng fax yan, email. Second, by
publication in a newspaper of general circulation in the place
where the corporation holds business. Hindi dito, doon, Kasi
wala nga sila rito e. And, service by registered mail of the
summons in the last known address. So bakit ganoon? Kasi
there are instances na because they have dealt with you in the
Philippines, meron silang mga temporary offices dito. So you
will have to serve summons in their last known address.
Lastly, by service through the assistance of the Department of
Foreign Affairs. Service of summons could, of course, be in
coordination with the local court, but with the assistance of the
DFA. Again, this is with leave of court and other analogous or
similar circumstances, subject to the discretion of the court.
May bar exam question na ganito. Ang tanong, may dalawang
magkapatid na residente na ng foreign country. Bumalik ‘yung
isang kapatid dito, tapos nag-serve ng summons. Tapos
hiningi ‘yung address tsaka email ng kapatid na nasa abroad,
TANNER NOTES
at ngayon pinadalhan ng summons through email. Pwede ba
‘yun? Hindi. Hindi ito Section 12. Section 15 ito. Extraterritorial
service of summons. Wala siya rito pero bakit Section 15? It’s
because he does not reside in the Philippines and he is not
found in the Philippines. Section 15 applies kapag natural
persons. Section 12 kapag foreign juridical entity.
Bakit ko nasabi na ‘yung electronic means pasok sa 15? What
does Section 15 say? You can serve it upon him personally.
Second, service by publication in a newspaper of general
circulation and service by registered mail in his last known
address. And third, other mode or manner as may be deemed
convenient by the court. May discretion ng husgado. Therefore
if you want to do an electronic mail service to a person who is
not a resident of the Philippines and who is not found in the
Philippines, you will have to seek leave of court. Huwag niyong
paghahaluin ang 12 at 15. Ang 15 ay natural person, ang 12
ay juridical person.
Now, how about a non-juridical person? As you know, there
is Sec 15 of Rule 13. How do you serve summons? You are to
serve summons under Sec 8 of Rule14. You are to serve
summons to anyone of them. So kung itong pitong tao na nasa
harap ko ay they are named ABC Corporation or association. I
thought they are a corporation when in fact they are not.
Meron silang stationary, meron silang opisina, may karatula,
calling card. So akala ko kompanya sila. Now, they breached
their contract with me and I sued them. Can I sue them under
ABC Corporation? Under the name by which they are publicly
known? Yes.
How can I serve summons upon them e hindi ko nga alam
saan ang address? Kaya nga the service of summons can be
86
made upon any one of them. Isa lang sapat na. Kasi hindi ako
sigurado kung sino sa kanila ang talagang member, at hindi ko
rin alam ang address nila. Dahil under Rule 3 Section 15, once
they received the complaint, it is their duty to declare their true
names and addresses. Kaya nga minimum lang requirement
kapag non-juridical entity defendant mo. Kailangan lang isa sa
kanila makapag-serve ka ng summons nang tama, or number
two, to any one in charge of the office.
Now, let us say an estate involves an act of negligence of the
deceased during his lifetime. Kunyari mahilig sa sasakyan,
ang tulin magpatakbo, humampas doon sa pader sa
community at binagsakan ‘yung tatlong kotse ng kapitbahay.
That is an act of negligence. Let us say after his death
dinemanda siya. Who will you sue? The executor or
administrator, right? To whom will you serve the summons? To
the executor or administrator, in the same manner as you
serve to an individual. You have to serve it upon him
personally. If he refused you would have to tender it upon him.
Case: RCBC v. Hi – Tri Development
However, let me call your attention to this case. This is a case
that will illustrate to you that when the law enumerates the
persons to whom summons should be served, then what is in
the law shall prevail. Sabi kasi kapag juridical entity ito lang
ang magpe-prevail diba? However, the case of RCBC v. Hi-Tri
Development shows the application of Act 3936. What
happened in this case? Iba ito. This involves the escheat of
dormant bank accounts. Interesado syempre ang gobyerno sa
mga perang hindi na kayo interesado. Nakita ng gobyerno na
kailangan niya na to kasi matagal nang hindi nagagalaw, so
they filed an escheat of unclaimed bank accounts pursuant to
TANNER NOTES
Act 3936. And under this law, if you sue under the escheat of
unclaimed bank accounts, of course you would have to
implead the banks. How do you serve summons? Not under
Section 11. Based on Act 3936, you will have to serve
summons to a president, to a cashier or a managing officer of
the defendant bank coupled with a publication of a copy of the
summons in a newspaper of general circulation. This is by
express provision of law. ‘Yang Section 11, kapag walang
batas, Pero kapag may batas, katulad nito, ito ang mag-
aapply.
So in this case, what happened was, the depositors were
saying bakit hindi niyo kami sinerve ng summons? Wala
naman kami natanggap na mga notices dito ah? Bakit kami
hindi kasama? Sabi nila it is a jurisdictional requirement. The
failure to serve us with notices is a jurisdictional requirement.
What did the court say? Issuance of individual notices upon
the depositors is not a jurisdictional requirement. Because
escheats are actions in rem, this is brought against the rest
meaning the object, which is the funds, the money. Judgment
of escheat is conclusive upon the persons notified by
advertisement as publication is constructive notice. Take note
of that.
Basic rule: if it’s a domestic corporation Section 11, if it’s a
juridical entity Section 12. If there’s a law that tell you to whom
summons should be serve that would apply.
Lets now move on to another discussion. Section 14, 15, 16
pag naintindihan niyo hanggang dito comfortable nako dahil
magbibigay ako ng kaso iwanan ko na to.
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Section 14
For purposes of the bar I would want you to know under what
conditions can you use section 14.
1. if the defendant is unknown (di mo kilala defendant)
or his whereabouts unknown (kilala mo defendants but
his whereabouts are not known);
2. nature of the action – any action, kahit anong kaso in
rem, in personam quasi in rem, basta hindi mo kilala
yung defendeant o kilala mo man siya, his
whereabouts are unknown you can use sec 14.
Case: Pedro vs. Romasan Development
And look at the provision carefully, service of summons can be
made by publication. Yang publication na yan no ifs or buts. It
doesn’t say service by registered mail by last known address,
wala diba sinasabi lang niyan by publication, sapat na yon.
Now, derecho ba yan ng publication? Remember, pag may
defendant, syempre pag in rem walang defendant, generally.
Pag quasi in rem may defendant, in persona may defendant.
Sir pwede ko ba iserve personally? Yes, bakit hindi. Can I do
by publication? Yes.
Now, that leads me to the case of Pedro v. Romasan
Development a 2014 case. In this case the preferred service of
summons is personal service whether action in personam or
action in rem, di mo pwede i-publication agad. Kung kaya mo
iserve personal iserve mo muna as what happened in this
case. Let me read the portion of the return of the sheriff.
The return provides in part: Aurora de Pedro unserved for
reason that according to the messenger of the post office of
TANNER NOTES
Pasig there is no person in the said address. The simple
statement here, the person is not present or there is no such
person in the address given sabi ng post office. Failure to state
the facts and circumstances according to the court that
rendered service of summons impossible render service of
summons and return ineffective. In that case no substituted
service or service by publication can be valid. No service by
substituted service or service by publication can be considered
as valid.
So, in the sheriff’s return there should be a showing of facts
and circumstances that would render service by personal
service ineffective or impossible. Hindi pwede birahin agad ng
publication, kung kaya personal, personalin mo. Pag nakita sa
return tulad ng substituted service the impossibility of doing it
personally, pwede kang mag publication. Let me restate this
for you, preferred service of summons is personal service,
whether action in personam or action in rem.
Section 15
Section 15 naman tayo. The conditions should be as follows:
1. defendant does not reside in the Philippines-
2. not a resident;
3. not found in the Philippines
Tawag diyan ay extraterritorial. Wala siya dito, hindi siya
residente dito.
Sa section 15 ba pwede ang substituted service? Hindi,
hindi nga siya nakatira /residente sa Pilipinas paano ka mag
sa-substituted service. Wala na siyang matagal sa Pilipinas.
88
Common example: hindi yung mga OFW ah kasi bumabalik pa
sila, common example yung mga Pilipinong nagmigrate na,
balikbayan, yung mga bumisita nalang 2 taon, wala na, not
found or does not reside. Or not even necessarily Filipinos, but
someone who does not reside or found in the Philippines.
How do you serve summons?
1. Service can be made personally. Of course when you
say personal not in the Philippines, wala nga sa
Pilipinas.
2. By publication, unlike sec 12, publication is in the
Philippines, or service by registered mail in the last
known address. You have complied.
3. Other modes/manner as court may deem possible.
Subject to discretion of the court.
Ex.: electronic mail.
I’ll give you another example decided by the court.
Remember, in section 14 it involves any action, while in
section 15 it involves in rem/ quasi in rem. In fact, if you read
the provision it specifically provides:
1. an action that involves personal status of the plaintiff,
2. that which involves the property of non - resident
defendant and
3. that which involves the property of non-resident that
has actual or contingent interest on the property.
Case: Rodriguez case
An example of this (other modes: the case decided by the
court, Rodriguez case, that involve personal status of the
TANNER NOTES
plaintiff. Plaintiff left by the wife, she went to California.
Husband wanting to move on, filed a nullity case. His lawyer
applied for service of summons by publication. Ang gusto sana
ng lawyer publication kasi hindi masyadong masalimuot,
magbabayad ka lang ng publication and padala sa huling
address niya sa Pilipinas. Simple lang. Kaya lang ang court,
and I think this is the case where the supreme court copied the
service through the assistance of the DFA. The court issued
an order requiring that service be effected through the
assistance of the DFA and that the answer must be served
within a period of 60 days. But there is also a corresponding
requirement also of publication. May service na, may
poublication pa. Tapos sasagot ka 60 days. So, the case
proceeded. The court rendered judgment but the wife contests
the award, the judgement. Sabi ni wife, null and void ang
judgment dahil hindi siya na serve ng summons. Supreme
Court said it falls under “other modes” as may be determined
by the court. So pag iyan napag desisyunan ng husgado within
its reasonable discretion pwede siyang pumasok sa item no.3
(other modes).
Section 16
Ito naman temporarily absent. Does he remain to be a resident
of the Philippines? Yes. Example: 6 months nasa America o
mga OFW babalik pagtapos ng isa o dalwang taon, na
kinasuhan.
Case: Palma vs. Galvez
Now, how do you serve summons, sabi ng sec 16 same
same same yan pareho ng previous (sec. 15), pareho ng
manner of service. Kaya lang, the person will return, he has a
89
residence. Is there another option? If you look at the provision,
there is a word “may”.
In the case of Palma v. Galvez, court said, it found that while
summons was served at respondent’s house and received by
the husband such service did not qualify as valid service on
her as she was out of the country at the time summons was
served, sabi to ng RTC. So, when it went up to SC, SC had to
check it out kung pwede ba yon. The other option of service
is: substituted service sa temporarily absent sabi sa case
of Palma v. Galvez, citing a number of cases.
SC explained it citing Montefalcon v. Vasquez in the case of
Palma, that because Section 16 of Rule 14 uses the words
“may” and “also” it is not mandatory, other methods of service
allowed under the rules may also be availed of. By serving
summons allowed under the rules. By serving to the officer on
a defendant resident who is temporarily out of the Philippines,
thus if resident defendant is temporarily out of the country any
of the following modes of service may be resorted:
(Enumerated in Montefalcon; kung temporarily absent as cited
in the case of Palma ito ang options of service)
1. Substituted service- section 7
2. Personal service outside of the country
3. service by publication or service by registered mail to
last known address
4. Any other manner court may deem convenient
So dito sa Montefalcon cited in Palma, the court clearly stated
that you could do substituted service to someone who is
temporarily absent.
TANNER NOTES
Case: Montalban vs. Maximo
In Montalaban v. Maximo we held that substituted service of
summons under section 7 of Rule 14 in a suit in personam
against a resident of the Philippines temporarily absent is the
normal method of service of summons.
Now, this is interesting, still in the case of Palma. What do
you mean by residence? Kasi we keep on harping residence,
residence, residence, right? Supreme Court said that we have
held that a dwelling, house or residence refers to the place
where the person named in the summons is living at the
time when the service is made even though he may be
temporarily out at the time. So ang batayan lang when you
say residence, house or dwelling is where he is living, even if
he is what? Temporarily out of the country at that time. Thus,
the court said the service of summons intended for the
defendant must be left with the person of suitable age and
discretion residing therein.
Ang option again just to summarize here, temporarily out, the
same (same with sec 15: personal service,
publication/registered mail, or other modes) and/or you could
add: substituted service.
Case: National Petroleum Gas vs. RCBC
In National Petroleum Gas vs. RCBC, a 2015 case, the filing of
motion to dismiss with special appearance. Here, it was
considered submitting to the jurisdiction of the court. Why?
Kasi pag nag submit ka ng pleading seeking affirmative relief
you’re deemed to have submitted to the jurisdiction of the
court, that’s voluntary appearance. The habit of lawyers when
they appear or when they file pleadings and they don’t want to
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submit to the jurisdiction of the court, what will they say? “Your
Honor special appearance without submitting to the jurisdiction
of the court”. What happened in this case.
The court said that you can only claim section 20 of rule 14 if
you did not claim other reliefs. Let me further explain. Pag
binasa mo yang section 20 ang sinasabi diyan, today under
the present rules in a motion to dismiss you could group all of
the grounds for a motion to dismiss, isama mo na lahat. If….
Illustrated on the board:
Section 14 Section 15 Section 16
Any action Not resident or not found in Temporarily
the Philippines absent
Publication (1) Personal
(2) Publication/registered mail
same
to last known address
(3) Other methods
(4) substituted
service
Lack of jurisdiction you could include non-compliance with
condition precedent, the pleading asserting the claim states no
cause of action. Do you follow? Isama mo na lahat. Hindi
katulad sa old rule, hanggang dun ko lang sasabihin, ngayon
kasama lahat. Pwede mo na isama lahat.
Eh sir ano naman relasyon dito sa kaso? Ang nangyari kasi
class dito, they were posturing, sabi nila, "eh section 20
naman po eh, we qualified, we are not submitting to the
jurisdiction of the court".
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But the court said, Section 20 only applies for the grounds on
a Motion to Dismiss. But if you sought other reliefs, like to
quash a motion or to set aside a writ of attachment—sabi ng
Court, you practically sought relief from this honorable court.
And therefore, you are deemed to have submitted to the
jurisdiction. So, take note of the application of SECTION 20
RULE 14, that is only limited to the grounds for a Motion to
Dismiss. But if you sought other reliefs, you are considered to
have submitted to the jurisdiction of the court.
Service of Summons by Registered Mail
Case: Romulo vs. Peralta
Okay, gusto kong tandaan niyo ito. I would want you to look
into this case, the case of Romulo vs. Peralta. Why? Kasi this
discussed service by, what is the proof of registered mail.
Please bear in mind that when you talk of proof by registered
mail, what does it say? Affidavit of the person mailing, registry
receipt, return card. I just backtracked a little ah. Now, the
person preparing the affidavit must be the person mailing.
Okay? The person preparing the affidavit must be the person
mailing, and not the person directing someone to mail.
That is the significance of the case of Romulo vs. Peralta. In
this case, the court said, "mali yung proof mo", "there is no
proof of filing, there is no proof of service by registered mail".
Why? "because even your affidavit says that you simply
directed someone to do it, to file a Motion to Dismiss, when the
affidavit should be prepared by the person actually mailing.
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Proof of Service by Publication
And my next point would be, proof of publication. Nakita niyo
RULE 14? Ano section yon? SECTION 19. Diba proof of
publication.
Illustration:
One more case and I'm done with this. Covered ko na yung
summons. Let me give you a case. In a default situation.
Whereabouts unknown. Recovery of sum of money. Humingi
ng publication, correct? Then there is a motion to declare in
default. The motion to declare in default was denied. Why?
Because the plaintiff who caused the publication did not
comply with Section 19, which requires that you have to
submit an affidavit of the editor of the newspaper of general
circulation. That would consist of the publisher or the editor of
the newspaper where it is published. Take note of that ah.
Therefore, it is not enough to request that there be publication.
Tandaan niyo to. Lahat to may publication. Once you have
effected service of summons by publication, it is your duty to
submit to the court to show proof of service of summons by
publication, consistent with Section 19.
Case: PhilAm Life vs. Breva
Now, is there a need to issue new summons after an
amendment has been filed? Is there a need to issue
summons after an amendment of the complaint has been
filed? This is the case of Philamlife vs Breva.
Okay. As we know, the Rules of Civil Procedure provides that
the amended complaint supersedes the complaint that it
amends. Contrary to the claim, the summons issued on the
amended complaint does not become invalid. The original
TANNER NOTES
summons does not become invalid. In fact, summons on the
original complaint which has already been served continues to
have its legal effect. So yung mga nakuhanan ng jurisdiction
ng husgado, okay na ‘yon. Thus, where the defendant has
already been served with summons on the original complaint,
the amended complaint may be served upon him without the
need of another summons. Take note.
Conversely, where no summons has yet been validly served
on the defendant, new summons for the amended complaint
must be served. Pag nakuha na ang jurisdiction, okay wala
nang new summons, padala mo nalang yung amended
complaint. Pero class, kung di pa na-serve ang summons and
there was an amended complaint, a new summons will have to
be issued. In the instant case, since at the time the complaint
was amended, no summons has been properly served, and
the party has not yet appeared in court, new summons should
have been issued on the amended complaint.
Alias Summons
My last question is, what is an Alias Summons? Okay. That
is my last question. Siguro class, sagot na sagot niyo na to
dapat. Pag hindi niyo pa nasagot yan, wag ako sisihin niyo ah.
What is an Alias Summons? An Alias Summons under
SECTION 5, RULE 14 is issued when the first one has been
lost, or when the summons originally served has been
returned unserved. Ano yung una? Nawala. Very simple. May
summons ka nawala, pwede ka humingi alias summons.
Ngayon class, yung summons mo naglabas si Court, dinala ni
Sheriff. Sinubukan i-serve ni Sheriff. The sheriff is duty bound
to prepare a sheriff's return. Tapos ibabalik niya yung
summons together with the return. Wala ka nang summons.
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Nakita niyo? That is why you will have to ask for an Alias
Summons. Can you follow? You have to apply for an alias
summons because everytime the sheriff serves, the sheriff
prepares a return. Ibabalik niya yan. Buong file makikita ni
Judge. Ngayon yung plaintiff, kung di pa naseserve properly
will have to file a Motion for Issuance of Alias Summons.
Now let me ask you this, do you need an Alias Writ of
Execution? Do you need an Alias Warrant of Arrest? Meron
bang alias writ of execution? The answer is no. Alam niyo
class ganito, you don't need an alias writ of execution, why?
Because your writ has an effective life of five years according
to RULE 39 SECTION 14. And buhay ng writ of execution mo
limang taon yun. So hindi mo kailangan ng Alias Writ. Ang writ
of execution hindi kailangan ng alias writ kasi limang taon
buhay nun eh.
Oh ano, warrant of arrest. Kailangan mo ng Alias Warrant?
Naissue ang warrant, 1995. Hanggang ngayon, di ka pa
nahuhuli. Pwede ba magpaissue? Class, a warrant of arrest is
effective until it is served or lifted by the court. Hangga't buhay
ka, pwede ka maarresto. Hangga't buhay yung kaso na yun
din. Hindi kailangan ng alias. Bakit ka magpapa alias?
Effective yun hangga't may kaso, unless lifted by the court,
until you are arrested. Are we clear?
Now, pwede ka ba mag Alias Search Warrant? Class, ang
search warrant is effective only for a period of ten days. So
pagkatapos ng 10 days, automatically expired na yun. Apply
ka ulit.
Case: Sancio vs. Mogul
Let us now move on to my last point here. Okay. Class, I just
want to give you the full title of the case where service of
TANNER NOTES
summons could be made to a defendant wherever he may be
found in the Philippines. Sancio vs Mogul. Therefore class,
summons could be served where—to the defendant wherever
he may be found in the Philippines. Okay na yun, sobra na
siguro yun class. Okay. Let's now move on.
RULE 15
MOTIONS
Dito na tayo sa Motions. Madali lang to. Ano ang Motions?
Ano ang kailangan niyo tandaan dito? There are a number of
points I want you to remember here.
1. Notice of Hearing
2. The Three – day Notice Rule
3. The Ten – day Rule
4. Motion day
Pagdating ng pre-week class, dapat naalala niyo. Kailangan
alam niyo ang effect. Remember that a motion is not a
pleading. Take note. Why? Because a Motion does not lay a
claim or a defense. It does not state a cause of action, but
there are facts that supports a motion if a particular relief is
sought.
Three – day Notice Rule
Case: Cabrera vs. Ng
Let us look at the case of Cabrera vs. Ng. a 2014 case. Ano
nangyari dito? Mr. Ng sued Sps. Cabrera alleging that the
latter issued several checks in the amount of 3 Million pesos.
So, tumalbog ang checks, so dinemanda ni Mr. Ng ang mag
asawa.
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However, the spouses claimed na "Binayaran na ho namin yan
dun sa anak niyo, kay Richard Ng, bayad na ho yan". But of
course, there is also one check that was in the possession of
complainant Felix Ng which, according to the spouses, that
check was forcibly taken by the son, that’s why ayaw nila i-
recognize. Here class, nagkaroon ng decision ang RTC,
ordering the Spouses to pay damages, attorney’s fees. Anong
problema dito? The motion for reconsideration.
This is what happened. The motion for reconsideration was
not heard on August 17. There was a Motion for Recon, but it
was not heard on the date that it should have been heard.
According to this case, as the new acting presiding judge of
the court had just assumed office. It was rescheduled on
August 28. The RTC issued a notice which set the Motion for
Reconsideration for hearing for another date. Nakita niyo?
September 25. So sinet for hearing ng 17, hindi pwede wala
pang judge. Sinet ng hearing ng August 28. Ang husgado na
nag set nito. Tapos, di pa rin natuloy, sinet na ng September
25. Of course there were oppositions filed. Now the question
is, whether it complied with the three-day notice rule.
It is undisputed that the hearing on the motion for recon filed
by Sps. Cabrera was reset twice with due notice to the parties.
It was only on October 26, it was not even on September 25,
that the Motion was actually heard. At that time, according to
the Court, more than 2 months had passed since the
respondent had first received a copy of the said motion for
recon on August 21.
Now what's the big issue about this? Kasi class, sinet for
hearing ng Aug 17, pero natanggap ni Mr. Ng yung kopya
niya, Aug 21 na, kasi ni-registered mail yun eh. So ang issue
TANNER NOTES
niya, I should have received it at least 3 days before the date
of the hearing. Yun kasi ang requirement ng batas eh. It
should have been filed and served at least 3 days before the
date of the hearing.
In this case, what happened was, it was scheduled for hearing
on Aug 17, the winning party Mr. Ng received the copy of the
motion for recon kelan, 21, tapos na yung hearing. Kaya
sinasabi nya, "Ano to? In violation of the 3-day notice rule".
Maliwanag?
And for that reason, class, what is the effect if there is a
violation of the the 3-day notice rule? The motion is pro-
forma. And for that reason, it is a mere scrap of paper. Hence,
it will not interrupt the running of the reglementary period.
Hence, the judgment will become final and executory. Yun ang
gusto mangyari ni Mr. Ng. Ano sabi ng Court? Sabi ng court,
dalawang beses naman na-set yan. Hindi lang dalawa, tatlong
beses. Alam mo at umappear ka.
The requirement of the 3-day notice rule is an integral
component of due process. The purpose of the 3-day notice
requirement was established for the benefit of the movant,
rather than for the adverse party. It is to avoid surprises upon
the latter and to grant it sufficient time to study the motion and
to enable it to meet the arguments interposed therein.
Now class, you now know the 3-day notice rule. Alam niyo na
ha. Alam niyo class, kaya naging mahigpit ang Supreme
Court, again this is a product of experience. Kasi class ang
trabaho ng abogado, exactly itong pinaggagagawa nitong
kabilang abogado. Kaya Mr. Ng wanted to take advantage,
trabaho kasi ng abogado ganyan eh. Iseset for hearing let's
say this Friday, June 9. At the latest, your motion should have
94
been filed before Tuesday. Dapat na-ifile mo na yan. And that
means you will have serve it personally and you will have to
file it personally to comply with the three-day notice rule. If you
want to do it by registered mail, eh dapat ngayong linggo
palang na to pinadadala mo na para matanggap niya ng
Tuesday next week. At matanggap ng husgado. But the habit
of some lawyers will be this. Dahil kulang messenger, single
practitioner, pupunta ng post office yan papa registered mail
nya ng Tuesday. Tapos ififile niya ng Tuesday. He complied
with the 3-day filing. 3 days before the hearing he has filed.
But he did not comply with the 3-day notice for the service.
And then, the lawyer will appear in court, feigning ignorance.
Remember that, the 3-day notice rule.
Notice of Hearing
In one recent case, kung saan kinuha yung tanong, hindi
kinuha yung facts ng tanong na yun yung sinasabing "Do you
want to call the adverse party on the witness stand?" that
was the first question of the last bar examinations. What
should you do? Do you need to serve written
interrogatories? Yes. Kunwari papatawag ko yung kalaban
ko. I am the plaintiff, he is the defendant. Tawagin ko. I cannot
just call him on the stand. I should have served written
interrogatories under Rule 25 Section 6. Tinanong sa Bar yun
last year. And from that case ito kinuha don. Motion to
Subpoena. To issue a Subpoena. Unfortunately, the motion
had no notice of hearing.
What is the effect? Can the court take action on that motion for
issuance of Subpoena? Following the Rule on Rule 15, and
according to the ruling of the court, it is a pro forma motion.
TANNER NOTES
Sabi ng court, wala kang notice of hearing eh, edi pro forma, it
produces no legal effect. It is a mere scrap of paper.
Class tandaan niyo yan ah, pag tinanong kayo ng straight
forward sa bar, na 3-day notice rule, apply the rule. Okay, wag
mo laruin na may mga substantial compliance, wala, apply
mo yung rule. Kasi class pag hinalo mo yun, malabo sagot
eh. You have to know substantial compliance but the thing is,
if the question is very clear on notice, absence of notice, no
notice of hearing, no notice to the other party, hindi lang yan
notice of hearing, but no notice to the adverse party. So class
ha, the notice of hearing is directed to whom? It is directed to
the adverse party. Walang nakalagay sa rules na kailangan
directed to the clerk of court.
However, in practice, what we will do is to put the adverse
party's address, and we also put the clerk of court, why?
Because it is the clerk who sets it for hearing. It is the clerk
who calendars it. Kaya lang pag walang clerk of court, ok lang,
kasi hindi requirement ng batas eh. Ang minimum requirement
ng batas, ano yon, the notice is given to the adverse party.
And when you have that notice of hearing, it should likewise
be copy furnished upon those to whom the notice was
directed. So sa ilalim non, copy furnished.
And class this is serious ha, kahit na may notice of hearing,
pag yung copy furnished mo wala, pro forma yun. Nakuha
niyo? May notice of hearing ka nga sa taas, hindi mo naman
sinerve-an yung kabila, or another example, may notice of
hearing ka, hindi mo siya sinama, kulang ang notice of hearing
mo. Therefore, you will not be able to serve one of the
parties—pro forma. You did not comply with the notice of
hearing requirement.
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Eh pag tinanong ko kayo, lahat ba ng motion ay kailangan ng
notice of hearing? May babanat diyan, "only sir for litigious
motion". Sabi ko, "bakit? Meron bang motion na hindi
litigious?" "Yes sir, motion for extension of time, for
postponement". Well class, pag tinanong kayo ng ganon,
pwede ibigay yun, kasi halos sa lahat ng libro, sasabihin yung
extension and postponement ay non-litigious.
Pero class, sasabihin ko sainyo to. Pag nagging abogado na
kayo, lagyan niyo ng notice of hearing yun. Do not assume
because the other party will take advantage of the absence of
your notice of hearing. So for academic purposes, pwede niyo
sabihin extension, postponement, another example of non-
litigious is ex parte motion to set the case for pre-trial— RULE
18, SECTION 1. Bakit? Requirement ng batas ex parte nga
eh. Bakit ka magnonotice of hearing? Hindi nga kailangang
inform mo pa yung kabila. Ikaw nalang.
Ten – Day Rule; Motion Day
Case: Bacelonia vs. CA
So, we have now discussed notice of hearing, the 3-day notice
rule, the next one is the ten-day rule. Sir ano ba yang ten-day
rule na yan? Bacelonia vs CA. this is one of the first cases
where the supreme court was confronted with this. Class, what
does the ten-day rule require? You have to set it for hearing no
later than 10 days from its filing. Let me illustrate.
Illustration:
Monday is June 5. June 10 & 11 is Saturday and Sunday.
June 17 & 18 Saturday and Sunday. If you are to file a motion
on June 6 (tues), whatever motion it may be, when can you set
it for hearing following the ten-day rule? Can you set it for
TANNER NOTES
hearing on the 9th (Friday)? Pwede ko ba i-set for hearing sa
14? Pwede ba sa 16? Can I set it for hearing on the 19th?
Class ganito. Yung ten-day rule, ang batayan niyan is from the
date of your filing of your motion. That's the first thing I would
want you to remember. So you count the ten days from the
date of the filing of your motion.
The second rule is the motion day. According to the provision
of the law, it is on Friday. Sinusunod yan sa Quezon City. 2 in
the afternoon. Yan yung rule. And the OCA sometime in 2007-
2008 issued a directive addressed to the judges that says that
they will have to observe Motion day which is a Friday, at 2pm,
unless Friday is a holiday or a non-working day. It will be on
the next business or working day.
Pero pag nangyari sa husgado yun, walang pasok yung
motion day na yun, at two months late, diba? Or 1 month
later? Or 2 weeks later. Ano sasabihin sayo ng clerk of court?
Eh puno ho calendar namin, hindi naman naming motion day
yan eh. Nakita niyo? Kaya wag niyo iapply yun practical
sainyong nagttrabaho sa husgado. Hindi magshooshoot yung
sagot.
So, if you filed it on the 6th, you can set it for hearing at the
earliest, on the 9th, bakit? That's three days before. For as long
as you filed it personally and you serve it personally. 9th
pwede. Pwede mo pa ba iset for hearing on the 16th? Yes. let
us see. You filed on the 6th. That's your last opportunity to set
it for hearing. Can you set it for hearing on the 14th? Kung
motion day, sige. Can you set it for hearing on the 19th?
Following the provision of the rules, not anymore.
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Now you know the ten-day rule, you know the three-day notice
rule. Now let me give you the case of Bacelonia. Ano nangyari
dito? Class ang nangyari dito. The Motion for Recon of the trial
court's resolution on January 10 was filed by petitioner on
January 31. Finile yun January 31. The date and the time of
the hearing was set by the petitioners on February 15. Take
note. Finile January 31, sinet for hearing February 15 at 8AM.
Did they comply with the ten-day rule? No. the court said, a
motion that fails to religiously comply with the mandatory
provision of Rule 15 Section 5 is pro forma, and presents no
question which merits the attention and consideration of the
court. The mandatory character of Rule 15 Section 5
becomes specifically significant considering the claim that the
other party was engaged in dilatory tactics. So class ha,
please bear that in mind. A few more items on motions, class.
Please bear in mind that the rule on the four that I have
mentioned—three day notice rule, notice of hearing, the ten
day rule, and the motion day—applies also in criminal cases.
That rule on motions likewise applies to criminal cases.
Case: Anama
Let me give you the case of Anama. What happened in this
case? Here, the case is already final and executory. Sa
madaling salita, panalo siya and the reglementary period had
already lapsed, so the case was remanded to the trial court for
purposes of execution. So what happened? the lawyer of the
winning party filed a Motion for Execution without a notice of
hearing. Execution to, motion to class ha. So siyempre, ang
bilis nang natalo. Bakit? Walang notice of hearing, edi
objectan ko yan. I will oppose, your honor that motion for
execution is a mere scrap of paper without a notice of hearing.
TANNER NOTES
Imagine mo yung issue na yan umakyat ulit sa Supreme
Court.
Yan ang sinasabi ko sainyo. Pag di niyo ko kabisado,
uungguyin kayo ng kalaban niyo diyan. Hindi mo kailangang
napakatalino para malaman ang epekto nito eh. Biro mo
panalo ka na. Execution is already a matter of right. So sabi ng
Supreme Court, kailangan pa ba ng notice of hearing? Hindi.
Because that is already execution as a matter of right.
Although there was a lapse in not including a notice of hearing,
but it was already an execution as a matter of right. The
winning party was already entitled to execution. Tapos sabi ng
SC, the SC further persuaded that the lawyer of the other party
was duly aware of the proceedings of the case, so they cannot
feign ignorance and say that they were not properly notified.
Okay? So here, even if there was no notice of hearing,
because it was already a motion for execution as a matter of
right, the SC said that the absence of a notice of hearing did
not defeat the motion for execution.
Neypes Rule / Fresh Period Rule
Cases: Habaluyan Enterprises and Fernandez
Now, let us look at the next item. Let us look at the Neypes
rule. Class, yung Neypes rule is the fresh period rule. Ibig
sabihin class nito, pag ikaw ay nag file ng Motion for
Reconsideration. I'm still on Motions. You filed a motion for
recon on a decision. It interrupts the running of the
reglementary period—assuming you comply with the three-day
notice rule, the notice of hearing, the ten-day rule and the
motion day. Maliwanag? Assuming nag comply ka. So, pag
nag comply ka sa prosesong yon, okay yung motion for
reconsideration. Now, this is where the Neypes rule will come
97
out. If your motion for recon is denied, you have what? A fresh
period to file an appeal. You have a fresh period to file an
appeal—it doesn't mean that you have an extended period to
file an MR. You cannot file an extension of time to file an MR.
There is no extension of time to file an MR (Habaluyas
Enterprises—it is an old case cited in more recent cases—the
case of Fernandez and similar cases). Class, hindi ka
pwedeng mag extension of time, kaya class, pag nag MR ka,
puyatan yan. Kahit may reasoning ang MR mo or wala, i-file
mo yan. You cannot ask for extension eh, sa MR. Now, pagka-
file mo ng MR, dineny yan, even if you filed it on the last day of
the 15th day, when you receive the denial of the MR, you have
a fresh period of 15days. Ganun yon. 15 ka nang 15. Basta 15
ka nang 15. Will that rule apply to criminal cases? Yes. Today
it now applies to criminal cases.
RULE 16
MOTION TO DISMISS
Now, let us now move on to Motion to Dismiss…. Is the
failure to raise efforts to a compromise in a complaint a
jurisdictional defect? If you would recall, under ARTICLE
222 OF THE CIVIL CODE, and now ARTICLE 151 OF THE
FAMILY CODE, requires what? That you explore the
possibility of compromise. Now, the question is this, is it a
jurisdictional requirement?
Case: Tamayo vs. San Miguel Brewery
Tamayo vs San Miguel Brewery cited in that case, says,
"allowed an amendment which merely corrected a defect in the
allegation of the plaintiff's cause of action because as it then
stood, the original complaint states a cause of action. Now, if
the respondents could not and did not, after filing their answer
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to the complaint, invoke the objection of absence of the
required allegation of earnest efforts at a compromise, the
appellate court unquestionably did not have to authority or
basis to motu proprio order the dismissal of the complaint".
Failure to timely object the absence of a condition precedent
like a compromise cannot give authority to the judge, for the
judge to dismiss the case motu proprio. In simple words, hindi
naman nag object ang defendant, walang allegation sa
complaint that efforts for a compromise have been pursued,
nakita ni judge, "uy walang compromise", can the judge
dismiss it motu proprio? No.
Case: Heirs of Fabis vs. Gonzales
There are only four grounds where the judge could dismiss it
motu proprio:
1. Lack of jurisdiction over the subject matter;
2. litis pendencia;
3. res judicata;
4. statute of limitations.
Case: Corrales vs. Republic (2013)
First, the period to file a motion to dismiss—a motion to
dismiss is to be filed within the reglementary period to file a
responsive pleading. The counting and the interruption of a
period is the same as in a motion for bill of particulars.
What is the remedy for the denial of a motion to dismiss?
Corrales vs Republic (2013). A denial of a motion to dismiss is
an interlocutory order. It is not a final judgment. Therefore,
your options are as follows:
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 1. If your Motion to dismiss is denied, you could proceed
to file an answer.
2. If you disagree with the denial, you could file a MR.
3. And if it's tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction, you could
file a Rule 65.
Is forum shopping a ground for a motion to dismiss?
Forum shopping as it is not found in Rule 16 Section 1 or 2.
However, the test of forum shopping is litis pendencia or res
judicata. Therefore, you can file a motion to dismiss on the
ground of forum shopping. Because litis pendencia and res
judicata are grounds for a motion to dismiss.
Case: Brown Araneta vs. Araneta
Let me call your attention to the case of Brown Araneta vs
Araneta as an illustration of forum shopping. Ganito yung
nangyari dito. Mag asawa ito. The wife deprived the husband
of custody, so kasama nung nanay nung babae, ayaw nila
pakita yung mga anak doon sa tatay. They were saying na
medyo delinquent yung tatay, maraming bisyo and so forth, so
they don't want. So when the father filed an action for custody
in Makati, they did not participate. Initially, summons was
served, pero pinagtataguan nila. The mother was not
successfully served with summons—the mother being the
mother of the children. But the mother in law, who was also a
defendant in that custody case, was properly served with
summons. So di sila uma-appear—yung nanay. Ngayon, at
some point, when she was already declared in default, and
when she felt that the judge was to act against her in Makati,
she entered her appearance, but the Judge did not allow her
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to participate in the proceedings, kasi the judge felt that there
was disrespect. So, what did she do? She filed an action in
another court—Parañaque—for a temporary protection order.
So now the husband was claiming that there was forum
shopping because the reliefs are almost the same. What did
the Supreme Court say? Is there forum shopping? The
Supreme Court said Yes, there was forum shopping.
My next question is this: Can a dismissed complaint be
refiled? Na-dismiss yung complaint mo, pwede i-refile?
General rule, can you refile? YES. Sir, ano yung "NO"? Based
on three grounds yung NO. Remember this class, I'll illustrate.
Nadismiss ka on lack of jurisdiction, sabi mali, hindi sa MTC
yan kundi sa RTC. Pwede mo ifile sa RTC? Yes. Kita niyo?
Kaya ang tanong, can a dismissed complaint be refiled? Yes.
The second ground. Lack of jurisdiction over the person of the
defendant, improper service of summons. Motion to dismiss—
granted. Can it be refiled? Yes. Ngayon, i-tama mo na yung
pag service of summons. Do you follow?
Another example, lack of legal capacity. Okay? Lack of legal
capacity is another ground. Okay, granted yung motion to
dismiss. Sabi walang capacity yan, bakit? Eh minor yan, pano
magkakakaso yan. Kita niyo? Dismissed. Can it be refiled?
Yes. Rule 3—assisted by the parent this time. Nakita niyo? So
lahat ng grounds na yan, as a rule, pwede i-refile. Maliwanag?
Except (f), (h), and (i). Ano yon? (F) Res judicata. Statute of
limitations. (H) Payment, waiver, abandonment, or otherwise
extinguished. And (I) Unenforceable under the Statute of
Frauds. Maliwanag class? Pati class itong kasunod. Ano
remedy mo? Depende sa dismissal. Why? Look at my next
question.
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What is the remedy of a losing party, in the event his
complaint is dismissed? Kailangan makita niyo kung anong
klaseng ground dinismiss yun. If the dismissal is based on any
of the grounds enumerated in SECTION 2 OF RULE 16,
except (f), (h), and (i), meaning the dismissal is without
prejudice. And because it is without prejudice, your remedy is
a Rule 65. Class, sandali lang. Sabi yan sa jurisprudence.
Kung di ka naniniwala buksan mo sa Rule 41. You do not file
an appeal on a dismissal without prejudice. And that is
confirmed by jurisprudence already. Ayun maliwanag, codal
yun. So, again, those grounds wherein you can refile. Okay,
dinismiss yung kaso on that ground, pwede mo na i-refile.
Tama? You want to question the dismissal? Rule 65. MR ka
lang muna. 65. For as long as it is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction. Eh
papano kung ang dismissal is based on (f), (h) and (i)? Your
remedy is an appeal. It's a final disposition of the case. Now, I
think I've explained that point. Backgrounder palang yan.
Failure to State a Cause of Action vs. Lack of Cause of Action
Case: Aquino vs. Quiazon (2015)
The next question is this: Aquino vs Quiason (2015). In this
case there was a distinction between a failure to state a cause
of action from lack of cause of action. I would want to be very
simple about this. If the ground is failure to state a cause of
action, or, stated otherwise, the pleading asserting the claim
states no cause of action, that is a ground for a motion to
dismiss under Rule 16. Sir, what do you mean by failure to
state a cause of action, or the pleading asserting the claim
states no cause of action? Class, it only means this, pag
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binasa mo yung complaint, walang material allegations. And
more importantly, there is no breach or violation. Therefore,
the pleading asserting the claim states no cause of action. In
using this ground class, you have to go back to the elements
of a cause of action. You have to ask yourself: Does the
plaintiff have a right? Does the defendant have a right? Does
the defendant have a duty to respect that right of the plaintiff?
And number 3, whether or not there is a breach or violation.
Yun yung failure to state a cause of action.
How about lack of cause of action? Lack of cause of action
is not a ground for a motion to dismiss. Because it requires
presentation or appreciation of evidence. Therefore, per
jurisprudence, this has been repeatedly stated, you could only
use this ground of lack or absence of cause of action after the
plaintiff has completed the presentation of its evidence, and
there is a finding on the part of the defendant that the evidence
so far presented by the plaintiff is insufficient. You file a
demurrer to evidence. Lack or absence of evidence—demurrer
yon. Hindi yun ginagamit sa Rule 16. I have to distinguish this
because in Quiason, material yung distinction na yun. Why?
While failure to state a cause of action is a ground to dismiss
under Rule 16, the court further said that this could be a basis
of a preliminary hearing of affirmative defenses. Look at this
ha, I will illustrate. Of course you file a motion to dismiss. If
your motion to dismiss is denied, you file an answer.
Pleading Grounds as Affirmative Defenses
Can you call for a hearing on the affirmative defenses?
Look at SECTION 6 OF RULE 16. What does it say? If no
motion to dismiss has been filed, then there could be a
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preliminary hearing of affirmative defenses. But if there was a
previous motion to dismiss filed—wala, walang preliminary
hearing on affirmative defenses.
Now, why is this important? If you file an answer on the ground
that the pleading asserting the claim states no cause of action,
there can be a preliminary hearing of the affirmative defenses,
for as long as there was no previous motion to dismiss filed. I
will repeat. Nag file ka ng answer on the ground that the
pleading asserting the claim states no cause of action, you
filed an answer. Can you call for a preliminary hearing on
the affirmative defenses? Yes. Ito yung importante.
Sabi sa Aquino, the lack of a cause of action is not a ground
for a dismissal under Rule 16, and more importantly, is not a
basis for a preliminary hearing of the affirmative defenses.
Because in this case, he was invoking lack or absence of
cause of action. There could be no preliminary hearing of
affirmative defenses under Section 6.
You can only avail of section 6 of Rule 16 if what you file is:
1. an answer, and
2. the ground is the pleading asserting the claim states no
cause of action.
Besides, class, if your ground the pleading asserting the claim
states no cause of action, kung yan ang ground mo, you don't
need to even present evidence of whatever nature. Because
all the court will do is look at the body of the complaint. If the
body of the complaint states the material allegations to support
a cause of action. That's all that the court will do. Pag binasa
niya, can I award judgment here? Can I give the relief prayed
for? If the answer is yes, whether or not it is false, is
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immaterial. The only question is, can I render an award based
on what was alleged in the complaint? If the answer is yes,
there is a cause of action regardless of the truthfulness or
falsity of the allegation. The truthfulness or falsity of the
allegation of the complaint will go into trial. During trial,
material yun. Pero ngayon, hindi. Ang tanong lang diyan, "ah
sabi mo wala akong cause of action". Titignan ni judge,
"pwede ba akong mag award?" kahit na kalokohan to, class.
Because all that is required in our law is ultimate facts. You
see that? Ultimate facts. If the judge sees "ah ok I could
award", there is a cause of action. That's how it is.
Let's answer this question. Using our previous example on the
ten-day rule, and the motion day is a Friday, when will be the
last opportunity to set the hearing, if the motion was filed on
the 5th? Nakita niyo? Hindi niya finile ng 6th, finile niya ng 5th
(Monday). Dito kailangan ng abogado binabasa ang
sitwasyon. Binabasa mo pag abogado ka ang sitwasyon.
Bakit? Pag finile mo yan sa 5th, sa Friday mo lang pwede i-file
yan. Kulang ka sa sampung araw eh. Nakita niyo? Kulang ka
sa sampung araw.
Remember our example a while ago. If you file it on the 6th,
you can set it for hearing on the 9th, you can set it for hearing
on the 16th, correct? Kasi sampung araw yun. Pag finile mo ng
Monday, bitin ka ng isang araw. So the wise thing to do is to
hold on, to file it on a Tuesday, rather than a Monday. Nakita
niyo yung practical? Kasi pag binilang mo, kulang ka. Kaya
class, yung fina-file nay an, obviously pinag aaralan niyo yan,
iniisip niyo no. Yan, pag may kaso ka na, tinitignan mo kung
kalian mo ififile. Pinag aaralan mo, ififile ko ba yan ngayon?
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Or, let's say, may instances, yung 16th holiday. Yung 9th lang
available. Alanganin ka. Baka mas maganda, kung walang
reglementary period yung motion mo, i-file mo na lang sa 13th.
And that ten-day rule, class, is very simple. You just count ten
days from the date of the filing. Are we clear? That's a very
practical question. In practice we always consider that, kasi
saying eh. Kunwari nagka-aberya yun. Sa 16th pwede ka pa.
Case: Boston Equity vs. CA
Let us now move on. Motion to Dismiss. Let me give you the
case of Boston Equity vs. CA. Here, class, Boston Equity filed
a complaint for recovery of sum of money with prayer for
issuance of attachment against Sps. Toledo. Toledo filed for
Motion for Leave to File Amended Answer. So, nag file sila ng
answer, then they filed for Motion for Leave to File an
Amended Answer. She later alleges that the husband has
died, so there was substitution, but that is not important for us.
The trial court denied the motion to dismiss, saying that it was
filed out of time, citing RULE 16 SECTION 1, which tells us
that we have to file an answer or responsive pleading within
the reglementary period. And that reglementary period is a
period of 15 days. Toledo filed a MR of the order denying his
motion to dismiss, kasi nag file siya ng motion to dismiss.
Sabi ng court filed out of time. Bakit nga ba filed out of time?
Did the court act correctly? The Supreme Court said yes.
Why? The motion to dismiss was denied for having been filed
out of time. Toledo's motion to dismiss was filed 6 years, 5
months after she filed her amended answer.
Crazy, imagine. Nag file ng complaint, sumagot ka, nag
amended answer ka na six years mahigit, nag file ka ngayon
ng motion to dismiss. Sabi ng court, this circumstance alone
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warranted the outright dismissal of the motion for having been
clearly in contravention of Rule 16 Section 1. Under this
provision, a motion to dismiss should be filed within the time
for, but before the filing of an answer. More importantly,
respondent's motion to dismiss was filed after Boston Equity
has completed the presentation of its evidence in the trial
court, giving credence to Boston and the trial court's
conclusion that the filing of the motion to dismiss was just a
mere ploy to delay the proceedings of the case. Siguro dapat
dito, anong ginawa nung ano, kung gusto niya talaga mag file?
Demurrer to Evidence. Class, but there should be a proper
showing that there is insufficiency of evidence. Pero, to file a
motion to dismiss claiming under Rule 16 Section 1, ay hindi
pwede. That was filed out of time.
Case: PNB vs. Gateway
Now, another case, PNB vs. Gateway. This time an illustration
of Litis Pendencia as a ground for a motion to dismiss. So here
class, there was a civil case for annulment of REM. Gateway
filed an application for issuance of Preliminary Injunction
against PNB. This was in connection with the REM. They
wanted it annulled. Then there was another case—an
annulment of the foreclosure sale, which is the collateral
subject of the REM. They filed a petition for annulment of the
foreclosure sale with application of TRO and Writ of
Preliminary Injunction. This time on that second case of
annulment of foreclosure,
PNB filed a Motion to dismiss, contending that there was
another action pending between the same parties for the same
cause of action. Essentially, PNB argued that Gateway
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resorted to Splitting of Cause of Action. There were two cases.
PNB was not alleging litis pendencia. Of course that's a
ground Litis Pendencia. They were not alleging it specifically.
They were saying Splitting of Cause of Action. PNB argued
that there was Splitting of Cause of Action by first filing a
complaint for annulment of the mortgage and then filing a
petition for annulment of the foreclosure of the mortgage. PNB
further alleged that the subsequent petition of Gateway failed
to state a cause of action. The RTC ordered the dismissal of
the annulment of foreclosure of mortgage. Gateway filed a MR
of the ruling but the trial court denied. There was a notice of
appeal filed with the CA. The CA rendered a decision granting
the appeal of Gateway. So nanalo Gateway. Sinustain siya ng
CA saying that hindi siya splitting of cause of action.
Therefore, PNB moved for reconsideration of the decision but
again the CA denied. So they went up from the CA to the SC.
The question now before the SC is whether litis pendencia
exists with the pendency of the more recent case.
What did the SC say? Is that litis pendencia? Sabi ng
Gateway, these are two different cases, because the reliefs
are not the same, yung isa annulment of mortgage, yung isa
annulment of foreclosre. The Supreme Court granted the
petition of PNB. Meaning there was litis pendencia, and it was
truly splitting of Cause of Action. Why? Bakit splitting cause of
action under Rule 2?
In splitting cause of action, class, the parties are the same,
the cause of action is the same, but the reliefs are different. In
litis pendencia, the parties are substantially similar, the causes
are similar and the reliefs are what, identical—litis pendencia.
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Case: Dotmatrix Trading vs. Legaspi and Guevarra vs. BPI
But when you talk of splitting cause of action—magkaiba yung
relief. What did the court say? As we held in Dotmatrix Trading
vs. Legaspi, litis pendencia is a latin term which literally means
"a pending suit", and is variously referred to in some decisions
as "lis pendens" as a ground for the dismissal of the civil
action.
The Supreme Court further emphasized Guevarra vs. BPI
where the court said there is litis pendencia or another action
pendent lite if the following requisites are present:
1. identity of parties or at least such parties as represent
the same interest in both actions;
2. identity of rights asserted and relief prayed for, the
relief being founded on the same facts;
3. identity of two preceding particulars is such that any
judgment in the other action, regardless of which party
successful, amounts to a res judicata. Sabi ng court
dito, with respect to the first requirement, the same is
undisputably present.
So therefore, parties are the same, the cause of action are
substantially the same. Ang nagkaiba lang yung relief. But
whatever you say, it is litis pendencia. Is it a ground for a
motion to dismiss? Yes.
Now, is res judicata a ground for a motion to dismiss? Yes.
With all of my discussions on the requisites of litis pendencia,
just add one more requisite—a judgment in one case, in the
other case—that's res judicata.
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Grounds for a Motion to Dismiss
My next discussion is the other grounds for a motion to
dismiss. Let me walk you through the grounds for a motion to
dismiss and then, before I move on to Rule 17, let me walk
you through.
1. Lack of jurisdiction over the subject matter: you only
refer to what, Republic Act 7691, or other laws that confer
jurisdiction. okay?
2. Lack of jurisdiction over the person of the defendant:
you refer to what—proper service of summons under Rule
14 or whether there is voluntary appearance.
3. Lack of legal capacity: you will have to check, if it's a
natural person has capacity to act—is he of legal age? If it
is in a representative capacity of one natural person giving
authority to another, you will have to check the special
power of attorney, the authority to act. If it is a juridical
person, you will have to look at whether it is duly organized
and existing under the law under which it was organized or
formed.
4. I've mentioned Litis Pendencia
5. I've mentioned Res Judicata.
6. Another one is Statute of Limitations which is plainly
prescription. There is a law which sets a limit as to when
you can enforce your right. Beyond that period, you can no
longer enforce your right. That is based on substantive law.
You will not find that in the ROC.
7. The next one is, I've discussed The pleading asserting
the claim states no cause of action extensively, right?
8. Payment, waiver, abandonment, I think it's self-
explanatory. It's a ground for a motion to dismiss.
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9. Unenforceable under the Statute of Frauds—please
bear in mind that this is a ground to dismiss. Why? And
how come, if the motion to dismiss is granted, I cannot file
anymore? Right? Because under the provisions of Article
1403 of the Civil Code, any agreement should be in writing
to be enforceable. In the absence of a written
memorandum, it is not enforceable. However, even in the
absence of a written memorandum or agreement, if it has
been partially executed, then you could enforce. So class,
you will use this ground in situations in which a party
invokes a right to enforce a so called agreement. In the
absence of a written memorandum, you can file a motion
to dismiss on the ground of unenforceable under the
Statute of Frauds.
10. Failure to Comply with a Condition Precedent—that's
also a ground for a Motion to dismiss. 1) Failure to explore
the possibility of a compromise if you are members of the
same family, 2) failure to refer the matter to Barangay
Conciliation—it's also a condition precedent. Please bear
in mind though that this condition precedent, as I
mentioned a while ago, are not jurisdictional matters. And if
not timly raised, or if not timely objected to, it is waivable.
Let us say there was a motion to dismiss filed, and the court
conducted a hearing for reception of evidence based on a
motion to dismiss filed. My question is, what happens to the
evidence so far presented if the motion to dismiss is denied?
Nakuha niyo? Nag file ako ng motion to dismiss, sinet ko for
hearing based on the dates that we’ve mentioned. The court
conducted a hearing for the parties to present their sides.
Nagkaroon ng presentation of evidence. What If the court
denies my motion to dismiss? What happens to the evidence?
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Can it be reproduced during trial? Yes. It is not rendered
useless. The evidence presented during the hearing of a
motion to dismiss can be used and reproduced during trial.
Case: Maramag vs. Maramag
Let me now touch on another case. What is the test of
sufficiency of cause of action? Maramag vs Maramag. The
test of sufficiency of a cause of action rests of whether,
hypothetically admitting the facts alleged in the complaint to be
true, the court can render a valid judgment. This is what I
mentioned to you a while ago. O, sir, why are you repeating it?
Because I want to remind you that that is the general rule. And
there are well-recognized exceptions. I will repeat. The general
rule is: the test of sufficiency of a cause of action rests on
whether hypothetically admitting the facts alleged in the
complaint to be true, can the court render a valid judgment? If
the answer is yes, then it has a cause of action. Therefore the
pleading asserts a cause of action.
What are the exceptions? This rule is subject to well
recognized exceptions, such that there is no hypothetical
admission of the veracity of the allegations if:
1. the falsity of the allegation is subject to judicial notice;
2. such allegations are legally impossible, so there is no
hypothetical admission;
3. the allegation refers to facts which are inadmissible
evidence;
4. by the record or document in the pleading, the
allegations appear to be unfounded;
5. there is evidence which has been presented to the
court by stipulation of the parties, or in the course of
the hearings related to the case. I hope that's clear.
TANNER NOTES
Case: Lu YM vs. Nabua
Let us now look at the case of Lu YM vs. Nabua. An order
denying a motion to dismiss is an interlocutory order which
neither terminates nor finally disposes of the case. Neither can
a denial of a motion to dismiss be subject of an appeal unless
and until final judgment is ordered by the court. In order to
justify the grant of the extraordinary remedy of certiorari, the
denial must have been tainted with grave abuse of discretion.
This case of Lu Ym tells us this one thing. As a rule, class, a
denial of a motion to dismiss is not appealable. This case also
tells us that you can use a Rule 65, because it is an
interlocutory order, only if it is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Can the court defer the resolution on a motion to dismiss
on the ground that it is not indubitable? Can the court defer
the resolution of a motion to dismiss today? The answer is NO.
The court can no longer defer the resolution of a motion to
dismiss today. Now, I'll have to give you a little background on
this so that you will remember. Class, nung araw kasi, ang
practice ng ibang judges, dahil ayaw nila i-resolve ang motion
to dismiss, alam mo anong gagawin nun? There's a motion to
dismiss. Without even mentioning the motion to dismiss, the
judge will require, sige answer. Without resolving the motion to
dismiss, the court will require the defendant to answer, and
then the case proceeds without the motion to dismiss having
been resolved. Today class, today, the motion to dismiss, the
resolution of the motion to dismiss, cannot be deferred on the
ground that it is not indubitable. The judge will have to resolve.
And class, please bear this in mind, under the same Rule, any
resolution of the judge on a motion to dismiss should state the
fact and the law upon which it is based. In the case of Lu Ym,
105
the court said, it is now specifically required that the resolution
on the motion shall clearly and distinctly state the reasons
therefor. This proscribes the common practice of perfunctorily
dismissing the motion for lack of merit.
So the requirement that the judge will explain the facts and the
law upon which it is based extends not only to the judgment
but even on an order resolving a motion to dismiss. An order
resolving the motion to dismiss should state the facts and the
law upon which it is based. In this case, the court said, the
questioned order of the trial court denying the motion to
dismiss with a mere statement that there are justiciable
questions which require a full blown trial falls short of the
requirement of Rule 16. So sabi ng court, yung sinabi ng
judge, it requires a full-blown trial, or there are justiciable
questions falls short of the requirement of the law.
Case: Republic vs. Carmel
Republic vs Carmel, class, only reiterates what I already
mentioned to you. What is that? In Section 2 that should the
case go to trial, the evidence presented during the hearing
shall automatically be part of the evidence of the party
presenting the same. I will repeat. The evidence presented
during the hearing of a motion to dismiss will automatically
form part of the evidence during trial.
RULE 17
DISMISSAL OF ACTIONS
RULE 17 na tayo. Sir, what about Rule 17? Remember this
class. Students normally forget Rule 17. Why? Because it's a
very short section and it's hardly discussed. What you
remember is Rule 16. Please remember this.
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1. A case can be dismissed upon the instance of the
defendant under Rule 16.
2. The case can be dismissed upon the instance of the
plaintiff under Rule 17, Section 1 and Section 2.
3. The case can be dismissed, again, at the instance of
the defendant under Rule 17 Section 3, or what they
call failure to prosecute, failure to present their
evidence in chief, failure to present evidence for an
unreasonable length of time, failure to comply with an
order of the court, failure to comply with the rules.
I would want you to take note that under Rule 17, section 3,
the case can be dismissed upon the instance of the defendant
or by the Court motu proprio. If the court sees that you failed to
prosecute within an unreasonable length of time, even without
the motion, the court can dismiss the case. If the court sees
that you violate the rules, or you violate an order of the court,
even without a motion, the court can dismiss the case.
Demurrer to evidence under Rule 33. At whose instance is this
filed? This is filed at the instance of the defendant. Ang
nagfifile nito ay defendant on the ground of insufficiency of
evidence. So yun muna.
"Sir bakit niyo kami nirurun down ng ganito?" Kasi class, may
bar exams nung 2003, puro motion to dismiss ang tanong.
Meron siyang motion to dismiss, motion to dismiss for
insufficiency, meron siyang demurrer. Dun lang umikot ikot,
siguro mga apat ang tanong. And later we learned that the
examiner was a judge….
106
Two – Dismissal Rule
Case: Ching and Po Wing Properties vs. Joseph Cheng (2014)
Let me start with an example of Rule 17. The case of Ramon
Ching and Po Wing Properties vs Joseph Cheng (2014). Ang
nangyari dito, si Antonio Ching owned several business
properties and the company is Po Wing Properties Inc. His
total assets were believed to be around 380M pesos. Ang
maganda, he died unmarried. He had two children from two
women. The first one was Ramon Ching who alleged that he
was the only child of Antonio Ching with his common law wife.
And he has two siblings. Both boys. These were children of
the housemaid. So tatlo lang sila.
Ang ginawa ni Ramon Ching, sabi niya "settle na lang natin to.
Bayaran kita ng 22.5M pesos sabi niya sa mga kapatid nya."
Sabi nung dalawa hindi naman daw sila binayaran ni Ramon.
So, what did they do? They filed a case for annulment of the
agreement, waiver, extrajudicial settlement of estate and
certificates of title. So, the long and short of it—niloko yung
dalawang heirs, winaive na nila karapatan nila, pumirma sila
ng settlement, hindi sila binayaran. That's why they filed a
case.
Now, in the first case, Po Wing properties filed a Motion to
dismiss on the ground of lack of jurisdiction over the subject
matter. The RTC of Manila granted the motion to dismiss on
the ground of lack of jurisidiction. Oh tandaan niyo unang
dismissal na yan ha. Sino nagpadismiss? Defendant Po Wing.
This time class, the Chengs, ito yung mga kapatid niya, filed a
complaint for annulment of agreement, waiver, extrajudicial
settlement of estate. The same case, class. It was filed after
the dismissal of the court. Dinismiss ng husgado ito diba, lack
TANNER NOTES
of jurisdicition. They filed again. And as we said a while ago, if
it was dismissed on the ground of lack of jurisdiction, you file
again. O, ni-refile niya.
On November 11, the Chengs and Santos filed a motion to
dismiss—ngayon yung plaintiff ang nag dismiss ng sarili nilang
kaso. Nakita niyo? Nung una, yung defendants ang nag file ng
motion to dismiss—lack of jurisdiction, granted. Correct?
Ngayon, si plaintiff, nagfile ng kaso. Maya-maya, on the same
year, after several months, the Chengs filed a dismissal of
their own complaint. Praying that it be dismissed without
prejudice. On November 22, Br. 6 issued an order granting the
motion to dismiss on the basis that the summons have not
been served on Ramon Ching and Po Wing, and they have not
yet filed any responsive pleading. The dismissal was made
without prejudice. Maliwanag ha?
Now, take note, Ramon Ching, meaning the defendants, in the
second case, filed a MR. Bakit sila nag file ng MR? Their
contention was the dismissal on the second case should have
been with prejudice. The reasoning was that was already in
violation of the two-dismissal rule. Nakita niyo yung facts?
Tama ba sila? Now, the question is, does the two-dismissal
rule apply? Tama ba si Ramon Ching and Po Wing? NO.
Papano ba nag aapply yung two-dismissal rule sa Section 1
and Section 2? Okay. Ito yun class. Section 1 covers a
situation wherein there is yet no answer. Okay? Wala pang
sagot. So pag wala pang sagot, if the plaintiff dismisses, the
dismissal is without prejudice. Okay? Ngayon, if another case
is filed involving the same cause, and it is dismissed again at
the instance of the plaintiff, the second dismissal is with
prejudice. Yun yung two-dismissal rule. Okay? Now, let us
107
look at Section 2. Please bear in mind that Section 1 does not
cover or does not include a counterclaim. Take note ha? Wala
pa ngang sagot eh. Kaya wag kayo maghanap ng
counterclaim diyan.
Next, let's look at Section 2. What does it say? Section 2
covers a situation where there is already an answer. And then
here, the plaintiff wants to dismiss the case. Can the plaintiff
do that? Yes. Now, if the plaintiff dismisses the case after an
answer has already been filed by the defendant, is the
dismissal with or without prejudice based on the provision of
the law? Without prejudice, unless the court says with
prejudice. Now, again, if you refile it, it will already be with
prejudice. Now, the question is this, what happens to the
counterclaim? Now this is where I want you to take note of
this. I think I discussed last meeting the Pinga ruling. And I will
just repeat it for the benefit of those who were not here.
Okay, what does it say? If the principal case, class, or the
principal action has been dismissed—class, the principal
action has been dismissed, what happens to the
counterclaim? The counterclaim, okay, will have to stand on its
own merits, take note ha. That’s what it says. The
counterclaim would have to stand on its own merits.
Now, the question is this: sir, how will it proceed now? Yan
ang tanong. How will it proceed now? It will proceed, okay, it
will proceed in the main action if the defendant manifests it
within a period of 15 days. Take note of that ha. There is a
duty to manifest within a period of 15 days from the time of the
grant of the dismissal. Manifest within 15 days. Now, if there is
no manifestation within a period of 15 days, does it mean you
are barred from claiming the counterclaim? Not yet, no. You
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could still file a separate action, but this time you have to pay
filing fees.
Now, let me ask you this question, class—okay I’ll backtrack a
little, Rule 16, I’ll backtrack a little. There was a complaint,
there was an answer with affirmative defenses, take note.
There was an answer with affirmative defenses, Section 6 of
Rule 16, and then, after hearing the affirmative defenses, the
court dismissed the case. I will repeat ha—there was a
complaint, there was no motion to dismiss, but there is what,
an answer with an affirmative defense. If you follow the
provision of the law, it is left to the discretion of the judge to
call for a preliminary hearing of the affirmative defenses. Okay,
do you still follow me? Now, let us say that the court grants the
dismissal on the ground of the affirmative defenses raised in
an answer, now the question is: what happens to the
counterclaim? What happens to the counterclaim? Umatras
ako, nakita niyo? Umatras ako, Rule 16 na ako. What happens
to the counterclaim? Tignan niyo dun sa Section 6, nasa
bottom. Nasa bottom. Can you run after the plaintiff, based on
your counterclaim? Yes! In the same, or in a separate action,
tama? Does it provide for a period? There is no period. Does it
say that you have to manifest? It doesn’t say that you have to
manifest. All that it says is that, class, is that you could pursue
your counterclaim whether in the same, or a separate action.
Now, sasabihin mo, may iba rito class, ha clarify ko lang ha,
liwanagin niyo ito—may iba sa inyo sasabihin: edi sir, iaapply
natin yung Rule 17? May iba sa inyo baka isipin, sir edi apply
natin Rule 17–wait. SECTION 2, RULE 17 applies only to an
instance if the plaintiff dismisses his own case, that you have
to manifest it within 15 days. “Sir, bakit, di ba siya pareho?”
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Yes, it’s not the same. Because the preliminary hearing of the
affirmative defenses was specially coined, was specially
developed to promote the filing of what—an answer in lieu of a
motion to dismiss. And it was intentionally made that there is
no set period for who? For the defendant to claim his
counterclaim.
So in that case, for as long as it is within a reasonable time,
you could pursue your counterclaim in the same action or in a
separate action. Right? Let us not put a period because the
law did not put a period. If it were a dismissal prompted or
initiated by the plaintiff, then Section 2 will apply of Rule 17.
Are we clear, class? Okay, tandaan niyo yun class ha, the
counterclaim today will have to survive.
Now, let us move on, I’m still in the case of Ching v. Cheng.
Okay. As a general rule, dismissals under Section 1 are
without prejudice except when it is the second time that the
plaintiff caused its dismissal. Accordingly, for a dismissal to
operate as an adjudication upon the merits, take note, with
prejudice to the refiling of the same claim, the following
requisites must be present.
So, these are the requisites for a dismissal to be with
prejudice.Okay, what are those?
1. there was a previous case that was dismissed by a
competent court.
2. both cases were based on, or include, the same claim.
I will repeat: both cases were based on, or include, the
same claim.
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3. notices for dismissal were filed by the plaintiff, take
note ha, plaintiff dapat. And
4. when the motion to dismiss filed by the plaintiff was
consented to by the defendant on the ground that the
latter paid and satisfied all claims of the former.
Okay, now, please bear in mind that the reason for the two-
dismissal rule under Rule 17 is what? What is the reason for
this: to avoid vexatious litigation. Okay? That when a
complaint is dismissed a second time, the plaintiff is now
barred from seeking relief on the same claim. Okay, tandaan
niyo, class ha? So here, obviously, the two-witness rule or the
two-dismissal rule does not apply, okay? Now, so, Section 1
and Section 2, we’ve discussed already.
Section 3, okay, just very briefly. Please bear in mind class—
before, bago Section 3–before an answer, the plaintiff wants to
dismiss, what will he file? A notice to dismiss or a notice for
dismissal. Don’t file a motion, because that is your right,
because there is yet no answer. Once an answer has been
filed, you file what, and you’re the plaintiff and you want to
dismiss: you file a motion, but that is left to the discretion of the
court.
Let us now look at, okay, my last section on Rule 17. Ito na
yung huling discussion ko. “Sir, bakit di mo isama yung
Section 4?” Eh counterclaim yun, pareho lang yun eh. That
refers to counterclaim or cross-claim. Section 3, please bear
this in mind: in Section 3 it is the defendant or the court motu
proprio which can dismiss the case. For failure to prosecute,
for failure to present your evidence for unreasonable length of
time, for failure to present your evidence in chief, and what
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else? Failure to comply with the rules and failure to comply
with an order of the court. Are we clear, class ha? Here, the
defendant or the court motu proprio, okay.
RULE 18
PRE-TRIAL
Pre-trial na tayo, class. Pre-trial na tayo. Okay. “Sir ano naman
yang pre-trial?” Ah, class paliliwanag, kailangan ipaliwanag ko
ito sa inyo. Ito, medyo.. I need to illustrate.
Okay now, let us now move on to pre-trial. Okay, class. Tignan
niyo to. Let’s start with—remember, as I’ve discussed, there is
a complaint, the other party files an answer, okay? Now, once
an answer has been filed, issues are joined. “Sir, bakit wala
kang motion to dismiss?” Within this period of time, a lot of
things can happen.
We’ve discussed: you’d file a motion for a bill of particulars,
you would file a motion to dismiss, right? And under the
present state of the law, ano yun, they do not promote a
motion to dismiss. That is why the present form of a summons
today says, “that without necessarily filing a motion to dismiss,
file an answer with affirmative defenses.” Okay, ganon na
ngayon, class. Yun na nakalagay sa summons.
But class, please bear in mind, a motion to dismiss today is
not a prohibited pleading. You can file a motion to dismiss if
you wish, however, they highly promote the filing of an answer
with an affirmative defense. Kasi ganito ang selling point nila
diyan eh class, eh, nung ginawa nila yung batas, ang selling
point nila is: bakit ka magfifile ng motion to dismiss, kuha niyo?
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Bakit ka magfifile ng motion to dismiss eh pupwede ka naman
magfile ng answer? Pag nagfile ka ng answer, para ka na ring
nag file ng motion to dismiss! Ihehear namin yung affirmative
defense mo, o so bakit ka magfifile ng motion to dismiss? But
do you know why they are promoting an answer? Because,
class, if an answer is filed, issues are joined. And when issues
are joined, pwede na sila magproceed sa pre-trial. Kung ang
finile ay motion to dismiss, class, hindi answer, hindi ka aabot
sa pre-trial.
Nakita niyo? That is another reality that they had to face. Kaya
nila yan prinomote yang answer with an affirmative defense,
bakit? Kasi class, nung bago akong lawyer, pag nagfile ka ng
motion to dismiss: deny, deny. Anong gagawin? MR, deny,
certiorari. Nakita niyo? Certiorari, CA, deny, san ka? Supreme
Court. Nakaka tatlong taon na yung motion to dismiss,
unresolved pa. Nakita niyo? SO kaya nila itinutulak ito. Bakit?
That’s one: it delays the proceedings. Pangalawa: if there is a
pre-trial, they could schedule it for pre-trial, they could refer it
to a mediator—mediation, ganun yun. Kasi ang mindset nila,
kapag nag mediation yan, pwede kong isettle yan. Maisesettle
ko yan, yan ang thinking nila. And it has been successful, to
some extent, to a great extent, yung mediation. That’s why,
that’s how it goes.
Now, of course, class, let us say that the pre-trial—let’s put a
date for illustration purposes. Let’s say the pre-trial was
scheduled on, ano ba ngayon, June? Sabihin nating July 19,
what date is July 19? It is a Wednesday, okay. Let us say that
the pre-trial is scheduled on July 19, 2017. What are the
things—dito muna tayo sa procedure ha—what are the things
that you need to do? What do you need to do? First: after the
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filing of the last pleading, or a reply, under the guidelines in
pre-trial and modes of discovery of 2004, the plaintiff will have
to file an ex-parte motion. So that’s a period of 5 days from the
filing of the last pleading, or what, a reply. Within 5 days, there
should be an ex-parte motion to set the case for pre-trial. So
duty na yan ng party.
Case: LBL Industries vs. City of Lapu – Lapu
Okay, now, this was discussed in the case of LBL Industries v.
City of Lapu-Lapu. This was an expropriation case. An
expropriation case—pagod na pagod na rito yung LBL
Industries. Sabi nila “Ang tagal tagal nitong expropriation case
na ito, hindi naman kami mabayaran, ni hindi pa nagpe-pre-
trial.” Okay, so what did LBL Industries want to achieve? LBL
Industries wanted to have the case for expropriation
dismissed. Sabi niya, “Ang tagal tagal nang pending nito eh,
expropriation, sabi niyo bibilhin niyo, di naman umaandar ang
kaso.” So sabi ng LBL, dismiss niyo na lang ho itong kaso na
ito, sabi nila, dahil hindi pa kayo nag pe-pre-trial. That’s why
the Supreme Court in this case of LBL Industries had to
discuss itong dinidiscuss ko ngayon. Okay, the Supreme Court
had to discuss this one.
Can a case be dismissed for failure to set the case for pre-
trial? So, the Supreme Court said who has the duty to set the
case for pre-trial? The duty is with the plaintiff. Immediately
after the filing of the last pleading or an answer, it is the duty of
who—the plaintiff—to file an ex-parte motion to set the case
for trial.
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Now, let us say, class, the plaintiff, within that period, did not
do or did not file an ex-parte motion to set the case for pre-
trial. According to the case of LBL Industries, citing the
guidelines on pre-trial and modes of discovery of 2004, it is the
duty of the clerk of court. It is the duty of the clerk of court to
set the case on pre-trial, okay? So hindi na madidismiss
ngayon.
Before the guidelines of 2004, if the plaintiff will not set the
case for ex-parte pre-trial or will not file an ex-parte motion to
set the case for pre-trial, the case could be dismissed. But
today, no. Hindi mo ginawa, plaintiff, duty yan ng husgado,
nakita niyo? The clerk of court will issue a pre-trial notice.
Dito muna tayo sa procedure para alam niyo takbo, okay?
Now, so there was a pre-trial notice. To whom should the pre-
trial notice be sent? Oh, yon. Kaynino padadala ng husgado
ang pre-trial notice? The pre-trial notice will be sent to the
counsel of record. If there is no counsel of record, to the party.
If there is a counsel of record, it is the duty of who—the
counsel of record to inform the party of the date of the pre-trial
conference. Class, this is very serious ha. As we will will
discuss later on, there are consequences for non-appearance
during pre-trial. Merong consequences yon. Pag di ka
umappear sa pre-trial, no, may mangyayaring hindi mabuti.
Now, so, are we clear so far? So meron siyang clerk of court,
may pre-trial notice na. Once, let us say, you received the pre-
trial notice, I received it last Friday, for example. Yesterday
was June 2, June 2, I received it, saying that the pre-trial is
scheduled on July 19. What should I do before July 19? In the
pre-trial notice, class, it says July 19. I would have to prepare
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my pre-trial brief and have it filed at least 3 days before, filed
and served at least 3 days before the date of the pre-trial
conference. Okay? So dapat, ginagawa ko na yung pre-trial
brief ko.
Yesterday, I think, a while ago I said, you don’t need a pre-trial
brief for criminal cases, right? Di mo kailangan yan. Pero dito,
class, kailangan mo. And you have to file it, what, at least 3
days before. Okay. Dapat nafile mo yung, ano, pre-trial brief at
least 3 days before. “Sir, anong effect ba pag di ako nagfile ng
pre-trial brief? Sir, anong effect pag di ako nagfile ng pre-trial
brief?” If you failed to file a pre-trial brief, whether you be the
plaintiff or whether you be the defendant—
The effect is equivalent to non-appearance. Okay, tandaan
niyo yun. Para ka naring hindi umappear. Andun ka nga, wala
ka. Nakita niyo? Now, sir, if I didn’t file a pre-trial brief, what
happens to my case? The case will be dismissed. If you are
the defendant, you did not file a pre-trial brief, the plaintiff shall
be allowed to present evidence ex-parte. So, dun muna tayo
sa procedure. Importante ang pre-trial brief.
What else should happen? Under the present rules. It’s not in
the Rules of Court, but it’s in the guidelines. So three days
before, there should have been a pre-trial brief. Ano pa?
Before the mediation, class, there should be what? A
preliminary conference. Take note. Sir, para palang summary
procedure yan? Hindi, class hindi. The Preliminary conference
is usually a few days or three days before the date of the trial
and the purpose of the pre-trial conference before the clerk of
court, not before a judge, preliminary conference is for
admissions, stipulations, for preliminary marking, and
TANNER NOTES
identification of witnesses. The preliminary conference. Next,
so tumatakbo na. Let us say you were present on July 19, on
the date of the pre-trial, will the pre-trial proceed? The answer
is no. On that day, the court will refer the matter to a mediator,
in the Philippine Mediation Unit. Pag dating mo dun, hindi
matutuloy yun. Maglalabas si judge ng order sasabihin niya
inererefer ko kayo sa mediator. Subukan niyo yun. This case
the folder will be forwarded to them and then for the next thirty
to sixty days it will be with the mediator, hoping that it will be
settled.
Now let us say, after the lapse of thirty to sixty days, the
mediation was unsuccessful. Where will it go? This time from
the mediator it goes back to the judge not for purposes of pre-
trial but this time for judicial dispute resolution. Now, you have
here a judge who acts as an independent conciliator not a
mediator. Nakita niyo, class? Kaya lahat alam niyo storya kasi
dami niyo titignan na rule: JDR, mediation, pre-trial. That’s why
you should know the flow of how it goes. Nasusundan niyo ba
class? Yan lang mangyayari kapag humawak na kayo ng
kaso, mediator, actually wala naman nangyayari dun wala
naman stress. Siempre susubukan magsesettle but not as
serious as in hearing and then it goes back if unsuccessful to
the court and there will be a JDR before the judge who will be
an independent conciliator. This is very serious, the judge will
act in this manner sasabihin ni judge alam mo yugn kaso mo
medyo mahina plaintiff settle mo nalang. Yung defendant
sasabihin niya alam mo yung kaso mo medyo okay malakas
kaya lang this case could be delayed. So mapeperwisyo ka.
If the JDR is unsuccessful, what happens to the case? It will
be re-raffled, unless if both parties agree to retain it with the
judge. Ruffle nanaman yan. So wala kang pang pre-trial ditto.
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What haooened was prelim conference, mediation, JDR. If the
JDR is unsuccessful, where do you do? Ayan na, pre-trial after
raffle, after affle you will now have the pre-trial proper. Nakita
niyo class? Ang haba nito, ng pre-trial na yan. Class yung
processo niyan pwedeng tumakbo ng anim na buwan, yan
processo lang yan. Bakit? Mediation isang bwaung hanggang
dalawang buwan. Eh pag nag JDR yan, pwede rin mag
dalawang buwan yun eh. Eh pag iniraffle niyo yun. So easily it
will top four months or a maximum niyan of six months.
You’re now on pre-trial proper, yan na paguuspan natin nasa
provision and guidelines. What does it say? During the pre-trial
proper, what will the judge do? The judge will ask whterht he
parties are present. Appearance is important. Look at this:
what if the plaintiff is present, but the defendant was absent?
That is an “as in default” situation, therefor the plaintiff will be
allowed to present evidence ex-parte. What if the plaintiff is
absent, the case will be dismissed. Madali yun.
Papano kung si plaintiff’s attorney is present, but the plaintiff is
absent? But both the defendant and his lawyer and present.
What happens to the case? Okay, tandaan niyo class, ang
importante dito party. Therefor pag absent and party pero
present ang abogado, as a general rule, the consequences
that I have discussed should apply. The only instance that the
consequence will not apply is if the lawyer or a third apart is
duly authorized to take the place of the party in his absence.
Take note, that is in section 4. So importante talaga diyan
yung party.
Sir papano kung present client mo tapos absent si attorney?
Okay lang. Reset. Pag malas, magalitan ni judge. Pero hindi
nila pwede iimpose to, yung serious consequence na yun kasi
TANNER NOTES
present and client mo. Siguro mas matatandaan niyo pag
sinabi kong ganito. Ako kasi class sa ngayon hindi ako
kumuka ng power of attorney sa client ko ayoko siyang
irepresent on a pre-trial, bakit?
Kasi class dalawang hats ang suot ko: attorney na ako, cliente
pa ako. Nakuha niyo? Kasi may power of attorney ako eh.
Ngayon, pag nalate ako, hindi ako nakarating, nadismiss ang
kaso ko, sino sisisihin? Edi ako. Kasi ang lawyer hindi niyo
mapipili yan pag pumasok kayo sa law office kasi ang bibigyan
ng authority law office eh but if it’s already your client… ako
ayoko. Umappear ka. Kasi pag nagkaaberya, wala ka sisisihin
kundi sarili mo. Absent ka eh. Kasi the consequence is on your
absence. But the very moment I take on the hat of the client,
ay tapos. Pag may nangyari, nadelay ako, naaksidente,
natraffic ako, patay. BNgayon ako pa magpapaliwanag sa
kliyente. Sasabihin ng client atty ao nangyari bat wala? Edi
inaasahan ko nandiyan ka eh. So sa akin, present kayo. Bajka
ito mas amtandaan niyo kasi ganun ka importante and parties
sa kaso.
The only reasons that the law recognizes wherein the
consequence will not apply will be:
1. There is a valid excuse. Resonable ng husgado.
Sabihin ng plaintiff merong namatay, naaksindente,
binagyo hindi nakaluwas. Valid cause, reason excuse.
2. If someone is given authority to appear for and behalf
of the client. Yun lang ang dalawa. In the absence of
both, wala na. The consequences will apply. Yun lang
yun. So kahit anong tanong sainyo sa bar, yun lang
resulta nun. Pag absent ka, dismissed. Pag absent
defendant, plaintiff wil present evidence ex-parte. Di
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 lang magaapply yun if may excuse or someone else
was authorized to appear but even if, but the person
was absent, the consequences will apply.
Case: Toledo vs. Toledo
Let us look at the case of Tolentino v. Toledo. A case on pre-
trial absence. This is a case involving a portion of land in
Quezon, ang pinagkakaawayn ditto sabi ng respondent Laurel
amin yan eh yang lupa nay an amin. Sabi naman ni Gustavo
Tolentino, edi kunin mo sayo yan edi baka pwede natin
pagusapan may improvements aksi akogianwas a lupa nay an
eh. So ito naman sila respondent Laurel siempre naniwala
okay sige pagusapan natin eh kinimatayan ni Tolentino. And
despite after his death, the portion of the property was never
surrendered to the Laurels hence the Laurels filed against
Tolentino to recover property and demand payment of
unearned income, attorney’s fees, and custom suit.
Now, petitioner or Tolentino who are defendants in their
answer said the subject property is owned by the Republic.
Sabi ni Tolentino yung nag encroach or overlap sa property
niya hindi propery yan ni Republic and I am only using it
because of a fishpond lease agreement entered with the
department of agriculture. What happened? On August 27,
1996, Tolentino were declared in default for failure to appear
at the pre-trial conference.
Imagine, meron bang default sa pre-trial? Walang default, ang
meron “as in default” because here in the lower court,
Tolentino who was defendant did not appear during pre-trial.
For one reason, sabi ng court default, however the court
reconsidered it upon a memo sabi ng court okay allow na kita
TANNER NOTES
despite repeated resetting of pretrial of which Tolentino were
properly notified. The trial court again issued an order allowing
Laurel to present evidence ex-parte bakit? Absent nanam si
Tolentino.
So after an ex-parte presentation of evidence the court
rendered the judgment in favor of laurels requiring Tolentino
and his successful to vacate the premises. Sabi ni Tolentino I
was denied my day in court, yan yung mga usual. Is that
correct? The answer is no. Very simple, sabi ng court they
were given all of the chance to appear and to participate
during the pre-trial. He was properly notified. In fact, in one
instance you were already declared in default but the order
was reconsidered and you were allowed to participate in the
pre-trial proceedings but you did not take advantage of it and
again you were absent so the court allowed the plaintiff to
present evidence ex-parte. You will find many cases. What
was the ruling of the court? He has to suffer the consequences
of his absence. So ano kailngan niyo tandaan? Very simple.
Basta absent ka, yung consequences mangyayari yun. Who
should be present? The parties.
The following grounds will prevent the serious consequences:
1. Only if there is a valid excuse, or
2. A third party has been duly authorized to appear for
and behalf of the party but the party duly authorized
should be present during the pre-trial.
What is the remedy if the plaintiff is non-suited and the
case is dismissed? What do we mean by non-suited? It
means that the plaintiff did not appeal during pre-trial. So pag
ang plaintiff hindi um-appeal during pre-trial, the plaintiff is
114
non-suited; the case is dismissed. The case that he filed is
dismissed.
What is his remedy? The dismissal is with prejudice. The
dismissal, if you were not able to appeal during pre-trial and
you are the plaintiff, the case will be dismissed with prejudice
and therefore, your remedy is an appeal. Your remedy is an
appeal because it is a final disposition. That was stated in the
case of Chingko (spelling uncertain) vs. Republic.
What is the remedy of the defendant in case the
consequence of his absence was imposed by the court?
In simple words, the defendant was not present during
pre-trial, and for that reason the plaintiff will be allowed to
present ex-parte. What is your remedy if you’re the
defendant who was absent during the scheduled pre-trial
conference? Your remedy is to file a motion for
reconsideration on the ground of fraud, accident, mistake, and
excusable neglect. Fraud, accident, mistake, and excusable
neglect is not in the code. It’s not in Rule 18. Don’t look for it
there. It’s in jurisprudence. Saguid vs. Court of Appeals. That’s
your remedy.
What will happen during Pre-Trial Proper? During pre-trial,
the court will ask whether you want to explore the possibility of
a compromise.
Imagine how many times they will ask you to compromise.
Imagine, ah. They will ask you to compromise during the
preliminary conference, they will ask you to compromise
during during mediation, they will ask you to compromise
during during JDR, then when it’s returned to the court during
pre-trial proper they will ask you, “Would you want to
compromise?”. Ganun ‘yon, kaya nila pinagpupumilit na
TANNER NOTES
sumagot ka na, nakuha mo, para maitulak nila yang mag-
compromise na lang kayo.
After asking the parties if they would want to compromise,
the court will ask what? The court will ask, “Are you to file
amendments on the pleadings? Will you file a motion for
judgment on the pleadings or summary judgment?” The court
will also ask whether there’s a need for commissioners and
then, there will be what? Admissions. You’ve heard this in
Evidence. The admission referred to here is what you call
Judicial Admissions.
Judicial Admissions are those admissions made in the course
of the proceedings. Let me walk you through. This is found in
Rule 129 Section 4. When you talk of Admissions, it requires
no evidence.
Let me walk you through para maliwanag. ‘Yung nasa answer,
inadmit yung Paragraph 4 ng Complaint; that’s a Judicial
Admission. Okay? There was a complaint with an attached
actionable document. The defendant did not specifically deny
under oath. That amounts to a what? Judicial Admission. An
admission made during pre-trial, that’s not an admission that’s
a stipulation if admitted by the other party amounts to an
admission. An admission made during the examination of
evidence, the presentation of witnesses, that’s a what? That’s
a Judicial Admission. An admission made in a deposition
submitted to the court, that is a Judicial admission. An
admission made after a request for admission was received
under Rule 26 is a Judicial Admission.
Those are examples of a Judicial Admission.
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Bakit kailangan nila pang pagtatanungin yan kung
nandyan naman pala sa record yun? Bakit di nila
basahin? Because if there is an admission, and they propose
stipulations, because if there is a proposed stipulation and the
other party accepts the proposed stipulation, it amounts to an
admission. Why are they so concerned about admission?
Because if there is a Judicial Admission, there is no need for
introduction of evidence. It cuts short the proceedings. Kaya
sa pre-trial, ‘Oh ano, may admission k aba?’ ganun yon. And
let me remind you this, though the provision of the law allows
an offer to stipulate, you are not obliged to accept the offer to
stipulate.
Last Wednesday I was in court, pre-trial, and this works the
same way as in criminal cases yung proposed stipulation. Sabi
ng kalaban ko eh maselan yung kaso. Sabi niya, ‘sabi ni judge
oh, you have any proposed stipulation?’. Sabi niya ah. I am for
the accused eh. Sabi niya, ‘your honor, my proposed
stipulation is number 1: On the matter of jurisdiction over the
person of the accused. Sabi ng judge ‘what do you say
counsel?’ ako daw. Sabi ko, ‘Your honor, I will not enter into
any stipulation.’ Nakita niyo? Am I bound to accept his
proposal? No. am I obliged to entertain a stipulation? No. Wag
kayo matatakot mag- no. Anong sabi ni Judge? ‘Ok there
being no…It appears that the accused’s counsel will not enter
into stipulations, let’s skip this portion. Kasi class, hindi ka
obliged.
Kasi, pag nagstipulate ka, tinali mo ‘yung kliyente mo. Nakita
niyo, pag nagstipulate ka admission yan, kaya ang abugadong
nakapagprepare, ang default action niyan, deny. Deny yan
deny. Bayaan mong patunayan niya yan. Para the burden is
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on them to prove it. So remember that you are not duty-bound
to accept the stipulation.
So class, when you refer to Judicial Admissions, it’s already on
the record. So you cannot disprove it. I had one case. The
other party tried to disprove it. Sabi ko magsisisinungaling to.
Sabi ko. Why? Because I have his answer. I studied his
answer. I knew his admissions. So I placed it on the pretrial
brief that I submitted. These are the admissions. Di ko
sinabing admission yan, sabi ko, admitted facts. Nilagay ko.
Did the judge have any admissions Ah yes your honor, sabi
ko, the fact that there was a contract entered between the
parties so and so. Ah do you admit? Sbai nung judge. “No
your honor” sabi niya I will not admit, sabi ko, “Are you sure?”
Sabi niya no I will not admit. Sabi ko, “Your honor, considering
that there is a refusal to admit, can we request counsel to
open to his answer. And let us read, in page 4, paragraph 27.
Paragraph so much of the complaint is admitted, “Oh do you
admit?” Sabi niya “Ah your honor Im withdrawing kay ano.” Oh
nakita niyo, there is an admission, there is a proposed
stipulation. If it’s already an admission, it’s already part of the
record so it’s very hard to disown it. Unless, under Rule 129
Section 4, ano yon? It was made by palpable mistake or there
was no intention to make an admission.
You can only disown a Judicial Admission under Rule 129
Section 4 if there is what?
(1) Palpable mistake
(2) There was no intention to make such an admission.
A Judicial Admission made in one case only affects that
particular case. That is the case of Social Justice Society.
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Therefore, kung nag admit ka sa kaso na to, your admission
here cannot be taken in another case. It will only affect the
case where you made such a Judicial Admission. So in that
other case, they will have to prove it. They cannot claim that
you made an admission in another case.
Another important thing during pretrial is Preliminary Marking.
What about preliminary marking? Based on the Rules of
Court and the Guidelines of 2004, all documents that you are
to present during pre-trial should be what? Preliminarily
marked. When we say preliminarily marked, on the day of the
pretrial, dapat dala mon a lahat yun saka yung mga kopya
nun, bakit? Tatatakan yun. Eh sir, pwede naman yan next time
eh. May iba sa inyo ditto may be working in a law office
sabihin niyo, eh sir meron nga doon samin, we reserve the
right to present documents if and when necessary. That is a
standard phrase. Pero pag natapat ka sa judge at kalaban na
alam ang rules, tapos ka.
Example. My opponent last Wednesday, said, “Sir, hindi ako
ready sa mga document.” Ah baka pwede tuloy tayo ng
pretrial, reset na lang. Eh ako di ako sumagot sabi ko, tignan
natin. Eh di sabi ko ok. Nung tinawag ni Judge sabi niya, “Ah,
your honor, I am not the handling lawyer and I am not ready
for the marking of the documents. Ah sabi ko, sabi ni Judge,
what do you say counsel, sabi ko “Your honor, if he’s not
ready to mark, he can no longer present evidence during trial.”
That’s the rule. It’s not in Rule 18. It’s in the guidelines of pre-
trial and modes of discovery 2004. He can no longer present
evidence. Ano sabi niya, “ah baka next time pwede your
honor” Sabi ni Judge oh are you ready? Sabi ko “Im ready with
all of my documents.” Oh sabi niya, wala tayong magagawa,
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ready si Attorney eh. In that case sabi ni Judge, Oh attorney,
sabi niya suggestion ko private prosecutor, you read the
record and you look for the record of the documents in your
case. Di before we referred to the clerk of court for purpose of
marking.
Because this is the rule, if you fail to preliminary mark, and
there is no good reason for not marking it, you are precluded
from presenting it in court. That is the rule. Pag hindi mo
prinisenta yan for preliminary marking you cannot present that
anymore. But of course there is a window, for good cause. The
judge subject to his discretion may allow it.
So the next question is, If it is preliminarily marked, does it
mean that it is already your evidence? The answer is no.
The mere fact of preliminary marking does not make that your
evidence. As the word itself says, it is only preliminarily
marked. Why is that so? Documentary evidence yan. If the
content of the document is the subject of the inquiry, you will
have to present the original. During the preliminary marking,
there will be a comparison. During trial, you also have to bring
the original because that’s the requirement of the law. To
present the original. The best evidence rule applies. Even if
the best evidence rule applies, even if it does not apply, you
will still have to contend with what? Authentication of all of
their documents. Take note, so while, again, it is marked
during pre-trial. It is marked. It doesn’t mean that it’s your
evidence. During trial, the witness will identify it.
Eh ano ngayon ang pakinabang ng preliminary marking?
It skips the marking of the documents. It saves a lot of time.
Bakit? Kasi, kung hindi ginagawa yang preliminary marking,
ganito ang mangyayari jan: If I have a witness, Mr. Witness,
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Imentioned to you a deed of absolute sale. Can you go over
this document and please tell me if this is the deed of absolute
sale? Hahawakan niya yan. Titignan niya yan, ‘yes your
honor’. Your honor at this point may I request that this deed of
absolute sale be marked as my Exhibit A. Sasabihin ni judge, ‘
clerk, mark it’. Ngayon pipirma yun tapos pupunta sa isang
clerk pipirma. 5 minutes yon mga 3 minutes yon.
‘Proceed counsel’ ‘Mr. Witness, have you referred to this deed
of absolute sale, I will open the last page hereof, there is a
signature on top of the typewritten name, Juan Dela Cruz,
whose signature is this?’ ‘That is my signature.’ ‘Your honor
may I request that this be marked as my Exhibit A-1’ ‘Mark it’.
OK, nakita niyo class? Yun ang sinesave na time nun. Tapos
‘meron pa kong nakitang provision, there is a provision here
on the term of the contract which is in provision 37. And let
meread it for the record, ‘Your honor at this point may I
request that this provision 37 be marked as my Exhibit A-2’
‘mark it’. Iikot na naman yun. Kaya kayo nagpepreliminary
marking. Yun ang gusto niyong isave. But it doesn’t mean that
your document is already your evidence. Nakita niyo?
Now, pagdating sa husgado, may testigo na, kasama na rito
evidence class. Pag testigo dumating na, a-identify niya yun.
This document, even if it is identified will still have to be what?
Authenticated. Remember there are only two kinds of
documents in our law: public and the rest are private.
Remember that in section 19 to 33,you have to authenticate.
Now, ‘sir evidence na yon in-identify ng testigo? Hindi pa
rin. Because under Rule 132 Sec. 34, no evidence will be
considered by the court unless it is formally offered. That’s the
key. Kahit na markahan mo yan, kahit pa pa-identify mo yan,
pag hindi finormal offer yan, hindi ebidensya yan. Kaya nga
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hindi ba sabi nila, you could only file a demurrer to evidence
after what? The plaintiff has completed the presentation of his
evidence.
The completion of the presentation of evidence is when you
file a formal offer of evidence, and the other party has already
commented on it and the court issues an order whether
admitting or denying it. After that stage you can now file a
demurrer to evidence. That is when the plaintiff has completed
the presentation of his evidence. Therefore, the mere marking
is insufficient. This is just for preliminary marking purposes.
My last point; A formal offer of evidence, under the present
rules on evidence, could be orally made or in writing. But
under the Judicial Affidavit Rule today, it should be oral. It is
not in writing. But still, there are some judges because of the
sheer volume of the documents, who allow a written formal
offer of evidence. But the JAR requires an oral offer of
evidence. Now just to give you an idea, I mentioned Exhibit A
a while ago, when you do an oral offer of evidence, please
bear this in mind. You may make an oral, let’s say Exhibit A,
you don’t need to say Deed of Absolute Sale, because the law
assumes that tha judge, the other party and you know that the
Exhibit A, everybody knows that it is a Deed of Absolute Sale
in order to save time. So Exhibit A, State the purpose, what is
your objection other counsel? Then the judge will rule. Exhibit
B, what is your purpose, what is your objection, then the judge
will rule. That’s how it is today. So at this point in time,
preliminary marking markahan lang yan.
What’s another matter that will be discussed during pre-
trial? Identification of witnesses. Testigo. You will have to
name the witnesses, the substance of their testimony and the
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period of time that they will testify. That is provided for in Rule
18 and in the Guidelines on Pre-Trial and Modes of
Discovery.not only will you put the names, you will have to
state the substance and the number of hours or the time
required for him to testify. And of course the last will be the
trial dates. Yan ang gusting gusto ng lawyer yang trial dates
that’s when you feel that youre already a lawyer. The common
statement and the general statement in a trial brief is ‘ I am
willing to agree on common dates with the other party.’ Now
youre done with Pre-Trial.
After that, the court will issue a Pre-Trial Order. Okay, tapos ka
na. Ideally, you should not proceed to trial without a Pre-Trial
Order. Because the Pre-Trial Order will dictate the conduct of
the trial. It will control the proceedings during trial. The issues
will always be contained in the Pre-Trial Order. All matters that
were discussed in the Pre-Trial will be reflected in the Pre-Trial
Order; marked documents, the issues, the names of the
witnesses, if there were stipulations, if there were admissions,
if it will be referred to a commissioner, if there will be
amendments, all of these will be reflected in the pre-trial order.
And the court will send it to the parties before the trial.
After that, you go to trial.
RULE 19
INTERVENTION
Ano yung rule 19? Intervention. The case of Ong Koh vs.
Dalisay. Here, Dalisay applied for registration of a parcel of
land. There being no oppositor aside from the Republic. What
usually happens in a registration of a piece of land,
maglalabas yan ng notice informing the public of the date of
the hearing and all those interested can appear and oppose.
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So on the date, what happened here, no one appeared to
oppose despite notice except for the Republic. Thus the court
issued a general order of default except on the Republic. After
the presentation of evidence, the court found that Dalisay has
clearly shown his registrable right over the parcel of land, and
ordered the decree of registration to be ordered by the Land
Registration Authority (LRA). And it orders the registration by
the LRA only after the decision becomes final. Of course it’s
not yet final because the Republic appealed. While the appeal
was pending in the CA, pumasok ngayon si Ong Koh, who
filed a motion for intervention. He filed in the CA for the first
time, an answer in intervention. He was seeking the dismissal
of the application for registration of Dalisay on the ground that
the property was not free from an adverse claim. In her
comment, this was the contention of Dalisay, the winning party
in the RTC, sabi niya, Ong Koh did not have any legal interest
over the property. Moreover, the intervention of Ong Koh will
unduly delay the registration proceedings which is on appeal
and Ong Koh will be fully protected in a separate proceeding.
So tatlo yung niraise don.
The question now is, Can Ong Koh properly intervene? The
CA denied the intervention. So Ong Koh elevated his
intervention to the SC. Effectively we are only confronted by
this number of issues:
(1) Who can intervene?
According to the Court, intervention is not a matter of right. But
is left to the discretion of the court. So hindi yan mandatory.
Hindi ang court obliged pag nag file ka ng intervention, it is left
to the discretion of the court. The trial court must not only
determine if the requisite legal interest is present but also take
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into consideration the delay and the consequent prejudice of
the original parties. So not only is it a matter of determining
whether or not the intervenor has legal interest, it is also
important to know whether or not it will delay the proceedings
of the case and the right of the intervenor can be protected in
a separate action. Dun lang kayo iikot. Pag tinanong kayo sa
bar niyan, ng intervention, una may legal interest k aba?
Pangalawa, madedelay ba yung proceedings? Pangatlo, can
the intervenor’s right be protected in a separate proceedings?
If the answer is yes, then he should not be allowed to
intervene because there are times when there may be legal
interest but his right could be protected in a separate action.
Ah hindi aallow yung intervention or if the action will be
delayed.
The question now is this, aside from that,
(2) Was there proper timing?
Nag-intervene si Ong Koh sa Court of Appeals, tama yun? No.
the answer in section 2 says, intervention should take place at
any time before rendition of judgment in the trial court. So in
this case, klarong klaro. Nasa CA, section 2, labas ka na run.
But class, I tell you, there are some instances when the court
has entertained an intervention even in the level of the
appellate court and even in the SC. Therefore we cannot
totally foreclose that it is not possible. But for the purposes of
the bar, pag tinanong ito, dapat alam niyo yung section 2
unless there is a case wherein the facts squarely applied the
case wherein the SC or CA allowed an intervention. But
generally, if you are confronted by an intervention question,
intervention can only be made at any time before rendition of
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judgement in the trial court. Therefore pag sa CA nay an SC,
dapat di pwede. Because that is what the law says.
(3) What tdid the court say further?
Both requirements must concur. First, the requirement of legal
interest is not more important than the second requirement
that no delay and prejudice should result to help ensure that
delay does not result from the granting of a motion for
intervention. The rules also say, that intervention may be
allowed only before rendition of judgement by the trial court.
There are certain exceptions wherein even after rendition of
judgment the court entertains an intervention. If the intervenor
is an indispensable party. The case of Luico (spelling unsure,
spelled as heard). Why? Any subsequent judgment in the
absence of an indispensable party will render that judgment
null and void.
(4) What did the court say?
Ong Koh is not an indispensable party. The action for land
registration may proceed and be carried to judgment without
joining Ong Koh because the issues to be threshed out in a
land registration proceeding such as whether the subject land
is alienable and disposable land of public domain, is to be
determined properly only with the presence of the Republic.
Sabi ng court, the only indispensable party to a land
registration case is the Republic. Ong Koh is not an
indispensable party.
Lastly, according to the court, the motion should be filed at
anytime before rendition of judgement because intervention is
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not an independent action. But is ancillary and supplemental to
an existing litigation.
What if the principal action is dismissed? What happens
to the intervention? The intervention is likewise dismissed
because it is only ancillary. Pag natumba na yung principa,
wala na rin yung intervention. It cannot unlike a counterclaim,
stand independently. It will always have to be attached to a
principal action.
Tandaan niyo,there is a complaint in intervention, there is an
answer in intervention. Therefore you can intervene as a
complainant, you could intervene as a defendant and you can
also intervene as a complainant against both the original
plaintiff and the defendant.
The law, the case of Ong Koh keeps on harping on legal
interest. What if the intervenor is the plaintiff? Is legal
interest sufficient? Jurisprudence holds that if the intervenor
is the plaintiff or complainant he should have his own cause of
action. While he joins, syempre complainant in intervention
siya, dapat may cause of action siya. While it is true that he
should have legal interest, on his own, he should have his own
cause of action. This was illustrated by the Supreme Court in
the case involving a loan wherein as a security for the loan,
the collateral was the vessel. The borrower was not able to
pay. So the bank, or the lender foreclosed the vessel but while
the foreclosure was taking place, the members of the vessel’s
crew filed an action to enforce their preferred lien. So the
lender was bothered, although they have a mortgage lien and
they would want to foreclose on the vessel, they were
bothered by the preferred lien of the members of the crew. So
what the lender did was to intervene in the action instituted by
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the crew members. What the lender claimed to be his legal
interest was a mortgage lien. The SC said that a mortgage lien
is not a sufficient cause of action. For you to be a plaintiff in
intervention you should have your own cause of action.
As to the calendar, of course it is the clerk of court who sets
the dates for the hearings. The provisions says it’s the clerk of
court who sets the dates of the hearings. The clerk of court
would prefer that the parties are present because if the parties
are present the clerk of court can immediately require them to
agree on a date and there is no need to send notices of the
hearing. While the duty is the clerk of court’s to set the
hearing, for them it is ideal if the parties agree because if the
parties agree on a common date, hopefully there would be no
cancellations of hearing.
Case: Salas vs Aguila
the question here is can a common-law wife intervene in an
action between spouses involving the latter’s alleged
discovered properties?
What happened here was, there was a nullity of marriage filed
by the wife against the husband. And then, wala naming
objection, it appeared that the lady spouse said that they had
no common property, yun ang akala niya. So when the court
rendered the judgment, the court nullified the marriage
withoutany resolution on the common properties.
A few months after the resolution of the case, the wife learned
that may property pala tong asawa ko, may tatlo. Edi dapat
kasama yun dapat pinartition yun and dinivide because that is
a common property. So sinabi niya sa court, binuhay niya
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yung kaso. So the husband opposed. When it was
investigated, it appeared that the properties were in the name
of the husband and another girl. Nakalagay ‘married to’. In the
proceedings in court, sabi ng lalaki, ‘ay hindi po akin yan, yung
babae ang may-ari’. Eh sabi nakalagay married to. Sabi ng
lalaki, that is only descriptive. Yung yun claim niya and hwne it
appeared that it wouldn’t stand, the common-law wife
intervened.
Can she intervene? No. She cannot intervene on what is
perceived to be properties of the spouses.
RULE 20
SUBPOENA
The provision on Rule 21 applies to all proceedings including,
civil, criminal and special proceedings. It is a compulsory
process.
What are the things that you have to remember? There
are two kinds of subpoena:
(1) Subpoena duces tecum (to bring to court the
documents)
(2) Subpoena ad testificandum (to appear and to testify)
How do you quash a subpoena ad testificandum? You only
quash if the subpoena has been issued. You cannot quash if
what was filed was only a motion for issuance of a subpoena.
In that case, you should file an opposition. But once a
subpoena ad testificandum has been issued, you can now
quash the subpoena if there are grounds to quash.
The first one is what? That you are not bound thereby. What
do you mean by not bound thereby? For every witness to
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be able to appear and testify in court, that witness will have to
qualify under Rule 130 Sec. 20 – that the witness is able to
perceive, and perceiving, can make known his perception to
another. The provision of the law does not require him to be a
college, high school graduate, someone who is able to read
and write. For as long as he is able to perceive, he can be a
witness. What is the relevance? That is a direct reason to
quash on the ground that he is not bound thereby. Under
what instances is he not bound? Eh pinatetestify ako sa
tatay ko, hindi ako pwede. Filial privilege. Unless I volunteer.
The provision of the law says I cannot be compelled unless I
volunteer. If you ask me to testify against my father, I will
invoke that in a motion to quash. I’m not bound thereby. The
same with my spouse, I am not bound by the subpoena I
cannot testify against my spouse motion to quash. I received a
subpoena, and I am being required to testify, in a case
involving my claim against the estate of a deceased person, I
am not bound thereby. But considering I am a claimant, I will
not quash it. Kasi benepisyo ko yun eh. I will not file a motion
to quash. I will keep quiet. If they will allow me to testify, they
do not object, I will testify. But that is a disqualification. A party
or an assignor of party on a claim of the estate of a deceased
person is a disqualification. Those are examples,
disqualifications. If the witness is disqualified, he is not bound.
Another example is mental retardation, mental incapacitation.
Second, another way to quash ad testificandum is that the
witness fees were not tendered. What are witness fees?
Yung pamasahe niya para makarating sa husgado.
Third, There was no tender of kilometrage. Why is that
important? Because if the witness is within 100 kilometers
from the place where the hearing is to be conducted his
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appearance can be compelled by a subpoena. If he refuses to
appear, the consequences will be serious. He could be held
liable for indirect contempt. That is the last subsection of Sec.
3 Rule 71. Failure to comply with a subpoena. What else? You
could even be arrested by virtue of a bench warrant.
Look at the provision carefully, it says, the service of a
subpoena is in the same manner as the service of summons.
But in practice, that is completely ignored. Bakit? Takot yung
kliyente makatanggap ng subpoena. Was it properly served?
To whom was it served? Because the requirement is it
should be served in the same manner of a summons. That if it
cannot be served upon him personally, there should be a
substituted service of summons. Takot ang mga kliyente, ang
tanong agad, Atty., kelangan ba akong um-appear? So they
lose touch of that requirement because subpoena should be
served in the same maner as a summons and therefore if it’s
not personally served, there should have been repeated
attempts to serve and only then will you have substituted
service.
In writ of amparo, the writ, if issued by the court will be served
in the same manner as summons.meaning it is personal
service. If the service was unsuccessful, only then can you
effect a substituted service.
Subpoena Duces Tecum
Now, the next is, Subpoena Duces Tecum.
I will compare this with a production order in writ of amparo
known as an interim relief. Subpoena duces tecum is akin to a
production order in a petition for a writ of amparo.
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Case: Lee vs CA
This involves a witness who is to be called on the stand.
Spouses Lee entered into the Philippines, they were Chinese
nationals. They had a number of children. Sometime inn 1948,
they brought a woman from China as a housemaid. In 1989,
the maid died and the children learned that the children of the
housemaid were also claiming to be the children of the first
wife. The husband had a mistress – the housemaid. This is the
problem. They had children from the first marriage but the
children with the housemaid were all- all their birth certificates
carried the wife as the mother. That’s material because if in
their birth certificates, it would appear that the wife is the
mother then they would be, first legitimate, and second they
would be on the same status of the legitimate children. That
was the problem.
There was an action for special proceedings in Caloocan for
the deletion of Que the wife, and be replaced with the name of
Tiu, the housemaid. They filed an ex parte request, the
children of Lee Que, the children of the first wife, filed an ex
parte request for the issuance of a subpoena ad testificandum
to compel their stepmom or the housemaid, the mistress of the
father to testify in court. The counsel of Tiu objected and filed
a motion to quash on the ground that it is violative of Sec. 25
ROC. If you look at Rule 21, there are grounds for that motion
to quash. Now.
Can she be required to testify? The answer of the SC is yes.
The lawyer of the first wife, the mother, said I would like you to
testify but the lawyer of the housemaid was saying you cannot
because of filial privilege. Sabi niya, hindi pwede.This goes to
the very ground to oppose, ‘you are not bound thereby’.
The SC said, is there filial privilege? No. Because when you
claim filial privilege, you should be from a common ancestry.
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Wala naman kayong blood relationship eh. How can you claim
filial privilege.
Second, the claim of unreasonableness and oppressiveness
are proper grounds only to quash a subpoena duces tecum or
for the prohibition of documents and things in possession of a
witness and not to quash a subpoena ad testificandum.
The ground for ad testificandum is you are not bound thereby,
failure to tender fees, failure to tender kilometrage.
The case of Culiado (spelling uncertain).
This case involves no dispute, there was no case. The clerk of
court took it upon herself to issue a subpoena to require the
parties to appear before her. Can she do that? No. A
subpoena can only be issued if there is pending cases or a
pending investigation.
Examples, the House of representatives and the senate can
issue a subpoena not because of the Rules of Court but they
have their own house rules. The office of the prosecutor can
issue a subpoena Rule 112. Those which conduct preliminary
investigation can issue a subpoena. Can the office of the
ombudsman issue a subpoena? Yes. Can the NBI issue a
subpoena? Yes. They can. That is in connection with their
investigation.
So, what is clear at this point? No one can issue a subpoena if
there is no pending case or investigation. If it is not
enumerated in the provision of Rule 21, you will have to
countercheck if there is a law that authorizes the issuance of a
subpoena because in the absence of the person or officer in
the list, he cannot issue a subpoena.
Case: Chan vs Chan (2013 case involving a nullity of
marriage)
TANNER NOTES
Dito, gusting pakuha nung babae yung medical records nung
lalaki. Therefore, there was an application for a subpoena
duces tecum. Not an ad testificandum but a duces tecum.
There were three sections that the SC touched in arriving at a
conclusion. This was penned by Justice Abad. There were 3
issues.
First, Pwede bang ipa-subpoena yung medical records
nung asawa? SC said, subpoena duces tecum’s intention is
to presentit during trial. We are not yet at that point of trial
therefore it is premature to apply for a subpoena duces tecum.
Second, SC said, if we are to treat this as a production of
books, papers and documents, then it is privileged. But the
thing is it is not production of books papers and documents.
Take note, you could take on any matter, take the deposition,
or require production of documents for as long as it is not
privileged.
So sabi ng court kung production of books papers and
documents ito, pasok to sa privilege. However, still, on the
third matter, hindi pa rin naming i-aallow yan kasi it’s a
subpoena duces tecum. Ano sabi ng court? You cannot even
invoke because the lawyer of the wife invoked Rule 132 Sec.
17. If a portion has been presented, the other party may
require the presentation of all the documents. So that is a
provision that allows a person to require presentation of the
rest of the documents, if you request portions of the same. The
SC said, you cannot even use this provision kasi ang
reasoning nung babae ganito ‘eh inallege nga ho niya yan sa
sagot niya, sabi niya nagapply siya ng PhilHealth form ibig
sabihin, hindi naman ako nag introduce, siya nag introduce ng
information nay un. But the SC said, you could only use this
provision if you’re already on trial. If you’re not yet on trial you
cannot use it.
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Case: Roco vs Contreras
This case laid down two very important requirements if you are
to apply for a subpoena duces tecum:
It will have to pass the rule on Relevancy. The documents you
want to produce should be relevant. The court said, “Well-
settled is the rule that before a Subpoena duces tecum may
issue, the Court must first be satisfied that the following
requisites are present:
(1) The books, documents must appear prima facie
relevant to the issues subject of the controversy.
(2) That such books must satisfy the test of reasonably
described.
Take note, you will see this as I discuss how to quash
subpoena duces tecum. You only file a motion to quash when
the subpoena has already been issued. If there is not yet a
motion, you oppose, not quash. Remember the statementof
mine in relation to Roco vs. Contreras now let me discuss how
to quash a subpoena duces tecum. How do you quash it?
(1) That it is unreasonable, oppressive, irrelevant.
a. Relevancy is defined in Rule 128 section 4.
What do you mean by relevant? It has a direct
relation to the fact in issue.
b. Reasonable and Oppressive. Example. An
opponent of mine required the production by
reason of subpoena duces tecum of airway bills
for the last 3 years. Airway bills are the
equivalent of a bill of lading for air transport.
Imagine, araw araw andaming flight. Araw araw
andaming kinakarga don. Oppressive yon. Una
ang tanong ko relevant bay an. Pangalawa
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oppressive yan. Baka di kasya yan sa isang
truck. 3 taon eh. DOppressive and
unreasonable. Can you quash? Yes. On those
grounds.
(2) Sec 3 of Rule 21, as stated in the case of Contreras, it
should be described. If it is not described with
particularity, you can quash. For example I need the
books of corporation, sabihin mo kung ano yung gusto
mo. It cannot be a fishing expedition.
(3) Witness fees and kilometrage will likewise have to
complied with.
Failure to comply with all of those that I have enumerated or
raising the ground of oppressiveness, relevancy and
unreasonableness, expect that your subpoena duces tecum
can be quashed.
RULES 23-29
MODES OF DISCOVERY
As a practical matter when can you avail of a deposition?
If the witness is more than 100 kilometers from the place
where the hearing is to be conducted, a convenient remedy is
to take his deposition. And that is found in Sec. 4 of rule 23.
Yan ang pinaka-usual. Eh ang layo eh. The case of Cleary.
Ang deposition ba is a presentation of evidence in court?
Can deposition take the place of the testimony in court?
No. if the witness is available to testify, the witness should be
presented in court. (Sales vs Sapino).
Ano ba ang pwedeng ideposition? Any matter for as long as
it is relevant. Sec. 2. And as long as it is not privileged. Why?
Because, that deposition will be useless if it is privileged.
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Paano mag-apply ng deposition? The application for
deposition like amendment and dismissal of the plaintiff, the
reference point is may sagot na ba? Is there already an
answer? Why?
After the court acquires jurisdiction but before an answer, you
are to file a motion. Once there is already an answer, you will
file for a notice to take deposition.
The way to apply is the same as in Rule 25. Therefore after an
answer has been filed, there is only notice.
Rosete vs Lim – In this case, the answer was an answer ex
abudante ad cautelam. An ex abudante ad cautelam. What
is it? When do you file it? You file it in a situation like this:
You filed a motion to dismiss, such motion was denied. You
filed an MR. Denied. For that reason, the reglementary period
starts to run. But you would want to go up on a Rule 65
questioning the denial of the motion to dismiss.
So what will you do? You have to file an answer but by filing
an answer you might be surrendering your petition under Rule
65 but you don’t want to give it up. Again, you don’t want to be
declared in default. Because the mere filing of a petition for
certiorari will not interrupt the running of the reglementary
period unless there is a TRO or PI. So, nag-certiorari ka your
period continued to run, made-default ka, yung kalaban mo will
file a motion to declare you in default. In order not to be
defaulted, the usual practice is to file an answer ex abudante
ad cautelan. An ex abudante ad cautelam answer is what you
call a cautionary answer.
So in Rosete vs Lim. Sabi ditto nung party, mali ka, dahil ang
sagot mo is an answer ex abudante ad cautelam dapat hindi
notice yan, dapat motion. How did the SC explain this? The
SC said, whatever you call it, it’s an answer. And because it’s
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an answer, if the other party would like to file a deposition, he
will file a notice to take deposition.
What are the uses of a deposition?
1. To impeach:
a. While to impeach is a function of cross
examination under Sec. 6 of Rule 132, to
impeach is found in sec. 11 and sec. 13 of rule
132. Papano ba ko magimpeach ng testigo?
i. His general reputation for truth honesty
or integrity is bad.
ii. Contrary evidence
iii. On a prior inconsistent statement (yan
ang tinutukoy dun sa Sec. 4) You could
use a deposition to confront him on a
prior inconsistent statement.
Illustration:
The deposition of A was taken sometime last yr. A is
noe on the witness stand. I am crossexamining A. Sabi
ko, “Mr. A, where were you on July 14 in 2016? His
answer was “ I was in HongKong.” Now, I knew that he
had a deposition and his answer to the same question
in that deposition was not HongKong. His answer was
he was in Palawan. So how will I use it to impeach
him? “Mr. Witness, do you recall a deposition having
been taken? When was this taken? Before whom? On
what date?” You have to lay the basis of time, place
and person. Now, what will I do? I will tell him, “Mr.
Witness I will be presenting to you a copy of the
deposition. Can you go over the deposition and tell me
if this is your deposition.” When he says yes, “can you
open to page 24 of your deposition and read question
number 65 for us? Where were you on July 14 2016.
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 And tell me your answer. “I am in Palawan” “Now can
you please explain to us why your answer now is
different from your answer in the deposition?” That’s
the way to impeach.
2. A deposition can be used for any purpose by the
adversary. Even juridical entities’ officers can be
subject to a deposition. Their officers and directors can
be called on a deposition.
The most recent case of this is the Metrobank case
wherein the officers, but this is not a rule 23
application. It’s a rule 25 application. The officers of
Metrobank were being subpoenaed to testify. The
lawyers of the Metrobank officers opposed. Bakit? Kasi
hindi sinerve ng written interrogatories. That is in Rule
25.
Kasi sa kaso nay un, yung Metrobank officers, ang
Metrobank isa sa ano? Parties sa kaso. Ang gusto ng
kalaban, ipatawag yung officers ng Metrobank. Let’s
say for example ako, kalaban ko Metrobank,
patawagko yung Presidente, director, president. Yun
ang gusto mangyari sa kaso na yun. So nagpalabas
ako ng subpoena. Ako yung kalaban. Yung abugado
ng Metrobank syempre nag oppose. Bakit? It is
because of Rule 25 Sec. 6. Yan ang lumabas sa bar
noong nakaraan.It is a requirement that if you call the
adverse party on the witness stand, you have to serve
written interrogatories. Yun ang pinapalag ng
Metrobank. That is an objection.
Can you call the adverse party on the witness
stand? YES. Ako, dinemanda ko si X, pwede ko ba
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patawag sa witness stand ang adverse party witness?
Yung kalaban ko? Yes. Under rule 132, Sec. 12.
Pwede kita patawag.
Yung kalaban, pwede mo patawag yun, kaya lang ang
requirement, dapat bigyan mo ng written
interrogatories. Bakit? Para hindi siya magulat. Apra
alam niya kung ano subject ng mga itatanong mo sa
kanya.
Written interrogatories contemplated under Rule 25 is
different from written interrogatories under Rule 23.
Bakit? Sa rule 25, with the view of calling the adverse
party on the stand, anong gagawin ko? Ang gagawin
kong written interrogatories are just sets of questions.
Ang 23, you prepare the questions, and then you serve
it to the other party, the other party prepares his cross-
interrogatories within a period of ten days. Without an
answer, he prepares his cross interrogatories and
serves me, the applicant his cross interrogatories. I will
prepare my re-direct interrogatories within 5 days.
Gagawa na naman ako wala pang sagot. Then
ipadadala ko sa kanya within a period of 3 days, he will
have to prepare his re-cross interrogatories. 23 and 25
are different.
If I am to avail of 25, questions lang the very purpose
is to prepare you, to inform you that these are the
questions that you may ask during the trial. Please
bear in mind that even if such is an objection under rule
25, the court is given reasonable discretion to allow the
testimony even in the absence of a written
interrogatory.
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 3. A deposition can also be used if the person is sick,
infirm or in prison. May sakit, kasi baka hindi niya kaya.
Can that take the place of his direct examination?
Yes. May sakit eh. Infirm. Nakakulong. Although if the
court orders, the person incarcerated can be brought
up the stand.
4. Ano pa? The person is more than 100 km from the
place where the hearing is conducted. Illustration:
Yung testigo taga Cebe, gusto mong papuntahin sa
Manila. Can the court compel his appearance? No.
Because he’s more than 100 kilometers from the place
where the hearing is conducted. Your option is to take
the deposition. Where can you take the deposition? In
a place nearest him.
5. When his appearance cannot be compelled by a
subpoena and other analogous circumstances.
NOTE: These uses are the same uses for Rule 25.
My next question is, before whom should deposition be
taken?
1. In the Philippines, before any judge. Kahit saan? Oo.
Bakit before any judge? Kasi kung nandito sa Manila
yung court, yung testigo mo nasa Cebu, take his
deposition and apply for deposition in the RTC of
Cebu. You bring it clcoser to the person.
Can you take the deposition before the judge where the
action is pending? YES. There is no prohibition because the
provision says before any judge. Example, yung testigo mo
nasa Mandaluyong can you take the deposition in the RTC of
Manila where the action is pending? Yes. In Mandaluyong?
Yes.
TANNER NOTES
2. Before a notary public, deposition can be taken.
3. Any person who is authorized to administer oath and
stipulated upon by the parties.
These are the minimum requirements pag sa Pilipinas. Pano
pag sa labas ng Pilipinas?
Pag nasa labas ng Pilipinas, kalimutan mo na si Judge, di na
pwede si Judge.
1. Before a consular office, consul, vice-concul, secretary
of legation. Sa konsulado ng Pilipinas. Bat di na lang
ambassador? Hindi niya trabaho yan. An ambassador
is concerned with the political affairs of the state.
2. What is a letters rogatory? And what is a
commission? A letters rogatory is a communication
from one judicial authority to another. Meaning, ako,
yung judge dito, may kaso, nagcommunicate ako sa
judge ng America. That’s a letters rogatory. Now, if the
judge of let’s say, the court of Boston accepts my
communication and proceeds with the deposition, what
rules of deposition will have to be followed? It shall
be the rules of the foreign authority (Boston) because
the deposition shall be taken under the supervision of
the Judge in a foreign country. Ano naman yung
commission? It’s an appointment by the judge.
Meaning when he says “you are commissioned” you
are hereby appointed to act as the officer who is to
receive the deposition in a foreign country. What rules
will the person appointed follow? The rules of the
Philippines because he has been commissioned here
in the Philippines by the judge, therefore he is to follow
Philippine rules on deposition.
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Case: Dulay vs. Dulay – On letters rogatory and commission
Here, Si Dulay may kapatid, yung isang kapatid nanduon sa
America siguro gusto tulungan yung kapatid niyang nasa
Pilipinas at may pamangkin siya rito, gusto niyang ma petition
para pumunta ng America. So yung kapatid doon pinetition
niya yung kapatid niya and eventually it was approved by the
US government so nakalipad yung kapatid to the US together
with the nephew. They stayed with the brother for sometime.
The brother in the US entrusted his accounts, funds with the
brother and nephew. Anong ginawa nung kapatid? Nilustay
yung pera. Pagkatapos lustayin, bumili ng properties, bumili ng
sasakyan, iniwan yung kapatid sa America. Bumalik sa
Pilipinas. Dinemanda yung kapatid ng recovery of money with
application for attachment. Yung lawyer nung US based
brother, applied for the taking of deposition in a foreign country
of the client kasi ayaw niya bumalik ng PIlipinas.
But instead of simply allowing the taking of deposition before
the consular offices, ang ginawa ng judge sa Pilipinas, he
issued a letters rogatory sa court ng Boston. But sadly, the
court of Boston ignored the letters rogatory.
Dahil inignore, the taking of deposition was conducted in New
York before a notary public in New York. Ngayon binalik na sa
PIlipinas, ayaw tanggapin ng husgado dahil there’s no way
that it could be authenticated sabi. So they required that it be
returned to the US and be authenticated by the consular
offices of the Philippines. So it was authenticated, binalik na sa
Pilipinas. Ngayon kinocontest na ngmgakapatid na nandito
saka ng pamangkin. Sabi nila invalid yang deposition na yan.
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Was it a valid deposition considering that it was not taken
before the consular office? There was strictly speaking no
letters rogatory.. The SC accepted and admitted the
deposition because the fact that there was no letters rogatory,
that it wasn’t entertained and it went to the notary public of
New York who received the deposition but the fact that led the
Court to accept it was that it was later authenticated by the
Philippine consular offices. Although it does not fall strictly in
the taking of a deposition in a foreign country, the court
nevertheless accepted the taking of the deposition.
Can you agree on any person outside of the Philippines
who could administer oath? Can you stipulate? It can be
stipulated upon by the parties.
Pag gumamit ka ba ng isa, hindi mon a pwedeng i-avail
ang ibang modes of discovery? NO. The modes of
discovery are cumulative. Pwede mong gamitin lahat yan.
Syempre pag may deposition, merong officer. Can an officer
be disqualified? Diba pag ayaw mo ano ang ginagawa mo?
Inhibit…hindi lang ayaw mo pagmumukha ni judge class, hindi
pwede. Because the judge appears to have an interest, the
judge appears to be related, okay?
Ngayon class, sa deposition meron din yan. An officer could
be disqualified. Okay, for what reason?
A. Isang common is he is financially interested, okay?
Yung officer na yun interesado sa kaso, dapat
disqualifying yun.
B. Second, he is related, the officer is related to the
party, within the 6th degree of affinity or
consanguinity, okay? Pareho yan sa inhibition
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 class, yung degree: 6th degree, okay? Or the party
or not the party, the officer is related to the
lawyer within the same degree of affinity or
consanguinity. Pwede mo padisqualify? Yes.
That is in section what? 13? Tama, 13. So yan, ah,
class, alam niyo na. Alam niyong may officer, alam
niyong pwedeng siyang padisqualify.
Ngayon class, ito class, alam niyo sa totoo, class,
nakakabisado ko lang ito mula nung nagging abogado ako, I
received notices, I received motions to take depositions, so I
was forced to study it. And that is what I’m sharing with you
para madali niyo matandaan. Nung nakatanggap ako class,
gusto kong opposan. Ano dahilan para i-oppose mo ang
taking of deposition? Nakatanggap ako, okay, and class this
is in jurisprudence and it is in the Code, okay? Nasa Code siya
class. It’s in jurisprudence, it’s in the Code. Sir, pano mo o-
opposan yun? The most common is:
1. The use of section 2, irrelevant po yan, irrelevant,
because it should be relevant, irrelevant, and privilege
po yan
2. Section 16 and 18 of Rule 23. Limitations inevitably
arise when it can be shown that the examination is
being conducted in bad faith or manner as to, ito yung
words ah: annoy, embarrass, or oppress the person
subject of the inquiry. Tignan niyo yung section 16,
yung bottom: annoy, embarrass, or oppress the by
conduct of the inquiry.
The taking of the deposition can even be regulated. Certain
questions can be answered. Certain questions can be
prevented from being answered. Section 16 and 18, okay? So
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class, these are the limitations or more specifically, these are
the grounds to oppose. So pag tinanong kayo sa bar ng
opposition or limitation, ito ang sagot. Pag tinanong kayo sa
bar, opposition or limitations, this is the answer.
Let us now move on to the conduct to the taking of the
deposition. Ayan class, wag niyo mamaliitin to, wag niyo
iignorin to. Anong section ito? 17, 19, 20, 21. Kasi class kung
may, alam niyo yung sense nung provision, maalala niyo eh.
Now, let me now walk you through the provisions. Whether
you be a notary public, whether you be a judge, you will have
to comply with the provisions. Let me explain class: imagine
niyo ako notary public, dinesignate akong deposition officer.
Dinesignate akong deposition officer, pano natin gagawin yun?
Anong gagawin ko? The taking of the deposition is under my
control and direction. Who will take the stenographic notes,
who will record the proceeds before the notary public? Before
me? A stenographer. I can appoint a stenographer or clerk
under my direction or control.
Now, imagine niyo na, today is the taking of the deposition.
Andito yung deponent, meron nag stenographer, ano
mangyayari? Tatanongin na yan. Now class, hang on, my
illustration today at this point is an oral deposition. It’s just like
an examination in court. The applicant will ask his diirect
examination questions. Tatanong siya, direct examination
questions. Ngayon, the other party will conduct his Cross-
examination questions, magtatanong siya ng cross
examinations. Tapos ano? I will conduct my redirect, and he
will conduct his re-cross, all of those, class, on that deposition
taking. Ganun yun.
Now, all of the answers will be recorded by the stenographer.
Lahat yung rerecord niya, and thereafter, class tandaan niyo
na hanggat maging notary kayo, pag inappoint kayo deposition
130
officer, wag niyo muna isipin bayad sainyo. Kasi may bayad
yun. Class, isipin niyo pano niya gagawin ito because I will
explain to you why it’s so important. So tandaan niyo to, when
you become lawyers and appointed deposition officer, you
have to follow this provision to the letter. So, you will have the
stenographer who will take the proceedings including the
question and answer and thereafter the draft of the deposition
will be given to whom? To the deponent. And then the
deponent will review. And then the dpoenent will, if he agrees
with what is contained in the deposition, he will affix his
signature. Can the signing be waived? Yes, if the parties
consent, okay?
Now, what if the witness or what if the deponent refuses to
sign? Sabi ng deponent ayoko na pumirma. Can the
deposition still be submitted to court? Yes. but the reason
for the refusal should be indicated.
Ano pang makikita mo dun dapat? There should be a
certification at the bottom of the deposition. May certification
yan at the bottom. Whose certification is that? A certification
of the deposition officer as to the voluntariness of the taking of
the deposition.. Ano ngayon ang gagawin mo? You will put
that deposition, if you are the deposition officer, in a sealed
envelope. Take note ah. Sir, detalyado yan. Class, in there,
pag tinanong sainyo, may tatanong kasi sainyo, may pwedeng
tanong sainyo, kaya ko to winawalkthrough sainyo eh. It will be
put in a sealed envelope, and the dorsal portion of the same
will be indicated the name of the deponent. If the name of the
deponent is Juan Dela Cruz, it will be indicated and it will be
submitted to court.
Now, pleased bear in mind that the deposition cannot be open
like this. Hindi mo pwede manifestation. I submit, no. It should
be in a sealed envelope, ganun kaseryoso yun. tignan niyo
TANNER NOTES
yan. Kaya ko sinabi 17, 19, 20, 21. Okay now, sir sino ngayon
kung di sundin? Yun tanong. Tanungin kayo sa bar, the
procedure I discussed was not followed. What then will
happen? The deposition will be suppressed. Sir, where did you
get that? Expect a motion to suppress under rule 23, section
29, last subsection (f). Tignan niyo. Maawa kayo dun sa
nagpdepositon pag hindi niyo sinunod yung procedure. Kung
totoong buhay nt o class, hindi mo sinunod yung procedure
nay un, maawa ka, sayang yung pagod, saying yung expense,
kasi hindi mo sinunod yung procedure. Expect what? A motion
to suppress. In simple words, they will not allow the court to
consider the deposition because the procedure what no
followed. Maliwanag?
Case: Ayala Land vs. Tagle.
in Ayala Land vs. Tagle, the deposition was taken before a
judge. Sir, ano very special dun kay Ayala Land vs. Tagle.
Class, because it was taken before a judge, the rules were
relaxed. In that case, the deposition was not signed. Sabi ng
court actually it’s just a formality. Actually, it’s not, but the rules
were relaxed because it was taken before a judge. So, the
court gives a certain level of reliability to the proceedings
because it was taken before a judge. But the truth is, in that
case, there was no signature. The deposition was not signed,
but the court gives special importance to the fact that it was
made, the deposition was made before a judge.
Now, let us now move on, so alam niyo na yung proseso, alam
nyio narin ang limitation. Nowe my question is this, class, my
question is: what is the difference between an oral
deposition and a written interrogatory? When you apply,
look at this still on rule 23, class, pag yung nag-apply ka oral,
as I mentioned to you awhile ago, what will happen is: on the
day scheduled for the deposition, both parties should be
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present, both counsels will be present and they can ask direct
cross and direct re-cross; on written interrogatory, it’s different.
When you apply for the taking of the deposition, you should
already prepare the written interrogatories, the direct
interrogatories. So kung magfafile ako ngnotice to take
deposition, depende kung motion siya or answer, kailangan
nakakabit na yung tanong. Yung tanong na yung nakakabit na
iseserve ko dun sa kabila, yung kabila ngayon babasahin yung
tanong, within a period of 10 days, gagawa siya ng ano?
Cross-interrogatories based on the questions that I’ve served
upon him, but not have been answered. Then he will return it
to me within a period of 10 days. I need to prepare my re-
direct interrogatories, gagawa nanaman ako ng mga tanong
hindi ko pa alam ang sagot. Class, hindi ko pa alam ang sagot,
tapos bibigay ko sakanya, within 3 days he will prepare his
what? Re-cross interrogatories.
When I had that, class, I had an actual experience of that, as a
young lawyer, two years in practice, hindi ko talaga Makita
yung sense eh. Hindi totoo, noh, nung bago ako nun. Bakit
ako gagawa ng tanong eh wala naman sagot? Nakuha niyo?
Nagpapalitan kami ng tanong, puro tanong nagpapalitan kami,
inaanticipate yung posssibleng sagot, tapos following the rules
icocollate lahat yun, kuha niyo? Tapos on the day scheduled
for the taking of the deposition, ibibigay yan sa deposition
officer babasahin niya yan. Lahat yan babasahin from the
direct, from cross to redirect, and all of those will be recorded,
the same manner that I’ve explained to you, it will be before
the stenographer under the direction of the deposition officer.
Pag natapos yun, you will sign, certified by the deposition
officer, placed in a sealed envelope, file. Pareho yung
procedure, Ang magkaiba lang, yung witten tsaka oral.
Maliwanag class?
TANNER NOTES
Now, before I proceed, class, let us distinguish deposition de
bene esse and deposition in perpetuam rei memoriam. What
is the difference? The bene esse is rule 23, pending action.
Eh ano yung deposition in perpetuam rei memoriam? This is
actually perpetuation of testimony, and this is under rule 24 or
deposition before action. Class, please bear in mind that your
rule 24 has superseded your rule 134, okay? Siguro naman
nag-evidence kayo hindi niyo na inaral yung 134, diba? Hindi
niyo na dapat inaral yun because this has been superseded by
rule 24.
Now, at this point in time, class, before I slide on my last
discussion on rule 23, let me touch on the question of: is there
deposition, can deposition be taken off a child witness?
You have to look at the Child Witness Examination Rule (AM-
004-07) which took effect in the year 2000. The answer is yes,
deposition can be taken, and let me give you an outline, okay?
1. The prosecutor or counsel under section 27 of the
Child Witness Examination Rule., or guardian ad litem.
The prosecutor counsel or guardian ad litem may apply
for an order that a deposition be taken off the testimony
of a child and that be recorded and preserved in video
tape, so pwede yun.
2. still on section 27, if the court finds the child will not be
able to testify in open court at trial, it shall issue an
order that as deposition of the child be taken and
preserved by video tape. Child Witness Examination
Rule, okay?
3. the judge shall preside at the video tape deposition of
the child. Objections to deposition testimony or parts
thereof shall be stated and shall be ruled upon at the
time of the taking of the deposit
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Note: unusual ito, iba to. Iba yung sa child witness, bakit? It is
under the provision of the law, it is the duty of the judge to rule
on the objections at that very moment while the deposition was
being taken. However, class, under rule 23, section 29 on
irregularities. Tignan niyo class, mahaba yan eh. Errors or
irregularities in the taking of a deposition. Errors or
irregularities, nakita niyo yun? As to competency of evidence.
You see? Competency of evidence. It is what? If it is not timely
raised, it is not considered as waived. Unless it is something
that could be obliviated. Because class, matters of
competency and relevancy of evidence should only be
considered by the court during trial, but here, class, under the
Child Witnesses Examination Rule, if there is a deposition
taken of a child and videotaped, the judge is bound to resolve
the objections.
The reason being, class, you don’t want the child to testify all
over again. If it’s a deposition, it will take the place of a
testimony. As you know, class, under the Child Witnesses
Examination Rule, what is being prevented is trauma to a
child. That is why all of these available options are given to the
child. Last sa 23, yung errors or irregularities, walkthrough ko
lang kayo lahat. “Sir, pwede po ba akong mag object dun sa
qualifications ng testigo ko, ah, nung deposition officer?”
Yes, as soon as it becomes apparent you have to oppose,
otherwise, it is considered as waived. Irregularity as to the
form of written interrogatories, as the very moment it becomes
apparent you have to raise it, otherwise, it is considered as
waived. Irregularities in the procedure undertaken, you have to
raise it at the very first time, otherwise, it is waived and you are
exposed to a motion to suppress deposition. Anong gusto
kong tandaan nyo? All of those irregularities are waivable
except competency and relevancy. As a rule, all of the
irregularities are waivable if not timely raised, yung mga
TANNER NOTES
enumerate sa Sec. 29. The only one that is not waivable at the
first instance is competency or relevancy of evidence.
Let us now discuss, class ang tanong ko is ganito, the next
question, may dalawa pa pala akong tanong dito. “Class yun
ano ba, when can you apply for deposition? Answer,
Motion, Answer, class can you still apply for deposition
after pre-trial?” The answer is YES
Case: Jonathan Landoil v. Mangudadatu (G.R. No. 155010;
August 16, 2004)
In that case of Jonathan Landoil, it was already execution
stage and they still allowed the taking of deposition, so class,
do not have this wrong impression that you could only apply
for deposition until pre-trial, even after pre-trial you could apply
for deposition. In this case of Jonathan Landoil there was
already a final judgment and they allowed the taking of a
deposition. But always remember this class, for as long as the
witness is available, testimony in court is preferred.
My next question is this, “Can depositions be taken in
criminal cases?”
Case: Go v. People (G.R. No. 185527; July 18, 2012), of
course the leading case here is the case of Vda. de
Manguerra v. Risos (G.R. No. 152643; August 28, 2008). Vda.
de Manguerra v. Risos is the leading case which was cited in
the case of Go v. People, Okay? Paliwanag ko ito sa inyo.
FACTS: Harry Go, Tonny Ngo, Jerry Ngo, and Jane Go were
charged in the MeTC of Manila for Other Deceits (Art. 318,
RPC). It was alleged that they conspired to have Highdone
Company Ltd., which is represented by Mr. Li Luen Ping, a
Cambodian, to believe that they have chattels and machinery,
spare parts, equipment and raw materials. So sa madaling
133
salita, ang halaga nung materiales na pinaniwala nila si Mr.
Ping na pinagmamay-ari nila is worth P20 million. Naloko nila
yung Cambodian (Mr. Ping), so dinemanda sila, in fact mabait
pa dito eh, biro mo and demanda under Deceits? Hindi man
lang Estafa? Okay Other Deceits, hindi ko na pakikialaman
yan, yan na yung charge eh.
Listen, the private prosecutor filed with the MeTC a Motion to
Take Oral Deposition of Li Luen Ping alleging that he was
being treated for lung infection at the Cambodia Charity
Hospital in Laos, Okay? so ang sabi nya, “yung testigo namin,
kami ang prosecution, yung testigo namin ho eh may lung
infection eh, tinitreat poi to sa Cambodia Hospital and that
upon the doctor’s advice, he could not make the long travel to
the Philippines by reason of ill health. The MeTC granted the
motion after the prosecution complied with the directive to
submit a one medical certificate, so pinagsubmit nila ng
medical certificate si Mr. Ping, na-convince naman yung
MeTC, granted.
Ngayon, it was elevated to the RTC, tandaan nyo MeTC
inallow yung taking ng deposition in a criminal case, the RTC
granted the petition and declared the MeTC order null and
void, sabi ng RTC Judge “hindi pwede yan, null and void yang
order mo.” When it was elevated to the CA, it promulgated the
decision which held that no grave abuse of discretion can be
imputed upon the MetC for allowing the deposition taking. So
ang nangyari dito, MeTC inallow deposition, tapos RTC null
and void, pag dating kay CA nireverse, sabi “tama si MeTC,
wala naming batas (Rule of Procedure) na pinagbabawal yun,”
hindi nila nabasa yung Vda. de Manguerra v. Risos.
ISSUE: Can Rule 23 of the Rules of Civil Procedure be applied
in criminal cases?
TANNER NOTES
HELD: The answer is NO, tapos merong kakana sa inyo jan
“Sir papaano yung Webb? (People v. Webb, G.R. No.
132577; August 17, 1999)” Class yung Webb case na yun,
actually that’s a sore thumb, the leading case is Vda. de
Manguerra v. Risos, the Webb case is a sore thumb, it is a
1999 case and the SC actually sidestepped the taking of the
deposition, di naman nila sinagot yon eh, ang sagot nila doon
was “napakarami nang ebidensya para mag deposition taking
pa tayo,” Okay? If you read that in the original, so wag nyo
kapitan yung Webb case that is not the ruling of the matter.
Ang tanong, pag tinanong kayo sa bar exams “Can you take
depositions in criminal cases?” ang tanong sa kaso na to (Go
v. People), Can Rule 23 be applied in criminal cases? The
answer is no, but if the question is a generic question “Can
deposition be taken in criminal cases?” The answer is yes,
tinanong na sa bar yan eh.
Ang hindi pa tinatanong, ito, Okay? I will illustrate. Ito ang
ipaliliwanag ko, look at Rule 119, Secs. 12, 13, and 15. A while
ago, we discussed Uses of Deposition, Sec. 4 of Rule 23, now
let’s look at this Prosecution, what are the grounds for the
prosecution to apply for conditional examination, ang
tawag diyan class sa criminal case, conditional examination of
witnesses, nakita nyo 12, 13? Kung hindi nyo mafigure out
kung bakit conditional deposition kasi conditional examination
meaning before the trial proper the witness is not available,
ganun lang yun, before the trial proper, the witness is not
available, whether for the prosecution or for the accused,
therefore that provision will apply and that is the equivalent of
deposition in criminal cases, kuha nyo? Now let’s look at this,
what are the grounds?
1. That the witness is about to depart with no definite day
or returning (Sec. 15, Rule 119), example yung testigo
mo magiging Engineer na sa Dubai, may kontrata na
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 sa Dubai, o yung testigo mo mag tatrabaho na sa
Sweden, do you follow? He is about to depart with no
definite day of returning;
2. Too Sick or Infirm (Sec. 15, Rule 119), parang familiar
yun ano? Kasi nga class deposition nga ito, kaya lang
in criminal cases, there is, for the prosecution and
there is for the accused.
For the Accused, ano yung sa accused? The Witness
is:
1. Sick or Infirm; or
2. More than 100km from the place where hearing is to be
conducted (Sec. 12, Rule 119),
Maliwanag, simple lang di ba class? Now, again class, what is
the use of this? This is what you call a conditional
examination, I will give an illustration:
Let us say the trial is scheduled on September 15, 2017,
eh tinawagan ka ng testigo mo, prosecution ka, Attorney
nakatanggap na ko ng tawag sa employer ko, kailangan ko na
umalis ng August 15, nakuha nyo yon? Common problem yan,
Attorney kailangan ko na lumabas ng August 15 hindi na ho
ako pwede mag testify.
You could apply in court for a conditional examination
of witnesses for the prosecution. Now where will be the
examination conducted? It will be conducted in the court
where the action is pending, ganun lang yun wala nang iba,
bakit? Prosecution yan eh, eh di pahirapan mo, you have no
other choice; or yung testigo mo tinawagan ka, “Attorney, ano
na ho ako eh, may taning na ako eh,” ganun yon, gusto pa
mag testify, pero usually kapag ganun wala nang gana; or
TANNER NOTES
“Attorney, hindi na ho ako magtatagal” oh ano? Testify, in the
court where the action is pending, okay?
Now, how about the Accused? Before whom should the
deposition be taken? Before any judge, friendly ang
provisions sa accused:
1. before any Judge in the Philippines;
2. before any member of the Bar in good standing; and
3. before any Inferior Court if directed by a Superior Court
(Sec. 13, Rule 119, ROC),
so class kitang kita nyo mangyayari lang to kung yung testigo
hindi available during trial. You could do a conditional
examination of witnesses for the accused and conditional
examination of witnesses for the prosecution, are we clear
class? Yan ang gagamitin nyo. Let me now proceed.
RULE 24
Now dito tayo sa 24, yung perpetuation of testimony. So what
about perpetuation of testimony? Please bear in mind
class that this rule covers two kinds of deposition:
1. deposition before action; and
2. deposition pending appeal.
Deposition before action
Let us discuss deposition before action, “Sir, sino naman ho
ang interesadong mag take ng deposition o mag file ng
kaso para lang to take deposition?” I tell you in the
Philippines walang interesado, sa totoo, I have suggested this
to a number of my clients, ayaw nila eh, alam nyo kung bakit?
They’ll be spending for attorney’s fees when there is no actual
relief, the only actual relief is an order from the court requiring
135
the taking of deposition of those persons indicated in the
petition, that’s all that you want to get when you file a case like
that, so client would not want to spend attorney’s fees/to pay
attorney’s fees just to take deposition but again it is in the
provision of the law.
Things that you will have to remember, First, where do you
file a petition for deposition before actions? Saan mo ififile
yon? You will file it in the place where the prospective adverse
party resides, sa madaling salita, yung kakasuhan mo later on,
doon mo ififile yung kaso, petition to take his deposition.
Now of course, for purposes of clarity class, please bear in
mind that the petition contains the name of the petitioner, the
name of the respondent (the possible adverse party in the
future), and the name of persons whose depositions are to be
taken and the substance of their deposition. Now that is
deposition before an action and the ultimate relief that you
want from the court is pure and simple, an Order Allowing you
to Take Deposition, that’s what you want to get from the court,
An Order Allowing you to Take Depositions of the Persons
Named in your petition, okay na ko dyan.
Deposition pending appeal
The next one, the second half of this Rule 24, Deposition
Pending Appeal. Take note, ibig sabihin class, this provision
presents a situation where the court already rendered a final
judgment and you foresee that there will be further
proceedings, and because of this and for reasons provided for
in Sec. 4, Rule 23, you might want to apply for deposition
pending appeal, bakit? May sakit na, matanda na, nakakulong
na . . . Nakita nyo class?; more than 100km from the place
where the hearing is to be conducted, ganon, pwede,
deposition pending appeal.
TANNER NOTES
Where will you file your motion for deposition pending
appeal? In the court that rendered the judgment. And what
should the motion contain? Of course, the motion should
contain the persons whose deposition is to be taken; the
substance; and the purposed for taking such a deposition, yun
lang!
Now listen to this class, “you filed a motion to dismiss, denied
yung motion to dismiss, you filed an MR, your MR was denied,
you filed a petition for certiorari under Rule 65, can you
file a Rule 24, Deposition Pending Appeal?” the answer is
you cannot file pending appeal, why? Because a certiorari is
not an appeal, a Rule 65 is not an appeal, it is a special civil
action, “oh, eh di sir hindi na pala ako pwede mag deposition?”
Pwede!, pero under Rule 23, hindi ka magaapply ng
deposition pending appeal, but you could apply deposition
under a Rule 23.
The next, “Can you avail of deposition pending appeal, if
you have not yet served written interrogatories to the
other party?” “Can you avail of this, is service of written
interrogatories to the other party a requirement before
you avail of deposition pending appeal?” Class tingnan nyo
yung Rule 25, Sec. 6, nakalagay ba? You should have served
written interrogatories before you could avail deposition
pending appeal.
RULE 26
Rule 25 we’re okay, now I’ll proceed with Request for
Admission (Sec. 1, Rule 26). Request for admission, unlike
Rule 23 that you could apply for it at any time for as long as
the action is pending, take note, you could only apply for a
Request for Admission after issues are joined, and when do
you know that the issues are joined? An answer is been
filed, correct. You cannot file a request for admission before an
136
answer is been filed, you could only serve a request for
admission after issues are joined, tandaan nyo yon ha.
Now, what are the subject matter of a request for
admission? The subject matter of a request for admission
are:
1. Material and Relevant Facts; and
2. Genuineness and Due Execution of the Attached
Documents
yun iyon class, kaya ka nagrerequest for admission, as we
have discussed yesterday, you want an admission in order to
dispensed with further presentation of evidence, kaya mo
pinaadmit yan eh.
Now, what is the consequence of failure to serve a
request for admission? Failure to serve a request for
admission would mean that you will not be allowed to prove
certain facts, which is the subject of the request for admission.
Biro nyo class napaka serious ng consequence no? pag hindi
mo inavail yon, you will not be allow to prove certain facts, if
you did not serve a request for admission.
Now, if you will ask me, that is good for purposes of the bar,
but if you will ask me? in practice? Ewan ko kung may
gumagamit niyan, at hindi sila natatakot sa consequence na
yon, kasi hindi rin naman iniimplement ng judge. Alam nyo
that’s good for academic purposes but in my years of
experience, although ginawa nila yan para pwersahin ang ang
parties eh, “mag request for admission kayo,” talagang para
pwersahin, kaya lang walang umiintindi eh, di nila iniintindi,
hindi sila takot sa consequence na yan, bakit? Hindi din
naman iniimpose ng judge, if you did not apply for a request
for admission. That’s okay, if he implements that then lawyers
TANNER NOTES
may be forced to use request for admission. So that’s request
for admission on matters of fact.
The next one is genuineness and due execution of the
document. Why do you want this? Why do you want the
other party to admit the genuineness and due execution
of the document? I will end on that, you think about the
answer, and then I’ll return in a few minutes.
Let’s proceed, before I proceed let me answer this question
“Will the affidavit executed by Mayor Espinosa be
considered under Sec. 13 of Rule 119 in defense of his
son?” NO, you can only use section, it’s good that your raised
this question, you can only use this once a case has already
been filed in court, without an information filed in court, any
affidavit executed in the Office of the Prosecutor, before the
Office of the Ombudsman is useless, do you follow? Because
it is not subjected to cross-examination.
Class remember that the operative provision is Rule 130, Sec.
47, because a deposition taken in another proceeding is by its
very nature “hearsay,” why? Because the judge has no
opportunity to examine the witness, there is no opportunity on
the other party to conduct a cross-examination, do you follow?
Any deposition taken in another proceeding is hearsay; any
testimony given in another proceeding is hearsay, unless there
is an opportunity to cross-examine.
Now moving forward, considering this question, I will have to
call your attention to what? Rule 115, rights of the accused,
Sec. 1(f) if I’m accurate, a testimony, not a deposition, taken in
another judicial or administrative proceeding, tingnan nyo
class, administrative proceeding can only be used if the
witness is dead or unavailable to testify. Again, there is a
requirement that the accused should have been or the witness
137
should have been subject to cross-examination or at the very Let us now move on to the next point. I think my hanging
least, there was an opportunity to cross-examine. question was “why do you serve request for admission to
the other party, to obtain an admission on the due
In fact class, to be very strict about it, in criminal cases, a
execution and genuineness of a document?” dapat class
deposition taken in another proceeding as in Rule 130, Sec.
based on my discussion of pre-trial yesterday, you should be
47 does not apply in Rule 115, Sec. 1, nakuha nyo class?
able to answer that question. Why do you want an admission?
Yung deposition walang halaga yon, yung, this one? (picks up
If that document is admitted, that becomes a judicial
a paper form desk) wala to, yung deposition ito lang (points at
admission, “so sir? Obvious naman yon,” you don’t need to
the board), pwede ka lang pumasok dito class, pag pumasok
authenticate it anymore in court because that document
ka dito sa criminal case, pwede ka, nakuha nyo ko class? And
becomes a common document. I keep on echoing
this will only apply when there is what? Already a pending
authentication, you remember the provision on this? The
case, pag may information, sa madaling salita, kahit anong
provision on authentication, ito yung mga tipo ng mga
ginawang affidavit ni Mayor Espinosa wala na halaga yon,
provision na patapos na yung evidence kaya pwede hindi na
kaya nga class pinapatay ang testigo dito eh, class ganun lang
rin makita, ah hindi, totoo yun class, it’s in Secs. 19-33 of Rule
kasimple yon, and that is really lacking in the provision of the 132, briefly lang, para mabigyan ko kayo ng idea, para hindi
law.
lang ako nagsasabing authentication, let me give you an idea.
I won’t mention names, but I was talking to a congressman Under our Rules there are only two kinds of documents:
and I was telling them that is the gap in the law, sabi ko eh yan
1. public; and
ang gap ng batas, kasi dito hangga’t di sumasampa yung kaso
2. private, the rest are private
sa husgado, nakita nyo class? Hangga’t di yan naisasampa,
pag namatay ang testigo, useless kahit anong affidavit yan, Do you authenticate a public document? Ordinarily a public
useless yan, walang halaga yon, sabi nya “oo nga, maganda document is self-authenticating, all you need to present in
yan ano ah,” sabi nya ano, sabi ko “oo kailangan gumawa court is a certified true copy. That’s the general understanding
kayo ng batas ng ganyan,” sabi nya “sige igawin mo na, pakii of it, hindi ko lang madiscuss kasi covered na yan ng ibang
draft mo na, tapos kukunin kitang resource person,” pero class subject eh, mahahaba, pero yun ang tandaan nyo.
kulang, hindi ko rin alam kung may time akong gawin, pero
yun yung kulang. It’s good that you raised this question, On a private document class, a private document will have to
besides, let me address the question also, o let me direct the be authenticated, not through a certified true copy, but
question on the matter of the affidavit; an affidavit, based on a through:
long line of cases, is hearsay, it has no value in court unless it
1. By someone who has seen you write; and
was subjected to what? Cross-examination or there was an
2. someone who can authenticate the genuineness of
opportunity to cross-examine, baka nga naman itanong sa bar
your handwriting
yon, hindi totoo maganda yon kasi Espinosa eh, pwede
itanong yon.

138
TANNER NOTES
that’s the way to do it, do you follow? Ngayon, pag inadmit mo v. Court of Appeals (G.R. No. 153034, September 20, 2005),
yon, pareho na tayo, tama? Hindi na natin kailangan dumaan bigyan ko kayo ng idea, class dito, okay? Kung dineny na
sa process of authentication, most especially if it’s a private minsan, let’s say “sir, what do you mean dineny na minsan?”
document, are we clear? Okay now let’s move on, so yun ang there was an answer, the paragraph or the matter subject or
request for admission. the fact subject of the request for admission has been denied
in the answer, sabi “paragraph 4 is denied, paragraph 8 is
Now let us paint this picture, ganito, nirequest ko for admission
denied,” do you follow? Then nagpadala pa ng request for
si Mr. A, sabi ko nagpadala ako ng request for admission, sabi
admission, do you need to deny? Not anymore, based on
ko “could you please admit the deed of absolute sale that we
jurisprudence, based on the case of DBP, bakit? That has
executed,” sabi ni Mr. A, “Ayoko/Denied,” anong nangyari?
been previously denied, kaya lang class in practice, as a side
Because of his denial, I need to prove it, correct? And I
note, this is my recommendation, pag nakatanggap kayo ng
suffered cost to prove it. if I’m eventually able to prove it, who
ganun kahit dineny nyo, mag oppose ka, kaya nga umabot sa
will suffer the cost of production of proving the same? Mr. A,
Supreme Court to eh nakita nyo? Kaya natin pinagaaralan eh;
consequence yan ah, nasa provision ng batas, that is in Rule
kasi the other party assumed na pwede na yun, so ako as a
29, take note the consequences of non-compliance. So I will side note, once you become lawyers if you receive a request
repeat, nirequest ko sya for admission, wala syang magawa
for admission, oppose, kung hindi naman eh di deny mo, do
deny lang, sabi nya “bakit ko admitin yan?,” because of that I
you follow? Although for bar purposes, if it has been previously
had to suffer cost for its production, then I was successful in
denied, you don’t need to deny it again, do you follow? And
proving it, who will shoulder the cost? He will have to pay.
that will not lead to an implied admission.
Now, let me give you another thing, class, two more points on
Another thing, the case of Sime Darby (this could be a
request for admission. Please bear in mind that you have to
mistake, this is probably DBP v. CA), matters of law cannot be
answer or to oppose within a period of 15 days, correct?
subject of a request for admission, okay? matters of law
Failure to react would mean an implied admission. Take note
cannot be subject of a request for admission, what else?
ha, di ka kumibo, nakatanggap ka ng request for admission, di
mo naalalang pinagaralan sa school yon, so wala kang kibo, 1. Matters of law; and
implied admission yon class, okay? That is an implied 2. Opinions,
admission. You will have to respond, whether to oppose or to
admit, if you keep quiet that amounts to an implied admission. hindi pwede, opinion mo yon ipapaadmit mo, okay? That was
cited in the case of DBP v. Court of Appeals, the subject of the
Now second, another point class, matters which have been request for admission was a matter of opinion, a matter of law,
previously denied can no longer be subject of a request for can’t be subject of request for admission.
admission, okay ha? There are number of cases of this nature
class, the case of Sime Darby (Sime Darby Employees v.
NLRC, G.R. No. 148021, December 6, 2006); the case of DBP

139
TANNER NOTES
Now, let us now move on to my last example. Maliwanag na
sa inyo request for admission? please bear in mind that the
request for admission is directed to the adverse party.
Case: Despalidares
Okay last point, the case of Despalidares (see Manzano v.
Despabiladeras, G.R. No. 148786, December 16, 2004),
okay? Anong nangyari dito sa kaso ng Despalidares? Ganito,
imaginein nyo kahapon may example ako pre-trial, pre-trial
ngayon, ako yung judge, andito yung dalawang party (points in
front), o sabi ko “are you ready with your documents?” (while
pointing at one of the parties), sabi “ready na po ako,” o ikaw
are you ready? (while pointing at the other party), sabi “Yes
your honor I’m ready but the list of equipment that I need to
submit in court is not complete,” sabi ni judge, “do you want to
complete it?” sabi nya “yes, your honor,” sabi ni judge, “okay,
I’ll give you time, reasonable time to complete it, and subject to
the comment of the other party,” do you follow?
So, after the pre-trial, she was given time, a number of days,
around 10 days if I recall accurately, to submit her list of
equipment, but instead of simply submitting her list of
equipment what did she do? Gumawa sya ng request for
admission, okay? The directive of the judge was for her to
prepare a list, which she committed to submit during pre-trial,
right? But instead of that, she prepared a request for
admission, serving it upon the other party, what did the other
party do? The other party ignored, kasi wala sa usapan yon eh
di ba? Ang usapan magsusubmit sya ng listahan, ginawa nya
nag prepare sya ng request for admission, nung natanggap
nung kabila inignore na; yan ang question, can the failure of
the other party to respond to the request for admission be
treated as an implied admission? The answer is Yes,
tandaan nyo yan, basta may request for admission kahit na
TANNER NOTES
hiningi ng husgado, hindi naman kailangan hingiin ng husgado
yon eh, okay? That is the choice of a party, in fact class take
note of this, I don’t know if you are aware of this, under the
guidelines of pre-trial and modes of discovery today, that is
2004 guidelines, the judge, after the issuance of the summons,
should issue an order requiring the parties to avail of modes of
discovery, okay? Ganon yon, basahin nyo yung 2004
Guidelines, pagkalabas ng summons, duty ng judge to issue
an order requiring the parties to avail of Rule 23, Rule 25, Rule
26, Rule 27, why? Because they are now promoting the use of
modes of discovery, okay? Iwan ko na yan,
Bago pala ako mag start ng 27 class, just a few additional
questions; class, let us say that a party dies, as we’ve
discussed in Rule 3, Sec. 16 no? namatay ang party mo, pero
may deposition na previously nakuha, not of the deceased
party but in connection with that case, depositions were
already taken, what happens to the depositions? Will the
depositions be rendered useless by reason of the
substitution? The answer is No, the depositions previously
taken will remain, the fact of substitution will not affect the
depositions previously taken.
Question class, I took the deposition of Mr. X, am I bound to
present Mr. X as my witness? Kinuha ko yung deposition ni
Mr. X, ni Ms. Y, Ms. Z, am I bound to take the deposition?
Am I bound to present him as my witness? The answer is
No, the fact of taking does not compel me to present him as
my witness, maliwanag? But the very moment I use the
deposition, that’s open to the examination of the parties. So
kunwari meron deposition, nagpresent ako ng portion ng
deposition, ah the entire deposition can be examined by the
other party, so there is a difference between just taking, and
the difference between use.
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 RULE 27
Now, let us now move on to Rule 27, okay? Madali lang di ba?
Madali lang to class, ang medyo nagreresist kayo don sa 23 di
ba? Parang napansin ko sa inyo parang ang bigat ng ano nyo
sa 23, nung nag 26 parang nagising kayo, nung 23 parang
ang bigat, class madali lang yong 23; alam nyo I recall ano,
after the bar exams, the following day I was lecturing in a
school, pinuntahan ako nung isang istudyante, sabi nya “okay
ang deposition,” kasi yung first few questions deposition eh,
sabi nya “okay sir, kuha ko.” Class ito, easily, mag tanong sila
ng dalawang tanong, 3 points, 4 points, saying rin eh di ba?
And a very knowledgeable examiner will ask questions on this,
so dapat alam nyo yung minimum.
Now, let’s now move on to Rule 27 – Production or Inspection
of Books, Papers, and Documents. Class ang gusto kong
tandaan ninyo isang section lang ito, tama? Isang section lang
yan di ba? But that section is divided into two parts, dalawa
yan, yung unang part nyan:
A. production of books, papers, and documents
B. To order entry upon designated land or other property
for the purpose of inspecting, measuring, and
surveying or photographing the property or designated
areas.
Now, ipapartner natin sa Writ of Amparo, may kapartner ba
sa Writ of Amparo yan? Yes, may partner yan sa Writ of
Amparo, ang kapartner ng production sa Writ of Amparo is
production order, okay? Books, papers, and documents, the
same! May kapartner ba yung entry, which is the second
part of Rule 27, in Amparo? Yes, ang tawag dun inspection
order, okay? Inspection order.
TANNER NOTES
Now, in the counter-part provisions in the Writ of Amparo,
whether it be a production order or inspection order, it should
be applied for by a party, unlike a protection order/temporary
protection order and the witness protection, the court can motu
proprio grant it or motu proprio allow it without an application,
but it could also be upon motion. So hanggang doon muna
ako, so nakita nyo kapartner? Production sa Rule 27 of books,
papers, and documents, the equivalent in Writ of Amparo is
production order; in Rule 27 you could enter into the premises,
the equivalent in Writ of Amparo is inspection order, and take
note of this, if you are able to secure and inspection order in a
petition for writ of amparo, that has only an effectivity of
how many days? That only has the effectivity of 5 days, after
5 days it expires. Kasi that involves entry into the premises e,
that affects privacy. So if ever you are able to get it under the
rules of writ of amparo, the effective life is only 5 days, after
that it expires.
Now, ngayon na alam nyo yung basic na yon, sir, bakit
naman ako magaaply ng production of books, papers and
documents? E baka gusto mong makita? Remember that
this is just a mode of discovery. When you apply for production
of books, paper and documents, you are allowed to examine;
you are allowed to read. You are allowed to what? Discover.
But that doesn’t mean that if you applied for its production, you
are compelled to present them in court as evidence. That
leads me to a distinction between a motion from production
from a subpoena duces tecum. Ayan, iccompare natin. Ang
production of books, papers, and documents or inspection of
things. Rule 27 on one end and subpoena duces tecum on the
other.
On rule 27, it is a mode of discovery. In subpoena duces
tecum, it is a means of compelling the production of evidence.
This is to compel production of evidence. In rule 27, the rules
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are limited to the parties to the action. So pwede kang magpa-
produce sa mga parties lang sa action. Sa subpoena duces
tecum, aba kahit sino, party ka o hindi pwede kang subject to
a subpoena duces tecum. In rule 27, it could be applied for
before and or during trial. So bago magtrial pwede kang
magpa-production of books. Papers and documents. Before
trial, during trial, pwede ka ding humingi non. Now, however,
subpoena can only be asked for during trial.
Remember my discussion in Chan v. Chan? When there was
a request to present the medical records, the SC did not allow.
The SC said sandali, walang pang trial, bat mo kinukuha?
Kung production yon of books, papers and documents, that’s
priviledged sabi ng court. Kita nyo ung comparison? Sabi nga
that’s priviledged. Pero ngayon hinihingi mo wala pang trial e.
sabi ng court, premature. The last distinction is the order under
this rule 27, is issued only upon motion with notice to the other
party. Unlike a subpoena duces tecum, it can be issued upon
even ex parte.
My last point before I leave 27. Tandaan nyo sa production of
books, papers and documents, you file a motion with notice,
diba? In subpoena, you specifically apply for a motion for the
issuance of subpoena duces tecum. Paano kung
nakatanggap ka ng ganito, a notice to produce? Pano kaya
yun? This will be my last discussion point on rule 27. Class
when you receive a notice to produce, it may be a preliminary
to a presentation of a secondary evidence because the
document is in the custody of the adverse party. So, if you’re
the adverse party, you receive a notice to produce, chances
are they will present secondary evidence. Why? Because they
do not have a copy of the document. They send to you a
notice to produce.
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Now, under the provision of the rules on evidence, what are
the requirements to present secondary evidence if the
document is under the custody of the adverse party?
1. You have to establish existence,
2. the fact of its execution,
3. the fact that there is a notice to produce, and
4. despite a notice to produce there was a refusal to
produce.
Then you can now present what you call the secondary
evidence. So hindi na original ip-presenta mo, secondary na,
which is what? A copy of the document, recital in some
authentic document, and testimony. And please take note that
it is in that order. Hindi pwedeng mauna yung testimony, hindi
pwede. Copy, recital in some authentic document, and number
3, the testimony of witnesses.
RULE 28
So 28 na tayo. Physical and mental examination. When is this
applicable? Sir, kelan ba? Pwede ba akong mag-apply ng
motion for mental examination before action? Hindi. Class,
there should be a pending action. Ok? Hindi mo pwe-pwedeng
pag-aralan ko muna, mag-apply ako ng motion for mental
examination. Di pwede. There should be a pending action.
Number 2, you could only apply for this if the mental or
physical condition is in controversy. Tandaan nyo un class a.
hindi pwe-pwedeng file-an kita ng specific performance,
motion for mental examination. Di pwede. Class di pwede yon.
Natatawa kayo, im just doing it on the extreme para maalala
nyo. In an action for guardianship, appointment of a
guardian - can I apply for a mental or physical
examination? Yes. Or let us say, in an action for nullity of
marriage, class kaya lang in an action for nullity of marriage,
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you don’t need to have a pending action. Before the filing of
the action, there should have been clinical testing because
when you file the petition for nullity, the result of the clinical
testing should have already been appended to the petition. So
yung mga ganong instances, as I mentioned, guardianship, or
let us say, there is a custody fight. That even if the child is
already more than 7 but there was a question on the mental
capacity of the child, let us say nung bata medyo slightly
mentally retardate, then you ask for what in a custody battle?
A mental examination.
Now, let us look at this. What are the requisites to obtain an
order for examination?
1. a motion must be filed for physical or mental
examination.
2. the motion must show good cause.
3. the notice to the party to be examined and to all
parties.
4. the motion shall specify the time, the place, the
manner, conditions and scope of the examination, and
the person or persons to whom it is made.
Note: an order to submit to a physical examination is
an interlocutory order, and for that reason it is not
appealable.
May last point, there is a provision in section 4 on waiver.
Nakita nyo un class? Imaginin nyo class, ako ung ineexamine.
There was a request to examine my mental condition. The
other party applied. How does the waiver apply? If I’m the
person examined, I requested a copy. Nakita nyo? Inexamine
ako ng kabilang party, pinaexamine ako. Sabi ko pahingi nga
akong kopya. Please bear this in mind, the very moment I
request a copy of the examination results, I waived the
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privilege. The privilege on my previous or subsequent physical
examination. Uulitin ko. Inexamine ako. Sabi, pa-examine nyo
yang si atty Salvador. Yung mental condition nyan. Nanghingi
ako, “pahingi ako kopya”. I requested. He provided me with a
copy. That act of requesting and he is providing me with a
copy, waives the privilege. What privilege? Doctor-patient, on
all my previous mental examination, and all my subsequent
mental examination. Meaning, the other party whose
concerned about my mental examination, can now request
copies of my other examinations. Ganon yon. So dito baka
pwedeng magisip ka kung manghihingi ka ng kopya. Because
the very moment that you asked for a copy, it waives your
privilege. My other examinations in the past can be examined,
or the other party can ask for it. My subsequent examinations,
he can ask for it.
Now if he asked, and I refused to provide. Humihingi ako sa
kanya e, diba? Kasi ang lumalabas dito parang reciprocal e.
do you follow? I requested, he could request. Kung ayaw
mong mahingan, wag ka mang- hingi. ayaw mo pala
magprovide e, wag kang mang-hingi. But the very moment I
asked, he could ask. Now, if I asked and he provided, then
he asked for my previous and subsequent examinations,
and I refused. What happens? In the event I’m able to
produce any of my doctors in connection with my mental
examination, that testimony is inadmissible. Because I refused
to provide the other party with copies of my previous
examination or subsequent examination.
RULE 29
Dito na tayo sa 29. Rule 29 class is not a deposition. Rule 29
is not a mode of discovery ha. Tandaan nyo yon ha. Ano to?
Consequences of non-compliance. Ibig sabihin ano
mangyayari sayo pag di ka sumunod, diba? Ngayon class very
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simple, sabi sec 1, ayoko sumagot. There was a refusal to
answer questions. Ano mangyayari? Pwede bang dismissed
agad ung kaso? Look at this ha, under section 3, I think
subsection c, makikita mo don that the court can order the
dismissal pag plaintiff, or declare you in default. Maliwanag
yon. Automatic ba yon? The answer is no.
Before the court will implement the serious consequences if
there is a refusal to answer, the requirement of law (sec 1 and
requirement of jurisprudence is what? To apply in court for an
order to compel to answer.) So pag tinanong kayo sa bar, pag
di sumagot, dismiss ang kaso. Wrong! Di sumagot, default ang
defendant. Wrong! Di pwede. You have to secure an order to
compel to answer. After securing an order to compel an
answer, there is no answer, yan pwede na. pwede mo nang
pa-dismiss yan pag plaintiff. Pwede mo nang pa declare in
default pag defendant, or pwede the allegations can be
stricken off. Ayaw mong sumagot e. or it could be stricken off
because of your refusal to produce documents, your refusal to
answer.
When is an order to compel to answer availed of? Under
what condition pwede akong mag-apply ng order?
1. if the party or the deponent refuses to answer any
question upon oral examination.
Oral ha, ayaw sumagot orally ng tanong, you can
apply for an order to compel.
2. a party or a witness refuses to answer any
interrogatories submitted under rule 23 or 25.
Where is the venue? Where will you get the order? from
the court of the place where the deposition is being taken. If
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the deposition is being taken before the court where the action
is pending, secure an order from that court.
Next one, when is a party or his counsel required to pay
the amount of reasonable expenses? Kelan kelangan
pagbayarin ung abogado at ung party? If there is a refusal
and because of that the other party was compelled to secure
an order or when it is later established that a person insisting
an answer to the question has no sufficient basis, so either
party could apply for what? Compensation.
Now, let me ask you this question. Can a refusing party or a
party refusing to answer be cited for contempt? Yes,
section 2 ah! Section 2 ah may contempt din dito. Ayaw
sumagot, contempt. Let us now look at the other
consequences. Tandaan niyo class toh sa section 3. Lahat
yan simula sa order. Order to strike out, order directing to
answer, order to produce, order to submit. Nakita niyo? So
please bear in mind that you can apply for order. Under what
conditions?
1. If a party fails to serve an answer to interrogatories. Di
siya sumagot sa interrogatories under rule 25 or
2. fails to appear before an officer to take deposition.
Those are the two. How about if the party refuses to obey?
He could also suffer the consequences. If he refuses an order
directing him to answer, order to produce under rule 27 or an
order to submit to physical and mental examination. But
please bear in mind, take note ah, under section 3, anong
tatandaan mo. They could only issue a warrant of arrest. You
can also be arrested under section 3. Look at the last
subsection. So ayaw mo sumagot? Pwede ka paaresto.
Tandaan niyo yan. Ayaw mo patake ng deposition? Pwede ka
paaresto. Eh class, ayaw mag submit to phyicial and mental
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exam, pwede paaresto? NO! Exception yun ah okay. Wag mo
pakulong. May problema na nga papakulong mo pa. So
remember pwede ka pakulong for failure to comply except sa
physical and mental examination.
Now please bear this in mind, if you fail to comply with the
orders of the court, your cause could be dismissed if you are
the plaintiff. If you’re the defendant you can be declared in
default, you may not be allowed to support your claims or the
facts of your case. Now I think I have covered everything I
need to cover for Rules 23-29. Okay now let us move on to
Rule. Ay teka bago ko makalimutan. Importante eto, the
Gateway case on Rule 27. Just like in a subpoena, a motion
for production for books, papers and documents must be
established that it is relevant and must have a reasonable
description of the books, papers, and documents that you want
produced. Okay let’s move on to rule 30.
RULE 30
TRIAL
Ano ba yang rule 30? Trial. Okay rule 30. We have to highlight
a few points sa rule 30. Okay, I want you to bear this in mind.
When you study this, dapat holistic na toh. You have to read
this in relation to Rule 132 sections 1-18. Bakit? Irurundown ko
sainyo bakit. Section 132 tackles oath and affirmation,
recording of proceedings in court, questions that you could ask
a witness, examination of a witness, direct cross and redirect
and recross. You will not find that in rule 30. Then you will
have a recall of a witness, leading and misleading questions.
Oh diba. It also covers how to impeach, diniscuss ko kanina. It
also covers who is an adverse party witness and who is a
hostile witness. Nakita niyo? Ano pa? Impeachment of witness
Nakita niyo. Section 14. And to refresh by reason of
memorandum. Section 16. Present recollection revived. Past
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recollection recorded Nakita niyo? Plus yung diniscuss ko
kanina Secion 17.
Pag tinignan niyo rule 30 and nipis nipis. Tignan niyo. Notice
of trial, second, postponement. Bangitin ko lang mga
importante ah. Ano kasunod na importante. Order of
presentation of evidence. It did not even mention direct, cross,
redirect, recross. The next one is what? Section 7? Statement
of the judges is recorded by the stenographer. That is in
relation to rule 132. And what else do you have. Statement of
facts, agreement of facts. And finally matters that could be
delegated to the clerk of court. So class pag inaral niyo yan,
kailangan buo! Nakita niyo class? Kailangan nakakabit rule 30
sa rule 132. In fact pag inaral niyo 119, which is trial in criminal
procedure, kailangan din nakakabit yan dun. Di pwpwedeng
isolated yun so your understanding of the law is complete and
easy. I’ll do it ah you just have to be patient with me. Para
pasok yun
Recording of proceedings
Unang nating paguusapan is this, all proceedings in court are
recorded. Nakalagay yan sa rule 132 section 2 at nakalagay
din sa section 7 ng rule 30. Nakalgay sa rule 30 na all
statements of the judge is recorded. Okay? Sa rule 132 says
that the primary way of recording is by stenographic note or
stenography or in the alternative by steno typing. So alam mo
na yun. Basta may nagbukas ng bibig sa court, recorded yun.
Alam yan ng mga nagtrtrabaho sa husgado. Basta ngumanga
ka palang recorded na basta may sound. Naalala ko pag ayaw
ko marecord, sasabihin ko. Sabi ni judge set ng dates ah, so
sabi ko okay. Eh dala ko hearing ng calendar of hearings, eh
di ko alam schedule of lectures ko. So sabi ni judge, oh are
you available on this date? Sabi ko yes judge im available.
How about on this date on September? Sasagot na ako pero
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ayoko marecord so sabi ko “Your honor off the record” sabi
niya why? Baka kasi sabi ko may lecture ako nun kasi bar
review. So wala sa record yun.
Pero generally ba basta ng lahat ng sinabi mo kepanget ke
maganda nakarecord yun. You follow? Baka kala niyo
nirerecord lang yung examination ng testigo? No. Everything is
recorded. So if you want to validate anything you can just
apply for a transcript of stenographic notes. Kaya nga lang
yung mga stenographer alam nila yung party na magbabayad
for stenographic notes at sino hindi. Pero they have to prepare
it whether or not huminga ka most especially in criminal cases.
Part of the record yun when records are elevated. Maliwanag
ah. So trial. You’ll be surprised class that you know this. I’m
just calling your attention on the provisions.
Presentation of evidence
Second, order of presentation of evidence. Ayoko unahin
postponement alam ko master niyo na yan. Now, let me
discuss order of presentation. Who should present first?
Plaintiff. Who should present thereafter? Defendant. Then
third party plaintiff. Third party defendant. 4TH party plaintiff, 4th
party defendant. Are we clear. Ganun yun.
Now, If you read rule 30 walang nakalagay on how witnesses
will be examined napansin niyo? Wala. Because it is in rule
132. Now ill walk you through it very briefly. Kasi useless na
marecall niyo order if not in relation to rule 132. What’s the
order of examination of witness? A witness is examined in this
manner. One witness, direct examination or examination in
chieg. You follow? That witness will be subject to a cross
exam by the counsel of the opposing party. And that is when
the conunsel of the opposing party in accordance to section 5
of rule 132 can conduct or can test his truthfulness and
veracity of his statement and also elicit information. But I never
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recommend eliciting information of cross examination? Bakit?
Wag mo tanungin ng what, how, and ask him to narrate.
Delikado yun on cross.
So next sa cross is redirect and recross. Okay na yun. So
there’s one thing I would like you to take note of. Under the
present rules, under the Judicial affidavit rule. In all civil cases,
there is submission of judicial affidavit in lieu of direct
examination. In all civil cases, whether mtc rtc yan. Judicial
affidavit basta civil. Wala ng oral direct examination in civil
cases. Okay. Eh criminal? Listen to this. Tandaan niyo to.
Yung isa kong hearing sa rtc. Pag criminal ba sa rtc
mandatory pa rin judicial affidavit? Hindi. Okay kwkwento
ko isa kong hearing para maalala niyo pag tinanong sa bar.
Okay may criminal case ako sa rtc. Sabi ni judge, judicial
affidavit tayo. I said “Your honor, I submitted a manifestation
before the hearing, that I am not willing to submit judicial
affidavits. I being counsel of the accused, am not consenting
to judicial affidavits” Class can I do that? Yes. Okay. Because
under the rules if it is a criminal case under the RTC an
accused is not compelled to submit judicial affidavits. He can
only be compelled to submit judicial affidavits if he consents.
Sabi ko di ako coconsent eh. Why? Ako akusado eh. Gusto ko
maginit yung pwet nung testigo niya sa witness stand. Bakit
ko papadaliin buhay niya. Gusto ko Makita if nagsasabi siya
ng totoo. Sabi ni judge wala tayo magagawa diyan gusto ng
akusado eh. Okay?
Pag kayo akusado sa rtc wag kayo papayag dahil lang mas
convenient. Hayaan niyo mangamote yung prosecution. Bakit
mo papadaliin buhay niya? Edi mabilis din conviction ng client
mo. Kasi gusto mo mabilis eh edi mabilis conviction ng client
mo. Mabilis gumawa ng judicial affidavit if walang pressure
class. Kaya nga mas attestation sa taas ng judicial affidavit na
the witness was not coached. Ang totoo naguusap yan
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nagcocoach yan. That is just to highlight the point that in RTC,
Crimincal cases, no judicial affidavit unless accused consents.
In the MTC, crim or civil, judicial affidavit. Okay clear?
What if it is in the RTC and only the civil aspect of the
case? There can be submission of judicial affidavit okay since
it is only the civil aspect.
Now alam niyo na yung examination, and order of
presentation. Now tanong, naterminate yung testigo. Ano sabi
sa section 3 of rule 132? The witness can only be retained or
only be engaged to testify as long as he is needed to testify.
After that his presence may be terminated. Ganun yun. So if a
testimony cannot be completed on a day certain, let’s say di
siya natapos today. So rereset ni judge to a date. Now come
that date, is the witness available today. Sabi ni lawyer yes.
What now will the judge say? Okay proceed under the same
oath. You don’t need to place him on oath again. Under the
same oath. That provision is very simple okay. And mas
naiintindihan yan ng mga nagtrtrabaho sa court. Now can you
recall a witness? After he has been terminated. Yes subject
to the discretion of the court. Tapos na siya mag direct cross
redirect recross tapos na terminate na yung attendance niya.
Ngayon na realize ng party kulang. Can he be recalled? Yes
subject to the discretion of the court. Okay clear.
Postponement
Okay so na discuss na recording, order of presentation in
relation to examination of witnesses. My next point.
Postponement. Yan. In our rules class there are only two
grounds for a postponement:
1. Illness or sickness of counsel or Illness of sickness of
party.
TANNER NOTES
Tandaan niya OR ah. So the counsel can be sick or the
party. What are the requisites?
a. the nature of the sickness would render his
absence excusable
b. the attendance of the party or counsel is
indispensable.
Ibig sabihin class kailangan yung abogado or testigo sa
araw nay un. Kung di naman siya kailangan okay lang
na absent ka. For example the party is not being
presented as a witness, she is absent, that’s okay.
Alam niyo na dapat excusable. Master niyo na yan.
Ginagamit niyo yan sa school diba? Sir absent ako kasi
ganito ganyan. To give you an example: sore eyes.
Yan. Tanungin niyo nagtratrabaho sa court. Ano pa.
Basta mga contagious. Chicken pox. Attorney wag ka
na dumating okay lang sabihin naming kay judge.
Beke. Mumps basta yung mga yan. Sir papano heart
attack? Malamang di ka na makgawang extension nun.
Malamang natural.
2. absence of evidence.
Remember the wording of the law is generic. It just
says evidence. It doesn’t say documentary or a witness
or an object. The law says absence of evidence. So
any type of evidence. Walang document, testigo,
object. Kanselado! Okay. What are the requisites.
a. that the evidence is material and relevant and that
the evidence is necessary for the court to render
valid judgement. Kung di naman pala kailangan
bakit pa natin kakansela.
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 b. there must have been earnest efforts to look for
such evidence. It should appear to the court that
you made earnest efforts.
Note: However, if you read the provision of
carefully, the hearing can proceed even in the
absence of an evidence if the party admits of the
facts in support of such evidence. In such case the
hearing will continue subject to the presentation of
such particular evidence and the other party is
given the right to question such evidence when it
gets to be presented. So in such instances, the
hearing can proceed.
Case: Hophong Hardware vs. Philippine Company (Court
denied postponement):
Class nangyari ditto, si attorney, the excuse of the party was
her daughter was giving birth. So in short the party’s
grandchild. So sabi niya hindi ako pwpwede. Ay hindi pala si
lawyer pala yung may anak na mangnganak so gusto niya
andun siya. Tapos yung doktora na testigo niya, who
conducted the psychiatric evaluation was likewise out of the
country attending a convention. Sabi ni court, these are not
unavoidable and not unforeseen events. Okay so claim a
postponent, it is important that it is not unavoidable and one
that could not have been foreseen. Take note of such case.
Okay done with postpoments.
Judjement without trial
Let us move on to. Can the court render judgement without
trial? Okay yes. If there was an agreement of facts as
provided for in section 6 the court can render such judgement.
It can in fact be only a partial judgement or a full judgement. If
TANNER NOTES
parties agreed on facts therefore there are no longer facts in
controversy, the court can render judgement. Please bear in
mind under section 6 the court can require the parties to
submit their respective memoranda. You don’t need a trial
anymore since there are no facts in controversy walang
pinagaawayan. So what is left for the court to determine is the
matter of law. Only matters of law.
Let us now move on to my last point on rule 30. My last point
is can the power to hear the case be delegated by the
judge? Okay listen. Makakasagot nito mga nagtrtrabaho sa
court. Kasi ang provision class nasa last provision ng rule 30.
The rule is the judge should hear the case, but the judge can
delegate the reception of evidence to the clerk of court. In
what instance?
1. in default cases.
Wala naman kalaban. Sige clerk receive mo evidence.
Noong araw class nung wala pang judicial affidavit pag
sinabi ni judge delegate since default. So nagpresenta
ka ng evidence sa clerk of court. Pwede yun. Yun yung
last section. Sasabihin ng ibang clerk. Attorney para
wag na tayo magpresenta gawa ka nalang ng affidavit
kokopyahin nalang naming transcript. Ganun yun. Para
kokopyahin nalang naming wala ka namang kalaban
eh. Pero now mahirap na kasi may judicial affidavit na.
Okay so it is delegated.
Note: If there are objections the clerk cannot rule on
that. He can only make a notation. So if may objection,
si judge magdedecide hindi si clerk. Inonote lang ni
clerk. It will be recoreded but it cannot be resolved.
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 2. in ex parte proceedings.
Very common yan sa special proceedings ah. Example
land reg cases, no oppositor. After jurisdictional
requirements met sabihin ni judge okay delegate kay
clerk. You present to clerk. Si clerk submits a report to
judge tapos now the judge can now decide. You follow.
Ex parte proceedings and default proceedings. May isa
pa.
3. When the parties agree the matter can be delegated to
the clerk of court.
Question how about an adoption case? Can that be
delegated? No oppositors yan. NO! The Supreme Court has
categorically stated that adoption cases by reason of its public
policy nature cannot be delegated to the clerk of court for
reception of evidence. The SC has even issued an admin
matter on this point. So class ah bawal refer ang adoption
cases. So im done with rule 30. Alam niyo na yan. In relation
to rule 132. Class ah before I start with rule 131 eto lang gusto
ko tandaan niyo.
Meron ako di nadiscuss in relation to rule 132. Yung section
16. Importante yan bantayan niyo yan. Ano yun? Present
recollection revived and past recollection recorded. Ganda
pakingan noh. Ano ibig sabihin nun okay class. Ill explain very
briefly para lang maalala niyo then bahala na kayo. Ill help you
remember.
Imagine im the witness on stand sasabihin ng abogado. Your
honor can I ask my witness to go over this document to be
able to be refreshed. Under what condition can that be
allowed?
TANNER NOTES
1. he was the one who prepared the document or
2. the one who recorded it when it was still fresh in his
memory or
3. he was in custody of the ducoment.
Now kunwari Nakita na “Ahh okay naalala ko na”. Present
recollection revived. After I am refreshed I can now testify. The
evidence is the testimony, Yun ang ebidensya. So second
type. I recorded when it was still fresh in my mind or under my
custody or direction. Now it was presented to me. This is the
2nd type. Past recollection recorded. It was presented to mem I
read it, di ko maalala. Pero pirma ko toh. Akin toh eh. Past
recollection recorded. The evidene is not my testimony
because I have no recollection. The evidence is the document
itself. But this document should be accepted with caution
according to the rules. Yun lang yun class.
RULE 31
CONSOLIDATION OR SEVERANCE
Let us now move on to rule 31
Can cases be consolidated? Yes. Look at the provision. The
only standard provided by law is that there is common fact or
law. Okay it doesn’t say identical parties, or idental causes of
causes of action. Take note the law says common fact or law.
Illustration:
Kayo lahat nalapitan ng grupo ko. Ako yung president ng
kompanya na nagoofer ng interest of 50% over one year. So
may mga ahente ako. Tama? Nilapitan ka sabi invest ka lang
50, 000. Next year sabi babalik sayo 25,000. So 75,000.
Nilapitan pa isa. May pera ka 500,000 mas okay yan mas
Malaki. Next year 750,000 na yan. So iba ibang storya niyo.
Iba iba pera niyo. Iba iba rin paraan ng pagkumbensi sainyo.
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Okay pero ngayon yung pera niyo di na naming mabalik.
Pwede ba kami demanda? Yes. Pwede niyo kami idemanda
separately and all of those can be consolidated.
Remember the difference bet consolidation and joinder of
causes of action. In consolidation the cases are already
pending. In joinder of causes of action, you are still deciding to
join them in an action. Kaya yung common fact or law naririnig
niyo rin sa joinder of actions eh. In what? In permissive joinder
of parties. Tandaan niyo yan okay. Hindi yan class suit. Kasi
ang class suit of public or general interest. And they are so
numerous. Pero sir numerous din kami? Remember the
standard that I taught you last week pag class suit. If di niyo
matandaan dapat tandaan if may diversity. And second is
adequacy of representation.
Next question lahat ng kaso niyo nasa RTC QC. Where will
it be consolidated? This is not provided in law. This is an
administrative requirement. Okay, kahit sa court kahit sa
prosec kahit sa quasi judicial agency. It will be consolidated in
the court carrying the lowest court. Pag sinabing lowest
number, yun yung unang kaso finile. Example, 2017 ngayon.
Case 17-001 tapos may 17-002 and 17-003 so on and so
forth. Lahat yan aakyat sa una. It will be consolidated.
Case: Zulueta vs. Asia Brewery
Next question before cases. Can cases falling before
judicial stations be consolidated? Isa nasa qc isa nasa
baguio isa nasa iloiolo isa nasa baguio. Strictly speaking yes,
That has been answered by the Supreme Court in the case of
Zulueta vs Asia Brewery. That’s not a new case. In such case,
one was in the province one was in Makati. It involved a retail
agreement in connection with Asia Brewery Beers. Sabi ng
distributor, distrubtorship agreement. May breach daw of
agreement. Sabi ng asia brewery. Si distributor nagfile sa
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probinsya. So si asia brewery di nagpatalo sa Makati. Ano
ginawa ng court. Cinonsolidate sa makati
Case: Republic vs. Sandganbayan, Marcos et al (2011)
You have to remember is common fact or common law. I think
its time for me to give you the case of republic v
sandiganbayan, marcos et. al. this is a 2011 case. This is
illustrative of the types of consolidation. Meron doong
discussion ng deposition. Consolidation in relation to the
position. Pakinggan nyo to, tignan natin kung masasagot nyo.
It’s a long case but mab-bore kayo pag iisa-isahin ko.. ibibigay
ko lang facts.
FACTS: Ano ba nangyayari dito? Class mga forfeiture cases
against the marcoses. Ngayon, there was a consolidation for
purposes of trial. Take note a. consolidation for purposes of
trial or what you call quasi-consolidation. What is
contemplated under the rules of civil procedure, rule 31 is
what? Actual consolidation. When you have actual
consolidation in civil cases, they lose their separate identities,
they become one. Of course the numbers are there but they
become one. in this case of republic v. sandiganbayan.
Anong nangyari? Pinagconsolidate sila but only for purposes
of trial. Why is that significant? Kasi class dito, in another
case, sabi ng ano, uy ung deposition ni mr. xxx, ung
deposition nya pwede naming gamitin. The determination of
whether or not it is a quasi-consolidation, it’s an actual
consolidation, is important to be able to answer the question.
Bakit? Kasi kung may actual consolidation yan, they lose their
separate identity, the deposition in one case because of the
merger can be used in the other case. Isa nalang ung kaso e.
but in this case what happened is just a consolidation for
purposes of trial. So pinagsama lang sya para ma-hear ng
sabay sabay. One party wanted to use the deposition of xxx in
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one case and in the other case except that pinagsama nga sila
for trial lang. kinuha ung deposition sa kaso na to, gusto
gamitin sa kaso na ito. There is a joint trial.
HELD:
The question is can they use the deposition? The answer is
no. For them to be able to use the deposition here in this case,
in this other case, they will have to pass the standard of rule
130 sec 47. What is that?
1. That it involves a deposition or testimony taken in
another proceeding.
2. that the deponent or the witness is already dead, or not
available to testify.
3. it involves the same parties and subject matter.
4. Finally and more importantly, there should have been
an opportunity to cross-examine.
Not necessarily an actual cross examination but an
opportunity. You may not have availed of the right to cross-
examine, you were asked “o, you want to cross-examine?”.
You said no. that’s an opportunity already. The mere fact
alone that there is a consolidation for purposes of trial does
not mean that the deposition here can be used in this
particular case. No. unless you satisfy the requirements of rule
130, sec 47.
Please take note that in criminal cases, there is only
consolidation for purposes of trial. That is found in rule 119 sec
22 or sec 21. So class pag criminal cases a, kahit 10, 15, 20
counts, they don’t lose their separate identities because for
every information, one offense. You could be held liable for
each information. So hindi pwedeng magkaron ng
consolidation nag anon. kasi kada information, one offense.
Therefore, if there are 15 counts, yes there is one court but
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they are only consolidated for purposes of trial. You don’t have
a consolidation in criminal cases in the same manner as rule
31. Only a consolidation for purposes of trial.
Case: Megaland vs. CE Construction
Is consolidation a remedy if there is an allegation of forum
shopping? No. otherwise, every forum shopping could be
cured by consolidation. Consolidation is not a remedy.
Case: Roque vs. Magno
What is the standard when it comes to consolidation of a
collection or money claims? According to the court, in filing
2 separate actions of simple collection cases which were
ultimately found to revolve essentially around the same facts,
the court said that as soon as it became apparent that the 2
cases were inexorably linked, it became the duty of the
petitioners to seek a consolidation of the case before the trial
court. Therefore, there is no reason to oppose because there
is commonality of fact and there is commonality of law.
Separate trial
My last point is separate trial, that is left to the discretion of the
court. While there could be consolidation, there could be trial
on separate claims and that is left to the discretion of the court.
Case: Metropolitan Bank vs. Sandoval (2013)
Let us start us with a case on separate trial. This is the case of
Metropolitan Bank v. Sandoval, a 2013 case that says that the
general rule is really for a trial in a single case. It explained in
this case that the text of Sec 2 of Rule 31, grants to the trial
court the discretion to determine if a separate trial of any
claim, cross-claim, counterclaim, or third party complaint, or
any separate issue or number of claims should be held,
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provided that the exercise of that discretion is in furtherance of
convenience to avoid prejudice to a party. So in simple words
what am I telling you, it is purely the discretion of the court to
decide on whether or not there is a separate trial. The general
rule is a single trial because it will lessen delay, expense and
inconvenience. I will repeat. First point, a separate trial is left
at the sound discretion of the court and always does the court
exercise its discretion, it sound be in furtherance of
convenience or to avoid prejudice to a party.
Now, the general rule is a single trial because it will lessen
delay, expense and inconvenience to the parties and to the
court. But of course, in Metrobank, the court provided for
exceptions. What are the exceptions?
1. when there are extraordinary grounds for conducting a
separate trial of the issues.
2. when a separate trial will avoid prejudice.
3. when it will further convenience.
4. when a separate trial will promote justice.
5. when a separate trial will promote fair trial to all parties.
So class with this, take note of the exceptions but the
general rule is always to have a single trial. The decision to
conduct a separate trial is left purely to the discretion of the
courts. Ok?
Case: Santa Maria and Boza vs. Cleary (2016)
I mentioned a while ago and I think this is significant, the
Santa Maria and Boza v. Cleary, a 2016 case. There are a
number of points I would like to raise, but this is deposition.
This is a recent case. In this case, it stated that rule 23 sec 1
makes no distinction as to whose deposition is to be taken.
Whether he be a resident or a non resident, because in this
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case class, the oppositors to the application for deposition was
insisting that because he is a nonresident, his deposition
cannot be taken. So here, the court made a clear distinction
that there is no need to say that the party is a resident. The
law makes no distinction on whether or not he is a resident or
a nonresident. In simple words, once the answer is filed,
deposition can be taken upon notice. That’s the first.
Second, if you would recall a while ago, I mentioned to you the
limitations on the taking deposition. The limitations are that
you cannot do it in bad faith, you cannot do it to oppress,
annoy or embarrass, sec 16 and sec 18. In this case of Cleary,
that is referred to as a protective order. Sec 16 is a protective
order and according to this case, it may only be issued after
notice and for good cause. So you cannot just ask the court to
limit, to stop the taking of deposition, there should be what? An
order from the court, but that order can only be issued after
notice and for a good cause. Finally class, this case confirms
that deposition of a witness who is out of the Philippines can
be taken.
RULE 32
TRIAL BY COMMISSIONER
Let us now move on to Commissioners. What about
commissioners? Rule 32 is a general provision on
commissioners. Meaning any type of case can be referred to a
commissioner. Look at this, for as long as the parties agree.
Yan ang tandaan nyo ha. Basta nagkasundo ang parties, for
as long as the parties agree, any matter can be referred to a
commissioner. But if the parties do not agree, or if the parties
disagree, only 3 grounds could be subject to referral to a
commissioner:
1. when the records are long and voluminous.
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For example, there are so many invoices, delivery
receipts, that it would be very tedious for a judge to go
over each and every document. Now, you can refer
that to a commissioner.
2. if there are facts which are arising other than on
pleadings.
Meaning, these are facts arising on motions. You
could refer that to a commissioner.
3. there are facts which are necessary for the court to be
able to render a judgement.
Meaning, for the guidance of the court. All of these can
be referred to a commissioner.
Now, this provision on rule 32 is the general provision on
commissioner. Let me ask you this question, are there other
provisions of law where there is a provision on
commissioners? The answer is yes. There is a mandatory
provision in rule 67 on expropriation. Take note that that is a
mandatory provision. What do you mean by this? In
expropriation under rule 67 there are 2 stages : expropriation
stage and the determination of just compensation. The
determination of just compensation, per provision of rule 67,
there is a mandatory appointment of atleast 3 disinterested
commissioners. Maliwanag class?
There is another provision of law that recognizes appointment
of a commissioner. That is in judicial partition under rule 69.
But unlike rule 67, where appointment of a commissioner is
mandatory, in rule 69, appointment of commissioner not
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optional, but will only take place if the parties cannot agree.
What do you mean cannot agree? Remember that judicial
partition just like any action, will have to go through pre-trial,
and because it will have to go through pre-trial, the parties will
be asked to enter into an amicable settlement or a
compromise. Now, if they agree to partition the property, under
the terms under which they have agreed upon, then you don’t
need a commissioner. But if they disagree, it will be referred to
a commissioner.
Let’s see the difference between a clerk of court and a
commissioner. Remember a while ago, in rule 30, we
mentioned that the clerk of court can be appointed by the
judge to receive evidence. The judge can delegate the power t
receive evidence in certain cases like default cases, ex parte
proceedings, or when the parties stipulate.
Now, what’s the difference? A clerk of court cannot rule on
an objection. The commissioner, if within the order of
reference, can rule on the objection. The clerk of court cannot
determine the admissibility of evidence, the commissioner can
determine the admissibility of evidence if within the order of
reference. The clerk of court can issue a subpoena ad
testificandum ex parte but only the court can issue a subpona
duces tecum.
In commisioners, the commissioners can issue a subpoena
duces tecum or ad testificandum if within the order of
reference. Some of you might be interested in my statement “if
within the order of reference”. Take note. So what is the
importance of the order of reference? Because the
commissioner can only act if it is within the order of reference,
because that is the authority given by the court for the
commissioner to be able to act.
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Let me walk you through the boring process of appointment of
a commissioner. Kapareho lang yan ng rule 67. The
commissioner could conduct conferences and adjourn from
day to day. It is the duty of the commissioner to make a report
to the judge. Once the report is received by the clerk of court,
it is the duty of the clerk of court to serve copies of the same to
the parties. The parties are given 10 days to file their
comment. With or without their comment, the judge can do any
of the following:
a. the judge can accept the report,
b. reject the report,
c. recommit the report if di sya satisfied,
d. accept the portion and reject the rest
RULE 33
DEMURRER TO EVIDENCE
First, let us distinguish demurrer to evidence in civil cases and
demurrer to evidence in criminal cases. Unahin ko muna ung
sa civil.
Civil case
First question, when do you file demurrer to evidence in
civil cases? Yan pinaka-basic. Walang pupunta sa bar ng di
alam yan. Pag pre-week na, di mo pa alam yan, magisip isip
ka na. After the plaintiff has completed presentation of
evidence. As I have discussed yesterday, when is the
plaintiff considered to have complete his presentation of
evidence? Not after submission of formal offer of evidence,
but after the action of the judge on the formal offer of evidence
considering the comment of the other party. Even per
jurisprudence. Kaya nga lang very general yung nasa batas e,
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“after the plaintiff has completed the presentation of evidence”.
Pero ang totoo nyan, yung plaintiff magsu-submit yan ng
formal offer. Di pa don, wag ka muna mag-file. Di pa ina-
accept ng court. Then the defendant will be given a period to
comment on the formal offer, and the judge will resolve
whether or not to accept the evidence. If the judge accepts the
evidence, now is the time to file demurrer to evidence. That is
the same rule even in criminal cases. Ang kaibahan lang ng
konti ngayon, under the Judicial Affidavit Rule, it is already
oral. Therefore, there’s an offer of exhibit A, there is the
purpose and there is the ruling. There’s an offer of exhibit B,
the purpose, the ruling. Therefore, after today’s hearing, you
can already file your demurrer to evidence. Ganon na ngayon
kasi oral na, unless the records are so voluminous.
So alam nyo na ung period. Ang next question ko, sa civil ba,
kelangan mo ba ng leave of court? Do you need leave of
court in a civil demurrer to evidence? The answer is no.
Naalala ko yung kaso ko nung araw, when I was a new
lawyer……nagulat ako ung motion nya to be heard in a civil
case was a motion for leave to file demurrer to evidence
takang taka ako. Syempre fresh graduate ako, sabi ko ok ba
to? It would appear di nya alam ginagawa nya. Pero come to
think of it, having been in practice for quite sometime, motions
are wittingly or unwittingly filed, minsan sinasadya talaga nila
yon. Iba-iba motibo. Kapag nag-leave, ire-resolve pa yun,
that’s 90 days. If you want to delay. Ang sasabihin lang naman
ng judge, this is wrong! For purposes of the bar, is there leave
of court? No!
When a demurrer to evidence is filed, the outcome could either
be of the two:
1. granted; or
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 If it is granted, what is the effect? The case is
dismissed. It is a final disposition of the case and
therefore, the plaintiff can opt to appeal. Or maaaring
sang-ayon sya, pabayaan ko nalang. Or he could
decide to appeal.
2. denied.
If it is denied, is it a final disposition? No.
A denial does not dispose of the case. Therefore, there is
something else to be done. The case is still alive. Therefore, a
denial is an interlocutory order.
If it is denied, is it appealable? No.
If it is denied, you have the following options as a defendant:
1. Proceed to trial or present your own evidence;
2. You could file an MR; or
3. If MR is denied and it is tainted with grave abuse of
discretion, go back to Rule 65 (Note: will be compared
to criminal)
Going back to dismiss, who can file an appeal? Plaintiff.
If the case has been appealed, plaintiff elevated case in RTC
to CA, CA saw that RTC was mistaken, mali yung appreciation
sa dismissal of the case. Will the defendant still be allowed
to present the evidence? No. It is the special feature of Rule
33. The court can already render a judgment. In the event of a
reversal, judgment na yan, the defendant will not be allowed to
present evidence. Wala yan sa criminal.
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*Pag nakalimutan paliwanag: Pag nag file ka ng demurrer,
para kang mayabang. Kasi sinasabi mo ibinigay mo na pinaka
magandang suntok mo, di mo ko kaya itumba. BIgay mo na
pinamalakas mong ebidensya, di mo ko mapapatumba eh.
Hindi ka nga lang magpepresenta ng ebidensya sa baba,
therefore pag akyat ng records wala kang ebidensya, and
chances are if it is reversed, sino panalo? Plaintiff. Siya lang
may ebidensya eh”
Pano ang criminal case? Period to file demurrer to evidence
in criminal, this is Rule 119 Sec. 23, after the prosecution has
rested its case.
Is there a difference between “plaintiff has completed
presentation of evidence” from “plaintiff has rested its
case”? None.
When you say plaintiff has rested its case, he has submitted a
formal offer of evidence, the accused has commented and the
court issues an order accepting it. Will you file demurrer to
evidence or seek leave of court? Leave of court.
Is leave of court mandatory in criminal cases? No. But it is
highly recommended. Why is it highly recommended? If you
file demurrer to evidence, without leave of court, and if it is
denied, the court can already render judgment. If you file leave
of court, and denied, and then demurrer, there will be
judgment. If you seek leave of court, then you file, it is
denied, can you still present evidence? Yes. Note: 2005 or
2006 bar question, distinguish civil and criminal demurrer to
evidence.
Let us say, your demurrer to evidence in criminal cases is
denied. Can you file a petition for certiorari? No. The last
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line of Rule 119, Sec. 23, you cannot file a petition for
certiorari or an appeal until after the resolution of the case.
Can a demurrer to evidence be filed in a guardianship
proceeding? This was answered in the case of Oropeza vs
Oropeza (2012). Yes, the rules of ordinary civil actions have
suppletory application.
Can a denial of demurrer to evidence be appealable? No
(already answered).
What is the effect of a grant to demurrer to evidence? A
grant of demurrer to evidence in civil cases, dismissed. A grant
of demurrer to evidence in criminal cases, dismissal that
amounts to an acquittal. Will double jeopardy attach? Yes.
But in criminal procedure, if the dismissal is prompted or upon
motion of the accused, double jeopardy will not attach (general
rule). Some exceptions:
1. Demurrer to evidence
2. Speedy trial; and
3. Speedy disposition.
So if the accused files a motion to dismiss, and if it is
dismissed, it is only provisional. The case can still be revived
(subject to the exceptions above cited).
RULE 34JUDGMENT ON THE PLEADINGS
RULE 35 - SUMMARY JUDGMENTS
DISTINGUISH BETWEEN JUDGMENT ON THE PLEADINGS
AND SUMMARY JUDGMENTS
• When to file judgment on the pleadings and
summary judgment? For judgment on the pleadings,
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after an answer or responsive pleading has been filed.
Who files it? Only the plaintiff, generally. For summary
judgments, distinguish between who is filing:
o If it is the plaintiff filed for a summary judgment,
there should first be an answer.
o If it is the defendant filed for a summary
judgment, it could be filed anytime.
• For judgment on the pleadings, it is always complete.
There is no such thing as partial judgment on the
pleadings. It is the complete disposition of the cases.
For summary judgment, there is a partial summary
judgment and complete summary judgment.
• On judgment on the pleadings, the courts will only rely
on its pleadings and attachments. On summary
judgment, the court will not only rely on the
proceedings, but documents, affidavits and depositions
in deciding on whether or not to render a summary
judgment.
• As to Definition:
a. Judgment on the pleadings – the answer
does not tender an issue or otherwise admits
the material allegations of the complaint. For
remembrance, pag sinabing answer does not
tender an issue or otherwise admits the
material allegations of the complaint, inamin
ang cause of action
For example: May utang si A. Dinemanda si A, nag-pm
si A, nangako din siya na bayad na utang sa Jan 30,
2017 bayad na P500,000. Nagdemand letter ako sayo,
nakiusap ka, nagdemand letter ulit ako sayo, di mo na
inintindi. These are the material allegations of the
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 complaint for collection of sum of money. Sa sagot ng
kalaban, inamin niya lahat. Edi judgment on the
pleadings, walang nadispute eh. Pag sinabing the
answer does not tender an issue or otherwise admits
the material allegations of the complaint, you admitted
the cause of action, UNLESS you raise an affirmative
defense. In an affirmative defense, you have to
hypothetically admit the material allegations, but
despite admitting it, you will prevent or bar recovery.
BUT, if there is no affirmative defense, expect a
judgment on the pleadings.
Same set of facts, admitted all the allegations but in the
end, there is “in time I will be able to pay, business is
just bad”. Still, judgment on the pleadings.
b. Summary Judgment – there is no genuine
issue as to a material fact. When there is no
genuine issue, there is an issue but it is false. It
is sham.
For example: Same facts again, denied all the material
allegations, but it appears I wrote the father of the
creditor, pakitulungan niyo naman po ako dun sa utang
ko sa anak niyo. While it appears in the answer that
there is an issue, but the issue is a sham. In summary
judgment, you could deny it. It appears you made an
issue out of it, but then again there could be a
summary judgment if there are some other documents,
depositions, affidavits that can establish that indeed
you have liability. There is no genuine issue.
This is a decision of the court. There is a promissory
note, may utang na P2,000,000, ang problema, blank
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yung due date ng PN. May demand letter, hindi
binayaran, ngayon dinemanda. Defendant answered,
“Hindi pa due yan, blanko yung due date ng PN eh.”
There was a motion for judgment on the pleadings in
the RTC. The court granted the judgment on the
pleadings in favor of the pleadings, umakyat hanggang
SC. Tama ba si RTC na judgment on the pleadings
yun? No. It is summary judgment. There appears to be
an issue but the issue was sham. There is another
document that can show it is due, pero naiwang blanko
*if nalilito, balik sa definition. May issue ba? Pag may issue, is
it false or sham? Pag walang issue, judgment on the
pleadings.
Elland vs Garcia – It was a case for quieting of title. Nagfile
ng summary of judgment sa quieting of title. Petitioner argues
that summary judgment is not proper in an action for quieting
of title. Court said that, this particular argument is misplaced.
This court has already ruled that any action can be subject of
summary judgment, with the sole exceptions of actions for: (1)
annulment of marriage, (2) declaration of nullity, or (3) legal
separation. Proceeding to the main issue, the court finds that
the grant of summary judgment was not proper. The court
finds no reason for a summary judgment. A summary
judgment is permitted only if there is no genuine issue as to a
material fact, and the moving party is entitled to a judgment as
a matter of law.
*Considering here that there was an issue, there could
be no summary judgment. The policy of our courts,
consistent with the case of Smart Communications, the
court will shy away from a summary judgment for as
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 long as there appears to be a disputed issue.
Apparently, they pushed towards to trial.
In their motion for summary judgment, respondents failed to
clearly demonstrate the absence of a genuine issue of fact.
They merely reiterated their averments in the complaint for
quieting of title and opposed on issues raised in their answer
ad cautelam. Finally the court said in this case, the petitioner
was able to point out the genuine issues. A genuine issue is
an issue of fact that requires presentation of evidence as to
distinguish, according to this case, from a sham, fictitious,
contrived, or false claim.
*Example, meron studyante ditong male, may girlfriend sa
probinsya, sa kakapunta sa review, lagi niyang kasama yung
kareview, naisip niya na umuwi at tapusin na iyon. Pag-uwi
niya ng probinsya, sabi niya “ang hirap pala mag review ng
bar, pangarap ko talaga maging abogado. Mag break muna
tayo”. Is that a genuine issue? It’s a sham. Kung ikaw yung
babae sa probinsya, tapusin mon a yon. Dapat summary
judgment na (wag isagot sa bar).
RULE 36
JUDGMENT
AT this point, it should be clear on what is the difference
between a final judgment and an interlocutory order.
A final judgment is a final disposition of the case. There is
nothing else to be done, and for the reason that it is already, it
may be subject of an appeal. Final disposition
An interlocutory order is not a final judgment. It does not finally
dispose of the case, the case is still alive despite the issuance
of the order, and therefore the normal course should have
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been to proceed with the case until judgment, unless the
interlocutory order is tainted with grave abuse of discretion
A judgment, if not timely appealed or subjected to a timely
motion for reconsideration, will attain finality. Once it attains
finality, the court can issue an entry of judgment. Lalabas lang
ang entry of judgment kapag final and executory, parang pag
natodas ka, may death certificate ka na.
If it’s a judgment, a final judgment, you still have available
remedies. It doesn’t mean that if it is a judgement, there is
already an entry of judgement. An entry of judgement will only
kick in after the expiration of the reglementary period to appeal
or after it has been elevated to the SC. SC rendered a final
judgement, there was an MR, it was denied, after the lapse of
reglementary period, it becomes final and executory. Only then
will an entry of judgement be issued.
What’s the significance of entry of judgement? The entry
of judgement will tell you that the case is ready for execution.
The judgement contains a dispositive portion. The dispositive
portion is the portion that is enforced. May judgement,
natanggap mo. Yung dispositive portion ang nirereproduce sa
entry of judgement, that will be recorded in the books of
entries of judgment. Yung dispositive portion, once there is a
motion for execution, and the court grants the motion for
execution, the writ of execution will embody or contain the
dispositive portion. The dipositive portion appears in the entry
of judgement, book of entries, and writ of execution. Many
jurisprudence says that the writ of execution cannot deviate
from the dispositive portion of the judgement.
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Once a judgement attains finality, it is immutable and control of zooming and panning out, no annotation, and
unalterable. Pag final and executory, di na pwede baguhin. camera approved by court, then livestreaming is allowed. SC
Unless it is: said, pro hac vice, for that purpose only. For future cases, you
cannot use that, only for that particular purpose.
1. A clerical error;
2. A null and void judgement; and A void judgment or order has no legal and binding effect,
3. A nunc pro tunc judgement. force or efficacy for any purpose in contemplation of law. It is
non-existent. Such judgment or order may be resisted in any
What is a nunc pro tunc judgment? A judgment that does
action or proceeding whenever it is involved. It is not even
not speak the truth.
necessary to take any steps to vacate or avoid a void
It is illustrated in a Commissioner of Internal Revenue case. judgment. It may simply be ignored.
It involves tobacco. 5 tax refund cases umakyat sa SC,
According to the case of Landbank vs Placido, a void
questioned by BIR pero sustained yung refund ng fortune
judgment is no judgment at all. It cannot be the source of any
tobacco. Nung lumabas decision ng SC, 4 lang lumabas na
right or obligation. All acts performed pursuant to it and all
kaso, pero in the body it appears that all the cases were
claims emanating from it have no legal effect. Hence it can
sustained and affirmed. Fortune tobacco had to ask what
never be final. In any writ of execution based on it is void. It
happened to the 1. Even if the judgement is final and
may be said to be a lawless thing which can be treated as a
executory, the court will allow a change on the judgement
lawless thing which can be treated as an outlaw and slain at
because of nunc pro tunc because it does not reflect what the
sight, or ignored whenever it exhibits itself.
judgement says. It should speak the truth.
How about a compromise judgment? Is a compromise
What is a judgment pro hac vice? It means for that particular
judgment appealable? A compromise judgment is a
purpose/case only. It will not have a doctrinal effect. Litigants
judgment. Being a judgment, it has a reglementary period
in the future cannot rely on it.
except that the parties have compromised. The parties have
Example of a very significant declaration of SC on pro hac amicably settled the case and none of them will appeal.
vice. In the case of Ampatuan about the livestreaming. The
Why do you call it a compromise judgement? In the case of
heirs of the victims petitioned for the livestreaming of the case
Gadrinab vs Salamanca (June 11, 2014), may action for
because they say they are from different provinces and they
partition, nagkaayos parties. The compromise agreement was
don’t have the resources. The SC allowed it. Under Rule 115,
submitted to the court for approval. The agreement upon
the trial of the accused should be public but it does not
motion was later approved by the court, the same not being
contemplate live viewing, simulcast on tv or on radio. Handled
contrary to law, moral, public policy. Once the court adopted it,
by RTC of QC, subject to certain limitations as to the camera,
kokopyahin lang nila agreement tapos may caption na that the

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TANNER NOTES
parties have agreed among themselves and they filed a
motion for approval of the compromise agreement, not having
been contrary to law, morals, public policy the compromise
agreement is hereby approved. Then the court shall reproduce
the entire body of agreement in the judgement. Wherefore
premises considered, it is approved.
Dahil nagkasundo kayo, walang mag aappeal. Dahil
nagkasundo kayo, the reglamentary period will lapse. Final
and executory na yung judgement judgment. As what
happened with the case, may hindi sumunod sa compromise
agreement. Yung isa nag panic and filed a separate action. Is
that correct? No. Why will you file a new case when there is
already a judgement that is final and executory? Your remedy
is to file a motion for execution.
Tweaked facts a little bit. Papano pag nagkasundo parties
pero di sinubmit sa court, will the case be dismissed?
Yes. They will file a joint motion to dismiss. The dismissal is
with prejudice because they settled already. Let us say the
compromise agreement was not observed, it was
breached, what is your remedy? Your remedy is not an
execution, because the agreement was not approved by the
court. Your remedy is to file a new case.
Basta may compromise judgment, final and executory, di
sinunod, execute. Pag nagkasundo pero di alam ng court, di
kasama sa judgment, dismissed kaso. Pag may breach ng
agreement, file a case. In the case of Gadrinab, may
compromise agreement, final and executory nag file ng new
case, sabi ng SC wrong, dapat nag file ng writ of execution
TANNER NOTES
RULE 37
NEW TRIAL OR RECONSIDERATION
Once you receive an adverse judgment, what are the
options available to you? Within the reglementary period:
1. You could file an MR;
2. A motion for a new trial; or
3. An appeal (will be discussed after execution).
MOTION FOR RECONSIDERATION
What are the grounds for a Motion for Reconsideration?
You would tell the court that the judgment is:
1. Contrary to law;
2. Not supported by evidence; or
3. Damages are excessive.
It does not require a new proceeding or a new trial. No
hearing? There is a hearing only for the purposes of hearing
your motion, no more further proceedings. A motion for
reconsideration can be a full motion for reconsideration or can
even be a partial motion for reconsideration. If you file a partial
motion for reconsideration, it means you agree on some
portions of the decision.
What is the intention of filing a motion for
reconsideration? To set aside the previous judgment. This is
the most used and most abused motion.
Your provision on Rule 36 or 37 covers an MR of a final
judgment but we keep on harping an MR on an interlocutory
order. That is not under Rule 36, there is no provision on that.
In fact there is no reglementary period except that a diligent
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and cautious lawyer will file his MR on an interlocutory order
within a period of 15 days, following Rule 37 because there is
no such provision. The default provision is 37 kasi wala eh.
*baka maconfront kayo in the future, nafile mo MR mo late na,
so you would need it. There is jurisprudence that will tell you
that there is really no period except that you have to timely file
your MR because if you decide to file a petition for certiorari, it
would not appear that you stalled because you have 60 day
period to file a petition for certiorari.
NEW TRIAL
What is a motion for new trial? Is also filed within
reglementary period, on the grounds of:
1. (FAME) Fraud, Accident, Mistake, Excusable neglect
(or to be more specific, extrinsic fraud); or
2. Newly discovered evidence (also a ground in criminal).
Ano extrinsic fraud dito sa judgment? Example: wag ka na
magpresenta ebidensya, di naman itutuloy kaso na to eh.
That’s extrinsic fraud. You are prevented from participating
from the proceedings. Another one, boss mo nagdemanda
sayo. Kailangan pakita natin na porket empleyado kita eh
bibigyan kita ng excuse baka sabihin may favoritism ako. Edi
dinemanda siya, sige papadala kita sa abroad, wag ka na
sumagot. Pag dating mo, may judgment na. Extrinsic fraud,
you are prevented from participating in the proceedings.
Newly discovered evidence should satisfy the following
requisites:
1. That it is new; and
TANNER NOTES
o Why? It is not available during trial, despite the
exercise of diligence to procure it.
2. If considered by the court now, it will change the
outcome of the case.
All of this you are to file within the reglementary period.
Ano manyayare dun kapag FAME o extrinsic fraud? There
will be a new trial and new evidence will be received. Much of
the evidence that could stand will remain on record. There will
be trial de novo. In newly discovered evidence, they will allow
for the reception of new evidence. All in all a motion for new
trial requires a trial de novo.
APPEAL
What provisions will apply? Rules 40 to 45.
(Balik sa New Trial) In this case of Tadeha vs People, Tadeha
premise their motion for new trial on ground of newly
discovered evidence, hindi extrinsic fraud or FAME. The
extrajudicial confession executed with the assistance of Atty.
Tehoso and the spot report on the apprehension (again, NDE
is also a ground in criminal cases). Tadeha said na yung
extrajudicial confession is a newly discovered evidence. The
court gave the requisites of a newly discovered evidence on
what it covers:
1. A newly discovered evidence refers to that which is
discovered after trial;
2. Could not have been discovered and produced at the
trial even with the exercise of diligence;
3. Is material and not merely cumulative, corroborative, or
impeaching; and
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 4. It is of such weight that it would probably change the
judgment if admitted.
In the case, the most important requisite is that the evidence
could not have been discovered and produced at the trial even
with reasonable diligence. Hence, newly discovered.
The extrajudicial confession of Plaridel does not meet this
requisite. He participated in the trial before the RTC and even
gave his testimony for his defense. It was only after he and the
petitioners have been convicted in the trial that he absconded,
thus the contention of his confession could not have been
obtained during trial does not hold water.
RULE 38
RELIEF FROM JUDGMENTS, ORDERS OR OTHER
PROCEEDINGS
Ano na ang kasunod? Reglementary period, yan ang
remedio mo pag relamentary period. Ano pa ang available
remedy mo pag final and executory na yan? Your remedy
is Petition for Relief from Judgment. This is rule 38.
There are two kinds of petition for relief:
1. Petition for Relief from Judgment or Proceeding; and
2. Petition for Relief from Denial of Appeal.
PETITION FOR RELIEF FROM JUDGMENT
You have to bear in mind that a Petition for Relief from
Judgment is only available if the remedies of MR, Motion for
new trial, and appeal were not available without fault on the
part of the petitioner. The grounds for Petition for Relief from
TANNER NOTES
Judgment are (FAME) Fraud, Accident, Mistake, Excusable
neglect (or to be more specific, extrinsic fraud).
You will only use Petition for Relief from Judgment kung
naprevent ka or di mo nagamit mga remedies na MR, MNT,
and Appeal through no fault on your part.
Who is allowed to file a Petition for Relief from Judgment?
Can be filed by a party (look at Sec. 1). Therefore a non-party
cannot avail it. Remedy of a non-party? Annulment of
judgment (another option for final and executory judgment).
In the case of Alaban vs CA, an illustration of a case wherein
even if he was not a party, but by nature of the case being an
action in rem, the court deemed them as parties to the case. It
involved the estate of a deceased person. Now there is one
heir, he made representations to the court na siya lang
tagapagmana and the entire estate was awarded to him. After
2 months from rendition of judgment, the judgment having
been final and executory, nalaman ng ibang heirs. So the
heirs, filed a motion to set aside declaring him as the sole heir.
Trial court denied. The rest of the heirs filed Petition for
Annulment of Judgment in the CA from the RTC. The court
has to review this if tama ba ang Petition for Annulment of
Judgment na finile sa CA. The CA and SC said it should have
been a Petition for Relief from Judgment. They are not parties
to the case, but it was action in rem, so it was deemed that the
heirs were deemed as parties. Besides, you’ve learned of it
within 2 months, or more or less 2 months from entry of
judgment.
You have to take note of the period to file Petition for Relief
from Judgment. It is a period of 6 months from entry, but
within 60 days from knowledge. So for example, the entry of
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judgment was on June 1. Nalaman mo yung decision August
1. Until when can you file a Petition for Relief from
Judgment? Ideally, October 1, 60 days from August 1.
Let us say that you learned of the entry of judgment on
November 2. Until when can you file a Petition for Relief
from Judgment? Only until December 1. You do not have the
full 60 days.
Kung ikaw ay hinahanap mo yang kaso na yan, mahaba na
ang 6 na buwan. But your period is only 60 days when you
learn of it. Therefore, if nalaman niya yun at the latter part of
the 6 months, only the remaining period is left. The 6 months
is not extendable. All you have is 60 days, but it is capped until
the 6th month.
Pag ito tinanong sa bar, hanapin niyo ang pinaka huling order
na natanggap kasi ang babantayan niyo, kapag nakafile na
pala ng MR, final and executory na pala. You have to read
through the facts and see when it actually became final and
executory. It is possible that decision was received, an MR
was timely filed, but the appeal was filed out of time. When is
it final and executory? After the lapse of the reglementary
period to file the appeal, then bilang ka na.
PETITION FOR RELIEF FROM DENIAL OF APPEAL
Petition for Relief from Denial of Appeal is also grounded on
FAME. Tandaan mo tong word na to, PREVENTED. You were
prevented from filing an appeal. If you were able to file a
notice of appeal but your notice of appeal was filed after
the lapse of reglementary period, meaning 2 or 3 days
late, can you file a Petition for Relief from Denial of
Appeal? No, because you were able to file a notice of appeal.
TANNER NOTES
What is your remedy? MR. If denied, akyat ka Rule 65 if
there is grave abuse of discretion.
You only use Rule 38 on Petition for Relief from Denial of
Appeal if you are prevented or by reason of some accident.
The case of Porkon vs. MRM Philippines, importante para
malaman mo, where do you file a petition of relief from
judgment. If it is a decision from the RTC, where will you
file? In the RTC. A petition for relief from judgment of a
decision of the MTC is with the MTC.
Can you file a petition of relief from judgment from a
decision of the CA or the SC? Yan ang Porkon. The
procedure in the CA and SC are governed by separate
provision of the rules of court. It may be from time to time be
supplemented by additional rules promulgated by SC through
resolutions or circular. As it stands, neither the ROC nor the
revised internal rules of CA allows the remedy of petition for
relief in the CA. There is no provision in the ROC making the
petition for relief applicable in the CA or SC. The procedure in
the CA from rule 44-55 with exception of rule 45, which
pertains to SC, identifies the remedies available before said
court such as annulment of judgment or final order, motion for
reconsideration, new trial. Nowhere is a petition for relief under
rule 38 mentioned. Sa madaling salita, pwede ka bang
magfile petition for relief from judgment sa CA? No. Sa
SC? No. That is the Porkon case.
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 RULE 47
ANNULMENT OF JUDGMENT
What are the grounds for annulment of judgment?
1. Lack of jurisdiction. And when we say lack of
jurisdiction. It covers both lack of jurisdiction over the
subject matter and lack of jurisdiction over the person
of the defendant; or
2. Extrinsic fraud only (no FAME).
When can you file a petition for Annulment of judgment
on that ground of lack of jurisdiction? Until it is barred by
laches.
What is the period to file a petition for Annulment of
judgment on the ground of extrinsic fraud? 4 years from
discovery.
Where can you file a petition for Annulment of judgment
of a decision of the RTC? CA.
Can you file a Petition for Annulment of judgment of the
MTC? Yes. Where? RTC.
Can you file a Petition for Annulment of judgment of the
decision of the CA? Under Rule 56. Hanapin niyo if may rule
47 in Sec. 2 or 3. Wala. Therefore there is no annulment of
judgment of a decision of the CA. But the CA can entertain a
Petition for Annulment of Judgment of the decision of RTC.
Can you file a Petition for Annulment of judgment of a
criminal case RTC? No. Only civil actions. It does not extend
to criminal cases.
TANNER NOTES
In the case of Pinausukan Sea Food vs Far East Bank, 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 the judgment final or final
resolution sought to be annulled was rendered by a court
lacking jurisdiction or extrinsic fraud. The ROC, Rule 47 Sec.
1, says that the petitioner should show the ordinary remedies
of new trial, appeal, petition for relief are no longer available
through no fault of the petitioner. You cannot use an
annulment of judgment if an appeal is not available because of
your fault.
If the ground relied upon is lack of jurisdiction and was
granted, the entire proceedings are set aside without prejudice
to the original action being refiled in the proper court. If the
judgment or resolution is set aside on extrinsic fraud, the CA
may on motion order the trial court to try the case as a timely
new trial was granted or filed.
In the same case, the action, if based on extrinsic fraud, must
be filed within 4 years from the discovery of the fraud. If based
on lack of jurisdiction, it must be brought before it is barred by
laches or estoppel.
Please bear in mind the important allegations in annulment of
judgment. The first requirement prescribes that the remedies
available only when the petitioner can no longer have the
regular result or regular remedies. This means that the
remedy, although seen as a last remedy, is not an alternative
to the ordinary remedies of new trial, appeal, and petition for
relief. The Petition for Annulment of Judgment must aver
therefore that the petitioner failed to move for new trial,
appeal, or file a petition for relief without fault on his part.
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This requirement to aver is NOT imposed when the ground for
petition is lack of jurisdiction simply because the judgment or
final order being void may be assailed at any time, either
collaterally or by direct action or by resisting such judgment or
final order in any action or proceeding until barred by laches.
In connection with demurrer to evidence, in the case of Gloria
Macapagal Arroyo. A demurrer to evidence was filed before
the Sandiganbayan. The SC reversed the denial of demurrer
to evidence. By express provision of law, you cannot file a
petition for certiorari. If the facts are similar to the case of
GMA, I suggest that you answer “Yes a petition for certiorari
can be filed.” But if it does not present similar facts of the case,
then I strongly suggest that you follow the provisions of the law
While it is true that there are only 2 grounds under the
provision of law on annulment on judgment, there is
jurisprudence that includes lack or absence of due process.
It’s not in the law and in some cases applied by the SC when
they see that there is total deprivation of due process. In that
case, you can use that as a ground for annulment of judgment
Lack of jurisdiction for annulment of judgment is a matter of
substantive law, while extrinsic fraud is a matter of procedural
law
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
Divide muna sections, divide muna rules para di mahirapan.
• General Provisions are from Secs. 1-14
• Sale of Levied property is from Secs. 15-34
TANNER NOTES
• Remedies Available for the Satisfaction of the
Judgment are from Sec 35-43
• Satisfaction of Judgment is from Sec. 44-45
• Surety is Sec. 46
• Effect of Judgment is from Sec 47-48
Question: Panalo ka na ngayon, you already have an entry
of judgment, is it enough for you to execute a judgment?
No. You have to file a motion for execution. In our jurisdiction,
even if the judgment is executory, the court cannot motu
proprio issue a writ of execution. NO writ of execution can be
issued without a motion for execution.
When is execution a matter of right and discretionary
execution or otherwise known as execution pending
appeal (Note: It was really execution pending appeal, they
changed the name to discretionary execution because the
name or the reference to it as execution pending appeal
was before misleading. Party litigants thought that if you
appeal, you are entitled to execution. Concept is still the
same, nothing much has changed)? Execution is a matter of
right if the judgment is already final and executory. I will give
you two illustrations.
1. The RTC rendered a judgment and there was no
appeal. MR filed by the other party and because of
that, the judgment of the RTC, without having been
appealed, became final and executory. Where will you
file a motion for execution? File in the RTC. It’s clear
to us that you always need to file a motion for
execution. You file it in the court that rendered the
original judgment.
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 Do you need to attach a certified true copy of the
judgment when you file a motion for execution?
No. RTC nagrender decision tapos sakanya ka kukuha
ng true copy. More than the practicality of it, if you read
the provision carefully, on the 2nd paragraph, the
attached certified true copy is only necessary if the
case has been previously appealed.
2. Original jurisdiction RTC, talo ka, umakyat ka CA,
umakyat ka SC. If the SC rendered a final and
executory judgment, where will you file your
motion for execution? It is always in the court that
rendered the original judgment.
Do you need to attach a certified true copy of the
judgment? Yes, the certified true copy of judgment
originating from the appellate court so that the trial
court is aware that indeed there was a judgment that
has attained finality.
If you were the lawyer (may kaso ka dun sa judge),
sa tingin mo igagrant ng judge yung motion for
execution? No. Because the dispositive portion of
appellate courts are usually remand, affirmed, or
modified. How can you execute that? It is prudent for
the trial court to wait until the records are returned to
him. Only then will he know how it is affirmed, modified.
For purposes of the bar:
1. If it is only one court, became final and executory, you
file a motion for execution without the certified true
copy of the judgment.
TANNER NOTES
2. If the case has been appealed, whether it reaches the
CA or SC and you win, you file a motion for execution
in the court of origin, and attach the certified true copy
of the judgment.
In scenario number 1, there is no doubt that it is the RTC that
will issue the writ of execution. In scenario number 2, it is still
the RTC the will issue the writ.
In a 3rd scenario, what if the motion for writ of execution
was filed before the SC or Appellate Court, is it allowed?
Yes. For just or good causes. Which court will issue the writ
of execution? Still the RTC. The writ is always issued by the
court of origin.
General rule (when execution a matter of right): Motion for
execution, court of origin. Appellate court if there was an
appeal, only for good cause. Writ of execution whether
originally filed or raised on appeal is always issued by court of
origin. If court of origin is MTC, then it is the MTC.
Unlike execution as a matter of right, in discretionary execution
you have to have a good reason. There should be good
reasons embodied in an order of the court. You will have to file
a motion for execution raising your good reasons.
Discretionary execution will only take effect if the court issues
an order granting your execution pending appeal or
discretionary execution upon good reasons.
Do you need a bond for discretionary execution? No. You
only need good reasons. You don’t need a bond. You need a
bond to stay discretionary execution. Kung gusto mong pigilan
yung discretionary execution, yun may bond. Sa Sec. 3,
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pwede ka magbond para pigilan. Para kumuha ka ng
discretionary execution, kailangan mo lang ay good reasons.
Papaano if the court grants the execution pending appeal
on perceived good reasons, can you question it if you are
not convinced of good reasons? Yes. What is your
remedy? It is a rule 65. Before you do a rule 65, you file an
MR first. It is not appealable. A grant of discretionary execution
is not appealable kasi final and executory na.
Where will you file your discretionary execution?
Referring to Sec. 2, a notice of appeal was filed within the
reglementary period, the appeal was perfected, it goes to
the CA, where will you file your motion for discretionary
execution? You can file in the RTC for as long as it has
jurisdiction and in possession of the records of the case. Hindi
naman binibilang period na may jurisdiction. Ang batayan
diyan pag naappeal. If an appeal has been filed, the staff of
the court assumes the appeal has been perfected. But losing
of jurisdiction under Rule 41 Sec. 9 is when the expiration of
the period of the other party to appeal.
Kunyare class, ako nag appeal ako within a period of 15 days.
Yung tanggap niya di kapareho ng tanggap ko. Yung tanggap
ko maybe june 1, yung tanggap niya maybe june 5. Therefore
period ko tumatakbo, sakanya hindi pa. Now, if I file my appeal
on june 5, as to me it is perfected. But can we say that the
court continues jurisdiction? Yes, because yung period niya
di pa tumatakbo. The court will only theoretically lose its
jurisdiction after the expiration of the period to appeal. So yung
sakanya, hanggang july 21 or sa 22, wala ng jurisdiction ang
husgado. Kaya lang class, sa practice, di nila binibilang yan
kasi panalo siya eh, ang binibilang nila yung talo. That is why
TANNER NOTES
nakakabit dun sa provision “for as long as the court is in
possession of the records of the case.”
As long as the RTC has possession of the records of the case.
The very moment, the records are elevated, wala na, di ka na
pwede mag file sa RTC. During the time it has possession of
the records of the case, which is called Residual
Jurisdiction, you could apply as an indigent, there could be
compromise, you could ask the court for issuance of the order
for the protection of the parties. Pero pag umakyat na yan,
wala na, di na pwede gumalaw ang RTC.
The very moment the records are elevated to the CA, can
you still file a motion for execution pending appeal or
discretionary execution? Yes, CA na, andun na records
SECTION 6 - REVIVAL OF JUDGMENT UPON AN
INDEPENDENT ACTION
Yan class lumalabas sa bar yan, Sec. 6 of Rule 39. How does
it work? The effective life of a writ of execution is 5 years,
that’s material in our discussion of Sec. 6. Within a period of 5
years from entry of judgment, let us say the entry of judgment
was released on June 1, 2007, until June of 2012 or before
June 1 of 2012, you can enforce the judgment by filing a
motion. Within 5 years from entry of judgment, you could file a
MOTION. But after 5 years from entry of judgment, but not
more than the prescriptive period of judgment of 10 years (as
provided in the Civil Code) from the entry of judgment, you
could file an INDEPENDENT ACTION for revival of judgment.
Let us say your independent action for revival of judgment was
granted by the court. Then, it proceeds that way and becomes
final and executory. Then, the 5 year period again continues to
run, where you could file it by motion. After the 5 years lapses
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from the entry of the revived judgment, you have 10 years
from the entry of the revived judgment, but after 5 years, to file
an independent action for revival of judgment.
Case of Topacio vs Banko Filipino, the case talks about writ
of possession. Banko Filipino nanalo sila, ang pinaguusapan
dito foreclosure, pag may foreclosure ka to take possession,
you have to file a motion for writ of possession in court, lalo na
pag di sinusurrender yung property. Lumampas na 5 taon
mula sa registration of the certificate of sale. Ano sabi ng
spouses Topacio? Hindi na pwede, kasi you are barred, you
can no longer file by motion, and you can no longer file by
independent action, because of the length of time that had
lapsed.
The facts briefly are: the Spouses Topacio submits that the
writ of possession issued by RTC on February, 1984 may no
longer be enforced by mere motion but by a separate action
considering that more than 5 years has lapsed from its
issuance. They were citing Sec. 6, Rule 39. Sabi ng court, in
rejecting a similar argument, the court held in Paredes vs CA,
that Sec. 6, Rule 39 of the ROC finds application only to
civil actions and not to special proceedings citing Sta. Ana
vs. Menla. In a later case, the court also ruled that the
provision in the ROC to the effect that judgment may be
enforced within 5 years by motion, and after 5 years but within
10 years by an action refers to civil actions and is not
applicable to special proceedings such as land registration
cases. In the present case, Sec. 6, Rule 39 is not applicable to
an ex parte petition for an issuance of a writ of possession as
it is not in the nature of a civil action governed by the rules of
civil procedure, but by a judicial proceeding governed by Sec.
7 of Act 3135.
TANNER NOTES
SECTION 7 - DEATH
Sec. 7 covers a situation when a party dies after judgment is
final and executory. If there is a bar question that is presented
to you and it shows a death of a party after judgment is final
and executory, please do not use Rule 3, Sec. 16 because this
only applies if the action is pending. If it is final and executory,
you use Sec. 7, Rule 39.
For example, the judgment obligee dies, can the execution
take place? Yes, the obligee will be replaced by the executor
or administrator. The judgment obligor dies and it involves an
interest or lien over the property. In that case, execution will
proceed against the executor or administrator
Eh papaano kung yung final judgment is a money
judgment? The execution will take place against the estate.
SECTION 8 – FORM OF WRIT OF EXECUTION
This is the form of writ of execution. Basahin niyo lang, yan
yung pwedeng laman sa writ of execution. Ang importante ay
9,10,11.
How you will execute the judgment depending on the
award?
• Sec. 9 award ay money
• Sec. 10 award ay specific act
• Sec. 11 award ay special judgment
SECTION 9 - MONEY
So kapag may bar question involving money judgment, always
remember these basic rules. There are only 3 ways to satisfy a
money judgment:
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 1. To pay the judgment obligee directly or if the payment
cannot be affected on the judgment obligee, to the
representative of the judgment obligee. Now if there is
no representative of the judgment obligee, to the sheriff
who will deliver it to the clerk of court who will deposit it
for his account. *Please bear in mind that the rule is
per jurisprudence. In Pal vs Baliber, there should be a
demand to pay first. You cannot go on levy on real and
personal property until such time that there is a
demand to pay. *remember this because this is an
impact on attachment.
2. Levy on real and personal property. Judgment obligor
is given a choice on which property should be levied.
The winning party, the obligee, cannot appropriate it. It
will be subject of public sale (Secs. 15-34). If the
judgment obligee doesn’t make a choice, personal
property will have to go first.
3. Garnishment is a two step process. You receive a
notice of garnishment originating from the court
requiring the custodian of the funds or royalties or
annuities to disclose to the court whether there are
sufficient funds. Once the court receives notice in
compliance with the notice of garnishment and the
court learns ah may pera, the court will issue an order
of release (second step). That will be used to satisfy
the judgment. That’s money judgment.
SECTION 10 - SPECIFIC ACT
The thing with a specific act, if the losing party or the obligor
cannot perform, the court may require another party to do it. If
TANNER NOTES
there is no one to do it, the court may consider it as performed.
That is why the losing party or obligor in Sec. 10 cannot be
held for contempt because there are ways to perform it
Now if the order says remove improvement, is that self-
executory? No. You have to apply for an order of demolition.
There should be a special hearing for that.
SECTION 11 - SPECIAL JUDGMENT
It requires that you attach a certified true copy of the judgment.
That is the only motion that specifically requires that you
attach a certified true copy of the judgment. Why is this a
special judgment? Because only you can perform it and only
you can do it. If you don’t perform, you can be held liable for
contempt.
In Korata vs PPA, can there be execution pending appeal
in expropriation cases? No. Funds of the government can
only be disbursed upon an expropriation by law. You cannot
hamper the operations of the government because of
execution pending appeal. Even if you obtain an order of
expropriation, there can be no execution pending appeal in
expropriation cases. The court rules that discretionary
execution of judgments pending appeal under Sec. 2(a) of rule
39 does not apply to eminent domain proceedings. The
function in public services rendered by the state cannot be
allowed to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects as provided by
law.
Is there a self-executory judgment? Not in the rules of court
but in labor cases. Garcia vs Pal. Self-executory pertains to
the reinstatement aspect of a labor award. It is self-executory,
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and you don’t need a writ of execution. When you receive an
order of reinstatement as an employer, you have to comply
within a period of 10 days. Failing to do so, only then will the
labor arbiter issue a writ of execution. The SC said that the
word immediately that refers to reinstatement has been
understood to mean without delay or lapse of interval of time.
Based on this definition, the Court ruled that Art. 223 does not
need an application for an issuance for writ of execution as a
prerequisite to a reinstatement award. In other words, a
reinstatement order is self-executory. This is the basis for
the current NLRC rules that leaves the enforcement of the
reinstatement order to the employer who is given the duty to
submit a compliance report within a period of 10 days from
receipt of the decision. The labor arbiter issues a writ of
execution only when the employer disobeys the above
directive or refuses to reinstate the employee
In Huko vs Heirs of Chung Fu, the decision to be revived
should be final and executory in relation to Sec. 6. You cannot
revive a judgment that is still subject of a motion for
reconsideration. It is on the understanding that the judgment is
already final and executory. The finding of the Court of
Appeals that notwithstanding the pendency of the motion for
reconsideration, the decision has become final and executory
by reason of laches cannot be sustained. As discussed above
the doctrine of laches cannot operate to lengthen finality to the
decision since petitioners failed to pursue the motion for
reconsideration was not due to her negligence or
abandonment but rather brought about by the dismissal of the
reconstitution cases. Kasi ang nangyari dito class nasunog
ang files. Hindi kasalanan nung parties. Nung nasunog yung
files, panalo sya pero naka MR. So sabi ng CA because of
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laches final and executory na. Sabi ng SC hindi pwede, you
cannot revive a judgment which has not yet attained finality.
Sec. 6 will only apply if the judgment is final and executory.
San ka magfifile ng revival of judgment? The venue for
revival of judgment, according to Infant vs Aran Builders, is
dictated by the nature of the judgment to be revived. If the
judgment to be revived pertains to an interest or title over the
property, the revival will be in the place where the property is
located. If it involves personal rights and obligation, it is
dictated by the place where the parties reside. The court said
that the proper venue depends upon the determination of
whether the present action for revival is a real or personal
action. Applying the aforementioned rules, if the action for
revival of judgment affects title or possession or interest over
property, it is a real action. It is filed to the place where the
property is located. If such action does not fall under the
category of real actions, it is then a personal action that may
be filed in the place of where the plaintiff or the defendant
resides.
SECTION 13 - EXEMPT FROM EXECUTION
Those properties which are exempt from execution cannot
likewise be attached.
This case of Joseph vs Santos laid down the requirements if
there is a claim that the property subject of execution is
exempt from execution. The court has a duty to do earnest
determination of the truth of the claim that the property is
exempt from execution. Failure to do so, any order by the
judge will be considered as null and void.
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Magaling din yung atty ng isang security agency. Talo yung
security agency. Inexecute nung security agency yung
Dearmored Agency. Sabi nung Dearmored Agency, exempt
kami from execution. Is the Dearmored Agency correct? No.
Exempt from execution pertains to only natural persons and
not juridical entities. Sec. 13 of Rule 39 is plain and clear on
what properties are exempt from execution. The exemption
under this procedural rule shall be read in conjunction with the
civil code that laborers wage shall not be subject to execution
or attachments. Please bear in mind that exempt from
execution can only be claimed by natural persons.
SECTION 14 - RETURN OF WRIT OF EXECUTION
Ano yung 30 days under Sec. 14? Yung 30 days is the
interval of reporting on the part of the sheriff. That is not the
life of the writ. The life of the writ is 5 years
SECTION 15 - NOTICE OF SALE OF PROPERTY ON
EXECUTION
What you need to remember:
1. Notice:
a. To the public (depende kung anong property):
• Perishable goods (postings in 3 public places)
• Personal properties (postings within a period of
at least 5 days)
• Real properties (posting within a period of 20
days and in 3 public conspicuous places)
b. To the obligor – kahit anong property need notice 3
days before sale except perishable goods.
2. Certificate of Sale
3. Third party claim
TANNER NOTES
4. Redemption Period
a. Redemptioneer – Who can redeem
b. Who is entitled to profits during the redemption
period?
c. Can the nature of the property be changed during
the redemption period?
5. What if you are a successful buyer in a public sale and
you were not able to take possession, what are the
remedies available to you?
6. If the real property has an the assessed value of
exceeding P50,000, the notice should be made by
publication.
CERTIFICATE OF SALE
Do you need a Certificate of Sale for perishable goods?
Do you need a Certificate of Sale for personal property?
The answer is this: Any personal property capable of manual
delivery, a certificate of sale is not mandatory. It is only
provided when requested, that includes perishable goods. If
the personal property is not capable of manual delivery like
makina installed on the floor, there should be a certificate of
sale.
For real property, there should be a certificate of sale because
it will be registered with the register of deeds where the
property is located and it is only when the certificate of sale is
recorded will the redemption period start to run.
Can you redeem a personal property? No. Personal
properties of whatever kind cannot be redeemed. Only real
properties have a redemption period of 1 year.
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Is the 1 year redemption period extendible? No. Read
Secs. 28 and 29. First rule I want you to remember, the
judgment obligor and the redemptioneer can only redeem for a
period of 1 year. The second rule I want you to remember, the
very moment the judgment obligor redeems, no further
redemption. When the judgment obligor redeems, it’s over
because class the interests of the redemptioneer are
protected. The third rule I want you to remember is this. Ito
yung tricky.
• Let us say that the Certificate of Sale was recorded on
June 1. Immediately, within the period of 60 days, a
redemptioneer redeems. Then another redemptioneer
redeems within the period of 60 days. Then the
judgment obligor redeems. Can there be further
redemption? No more.
• Lets change the facts. A redemptioneer redeems then
after another redemptioneer redeems and so forth and
so on. Before the lapse of the 12 months, on the
11th month, a redemptioneer redeems, can the 1
year period be extended? No more. You have to read
the provision separate from the 2nd paragraph. If I’m
accurate that’s Sec. 28. The 60 days will only play
within the 1 year. Your maximum period is a period of 1
year. It cannot be perpetually open for redemption.
Therefore, the theory that you could redeem and
redeem after 1 year is a wrong opinion. With all due
respect I’m not referring to anyone. When the judgment
obligor redeems, it’s over. It’s 1 year. It cannot be
extended.
Pag execution, during the redemption period, who will be
in possession? The answer is in Secs. 31 and 32, the obligor.
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Iba yan pag judicial foreclosure. Pag personal property,
walang redemption period. Ang meron ka lang possession is
real property. How about the profits and rents? Considering
that you are in possession, naturally, all of the profits and rents
will be yours. Can you change the nature of the property?
You cannot change the nature of the property during the
redemption period.
*execution and foreclosure will be compared later on.
SECTION 34 - RECOVERY OF PRICE IF SALE NOT
EFFECTIVE
This provision will only apply and will be subject to your use in
this kind of situation: Nagparticipate ako sa execution sale.
Nagbid ako, nagbayad ako. Di ko nakuha yung property. Sec.
34 will apply.
What are the remedies available to me?
1. Recover the amount in the same action;
2. Recover the amount in a separate action; and
3. Have the judgment revived in my name. I step into the
shoes of the judgment oblige.
SECTION 16 - THIRD PARTY CLAIM (TERCERIA)
There is third party claim in:
1. Rule 39 Sec. 16;
2. Rule 57 Sec. 12 or Sec. 14 (Attachment); and
3. Rule 60, Sec. 8 or 7 (Replevin).
Lets understand first the concept of Terceria. There is a
judgment obligee. Nanalo siya. The judgment obligee wants to
make sure that the sheriff executes. The sheriff will have to
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deal with the sale of the property subject of levy and later on
execution. A third party claimant appears, sabi nya akin yan.
He prepares an affidavit and serves it to the sheriff and
provides a copy to the judgment obligee. What is the effect?
The execution will be suspended. But please bear this in mind:
it is only on that particular property. If there are various
properties, hindi apektado yon. Only on the specific property
that he lays a claim unless he lays a claim on everything.
What is the remedy available to the judgment obligee? He
will now post a bond in favor of the third party claimant if he
wants the execution to continue.
This example applies to ALL third party claims. Ang kaibahan
lang sa attachment and replevin, pending yung kaso. Hindi sya
judgment obligee, plaintiff sya.
How can the judgment obligee vindicate his right? He can
vindicate his right in the same or separate action.
How can the third party claimant vindicate his right? He
can only vindicate his right in a separate action because the
he is not part of the first case and the first case is also final
and executory. He can no longer intervene. But this will be
different if you are talking about third party claim for
attachment and replevin. Why? Buhay pa ang kaso. The third
party claimant and plaintiff there are both entitled to vindicate
themselves in the same or separate action. The third party
claimant under Rule 57 and 60 can still intervene because
judgment has not yet been rendered.
Ang babantayan nyo lang yung pag ang kaso, mag-asawa.
For example: The property is a conjugal or community
property. The judgment obligor is married and the property that
TANNER NOTES
was executed is his property. This is the case of Ching. The
wife then complained. The wife wanted to vindicate her right.
Where should the wife vindicate her right (if execution ah
if attachment or replevin there is no problem because she
can participate in the same proceeding or in a separate
action)? If it is a community property, the wife should
vindicate her right in the same action because the husband is
a party of the case. If it is an exclusive property of the wife,
she is, therefore, a stranger to the action. Being a stranger to
the action, she could only vindicate her right in a separate
action.
VIllasi vs Garcia on the concept of third party claim. The right
of third party claimant to file a terceria is rooted on his title or
right to possession. Corollarily, before the court can exercise
its supervisory power to direct the release of the property
mistakenly levied and the restoration to its rightful owner, the
third party claimant must first unmistakably establish his
ownership or right of possession.
In See vs Diskaya mentioned in the case of VIllasi, we
declared that for a 3rd party claim or to prosper, the claimant
must first sufficiently establish his right on the property. A 3rd
person whose property was seized by a sheriff to answer for
the obligation of the judgment debtor may invoke the power of
the court, upon due application by the 3rd person and after
summary hearing, the court may command that the property
be released from the mistaken levies.
In these instances, the court is limited to the determination of
whether the sheriff has acted rightly or wrongly in the
performance of his duties more specifically if he has indeed
taken hold of the property not belonging to the debtor. The
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court does not and cannot pass upon the question of title to
the property with any character to the finality.
SECTIONS 35-43 - REMEDIES
Because of your effort to satisfy the judgment completely,
there are times that you are in a dead end. Di porket nanalo
ka, magaling ka. Sasabihin ng iba, nanalo ka nga di ka naman
makakaexecute. Kaya may remedies. Remedio na to,
ibigsabihin dead end na to, naghahanap ka na ng properties
eh. so ito binibigay sayo ng batas
These are the remedies:
1. Section 35 – You could call on the witness stand the
judgment obligor and examine him as to his properties.
You could ask the court to subpoena the debtors of the
judgment obligor.
2. Under Sec. 39 of rule 39 I think - debtors of the
judgment obligor can pay directly to the sheriff and that
will be applied as satisfaction of judgment of the
judgment obligor.
3. Sec. 40, 2nd par. - the law likewise allows payments on
amortization basis. If the court is convinced after
investigation that the judgment obligor has sufficient
income, then the court may allow payment on
amortization basis.
4. Sec 41 receivership - if you think the property will be
damaged, you could apply for receivership to prevent
the property from being wasted or dissipated.
5. Sec. 42 - if the judgment obligor has an interest either
as a mortgagor or a mortgagee and the court discovers
that property can be sold on public sale and the
TANNER NOTES
proceeds of which will be applied to satisfy the
judgment.
6. Sec. 43 - There are instances that those who holds title
or interest of the judgment obligor over properties is
denied. In instances like that, the judgment obligee can
request or apply from the court an order of the sale of
the property within a period of 120 days, failing to do so
the judgment obligee can be held liable for contempt.
These are the remedies available to Judgment Obligee.
SECTION 44 - SATISFACTION OF JUDGMENT
1. If the writ of execution returns to the court, fully
satisfied. You prove otherwise if it is not fully satisfied.
2. A written acknowledgment by the judgment obligee or
his counsel
3. A written endorsement by the judgment obligee or his
counsel in the face or records of the case.
In other words
1. Writ returns to the court
2. There is a separate document showing written
acknowledgement of satisfaction by judgment obligee
or counsel
3. And finally, endorsement on the face of the records of
the case
SECTION 45 – ENTRY OF SATISFACTION WITH OR
WITHOUT ADMISSION
Ano halaga ng Sec. 45? It says with or without admission. If
you break that down, when you talk with admission, you just
pick the 2 items in 44:
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 1. A written acknowledgment by the judgment obligee or
his counsel; and
2. Endorsement on the face of the records of the case by
the obligee or counsel. That’s with consent.
Without consent covers this type of situation. There are
instances wherein there is already satisfaction but the
judgment obligee is not happy with it and he does not want to
consent but the court is already convinced of the full
satisfaction. Even without the consent of the judgment obligee,
the court will enter full satisfaction. Example: The award is in
US dollars and the problem of the judgment obligee is that he
was insisting that the exchange rate at a certain time is around
2 cents more on a particular date. But the court is convinced
that it has been fully satisfied. The court can order satisfaction
even without consent.
SECTION 47 - EFFECT OF DOMESTIC JUDGMENT
There are only 3 things in 47:
1. It is conclusive as to title, as to relationship of parties,
as to status, as to letters of administration, and probate
of the will. Any judgment is presumptive in a letters
of administration, and probate of the will as to the
death of the testator. Why? Because a will can be
probated during the lifetime of the testator. It is not
required that he is dead. Letters of administration could
be applied for during the lifetime. Therefore it does not
mean letters of administration or probate of the will, the
person is dead, only presumed;
2. Res Judicata; and
3. Conclusiveness of judgment or preclusion of issue.
TANNER NOTES
Let me explain to you the interplay of Res Judicata and
Conclusiveness of Judgment. Imagine that I am the contractor
of Madison II and then the owner was not happy with my
performance so he wanted to rescind the contract. He filed an
action for rescission. But I insisted that it should not be
rescinded. The court declared that the contract should not be
rescinded and is valid and should be performed. That is
already res judicata on the matter of the validity of the
contract. Later on there was a problem on the air conditioner,
CR, windows and elevator. Nagkademandahan ngayon.
Syempre idedemanda kasama ako, contractor ng aircon,
contractor ng elevator, etc. In that case, they cannot revisit the
validity of the contract. That is an issue precluded in
connection with that case. But all other issues in connection
with the aircon, elevator, pwede pagusapan yon. That is how
you apply preclusion of issue. So in the case that was first
decided, res judicata sya. But if you are again subject of an
action involving the same party, that matter that has already
been passed upon by the court cannot be revisited anymore
(Conclusiveness of Judgment).
In some jurisprudence, they say that res judicata is a total bar
but conclusiveness of judgment is only a bar as to that
particular issue.
APPEALS
RULE 40 – APPEAL FROM MTC TO RTC
RULE 41 – APPEAL FROM THE RTC
When you talk of appeals, it may be:
1. Ordinary
2. Petition for review
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 3. Petition For Review on Certiorari (Rule 45)
What do you mean by Ordinary Appeal? The 1st scenario is
an illustration of Rule 40. Pag binasa mo rule 40 that is a
procedure For MTC and MeTC. MTC renders a judgment.
Where will it go? RTC. You cannot go to any other court.
Where will you file the notice of appeal? You will file the
notice of appeal in the court that rendered the judgment.
Remember that a notice of appeal (ordinary) is for a period of
15 days.
Can the period be extended? No. A notice of appeal is at
most 2 pages. Aside from the caption, it says the date you
receive the decision and the fact that you have paid the docket
fees within the reglementary period. If you file an MR, you
have to file it within 15 days. That’s the reglementary period.
Therefore even if you file on the 15th day and your MR is
denied, you have a fresh period of 15 days. Aside from a
notice of appeal, you could also file in ordinary appeal, a
record on appeal. A record on appeal is for a period of 30
days.
Can the record on appeal period be extended? As a
general rule, no. Except if the court requires an amendment or
an alteration on your record on appeal.
What does a record on appeal contain? A record on appeal
is a compilation of all the pleadings and all the orders issued
by the court in a consequential manner.
Pag nag file ka ng notice of appeal, iaakyat yung records from
the MTC to the RTC. Wala ng maiiwan sa MTC. Bakit? Wala
ng ibang incident. That’s the difference between a record on
appeal and a notice of appeal. In a record on appeal, the
TANNER NOTES
cases subject to record on appeal are special proceedings and
those involving multiple appeals. In that case, certain incidents
remained with the court. For example, there is a question on
the appointment of an administrator. The case remains with
the MTC. Therefore, what is elevated is only the record on
appeal so that the court can continue to handle.
Note: There is no extension of a period to file an MR
(Habaluyas Enterprises Case).
The 2nd scenario is an illustration of Rule 41.
What is the procedure in the RTC as an appellate court
under rule 40? Filing of a memorandum within a period of 15
days. Wala ng trial? Wala na, appellate court siya eh.
Eh sa 2nd scenario, what rule will apply? Rule 44,
appellant’s brief. You are to file it within a period of 45 days.
The appellee has to file his appellee’s brief within a period of
45 days. The appellant can file his appellant’s reply brief
within a period of 20 days.
What if the appellant failed to file an appellant’s brief? The
appeal will be dismissed.
What if the appellant did not file an appeal (notice of
appeal) within the reglementary period of 15 days? The
appeal will be dismissed,
What if the docket fees were not paid within the
reglementary period? The appeal will be dismissed.
What if there is an appellant’s brief but there is no
assignment of errors? The appeal will be dismissed.
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What if there is an appellants brief but there is no page
reference on the records (table of contents)? The appeal
will be dismissed.
Those are all open to rule 50.
RULE 42
PETITION FOR REVIEW
You will have to know Rule 42 and 43.
Rule 42 covers this scenario. It originated from the MTC, you
lost, elevated to RTC, you lost again. Rule 42 is from RTC as
an appellate court to the CA. What will you file? Petition for
Review in the CA. Can it be extended? Yes, for a period of
15 days but you will have to pay docket fees. Can you ask for
an extension a 2nd time? General rule is no except for the
most compelling reason.
In Petition for Review, both questions of fact and questions of
law can be raised. There are certain attachments to the
petition:
1. There should be a duplicate original or certified true
copy of the judgment;
2. Petition should be verified;
3. Certificate of non-forum shopping;
4. Pertinent portions of the pleadings should be attached;
5. Copy of the petition should be served upon the adverse
party and the court that rendered the judgment;
6. Affidavit of service (Rule 43);
7. Rule 13 Sec 11, if your service and filing is other than
by personal service of filing, you will have to make an
explanation; and
TANNER NOTES
8. If your party or petitioner is a corporation, you should
have a secretary’s certificate.
What is the effect if one of those enumerated is not
present? Your petition will be dismissed.
RULE 43
APPEALS FROM THE CTA AND QUASI-JUDICIAL
AGENCIES TO THE CA
Rule 43 goes to the CA. But unlike Rule 42, Rule 43 emanates
or originates from a quasi-judicial agency. The contents of the
petition are practically the same, except that all pleadings or
attachments under rule 43 should be certified true copy
because it originates not from a court but a quasi-judicial
agency. There is no way by which the CA can validate whether
the documents are authentic.
From a decision of the NLRC, do you go to rule 43? No,
Rule 65, St Martin Funeral homes, specifically because the
decision of NLRC, after the lapse of 10 days, becomes final
and executory and therefore if there is no appeal or any plain
and speedy remedy, your remedy is Rule 65.
Remedy from the decision of HLURB. You don’t go directly to
the CA. you go directly to the office of the president.
I am calling your attention on these because there are special
laws depending on where the case originates. For example,
from the PARAD, you don’t go to the CA. You go to the
DARAB before going to the CA on a Rule 43. CTA is now on
the same level as the CA. From a decision of the CTA division,
you go to the CTA en banc and only when the CTA en banc
renders a decision will it go to the SC on a Rule 45.
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 RULE 45 1. Certiorari;
APPEAL BY CERTIORARI TO THE SC 2. Prohibition;
3. Mandamus;
What is the rule in civil cases? The only way to go up to the
4. Quo Warranto;
Supreme Court is a Petition for Review on Certiorari unlike in
5. Habeas corpus;
criminal cases. Therefore, from the RTC on a pure question of
6. Writ of Amparo;
law, you go to the SC. From the Sandiganbayan, you go to the
7. Writ of Habeas Data; and
SC if the penalty is not death, life, reclusion perpetua, I’m
8. Application for Anti Money Laundering (freeze order)
talking about civil forfeiture cases or those cases involving
penalties less than death, life, reclusion perpetua. Pag yung Rule 46 is important because this is an original action. How
death, life, reclusion perpetua, iba yun. From the CTA en does the court acquire jurisdiction over the person of the
banc, you go to the SC. From the CA, you go to the SC. respondent? Do they serve summons? No. Look at Sec. 3
or 4, the court acquires jurisdiction over the respondent by
The period to file to the SC is a period of 15 days but if you
service of the resolution, by receipt of the resolution showing
request an extension for a compelling reason, you are entitled
initial action of the court.
to a singular extension of 30 days. Are you entitled to a
second extension? As a general rule, no except for the most What does initial action by the court contain? The
compelling reason. respondent without filing a motion to dismiss is hereby
required to file a comment within 10 days. If may application
RULES 46-55
for TRO, the respondent is hereby required to file his comment
For CA: within a period of 10 days without necessarily giving due
1. Original cases; and course to the application for TRO. So pag natanggap yon, may
2. Appealed cases. jurisdiction sayo or voluntary appearance.

For SC: May hearing ba ang CA sa original cases? Yes, the CA can
1. Original cases; and conduct a hearing in original cases. Who? The division can
2. Appealed cases. conduct a hearing, consisting of three. Can you present
evidence? Yes, I presented witnesses. What case was that?
RULE 46 Annulment of Judgment.
ORIGINAL CASES
Lets start with Rule 46. Rule 46 is the procedure in the CA for The CA can direct an RTC to receive evidence for the CA.
original cases. Bar question, enumerate the original cases in Thereafter the RTC will make a report and submit it to the CA
the CA: in original cases.

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TANNER NOTES
Rule 46, Sec. 3, enumerates the requirements of a petition for
certiorari (IMPORTANT). Jurisprudence says that if you are to
file a petition for certiorari, which is the most common original
action in the CA, you will have to comply with Sec 3, Rule 46.
Failing to do so, your petition for certitorari will be dismissed.
You have to read 46, sec 3 in relation to rule 65. I assure you
this, if you just follow Rule 65 on the contents of a petition for
certiorari, your petition will be dismissed. You have to consider
Rule 46, Sec. 3. Absence of one, petition dismissed.
RULE 47 - ANNULMENT OF JUDGMENT
This is the only instance that the CA will issue summons.
*Discussed already
RULE 48
PRELIMINARY CONFERENCE
Preliminary conference is the equivalent of a pre-trial in CA.
What if the appellant is absent during the preliminary
conference? The appeal will be dismissed. Look at Rule 50. It
is in the enumeration.
RULE 49
ORAL ARGUMENT
Only original cases in the CA and SC are orally argued, unless
the court in the exercise of discretion feels that an appealed
case has to be orally argued.
Should a motion filed in the CA and SC require a notice of
hearing? No. Read Rule 49, Sec. 3 ata. Only the CA and SC
can set a case for hearing. If they want, oral argument but you
TANNER NOTES
cannot compel the CA or SC to set a hearing for you. You can
only set a hearing at the trial court, not in the CA and SC.
RULE 50 – DISMISSAL OF APPEAL
Di ko na isasama kasi hindi siya kasama sa original case.
RULE 51
JUDGMENT
In the CA, judgments or decisions are rendered in divisions of
3. It’s a collegial body and the vote should be unanimous, not
majority. If the unanimous vote cannot be attained, the
presiding justice of CA, who is the equivalent of chief justice of
the SC, will create a special division of 5 and a majority vote
will suffice. The entry of judgment/finality of judgment works in
the same manner as in Rule 36. After the lapse of
reglementary period to appeal, it becomes final and executory.
The day after lapse of reglementary period, there will be an
entry of judgment
Decisions in the CA are promulgated. What do you mean by
promulgated? Dahil 3 lang yung justices, mag dedeliberate
sila. Pipirma sila then dadalhin nila sa clerk of court. The
promulgation goes this way: There is a cover note from the
clerk of court saying that the CA division rendered a decision
on this date attaching a copy of the decision. This promulgated
decision will be served on the parties consistent with Rule 13,
Sec. 9. In the trial court, decisions are, strictly speaking, not
promulgated. Why? Because there is only a judge. The judge
renders a decision. It need not be promulgated by the clerk of
court. The judge, through the staff, serves it, still consistent
with Rule 13, Sec. 9. Iba in criminal cases, promulgation of
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judgment is requiring the accused to appear in court and
reading of the decision.
RULE 52
MOTION FOR RECONSIDERATION
Is there an MR in CA? Yes. Within how many days? 15
days. Can that period be extended? No.
Difference of MR in CA and trial court? Period and grounds
are the same. The only difference is the period for the court to
resolve. In CA, resolution is 90 days. In trial court including
MTC, resolution is 30 days.
RULE 53
MOTION FOR NEW TRIAL
There are only 2 things I want you to remember on Motion for
New Trial in the CA:
1. Sole ground for a motion for new trial in CA is only
newly discovered evidence, no FAME; and
2. The period to file a motion for new trial in CA is not 15
days as in the trial court. From the time appeal is
perfected, and for as long as CA has court jurisdiction,
you can file a motion for new trial on the ground for
newly discovered evidence. Pano kung 3 years
pending? Ganun katagal ka pwede magfile ng Motion
for New Trial because the requirement of the law is
quite clear.
RULE 54 – INTERNAL BUSINESS
RULE 55 – PUBLICATION OF JUDGMENTS AND FINAL
RESOLUTIONS
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Talks about publication and incidental procedures. That is not
so important. In the SC, ang official publication ay Philippine
Reports, not SCRA. In CA, Court of Appeals Reports
RULE 56
ORIGINAL CASES IN SC
Sec 1 of Rule 56 - jurisdiction of SC:
1. Certiorari;
2. Prohibition;
3. Mandamus;
4. Quo warranto;
5. Habeas corpus;
6. Disciplinary action against members of the bench;
7. Disciplinary action against members of the bar;
8. Disciplinary action against ambassadors, ministers and
minister plenipotentiary;
9. Constitutionality of the law, ordinance, executive
agreement; and
10. Validity of a tax imposition.
Sec. 2 - Procedure for SC in Original cases
• For original cases in the CA, follow Rules 46, 47, 48,
49, 51, 52, 53.
• For original cases in the SC, follow Rules 46, 48, 49,
51, 52. No Annulment of Judgment (Rule 47) and
Motion for New Trial (Rule 53) in the SC.
• For appealed cases in the CA, follow Rules 41 and 44
(works with 41), 42, 43.
• For appealed cases in the SC, follow Rule 45.
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 PROVISIONAL REMEDIES
The first part of my discussion is about provisional remedies,
there are only 5 provisional remedies from Rules 57-61.
Huwag muna pakialaman yung special civil actions because
those are original actions, dito muna tayo sa provisional
remedies. Now, why do you have provisional remedies?
There are varied reasons why you have provisional remedies.
Lets say from attachment, you want the provisional remedies
to be able to secure the judgement. Why do I want to secure
the judgement? There are instances class that you may win
but you are left with nothing. Yan ang pinakamasakit na
mangyari sayo. You go through the process of litigating for a
period of 3-5 years and after winning, after reaching the SC
you’re left with nothing. You’re left with an empty bag. That’s
why you have attachment.
RULE 57
ATTACHMENT
The nature of the defendant in an attachment provisional
remedy is (the general intention is) to defraud you, as I would
show you on the grounds for an application for attachment. So,
that’s the concept of attachment. It’s not to satisfy. To satisfy is
execution, attachment is simply to secure. Parang security,
kung may umutang saiyo, gusto mo may pinanghahawakan
ka, para pag dating ng panahon hindi ka bayaran, e mayroon
kang kukunin. Now before I further proceed, you need to
remember. In an attachment, you want to secure. You apply
for it. Now lets us say there is a final judgment, correct? Okay
nagkaintindihan tayo. Sir sabi mo security, papano kung
nagkaroon ng final judgment? Can I execute properties
which have been attached? If it is execution pending appeal
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or discretionary execution, not yet. But once it is already a final
and executory judgement, properties that have been attached
will be used to satisfy first the matters or the final judgement.
For example: nanalo ako ng 5 milyon. Nakalagay yun sa
judgement. So as of rule 39 panalo ako ng limang milyon.
Ngayon, may mga na attach. Ano yung mga na attach? Real,
personal property, shares. Bank deposits were attached,
attached lahat ng property na yun. Now, let us say I won 5
million it reached the SC, it became final and executory. How
would those attached properties be addressed? Sir, edi okay
lang yun mag execute muna ako, pag kulang pa tyaka ko
habulin yung attached properties. Wrong! When you talk of an
attachment, once I have a final and executory judgment, those
properties will be applied first to satisfy the judgement. Ganun
yun! Applied first to satisfy the judgement! Ngayon may order
din yun under the provision of Rule 57. Mauuna dyan yung
pera pambayad utang. Ngayon pag may perishable goods
which are sold, by reason of attachment bayad din yun. Sir
paano pag may real and personal properties? Ano gagawin
ko? Pwede ko na ba ankinin yun? No. The personal or real
property will be subject of a public sale in the same manner as
in Rule 39. So yung tinabi mo ngayon, kubrahan na to, icacash
in ko na yun? Bakit ako mag eexecute, e ito na yun. Ngayon
yung 5million ko, binenta na yung real and personal property
in public sale, kulang parin. Ang na liquidate lang ay 3.5
million. Correct? What can I do? I will go through ordinary
execution. Di naman pwedeng thank you nalang yun. Dahil
may butal, habulin pa kita, I will have to proceed against you in
the manner provided to under Rule 39. Yan lang ang istorya
ng attachment.
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Now that you know the concept, please bear in mind that any
of these provisional remedies are ancillary to the principal
action. Sir ano ibig sabihin nun? Edi walang halaga yung
ancillary kung wala yung principal. It is useless. Therefore, if
the principal is already been dismissed, the ancillary has no
action upon which it could cling on. That’s the general rule
whether attactment, preliminary injunction, receivership,
replevin, support pendente lite. Lilima lang yun.
Can there be a principal action for attachment or principal
action for preliminary injuction? No. That is the general
rule. But it is allowed in certain cases as an exception under
the alternative dispute resolution rule of 2004. It could be filed
as an original action because it is what an interim relief.
Example: May kaso na andun na abroad, mag aarbitrate,
ngayon pag inallow magawa yung subject ng arbitration and
gusto wag matuloy yung kontrata, e iyun ang inaarbitrate,
kailangan ngayon kumuha ng preliminary injunction dito. May
arbitration dun, pag iyun na perform useless na yung
arbitration ko. That is why you have an interim relief. But as a
rule in our rules of court, provisional remedies are only
ancillary! Maliwanag class? Ganun lang yun.
May narinig ako, injunction. An action for injunction is an
ordinary civil action. This is clearly declared by the court in
Garayblas vs Atienza and even the old cases that you have.
Sir bakit ako mag pprincipal action ng injuction pag ordinary
ordinary civil action, ano gagawin? For example, puputulin na
yung mga puno ng lupain ko, e fifile-an kita ng injunction,
sasaraduhan niyo ko yung access ko, e fifine-an kita ng
injunction, principal action yun! Ang tanong ko class can you
have a provisional remedy which can be filed as original
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petition? Yung injunction, orginal action yun e, ordinary civil
action yun, Iba yung preliminary injunction at iba rin yun
injunction.
Ano bang mga kaso ppwede ako mag apply ng attachment?
For example: Dinemanda kita ng recovery of sum of money,
pwede ba ako mag apply ng preliminary attachment? Sir ang
laking pera yun e. 50 million. Pwede? Hindi. An action purely
for recovery of sum of money cannot be basis of application of
attachment. Now, misconception yun malaki claim ko, pwede
ako mag attachment, that’s wrong. Another misconception is
baka mag allege nalang ako ng fraud tama na, wait class. Isa
isahin natin, anong kaso ang pwede ako mag attachment?
I have a claim for money, arising an obligation, meaning
arising from a contract, law, delict, quasi delict, quasi contract.
Pwede ako mag habol ng pera, is that enough? NO! Hindi
porket may obligation ka, pwede kang habulin ng attachment.
Kahit isang daang milyon yan, di pwede manghingi ng
attachment yung complainant. Under what circumstances sir?
Iisahin isahin ko yung grounds:
1st Ground
Meron kang obligation sakin but you are about to depart with
intent to defraud. Yan yung una. May utang ka sakin, aba e
nakita ko sa FB may despidida party ka na. Obviously, aalis na
yan. dapat nerbyosin ka na kung malaki utang sayo nun, he is
about to depart. Sandali mere departure will not entitle you to
an attachment, e baka naman dadalawin lang yung nanay na
nasa Australia, isang buwan lang. Di ka naman lolokohin. So
in that ground there should be:
1. An obligation
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 2. The person is about to depart; and
3. With intent to defraud.
Papaano ko kaya malalaman na about to depart? May facts
and circumstances na nagpapaalam na, nagresign na opisina,
kung saan siya ng tuturo, lahat ng pera sa banko kinuha na.
Alam mo siguro di na to babalik, niloloko na ako nito, tapos
tinanong mo “san ka punta?”. Dyan lang. Siguro lolokohin ka,
alam na ng tao lalabas diba? You can now apply for
attachment. Ganun yun class and its wrong to remember the
grounds as simply fraud.
2nd Ground
May complaint ako, ano yung complaint? Niloko po ako e, ang
daming istoryang ganyang, inetregahan mo ng pera. If you
remember the case of Dulay vs Dulay yung sa deposition
nating kaso, na niloko niya yung kapatid niya pagkatapos niya
pagkatiwalaan ng 220,000 US dollars tapos tinakbo. That is
misappropriation, that is embezzlement, that is abuse of trust.
Tignan niyo sa grounds, that is an abuse of fiduciary
relationship. So, kahit anong arrangement na niloko ka,
inabuse ang trust mo kahit attorney-client relationship,
brokerage agent, principal-agent niloko mo. Ayan pwede mo
gamitin yun. Now listen para madali tandaan, yang
misappropriation, embezzlement ano yan? Actually class,
Estafa yan! Yan ang tatanungin mo, bakit cinicivil hindi
criminal? E ayaw nung complainant e. Bakit mo tuturuan. Di
nman lahat ng nag kakaso di naman lahat gusto criminal.
Katulad sa Dulay vs Dulay kapatid niya ayaw niya ipakulong.
Gusto niya lang bawiin yung pera. Pero ngayon, hang on, e sir
pwede ko din ba gamitin yun pag criminal case? Pwede.
Open Rule 127 Sec. 2. You see the word “misappropriation
TANNER NOTES
and embezzlement” as a ground for attachment for a criminal
case.
3rd Ground
Makikita niyo dito sa grounds na ito, lahat sila sinakop niya,
basta may taint na fraud. Tignan niyo yung three, in an action
for a recovery of property, possession of property. If you look
at the provision carefully, an action to recover possession of
property which was fraudulently or unjustly taken. Sinakop
niya di lang yung nilokong kuhanin pati yung di dapat kuhanin.
Remember and this is where I will make a distinction between
attachment and replevin, anong sabi rito? A property that has
been removed, concealed or disposed of. So class for
example, nagpagpagawa ako ng 3000 na bag, e hindi ko na
makita yung bag na hinahabol ko. I would want to recover
possession of that, anong gagawin ko? I aatach ko nalang,
kasi hindi ko na makikita yung hinahabol ko e. For example,
makina, I want to recover machines, makina na pang gawa ng
garments. Tatlong makina abay tinago na sakin, di ko na
makikita. In an action for possession, kita niyo possession,
and it does not make a distinction as to real or personal
property, that’s why I need to make a distinction with replevin.
In attachment (this is the most important distinction), the
approach is hindi specific. Kumbaga sa baril yung de sabog,
kung ano tamaan mo. Okay ganun ang attachment because
there is no way by which I could recover the property e so will
try cover everything I could cover. I will attach any property to
be able to secure because I could not recover possession.
However, if it is a personal property that you want to
specifically recover, you have to apply for replevin.
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Now listen, replevin can only be applied for before an answer. lang. That’s fraud in contracting of obligation. Can you apply
Therefore pag sumagot na yung kalaban, di ka na pwede mag for attachment? Yes!
replevin, ano remedy mo? Attachment. Kasi maaring di mo
Fraud in the performance is different. Example, “Sir, balita ko
na marecover pero macocompensate ka. For example: kotse,
may condo ka dyan sa BGC ah, gusto mo mag pa interior
lumang lumang kotse, inalagaan niya ng 40 years, tapos
yan? Oo sabi ko pero mahal, sir sakin mura. Bakit? Halagang
nakuha sakanya, syempre he wants to recover possession,
2 million magandang maganda na yan. Talaga? Gusto ko
replevin. Pero di niya na makita e. Gumugulong yung kotse
sana laminated wood at Italian na ilaw etc. Ah, sir kayang kaya
but of course he wants to be compensated at some point in
ko yan! Sure sir, 2 million! Bigyan mo na ako ng
time. Paaattach ko nalang iba niyang properties, that’s how it
downpayment” Maayos naman usapan naming diba? Nag
goes.
down ako ng 500,000. So may balance pa ako na 1.5Million.
5th Ground Ano ginawa niya pumunta siya sa binondo, pwede na to di
niya naman alam ni sir e ang alam lang niyan batas. Yun na
Okay, icoconnect ko agad sa subsection E of that section, in
lang. Okay na yan, mura kada plank e 12 pesos, yung ilaw
an action against a party. Pwede an action involving a
pwede na to, di niya mapapansin yan. Nakuha niyo class?
property, an action against a party. Any type of action for that
That’s fraud in the performance of the obligation. Pwede ka pa
matter, where his property concealed, removed or disposed of.
attachment? Pwede, pag binayaran kita ng 2million at
So kahit anong action na kung saan nag tago ng property
ginastos mo lang ay 800,000 e idedemanda talaga kita. That’s
pwede.
fraud in the performance.
4th Ground
6th Ground
In all of this, practically all, there is a taint of fraud. Pero again
The last, this will not require fraud, does not reside in the
class let me remind you, it is wrong to say it is ‘fraud”. Di kayo
Philippines. Ayun, yan ang pinaka madali, wala ka na
tatama sa sagot yun that why I have to explain. Di tatama
kailangan I justify, pag idedemanda mo does not reside in the
sagot kung very specific ang question. Now what’s the next?
Philippines. If company yun, not registered in transacting in the
This is subsection D. Dalawa yun. There is fraud in:
Philippines. Pag tao yun, does not reside in the Philippines.
1. Contracting the obligation; or Yung totoo does not reside! Remember this is under oath!
2. Performance thereof.
Kalian ba ako pwede mag apply ng attachment? If you look
What is the fraud in contracting? For example: “Pare bilhin at the Sec. 1, you could apply for an attachment at any time
mo tong relo ko, swiss made to, bilhin mo 30k, mura na ‘to.” before entry of judgement. Therefore in the RTC or MTC, if it’s
That’s fraud in contracting. Kunwari alam mong peke yung the original jurisdiction court, no problem. If could appeal?
relo, tapos ibebenta mo ng 30k, e halaga nito ay dalwang libo

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Could I can apply for attachment? Yes for as long the
grounds that I discussed are present. Sa SC pwede? Pwede.
But of course class, if its part of an original action, the venues
are dictated, if it’s the RTC or MTC, by the value of the claim.
If it’s property, it’s dictated by the assessed value of the
property (that is jurisdiction). When it comes to venue, it is
dictated whether it is a real action or personal action. Ganun
lang yun! Kasi class kakapit siya dun sa principal e. That’s
how it works. A provisional remedy.
Now lets move on. Ill try to explain this to you in detail, Alam
niyo yung laging lumalabas, I’m not too certain if its section 3
or 4, yung contents of an affidavit! That is very important.
What should an affidavit contain? It should contain:
1. A statement that there is a cause of action;
2. The affidavit should likewise state the grounds,
whether there is one, two or three grounds;
3. The amount appearing in the order above all legal
counterclaims. Meaning, yung amount na hinahabol
mo above all legal counterclaims; and
4. There is no sufficient security.
In the case of Equitable Bank vs Special Steel Products,
yan yung issue. Sapat ba yung affidavit to support an
application for attachment? Irurundown ko sainyo yung
affidavit niya, yung highlights lang. Number 1, I have sufficient
cause of action against Isidro Uy and Equitable who are guilty
of fraud in incurring the obligation, as particularly alleged in the
complaint. Second, there is no sufficient security for our claim.
Number three, we are ready and able to put a bond executed
in favor in the defendant. And then class listen to this, he
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made a very short narrative of what he claim as a fraud.
Plaintiffs thru counsel wrote about the fraudulent transaction
involving the checks which could not have been perpetrated
w/o its indispensable participation, cooperation or gross
negligence. So class, that was the question. Eto ba yung
affidavit na ito na binasa ko sainyo, is it sufficient affidavit,
in the light of the provision of the law? The answer is no.
According of case of Equitable Banking. While the provision of
the law gives you a general outline on what should be
contained in the affidavit, you have to put the details of what is
required to convince the court that indeed, you have a cause
of action, there was fraud present based on the grounds. You
don’t say, section 1 or section 2 of this ground, That is not
enough. The allegation should be clear and specific.
Next point, let me illustrate for you and let’s try to answer. I
have a complaint. I applied for attachment, my application for
attachment was incorporated in the complaint. Therefore, it
was part of my initiatory pleading. So dun sa complaint ko
sinabi ko na, eto yung hinahabol ko saiyo, ganitong halagang
pera. Tapos sabi ko, this was the manner of the fraud you
committed against me. So I applied it as part of my complaint
with an attached affidavit. Ngayon, the court upon receiving
the complaint, upon payment of docket fees, the court raffled
the case. It was assigned to a judge. Ngayon, nakita ni judge,
sabi ni judge “pwede!”. He issued now an order. Sir sandali,
bakit walang summons? Nakita ni judge, mukhang may
basehan to. Okay, after reading the complaint, after reading
the affidavit, it appears that there is basis. Sabi niya, I now
issue an order granting the application for attachment. Okay?
Grinant ni judge. Now, the judge in that order required me the
plaintiff to post a bond in the amount determined of the court,
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which is an amount of 1million because my claim is 30million with the summons is served for the enforcement of the writ.
pesos. Now my first question is the attachment already in Yan ang leading case dyan class. And that is more or less the
effect when the court issued the order? Tuloy muna natin same as in injunction.
kwento ko, bago natin sagutin. Nakatanggap ako ng order,
Class tuloy tayo, san ba effective ang isang attachment
sabi mag post ako ng bond. Ngayon nag comply ako or
pag naka kuha ako, effective lang bay an sa judicial
nagsubmit ng bond, nag issue na si judge, and the bond is
region, is the bond only effective in the judicial region?
acceptable to the court. The court now issued a writ. Take
No. It is effective in the whole Philippines as opposed to writ of
note: An order granting it is different from the writ of
preliminary injunction. BP 129 yan nakalagay, legal basis. Ang
attachment. The court now issues a writ of attachment. Is
attachment buong pilipinas, ang writ of preliminary injunction
it already in effect? Now, there was an order, there was
dun lang yan sa judicial region yan. Kaya dun sa Edu Case,
already a writ, it was now ready to be serve to the defendant.
yung nakuhang preliminary injuction sa Pampanga dun lang
Mr. A is the defendant.
yun, hindi pwede sa Metro Manila yan. Preliminary injunction
Can order and the writ be enforced? No because summons should only be implemented in the judicial district. Now lets
should have been served prior to or contemporaneous with move on.
implementation of order and writ. Ibig sabihin bago na
I’ll walk you through, paano ba sir inaattach? Just to be very
implement yung order at writ, dapat may summons. So gusto
clear. Sa personal property eto yang mga upuan na inuupuan
mo ba mauna ang summons? Ayaw mo, edi natunugan ng
niyo, attachment, remember attachment is custodia legis.
kalaban. Kaya nga ang provision e, prior or contemporaneous,
Inaattach etong 101 madison, Eto bang mga inuupuan niyo
ang gusto ko sabay sabay, ang kasama nun summons,
pwedeng tangayin, sir hindi naman wala pang judgement e.
complaint, order and writ. Kundi nalaglag sa upuan yun pag
Yan ba pwede higitin pag inattach? Yes, custodia legis e,
nakita niya. Pero pag nauna yung summons, natunugan niya
personal property e. San dadalhin. Sa husgado.
nay an, ah nako magtatago na yan. Itatago niya na yung
property, kukuha na ng abugado yan. So both ways pwede. Iba ang replevin, pag kinuha ko, hawak ng sheriff, pag di yan
Yung kasabay siya dapat at the very least kasabay siya. nag post yan ng bond dadalhin ko sa nag aapply. Yun ang
Contemporaneous with, and that is consistent with the case of kinaibahan. Ang attachment class, I aattach ko lahat yan. San
Davao Light cited in the case of Manguila vs CA. dadalhin? Sa husgado, Custodia Legis. Sir bakit? E ang
concept lang naman attachment is to secure the judgement.
Davao Light yan yung leading case dyan. Now, at the time
Pero nga lahat ng problema natin wala tayo warehouse na
the court issues the order, jurisdiction over the defendant is
ganyan, pag dating araw may nauwi na isa yan. Bulok na yan,
not necessary. At the time the writ was issued, jurisdiction over
kinarne na yan. Kasi naka tiwang wang e. Yan ang problema.
the defendant is not necessary. Jurisdiction over the person of
Pero yan ang concepto ng attachment pag personal. E pano
the defendant is necessary when the order, the writ together

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pag real, Pwede na gamitin naming yan. Hindi! Pag real
property class tataktakan lang sa titulo yun. Sir ano lalabas sa
likod? Edi abay may writ of attachment ittype yun dun. Pag
sinerve sa register of deeds. Where the property is located,
ipapadala mo yung notice mo dun, writ of attachment,
ipapasok yun sa titulo, sino may possession nun? Edi ako
parin. Ako may ari nun. Kaya nga lang may annotation of
attachment na sa title of my property. Sir papano yung pera?
Ano mangyayari sa pera? Hindi kukunin ng court. 57 is just a
security, you cannot withdraw. You will use garnishment. Last
meeting we discussed garnishment under rule 39, that is the
specific meaning.
When you talk of garnishment you take and apply to satisfy,
the court takes and applies to satisfy Kaya lang kahit sa mga
nagttrabaho sa court dito, Pero class yung attachment yung
dun di ka makaka withdraw, wala pa naman judgement.
Now, pano pag share of stocks inattach? Kailangan
patatakan mo dun sa kumpanya, in the books of the company.
The notice should be directed to the president or the managing
agent
Going back to my discussion on summons. Let us say, nung
sinerve, this was asked in the case, wala pang summons,
nauna yung order at writ. Pero napansin na wala. Ngayon nag
apply ng alias summons. Can the court belatedly acquire
jurisdiction and can the service of the alias summons
have retroactive application? No. The alias summons
belatedly served cannot be deemed to have cured the fatal
effect in the enforcement of the writ. Sa summons di pwede
belated. The trial court cannot enforce such coercive process
on the petitioner without obtaining jurisdiction over his person
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because what is important before you implement any writ,
order originating from the court, it is very important the court
should have acquired jurisdiction over the person of the
defendant. Kailangan sabay sabay! At the very least,
kailangan mauna yung summons.
Is a sole proprietorship a juridical entity? Ang sole
proprietorship class walang juridical entity yun. It’s doing
business under the name and style of. There is no limited
liability unlike a corporation. You will be personally liable.
Therefore, pag pinag filean ka ng kaso iseserve sayo yung
summons, pag na attach, properties mo ang iaattach. Pag
dinemanda yung sole proprietorship hagip yung tao, kasi siya
yun, no separate juridical entity.
In Rule 57, can you recover damages? Pertinent provision is
Sec. 20 of Rule 57. Hagip niyan attachment, preliminary
injuction, receivership, replevin. So lahat yan yung section 20
nag aapply. Bakit? Kasi pag binasa mo yung Rules, naka
refer yan sa Rule 57 Section 20. Bakit? Because class lahat
yan may aspect ng damages. Nag issue ng preliminary
injunction si judge, naperwisyo ka, tumigil business mo kasi
ienjoin, may danyos yun. Receivership and replevin na
perwisyo ka, may danyos yun. Eto yung seguridad mo. So
sinasabi kaya ka may bond pag nagaapply class. Whether
attachment, receivership, replevin, preliminary injunction, lahat
yan may bond.
Alam niyo ba kung bakit may bond? Kasi may damages e.
When you post a bond it’s a commitment to the other party
that you if the issuance is improper or irregular, sagot na nito
pare, wag ka mag worry pare. The bond is there to echo that
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message don’t worry, if you think you suffered damages you
could recover on the bond.
Ang tanong ano ba pwede kong marecover from the
damages? Accordingg to the case of Yu vs Ngo Yen citing
Lazatin vs Twano, “we lay down the rule where there is a
wrongful attachment, the attachment defendant may recover
actual damages even without proof the attachment plaintiff
acted in bad faith in obtaining the attachment.” There is no
proof required, the mere fact na mali yung attachment, nag
suffer ka ng damages/actual damages, marerecover mo yun!
Hindi kailangan ng bad faith basta wrongful. Now, however if it
is alleged that attachment was not only wrongful but also
malicious or in bad faith, you could recover moral and
exemplary damages.
Now, how bout class for you to convince the court that
you are entitled to actual damages, it is enough to say you
are entitled to actual damages? No, it is not enough. To
merit an award of actual damages arising from a wrongful
attachment, the attachment defendant must prove with the
best obtainable evidence, the fact of loss or injury suffered.
Now, such loss or injury must be of a kind which is not capable
of proof but must be proved with reasonable degree of
certainty. How will the court determine the amount? The
same must be measurable based on facts and not on
speculations. Sabi ng court “if the claim of actual damages
covers unrealized profits, the amount of unrealized profits
must be established and supported by independent evidence
of the main income of the business, interrupted by the illegal
seizure. Nangyayari to class, kadalasan to. Yung ibibigay ko
sayong kaso ganito yun. Dahil na attach ako, na perwisyo ako,
aba sabi niya di nakalabas yung mga sasakyan ko, yung mga
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bus ko. Edi may unrealized profits ako, ganun yun, kasi kung
yan ay lumabas, edi kumikita ako.
Pwede rin ba makarecover ng attorney’s fees? As a rule,
attorney’s fees cannot be awarded when moral and exemplary
damages are not granted. So kailangan moral and exemplary
to recover attorney’s fees. Exception is when the court
incurred expenses to lift a wrongfully issued writ of attachment.
Example, sabi ng court tama pwede makakuha ng atty’s fees
pag wrongful attachment, but the question is, paano pag you
are recovering atty’s fees based on the main case subject
of litigation? Can you recover? The answer is no. Ito lang
yun sa damages. Sa atty’s fees by reason of wrongful
attachment.
Sabi ng court in a more recent case. Yun nga yung bus, di
tumakbo so nag recover ng unrealized profits. Tapos yung
sabi niya yung premium, he want to recover the value the
premium paid dito sa damages na to. Sabi niya yung
premium na binayad ko, dapat bayaran mo ako based on
this damages. Pwede ba yun? The answer is no. You cannot
recover the premium payment. So class listen to this, ang
marerecover lang dito e yung ma eenumerate lang natin.
Now let us now move on, the case of Metro Inc. vs Lara,
Please bear on mind, citing case of Chudian vs Sandigan,
the rule when the writ of attachment is issued upon a ground
which is at the same time of applicant’s cause of action, the
only way to dissolve it is by posting a counter bond.
How do you dissolve an attachment? The answer is in
Secs. 12 and 13 of Rule 57. Most common that you know is by
counter bond. That’s Sec. 12. Please bear in mind that Sec. 12
will only apply to be discharged by reason of a counter bond,
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you can only post after the writ attachment has been enforced. there is 3rd party claim, the claimnant can vindicate his
Let me illustrate for you. Kunwari sir may attachment ang claim in the same or separate action.
cliente mo, ilalabas na. Ngayon that’s vital information for me,
Bigay ko sayo kaso ng Valdevieso vs Damalerio, ano
pwede ba ako pumunta sa cliente ko post nalang tayo
nangyari dito? Nag bentahan kami ni A so bumili sakin si A.
counterbond? NO. That attachment must be first be enforced,
Nag Deed of Absolute Sale pero di nirehistro, pero may
di pwedeng anticipatory, before posting counterbond.
executed Deed of Absolute Sale. So mata ng RD sino ang
Now, as to last point of Sec. 12, there could be a partial may ari parin? Ako parin, kasi di pa na rerehistrado e. okay.
release upon a counterbond. Papaano yan? May property Sa mata nila ako, ngayon dinemanda ako for recovery of
ka sa davao, qc, cebu. Kulang pera mo, pwede mo iparelease money with application of writ of attachment. The property that
yun. Okay lang yung partial release. was sold to A was attached. Subsequently, naisip ni A, ilipat
ko na. May tatak ng attachment e. Will that pass on to the
How do you dissolve that is was irregular, improper or
title of A? The court said, the settled rule that levy and
excessive? That is in Sec. 13. What is improper
attachment duly registered takes preference over a prior
attachment? Improper is no ground. yan e. No cause. What
unregistered sale. Kaya kayo nag rerehistro para notice sa
is irregular attachment? Pag irregular, the process was not
rest of the world. Lets continue, the court said the preference
followed or observed. What is excessive attachment? Alam
created by the levy of attachment is not diminished even by
niyo na yung excessive attachment, ang dapat nakalagay lang
the subsequent register of a prior sale, this is because an
sa order e 5million, ang inattach e 30 million. Excessive.
attachment is a preceeding in rem. Enforceable against the
Pwede mo idissolve yun.
whole world. The lien continues:
May 3rd party claim, papano masusupend ang attachment?
1. Until the debt is paid;
If the sheriff receives an affidavit of the 3rd party claimant. In
2. Sale is had under execution issued on the judgement;
this particular case of Rural Bank vs Sta. Barbara, meron
3. Until judgement is satisfied; or
siyang affidavit na natanggap. Impatient siguro yung lawyer,
4. Attachment discharged or vacated.
he filed a motion to release of property from attachment,
maliban sa affidavit, problema so how will treat this motion Let me give you another. Yung isang recent case, ganito
to release property on attachment? 2 ways: nangyari. Nag settle pero nagkaroon ng attachment muna.
Ngayon ang tanong nag settle na kami e. may compromise
1. The filing of the motion can be considered as merely
agreement na kami e. so nag karoon ng compromise
what a continuation of the 3rd party claim; or
judgement. Dapat mag cancel na yung attachment pero yung
2. The court said, the filing of the motion to release the
nag bayad, pero yun bayad postdated pa. Dapat ba macancel
property on attachment can be considered as a motion
yung attachment? The SC said NO. The lien continues until
for intervention, beause remember in attachment when

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the debt is paid or until the judgement is satisfied or vacated in
a manner provided for by law.
RULE 58
PRELIMINARY INJUNCTION
ORIGINAL ACTION FOR INJUNCTION VS. PRELIMINARY
INJUNCTION
Punta na tayo sa injunction. Im now citing Bacolod water vs
Labaye on the distinction of original action for injunction vs
preliminary injunction. I will repeat this for the last time, a
preliminary injunction is a provisional remedy, complain for
injunction is ordinary civil action. Now let us look at this. Under
the provisions of the law, there is what we call preliminary
injunction to stop. Sinabi na tumigil ka magtrabaho, tigil ka.
There is another one, preliminary mandatory injunction and
class at this point, di na to uulitin mamaya.
Under, the provisions of Rule 70 there, is an express provision
on preliminary mandatory injunction. Eto ang kadalasan
nakakalimutan ng nagfifile ng ejectment, to apply for a
preliminary mandatory injunction withn 5 days from the filing of
the complaint. Bakit? Alam niyo ang sasabihin ng iba. Lalo na
yung umuupa, sige idemanda mo ako ng ejectment, patagalan
tayo, umabot siya ng limang taon. Sino may possession?
Yung defendant. Yung di nag babayad. Biro mo lamang na
lamang siya. You can apply preliminary mandatory injunction
so that the plaintiff can have possession of the property. It
means you will be compelled to do something. And in that
case, preliminary mandatory injunction is to take possession.
Meron din preliminary mandatory injunction sa ejectment
within 10 days after the appeal perfected. Nanalo ka sa MTC,
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inappeal niya na sa RTC, you can file so you can take
possession.
Now, what are the requisites, eto class I want you to
remember this, you will find this in so many cases, Greenfield
vs Medina, etc. Requisites:
1. For an application for a writ, there should be a clear
and umistakable right. Dapat hindi doubtful;
2. Right has been violated and the invasion of the right is
material; and
3. There is urgent and permanent necessity for the writ to
prevent serious damage.
Aside from a preliminary injunction, you get to hear temporary
restraining order. Ano ba yung TRO? A TRO is to stop you
but only for a period of 20 days. Pwede ko ba iextend yan?
No extention.
Sir pano pag may TRO 20 days, e nag hearing kami ng
preliminary injunction within the 20 day period so the court can
accertain whether or not the court will give you a prelimniray
injunction. Note: Ang preliminary injunction walang period
of expiry, ang TRO 20. Now, e sir papano kung lampas na
yung 20 days, walang inissue na order whether granted or
denied? It is automatically lifted. If the court denies its clear. If
the court does not act, it expires. It’s over. They can now
perform the act which was enjoined. That is in the RTC.
Sir sa CA? ilang araw? 60 days! Sa SC? Until further orders
of the court. But of late, yung mga kaso ng Cybercrime Law,
RH bill, recent case ng Marcos, they gave a limited period for
a TRO. Minsan 60, 90 or 120 days. That’s for them because
the law did not give a limit. It’s their prerogative. You really
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don’t really need to get a preliminary injunction in SC because
if you get a TRO, as if you get a preliminary injunction.
Where can you apply for a preliminary injunction? MTC,
RTC, CA, SC.
Can you apply for a preliminary injunction as part of or
ancillary to a petition of certiorari under Rule 65? Yes but
depending on the facts of your case.
Can you apply for a preliminary injunction as ancillary of
by appeal to the SC under Rule 45? Yes.
Can you apply for a preliminary injunction under a Rule 42
to the CA? Yes for as long there is clear and untimistakable
right.
Importante class, the requisites are available. For example:
The most common is when you file a Petition for Certiorari and
you ask for a preliminary injunction. You know why? Because,
for example, motion to dismiss was denied. I filed an MR, it
was denied. I can no longer stop the running of the
reglementary period to file an answer. But I want to file a
Petition for Certiorari because I know that the judge committed
a mistake in denying my motion to dismiss but my period
continues to run. What will I do? I will go on a Petition for
Certiorari under Rule 65 and pray for a TRO and premilinary
injunction. Hopefully, the judge, justice or appellate court
grants. If the appeallate court does not grant, I will have to file
an answer because the period continues to run.
Can you apply for a prelimnary injunction while an action
is pending? Yes. Whether attachment or preliminary
injunction, you can apply for it as part of an initiatory pleading
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or as upon motion when the case is already pending. Its not
only applied as initiatory pleading.
TEMPORARY RESTRAINING ORDER
Before I discuss TRO, ano yung Temporary Environmental
Protection Order? That is in environmental cases. To prevent
violation of environmental laws or enforcement of laws for the
protection of a healthful ecology. Do you need a bond for
TEPO? NO. Do you need a bond for TRO? Yes you need a
bond under the present rules unless you could justify to the
court that the person will not suffer damages by reason of the
issuance of the TRO.
Ano naman Temporary Order of Protection? It is the
equivalent of TRO if you apply an interim relief under ADR
Law. For example: Nagfile ka ng preliminary injunction as an
original action. You could apply for an equivalent of a TRO,
ang tawag dun Temporary Order of Protection.
How about Barangay Protection Order or Temporary
Protection Order? That is for a relief given in instances of
violaton of women and children.
So maraming variation. Pero ang pinag-aaralan natin sa Rules
of Court ay TRO.
Can there be an ex parte TRO? Yes. Ex parte TRO happens
when there is a complaint and there is an application for TRO
and preliminary injunction. Kaya lang, for you to apply for a 72
hours TRO in court, you have to show that there is urgency
and great and irreparable injury. That should appear in your
complaint.
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1st Scenario
Who issues the ex parte TRO? The ex parte TRO is issued
by an executive judge of a multi sala court. The executive
judge is in charge not only of his cases but of the
administrative affairs of the judicial station like raffling, bond
requirement, extra judicial for closure, and if you'd want to be
commissioned as a notary public, dadaan kayo sa kanya. Only
the executive judge can issue a 72-hour TRO.
May hearing ba yan? Wala. The 72 hours in fact is effective
upon its issuance for as long as the judge is convinced that
there is urgency and there is grave and irreparable injury.
There is a little glitch in the provision of the law. Ang sabi ng
batas, effective sya upon issuance. That is why there is a
provision that says, “service of summons prior to or
contemporaneous with” Sec. 5, last paragraph. Example, nag-
issue si judge ngayong hapon, 72 hours takbo na yung period
pero kailangan mag-issue si judge ng summons, complaint,
and notice of raffle. Ito lang ang provisional remedy na
sinasabihan ng kalaban na mag-ra-raffle tayo. The reason for
this is historic. There were doubts as to the objectivity of other
judges decades ago in issuing preliminary injuctions. Kaya
ginawang transparent para hindi mo pagsususpetsahan yung
husgado na niluto yung kaso mo. Take note: Ex parte TRO,
no summary hearing.
Within the next 72 hours or the next three days, it will be
raffled. After raffle, it will be assigned to a let's say it was
assigned to branch 2. Branch 2 now will conduct a summary
hearing. Not for the preliminary injuction but to determine
whether the three days will become 20 days. Titingnan nya
kung pwedeng mag-plus 17, maximum 20. Pag nakita nya na
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pwede he will issue a TRO. Not Ex parte TRO, but a TRO.
During that period of 20 days, after the 3-day ex parte TRO,
maghe-hearing to see whether you're entitled to a preliminary
injuction.
Remember, the summary hearing is not for purposes of
proving your cause of action, The summary hearing is only for
purposes of sampling of evidence, that evidence which is
enough or sufficient to convince the court to issue preliminary
injunction.
2nd Scenario
May complaint, may application for TRO, preliminary injunction
but you're not claiming urgency. You're claiming grave and
irreparable injury. Can the executive judge issue a 20-day
TRO (Sec. 5)? NO. Hindi nya kaso yun maliban na lang kung
na-assign sa kanya.
It gets to be raffled to branch 2. Can branch 2 issue an ex
parte TRO after raffle for a period of 20 days (Sec. 5)? Yes,
if there is grave and irreparable injury.
So dalawang situation pwede mag ex parte TRO (1st scenario
and 2nd scenario). But the usual is the 3rd scenario.
3rd Scenario
In-assign sa branch 2, branch 2 conducts a summary hearing.
And only after a summary hearing will the judge issue a 20-
day TRO.
Can the court issue a preliminary injunction without
notice and hearing? This was discussed in the case of Dela
Paz v. Adiong. The famous judge Adiong. Nag-issue ng
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preliminary injunction walang hearing. Si judge, nag issue ng
TRO na walang hearing. Hindi pwede na walang hearing
under Sec. 5.
The preliminary injunction is only effective within the judicial
region, within the territorial jurisdiction of the court. In this case
of Adiong it was issued by the City of Marawi. That writ of
preliminary injunction cannot be implemented outside of
Marawi. it can only be implemented in that area. Within its
territorial jurisdiction.
DAMAGES
Section 20, Rule 57 also applies. In this case of Limitless, the
dissolution of the injunction even if the injunction was obtained
in good faith, amounts to a determination that the injunction
was wrongfully obtained and the right of action on the
injunction bond immediately accrues. It is also erroneous for
the court to rule - meaning the court of appeals - that
petitioners not entitled to claim damages from the injunction
bond simply because the preliminary injunction was directed
against the MTC. The MTC does not stand to suffer damages
from the injunction because it has no interest in the case.
Damage or loss is suffered by the party whose right to pursue
its case is suspended or delayed which in this case is the
petitioner. So even in instances where the court or an agency
of the court is enjoined, you can still recover damages for a
wrongful injunction for as long as you could establish that
there was no basis for that injunction or the injunction is
wrongfully obtained.
Bear in mind that whether it be a preliminary injunction or or a
temporary restraining order, you will have to post a bond.
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Is the grant of a preliminary injunction a final judgment or
an interlocutory order? The grant is an interlocutory order.
Therefore if you disagree with the finding of the court you
could file an MR, and if the MR is denied you could file a
petition for certiorari. Bear in mind that the grant of preliminary
injunction rest only upon the sound discretion of the court.
In the same case of Nise, to establish the essential requisites
of preliminary injunction, the evidence to be submitted need
not be complete and conclusive. The plaintifs are only required
to show that they have an ostensible right to the final relief
prayed for.
Can the court issue a TRO when there is no application?
No. This is the case of Universal Motors. The court cannot
issue a TRO motu proprio. There should be an application.
Having done that, the judge can be administratively held liable.
Lets discuss the case of Hernandez. This in connection with
the NAPOCOR line that passed through Dasmarinas Village
and Forbes Park. Dinemanda ni Mr. Hernandez kasi sabi nya
yung ineemit na radiation nakakacause ng cancer. NAPOCOR
built high tension wires over Dasmarinas Village. Afraid of
adversse health effects, residents, lead by Mr. Hernandez filed
a complaint for damages with prayer for TRO or writ for
preliminary injunction. The trial court issued the writ and
articulated that the injunction was necessary to stay
NAPOCOR's activation of the powerlines due to the possible
health risk. Can the TRO be issued? The court said that here,
there is an adequate evidence on record to justify the
conclusion that the project would probably imperial to health
and safety of residents. So here, you have a situation of not
clear and unmistakable right. It is it would probably imperile
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the health and safety. You will find this is the Rules of Court on
the grounds of preliminary injunction, e.i., if it would probably
work injustice and it will cause irreparable injury. This is what
they used in the case of Hernandez.
What do you mean by irreparable injury? It means that the
damage is not measurable, not quantifiable. The very moment
that the damage is measurable, the court will not issue a
preliminary injunction because it is measurable.
In the same case, probability is enough basis for injunction to
issue as a provisional remedy which is different from injunction
as a main action where one needs to establish absolute
certainty. In fact in this case, the court distinguished the
difference between a quantum of evidence required for
preliminary injunction which is only an ostensible right.
However, for an action for injunction the quantum of evidence
must be conclusive and complete to establish absolute
certainty.
Can the court issue a TRO to stop a governement
infrastructure project? No.
Can the court issue a preliminary injunction to stop a
court of co-equal rank? No.
Can a preliminary injunction be issued in environmental
cases to stop any act which involves performance of
environmental laws? Only the Supreme Court, no other
court, can issue a preliminary injunction in environmental
cases. However, iba yung Temporary Environmental
Protection Order, that is to maintain the status quo, to maintain
the healthful ecology while the action is pending.
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Can you issue a preliminary injunction to restrain
collection of internal revenues? No.
Can you restrain a criminal prosecution? General rule is
no. Except:
1. To afford adequate protection to the constitutional
rights of the accused;
2. When necessary for the orderly administration of
justice and to avoid multiplicity of suits;
3. When double jeopardy is clearly apparent;
4. Where the charges are manifestly falls and motivated
by vengeance; and
5. Where there is clearly no prima facie case against the
accused and a motion to quash has been denied.
Criminal case to so take note: A denied motion to
quash has no remedy. You cannot go up on a certiorari
as a rule unless it's tainted with grave abuse of
discretion or when it appears that there is no prima
facie case.
The case of Allgeminie-Bau-Chemie vs. Metropolitan Bank.
An original action of injunction is outside the jurisdiction of the
CA. Where to be filed? It is to be filed in the RTC because it
is incapable of pecuniary estimation, unless there are claims
for damages the jurisdiction will be affected by the damages
portion. As stated further in that cases, the CA has jurisdiction
only for annulments of judgements and original jurisdiction to
issue writs of mandamus, prohibition certiorari, habeas corpus
and quo warranto and auxilliary writs and processes whether
or not in aid of appellate jurisdiction. The CA has no original
jurisdiction over original actions for injunction.
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The case of Sps. Marquez vs Alindog(2014). Case law
instructs that injunction will not lie where the acts sought to be
enjoined has been already fait acompli. Meaning, an act
already been consummated or accomplished cannot be
enjoined. Hence, since the consummation of acts sought to be
restrained has rendered the Alindogs petition has already
been moot, the issuance of said writ was altogether improper.
SECTION 6
How do you dissolve an injunction? Remember there is a
number of ways to dissolve: number one
1. Upon affidavits. You will have to show by facts that
there is no reason for the issuance of preliminary
injunction. You will have to show there is no cause; and
2. Upon posting a counterbond. That person posting a
counterbond will have to show that the damage he will
suffer is far greater from that of the applicant. That’s
how to dissolve.
I would like to call your attention on this, a temporary
restraining order or a preliminary injunction. When it comes to
judicial foreclosure and extra-judicial foreclosure, A.M. No.
991005, which was made effective in 2007 and cited in so
many other recent cases. Today class, the rule is that courts
will not immediately issue a TRO or preliminary injunction
purely because they claim that the obligation has been paid or
is not delinquent unless the payment is supported by
evidence. No TRO or preliminary injunction against extra-
judicial foreclosure shall be issued on the allegation that the
interest on the loan is unconscionable unless the debtor pays
the mortgagee at least 12% per annum interest on the
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principal obligation as stated in the application for foreclosure
sale which shall be updated monthly while the case is pending.
This same circular covers status quo order. What is a
status quo order? It is not a TRO and is it not a preliminary
injunction, it is not found in the Rules of Court but it is created
by jurisprudence. Unlike a TRO, it has no requirement of an
affidavit or a bond but it has the effect of maintaining the status
quo. There is even no period for its expiration. In the light of
this vast effect of a status quo order, the SC said that in the
judicial and extra-judicial foreclosure cases, if there is an
application for status quo order it should comply with the
requirements of TRO and preliminary injunction. In simple
terms there should be what? There should be a bond!
RULE 59
RECEIVERSHIP
If the concept of the attachment is to secure and the concept
of the preliminary injunction is to prohibit or to require
performance, the concept of receivership is to preserve.
Who is a receiver? A person appointed of the court in behalf
of the parties for the purpose of preserving the property and
prevent it from being wasted or dissipated. Here, there are two
bonds:
1. Bond of the applicant - will cover the damage of the
other party in the event the receiver is appointed; and
2. Bond of the receiver – to cover whatever damages that
will be suffered by his performing his functions as a
receiver.
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Please bear in mind that a receiver is a person disinterested to
the parties. He is Impartial. Therefore, he does not favor any
party. It is inherent in the office of the receiver that not only he
should act at all time with diligence and prudence but also
should not incur any obligation or expensditure without leave
of court. Just like in attachment and premiliminary injunction,
an application for receivership should also be verified.
You could apply for receivership where? RTC, CA, SC. For
as long there is a need to preserve the property.
In the case of Baking Enterprises vs Mafori, Mafori, because
of huge debt for rehabilitation of his building, executed dacion
en pago and assignment of rights of the building to Baking
Enterprise. His wife claimed that the property was a conjugal
property and the transfer was without her consent. She filed
receivership to preserve the rentals of the property. Should be
the receivership application be granted? There was failure
to show how the building as well as the income would
disappear or be wasted if not entrusted to a receiver. They
were not able to prove that the property has been materially
injured. Courts of equity will not ordinarily appoint a receiver
where the rights of the party depend on the determination of
adverse claims to legal titles.The policy of our courts is to
refrain to grant receivership.
When can you apply for receivership? What are the
grounds for a receivership?
1. You want the property to be preserved during
pendency of the action.
2. Another instance is where there is a stipulation in a
mortgage agreement
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3. When the security is no longer sufficient to cover the
obligation.
4. Finally a receiver can also be appointed even after a
judgement has already been rendered or final and
executory. This is the only remedy that can do that. It
could be granted by the court to aid execution.
5. Last other situation the court deemed as appropriate.
Can the need to cover medical expenses be a basis for
appointment of a receiver? Matanda na yung tao nag-
papaappoint siya ng receiver this is the case of Tantano vs
Espina. Tantano and her 5 other siblings owned parcels of
land which they bought from their parents. Their other siblings
filed a case for the annulment of the deed of sale. Their
mother also contested the sale. Fearing that the properties will
be squandered, the mother filed an application to place the
controverted lots under receivership. Claiming that unless a
receiver is appointed by the court, the income or produce from
this property is in grave danger of being lost and dissipated.
What did the court say? The court said that the alleged need
of the mother to defray the medical expenses and support is
not a valid justification for the appointment of a receiver. The
approval of an application for receivership merely on this
ground is not only unwarranted but also an arbitrary exercise
of discretion. The reasons set forth are not found in section 1.
That’s why you have to memorize section 1.
Another case is Mafori, rental income is also not a ground to
apply for receivership because there is no allegation that the
property was materially injured. Second, there is no clear
showing that the property is in danger of being lost, dissipated.
Babalik ka dun lagi.
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Another case, ito naman magkaibigan, yung isa professional, 3. To collect receive rents;
yung isa siya nagadminister ng property but the professional 4. To collect debts due to himself as a receiver;
was now starting to question the expenses of the one taking 5. To compound or compromise the same;
care of the property. So the professional demanded for an 6. To make transfers
accounting. While there was an action for accounting, there is 7. To pay outstanding debts.
also a request for an appointment of a receiver. It was initially
In simple words, ONLY ACTS OF ADMINISTRATION. A
granted by the trial court. Now when it reaced the SC, the
receiver cannot perform acts of ownership. Therefore, if the
question was can that be a basis for appointment of a
property has to be sold or mortgaged, disposed of, that would
receiver? No. An accounting is also not a basis for the
require authority of the court, or leave of court.
appointment of a receiver.
RULE 60
What should the receiver do to be able to perform its
REPLEVIN
function? He should be placed under oath and post a bond.
Ano ang kailangan niyo tandaan dito? Una contents of the
Let us now distinguish the difference between an applicant’s
affidavit, pag alam niyo contents ng affidavit, masasagot mo
bond and receiver’s bond.
kahit anong tanong diyan replevin. So what does it contain?
• An applicant bond answers for the damages the
1. The affidavit should allege the applicant is an owner or
adverse party may sustain by reason of appointment of
he is a lawful possessor;
such receiver.
o It is possible, I’m not a owner and only a possessor
• The other, to cover the damages by reason of the
can I apply? Yes as long as you are lawful possessor.
failure of the receiver to discharge his duty faithfully.
Example, there is a usufruct arrangement. Paano if
How do you dissolve a receivership under the provision of there is a leasing arrangement? Or paano pag UBER?
the law? Under the law, the receivership can only be Lets us say bumili ako 10 na sasakyan yun ung pinag
dissolved under 2 grounds: uuber ko. Ngayon of course malaking pera yun. I
borrowed for the bank, sabi ng bank leasing
1. When there is no cause; and arrangement tayo. In the meantime the registration of
2. Upon posting of a counter bond, the car is with the bank. Am I a lawful possessor? Yes!
What are the duties of a receiver? The duties are as follows: Im am authorized by reason of an agreement. Itinakbo
ng isang driver ko. Pwede ba ako magdemanda? I am
1. To bring and defend actions in his name; merely a lessee can I now sue? Yes with a writ of
2. To take and keep the possession of the property in replevin!
controversy; 2. There is unjust deprivation. It must be unlawful;

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 o In one case decided by the court, forest logs were
detained by the Bureau of Forestry. In an action for
recovery of possession, can the replevin lie? No
because the detention was lawful. For as long as the
deprivation is lawful di mo pwede questionin. I had an
actual case. In a buy-bust operation, an employee was
detained including sasakyan. Di alam ng company na
suspect sya. Can he apply for replevin? No because
the deprivation was lawful. What I did was to file a
motion in court for the release of the vehicle. The court
recognized our right to the vehicle
3. The same has not been subjected to levy, execution,
attachment, assessment; and
4. The value of the property.
o What’s the importance? For the bond. This is the only
remedy where the bond is double the value of the
property. Counterbond is equivalent to the doubled
value.
How will you dissolve a writ of replevin? To dissolve it, to
immediately discharge and recover the property, simply post a
counterbond or what we call redelivery bond within the period
of 5 days. If nabayaran, pwede na kunin nung nag post. If not,
the court has the duty to deliver it to the applicant.
RULE 61
SUPPORT PENDENTE LITE
What is support pendente lite? It is ancillary to a principal
action for support, nullity of marriage, annulment or legal
separation.
In replevin, it can be filed in the MTC or RTC depending on the
value of the property but before an answer. In support
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pendente lite, you could apply for it for as long as the action is
pending but before judgment.
Can you apply for it in the MTC? No. Only in the RTC as
Family court, CA and SC.
Court issues an order to give support pendente lite and
you refuse to comply, what happens? The court will issue a
writ of execution. This is one of the very few instances that the
court will issue a writ of execution even in the absence of final
judgment. Support Pendente Lite is only an interlocutory order.
Another instance is when the court discovers that you are not
an indigent and you made representations that you are an
indigent, the court can issue a writ of execution if you refuse to
pay filing fees.
This is the only provisional remedy where there is no
requirement of a bond. Because there in no requirement of a
bond, there is no opportunity to recover damages. Only in this
rule that Rule 57 section 20 is not applicable. If nagkamali,
restitution or reimbursement.
Now, how can you recover? If the action is pending, you can
recover from the person who received the support, primarily, in
the same action. If the person who receives support cannot
return the amount given as support, then you can recover
against the person who should have given support. If there is
already final judgement, you can receover in a separate
action.
There is specific provision for criminal cases. That is Sec. 6. It
covers a situation wherein a child was a result of a
commission of a crime (rape, adultery, concubinage). In
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instances like that, the child can ask for a support pendente
lite.

Is it necessary in an application for support pendente lite

for the court to determine the merits of the case? No. A
court may temporarily grant a support pendente lite prior to the
rendition of judgment (case of Mangonon vs CA). However,
because of its provisional nature, the court does not need to
delve fully in the merits of the case before it can settle an
application for such a relief.

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 SPECIAL CIVIL ACTIONS
How many special civil actions do we have? Rule 62 to
Rule 71. 9 yun. Tandaan niyo that these are all original
actions. These are not appeals. Rule 65 is not an appeal.
Even in the future, once you become lawyers, you have a
case. For example, quo warranto. The rule is you have to look
at the specific rule where it is written. Only if the provisions are
inadequate can you apply ordinary procedure.
RULE 62
INTERPLEADER
What is an interpleader? The primary reason why an action
for interpleader is instituted is to prevent the plaintiff from
being vexed or harassed. He is bringing the action in court not
because his right in being violated, but because he wants to
avoid being vexed. Wala naman akong kinalaman sainyo, pati
ako idadamay niyo. That’s why if you read the provision of the
law, I have no interest over the subject of the litigation. Even if
I have an interest, my interest is not inconsistent with the
conflicting parties.
The court of original jurisdiction is the RTC because there is
no claim for damages. Because your right has not yet been
violated, you are asking the court to issue an order requiring
the parties to interplead among themselves. Yan ang concept
ng interpleader, labas na ko. An importante, dalhin ko sa
husgado and let the court decide.
Classic example dito ay yung mag-asawang nagaagawan ng
insurance benefits. Ako, sun-life insurance, namatay yun isang
member naming may policy, may pumunta, asawa raw ni Mr.
Reyes. The following day, dumating naman yun asawa. Can
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the insurance company decide for itself? Yes, except that,
ayaw niyang gawin yun, ayaw nila iexpose sarili nila sa
damages kung magkamali sila. What the insurance company
will do is to let the court determine sino talaga yung asawa.
Pag sinabi ng court si A ang asawa, bayad ako dun.
The case of Louie Enterprises. There are conflicting claims
for ownership and the lessee does not know whom payment is
to be made. The lessee does not want to pay to the wrong
person. So what will the lessee do? File an action for an
interpleader to ask the court to determine to whom payment
should be made and accordingly, the rentals should likewise
be consigned to the court. For as long as there are conflicting
claims, you could file an action for interpleader. But bear in
mind there should have been no breach of the right of the
plaintiff.
Another example, homeowners association. May nakatira sa
condominium. Nagbabayad sila ng dues para malinis yun
common areas, Nag-away. May nagcclaim ngayon na sila rin
yun homeowners association. Hindi nila ngayon alam kung
kanino sila magbabayad ng dues. Kapag nagkamali ng bayad
dito delinquent sila. They can file an action in court, interplead
and consign my money in court.
In the case of Baglente, what is interesting is what can an
interpleader award. In this case, there was a question as to
who can purchase the property. Who as between the
conflicting complainants have the right to purchase the
property. He filed an interpleader, court, kanino ba ko
magbebenta? Nag-award ang court sabi dito mo ibenta kay A,
pero magexecute ka ng deed of sale. Ang nakalagay sa
judgment is the execution of the deed of sale in favor of the
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winning party preliminary to the acquisition of the property.
The problem was in the interpleader case, it carried with it not
only the execution of the deed of sale, but also the issuance of
the writ of possession. Is that correct? No. A writ of possession
complements the writ of execution only when the right of
possession or ownership has been validly determined in the
case, which, according to the court, the interpleader case did
not do. All that the interpleader said was execute a deed of
sale. The same did not determine who was entitled to
possession.
SECTION 4
In the provision, you will notice you can file a motion to
dismiss. This is a classic example of a sitution wherein
ordinary rules will have to apply except that there is an
additional ground – impropriety of the interpleader.
SECTION 5
Can there be counterclaims, cross-claims, in an action for
interpleader? Yes. 2nd Paragraph of Section 5 of Rule 62
provides that the parties in an interpleader action may file
counterclaims, cross-claims and 3rd party complaints and
responsive pleadings as provided by the rules.
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
SECTION 1 – WHO MAY FILE PETITION
If I were you class, I would give special attention to section 1.
This is another example where there is no breach. The first
paragraph states that if you want the court to interpret or
determine the validity of a will, a deed, a written instrument or
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if you want the court to determine the validity of a law, a
governmental regulation or an ordinance. Constitutionality
hindi kasama dito class.
The court who has original jurisdiction to declaratory relief is
the RTC based in the case of Liga ng mga Barangay vs
Atienza. Why? Because there is no breach. It is incapable of
pecuniary estimation, RTC yun.
Papano kung constitutionality? Declaratory relief pa ba
yun? If there is an issue of constitutionality of a law,
ordinance, governmental regulation, it goes directly to the SC.
Class remember, basta purely declaratory relief sa RTC lang
yun. Kapag may combination of constitutionality, pwede ka na
lumabas ng RTC.
The second paragraph is the quieting of title, reformation,
consolidation and removal of clouds. Which court has
jurisdiction? For quieting of title, it is not dictated by the
assessed value based on the case of Sabit Sana vs
Murtegui. If it involves title to, recovery of title, possession or
involving an interest over real property, what determines
jurisdiction is the assessed value. If it is quieting of title sa
RTC yan, di sa assessed value.
In one case decided by the court, it is accion publiciana. How
do you determine jurisdiction? When you have been
deprived of possession and it’s Accion Publiciana, it is
determined by the assessed value.
If you have been deprived of possession within a period of 1
year and it’s forcible entry, you file an action for ejectment.
Where? In the MTC. You’ve been deprived of possession,
force, intimidation, strategy, threat, stealth. May deprivation na
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yun eh. Within 1 year, ejectment ka. You would want to
recover possession beyond the period of 1 year, accion
publiciana, deprived of possession jurisdiction is determined
by the assessed value.
But when you talk of purely quieiting of title, hindi ka na
deprived ng possession nun. Ang nangyari lang, there is an
apparent/ostensible title but in truth, it is void and invalid. For
example: Yung lupa mo, binigay na yan sakin ng lolo mo by
Deed of Donation. But you remain in possession. Quieting of
Title. Where do you file it? RTC.
There is removal of cloud, which is similar to quieting of tile,
and then you have reformation and judicial consolidation.
Reformation and judicial consolidation are also with the RTC.
What is Consolidation? Consolidation is Art. 1607 (Pacto de
Retro Sale). In an event of a sale with the right to repurchase
and di na nabawi yun, magkakaroon ng consolidation. It
requires judicial consolidation, in which case you need to file it
in the RTC.
What is Reformation? In instances where there is mutual
mistake, there could be reformation. For example:
Nagkasundo tayo. Ang sabi mo and sabi ko, ibebenta ko sayo
yung Batangas property. Ang lumabas sa Deed of Absolute
sale “The subject of the Absolute Sale is the Cavite property.”
Can we reform? Yes because there is a meeting of the minds.
We are in agreement and we can correct it because there is
mutual mistake. If I disown it, walang contrata. Dapat
iparescind mo yung agreement. Again, reformation can only
take place when there is mutual mistake.
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The students asked me, sir, how come this 2017 book cited a
case of Consha vs Lamosko that says anything involving to
quieting of a title falls under the category of title to, possession
or interest over property. I told them that there is a more
recent, a 2009 case of Malana, which reiterated that ruling
(Akala ng students kasi 2017 rin yung Consha vs Lamosko
case kasi nacite sa 2017 edition na book. Consha vs Lamosko
is a 2007 case).
However there is a 2013 Case, The case of Sabitsana vs
Muertegui. I think what bothers them is it was not in the 2017
book. It was said to be simply an obiter. Mabigat yon. Kapag
sinabing obiter, wag mong papansinin yan, walang batayan
yan. You have a 2007 case and a 2013 case, the latter is more
recent and attacked directly the quieting of the title. The only
thing that I disagree with this case is that it said that quieting of
title is declaratory relief. No, with all due respect with the
ponente, because declaratory is the 1st paragraph. The 2nd
paragraph reformation quieting of title removal of clouds and
consolidation is other similar remedies. Now, if may kaso ka
na quieting of title, I would call the attention of Sabitsana vs
Muertegui.
Anything that involves property, title to, to recover property,
assessed value. Possession, dinemenda kita accion
publiciana, except ejectment (always MTC), dictated by the
assessed value. Interest, any kind, it involves mortgage, there
are two views on the matter. But, you cannot directly say that it
involves title to possession or interest. Why? Let me explain
nature quieting of the title. I am in possession, I am enjoying it,
someone comes to me and says, “I have a title of your land.”
All I need to do is to quiet title. In fact, it is clearly incapable of
pecuniary estimation. When you look into the reason behind it,
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it’s fairly clear. Case of Sabit Sana reverted back to Civil Code
interpretation of QUIETING OF TITLE that recognizes RTC
talaga.
On declaratory relief, please bear in mind that this is the only
provision where there could be conversion. Conversion of
what? From a special civil action to an ordinary civil action.
When will the conversion take place? Conversion will take
place only when there is a breach. However, the provision of
the law does not say how it will be converted. Because of the
damages portion, you will have to pay filling fees and because
this is no longer a special civil action, the docket number will
have to be changed to be an ordinary civil action. This is the
only provision where there is a conversion of an action from a
special civil action to an ordinary civil action
Please take not of the requisites of declaratory relief:
1. There should be a justiciable controversy ripe for
judicial determination;
2. That the matter is subject of judicial review; and
3. Administrative rule is interpretive and cannot go
beyond the law.
Bear in mind that the subject matter of the controversy is ripe
for judicial determination. In simple words, there must be an
actual justiciable controversy or the ripening of the seeds of
one between persons whose interest are adverse. Finally, an
adequate relief is not available through other means or other
forms of action or proceedings.
RULE 64 - REVIEW OF JUDGMENTS AND FINAL ORDERS
OR RESOLUTIONS OF THE OF COMELEC AND COA
RULE 65 – CERTIORARI, PROHIBITION AND MANDAMUS
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Let us compare Rule 64 and 65.
Rule 64 is a review of COA and COMELEC decisions. After
these decisions, you go directly to SC.Rule 65 is review of
RTC and CA. An Interlocutory order of the MTC can be
reviewed by the RTC. An interlocutory order of the RTC can
be reviewed by the CA. An Interlocutory order of the CA can
be reviewed by the SC. In fact per jurisprudence and BP 129,
they have what you call Concurrent Jurisdiction. That’s why
you have to respect the hierarch of courts.
How about the nature of 64 and 65? What petition will you
file? You will file a petition for certiorari. Both 64 and 65 are
petitions for certiorari in Sec. 2 of Rule 64.
Parehas silang petition for certiorari:
1. Grave abuse of discretion amounting to lack or
excessive jurisdiction; and
2. There is no appeal or any plain and speedy remedy
Period to file a petition for certiorari in 64? 30 days. Period
to file a petition for certiorari in 65? 60 days
Can the period be extended in Rule 64? No. The provision
does not provide. Can the period be extended in 65?
General rule is no. The exception is compelling reason. Look
at Rule 65, Sec. 4, do you find there an extendible period?
No. Originally, it had an extension period of 15 days. Then it
was removed in 2007. The intention was to not to allow
extension. However, per subsequent jurisprudence, it says
that for a good and compelling reason, an extension of 15
days is allowed. Look at the bottom of Sec. 4.
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Can you file MR under Rule 64? Yes if the agency allows. To
my knowledge, yes both in COA and COMELEC. If you file an
MR in 64, the period is merely interrupted. Therefore, if the MR
is denied, you only have the remaining period. If you file an
MR in 65 and it is denied, you have a fresh period.
Rule 65 requires that the question order be attached (duplicate
original or certificate true copy). The same way with Rule 64.
In Rule 65, copies of pertinent pleadings will have to be
attached. In 64, all of the attached pleadings should be
certified true copy because this is COA and COMELEC. These
are agencies not under the judiciary.
CERTIORARI
There is what you call Certiorari under the Constitution and
Certiorari under Rule 65. When you use Certiorari under Rule
65, it should involve judicial or quasi-judicial. Under the
constitution, if you use certiorari, wala nakalagay nyan. But
both have the same periods. Minsan nga Certiorari under the
Constitution walang period eh.
Why? Napakalawak ng Certiorari under Constitution. It covers
any act with grave abuse of discretion amounting to lack or
excessive jurisdiction of any agency of the government.
However, the SC has been confronted with situations wherein
what was filed was a Rule 65 Certiorari but what they had to
do is to interpret a law or a regulation. In that case, even if you
file a Certitorari under Rule 65, the court will dismiss your
petition and will simply say you should have filed a declaratory
relief.
The function of constitution certiorari is far and wide because it
extends to grave abuse of discretion of any agency of the
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government. Therefore, if you use a Certiorari and it questions
a regulation or law, it is not covered in rule 65. It will be
dismissed. It is because the passage of law is legislative in
nature. Rule-making power is not covered by judicial or quasi-
judicial.
In the case of Customs vs Hyper Mix, the Commissioner of
Customs issued a memorandum for tariff purposes, which
classified wheat according to: (1) whether it’s an importer or
consignee, (2) country of origin of the wheat; and (3) port of
discharge. The regulation provided an exclusive list of
corporation, ports of discharge of commodities, and countries
of origin. Depending on these factors, wheat would be
classified either as food grade or feed grade (this will affect the
tariff. Mas mababa pag feed grade). The memorandum further
provided for the proper procedure for protest or evaluation and
classification review. Under this procedure, the release of the
articles that were the subject of protest required the importer to
post a bond to cover the tariff differentials. A month after the
issuance after the memorandum, a company, Fountain Inc.,
filed a petition for declaratory relief in RTC of Las Pinas. It
anticipated the implementation of the regulation on its
imported goods of wheat coming from china. Fountain
contented that the memorandum was issued without the
following mandate of the Revised Administrative Code and
was not published by the UP Law Center. Fountain Inc. also
alleged that the regulation adjudged it to be a feed grade
without the benefit of prior assessment and examination. It
claimed that the equal protection clause of the Constitution
was violated when the regulation treated non flour millers
differently from flour miller for no reason at all. Fountain Inc.
also asserted that the same cannot be given retroactive
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application. Commissioner of customs thereafter filed a motion
to dismiss alleging that an action for declaratory relief is
improper since the memorandum was an internal
administrative rule and not legislative in nature.
Should the petition be dismissed? No. This is equivalent to
a rule making power in which case declaratory relief can
stand.
Case of Galypto vs Aquino. Then President Aquino, when he
assumed position, saw the benefits of GOCC na napakataas
and sabi niya dapat to bawasan. Senate then picked this up
and President Aquino issued an E.O. In reaction to the
findings of the senate, sabi ni President “maglabas ako ng
E.O.” The E.O. says that the rationalization of the
compensation, classification and position of GOCC. Ang effect
nung E.O. is nabawasan yung benefits and allowances nila
and are not entitled to increased salaries. An employee
complained. The employee filed a Petition for Certiorari under
the Constitution. He said, the E.O. ay mali. The affected board
of trustees of GOCC’s filed and employees filed a petition for
Certiorari to question the grave abuse of discretion amounting
to lack or excessive jurisdiction. Sabi ng SC, mali, dapat di
niyo cinertiorari yan. Judicial at quasi-judicial lang ang sakop
ng certiorari. Dismissed ang petition. Dapat declaratory relief.
SC says in situations that involve a rule making power or
legislative rule, you use declaratory relief. This topic may be
asked in the bar. You cannot use a certiorari to question a
rule, law or governmental regulation because it is limited only
to judicial or quasi-judicial.
What si the difference between Certiorari under Rule 65
and Certiorari under the Constitution? Certiorari under the
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Constitution is not limited to judicial or quasi-judicial. Any
question under the sun against an act of an agency of the
government can be questioned on a Certiorari under the
Consitution because the standard is purely grave abuse of
discretion amounting to lack or excess of jurisdiction. The
most recent one, Martial Law, can it be question by a
Certiorari under the Constitution? Yes, it can be
questioned. Not only because the definition of Certiorari under
Article 8 but because of express provision of the Constitution
when it comes to Martial law and suspension of the privelege
of the writ of habeas corpus. Any person or citizen can
question the declaration of Martial Law.
PROHIBITION
Bear in mind that if we talk of prohibition, we talk of judicial,
quasi-judicial and ministerial. The same periods apply. The
requisites are the same:
1. Grave abuse of discretion amounting to lack or
excessive jurisdiction; and
2. There is no appeal or any plain and speedy remedy in
the ordinary course of law.
The prohibition will not stand if the act sought to be prohibited
has already been performed. There’s nothing to prohibit
anymore.
What’s the difference between a prohibition and
preliminary injunction? A prohibition is a special civil action
and an original action. A prohibition, if granted, the court can
render a final judgment preventing you from performing an act.
It may only be directed against someone performing judicial,
quasi-judicial and ministerial function.
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A preliminary injunction is a provisional remedy. It’s only
preliminary. It is not a final judgment. Although, after a hearing,
the preliminary injunction may become permanent. This is only
directed against a public officer or a private individual.
MANDAMUS
When we talk of mandamus, there should be a law that
requires performance. Mandamus only applies to ministerial
acts. If it is an exercise of discretion, forget about mandamus.
For example: Si Prosecutor, dinismiss yung kaso. Mandamus
para ifile. Is that correct? No. It is an exercise of discretion. Si
Ombudsman, dinismiss yung kaso. Mandamus para ifile. Is
that correct? No because it is an exercise of discretion.
What if the case has been pending for quite some time in
the Offic of the Ombudsman, can you file an action for
mandamus? Yes, you can file an action for mandamus to
compel to render a decision. NOT to decide on a certain
manner but to compel them to rule on a case.
Can you file a mandamus compel the court to rule in a
manner that you wanted to rule? No. That’s an exercise of
discretion.
Let us say the court refuses to render judgment or the
case has been lingering for the longest time, can you file
an action for mandamus? Yes, only require the court to
resolve but not to require the court to resolve in the manner
that you want the court to decide.
CONTINUING MANDAMUS
What is Continuing Mandamus? Simple, basic of concept of
continuing mandamus is there is a law that requires
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performance and it does not require discretion and is purely
ministerial. Continuing mandamus does not depart from the
concept except that it requires you to perform acts for the
perfection of environment and healthful ecology. The court
continues with its JURISDICTION so the court can see to it
that you can comply and satisfy with the requirements of the
continuing mandamus. The critic about this continuing
mandamus is yung pagmomonitor na “to see to it that the
orders are to be complied with” is with the Executive
department. However, the concept of continuing mandamus
simply means that the court continues with its jurisdiction until
the court sees to it that its orders are properly complied with.
Which court has original jurisdiction in continuing
mandamus? RTC where the environmental violation is
committed, CA and SC.
Do you need to pay docket fees on continuing
mandamus? No docket fees on continuing mandamus. In the
case of DENR vs Casino, there was this fund allegedly to
cover future or contingent claims. Sabi dun, it is in the nature
of a trust fund, recognized by environmental rules. But
because it covers future and contingent claims, it is not in the
same nature of trust fund that covers rehabilitation and
restoration. It will amount to damages. Because in
environmental cases, you cannot as a rule recover,
damages. You will have to file a civil and criminal case, and a
separate administrative case. Environmental cases are
treated the same level or importance as writ of amparo,
writ of habeas data.
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What is a writ of kalikasan? Ito’y importante. It is the
damage of that magnitude as would prejudice life, health and
property in at least two cities and provinces. Ginagamit lang sa
malaking magnitude na kaso. So kung hindi malaki yung
magnitude, pwede ka mag citizen’s suit or continuing
mandamus.
Ang writ of kalikasan, finifile sa SC lang or any station of
court of appeals. Can be filed in SC and returnable to the CA.
Yun sagot iffile sa CA. My last point here is this, you’ve heard
protection order right, inspection order, meron sa writ of
kalikasan and writ of amparo yan. Protection Order and
Inspection order are both in the writ of kalikasan. Inspection
Order is to enter the premises to check the damage to the
environment.
RULE 66
QUO WARRANTO
Gusto ko tandaan niyo yung grounds. What are the
grounds?
1. Usurpation.
o Someone takes on your office or someone
usurps the office.
2. No one is running after the office or taking possession,
but by reason of your act, you have deemed to forfeited
the office.
o For example, to continue to hold office you
must be a philippine citizen, and if you pledge
to the US, you have forfeited such.
3. It is an association that is not duly licensed of
unincorporated in the Philippines.
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oWho initiates the action? The rule is it is the
government. Look at the first line.
How does the government institute such action?
1. The Solicitor General if directed by the President.
2. The Solicitor General upon a sufficient complaint.
3. The Solicitor General institutes the action upon the
relation of another person known as the Relator.
o Who is a relator? It is someone who prompts
the Solicitor General. Siya yung nagsusulsol sa
Solicitor General na file-an ng kaso yung tao.
To protect the office, SOL-GEN can go to court to ask
permission from the court if he could file the case. That is the
general rule. What is the exception? The aggrieved party
filing his own action against the usurper. According to Liman
vs Gordon, the very moment it appears that the person
instituting the action is not entitled to the office, it will be
dismissed.
In Moro vs Del Castillo, pinagaawayan ay accountant of
general headquarters of AFP, accountant na natanggal. Una,
nasuspend, then subsequently ordered dismissal. In the
meantime nag-aappeal siya, sabi niya, while it was pending,
he wanted to be reinstated. Temporary lang naman yun
pumalit sa place ko e. Question dito, will the Quo Warranto
action stand? Before we can answer, we have to understand
what is the effect of a dismissal of the Ombudsman, is it
immediately executory? Yes. It is executory! Court held in
Tumanong case that an appeal shall not stop the decision of
the Ombudsman to be executory. It shall be executory even
pending an appeal. Remember this, if there is a case in the
Ombudsman, the case is dismissed against you, whether
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reprimand or censure. Sabi e, suspended ka for at least a
month, or salary is forfeited, that is executory. Now, can you
question it? Yes. How will you question it? On a rule 65.
Another case, the case of Emerson De Castro vs Carlos,
nag-aaway na MMDA, sabi Mr. De Castro was appointed as
assistant General manager of MMDA, during GMA’s time.
Then the Aquino came in and the executive secretary and
issued a memorandum stating that all non career executive
service officials occupying career executive service position to
remain in office only until October 31, 2010. Sabi ni De Castro,
“wait Civil Service Eligibility ako e. If may Eligibility, mahirap
tanggalin yun”. Here, De Castro instituted the action. So again
we go back to the question, was he entitled to the office?
The SC said, while the action is filed on his own name, he
shall prove his entitlement to the position. The appointment of
Carlos was valid. De Castro does not possess all the
qualifications to the office.
The case of Divina Gracia vs Consolidated Broadcasting,
gusto ko tandaan niyo. Consolidated Broadcasting was given
a legislative franchise. There were certain conditions they
needed to comply with. It is a public utility, to be enabled to
perform its functions. It was not complying with the terms and
conditions, what is the proper action of non-compliance of
the franchisee? SC ruled special civil action of quo warranto
is a prerogative writ by which the government can call upon
any person to show what warrant he holds a public office or
exercises a franchise. It is settled that the determination to
exercise of a franchise or whether the right to enjoy such
privilege has been forfeited by non use is more properly the
subject of quo warranto. Non-use of a franchise, the proper
remedy is the writ if a quo warranto.
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RULE 67
EXPROPRIATION
The case of Bardillon, which case has jurisdiction? RTC. It
is dictated by the exercise of the right.
Pwede ba expropriate ang personal property? YES. It can
also be expropriated. Nasa code, di jurisprudence yan. You
can expropriate real and personal property. Pwede ba itake
possession after the complaint? PWEDE. Bago magfile, the
gov’t can take possession already. What is the duty of the
gov’t? It has to deposit the assessed value of the property,
Nasa Rule 67 yan. So pag yun sa Rules of court 67, assessed
value. If personal property, it is the amount to be determined
by the court.
Now, the case of Mangutara is very instructive. It tells who
are indispensable parties to the action of expropriation. Ang
plaintiff sa kaso na ganito ay ang Republic, LGU in the
exercise of their expropriation powers, or an instrumentality of
the Republic. So papano yung defendant? Registered owner
ideally. Pero pwede din lawful possessor, kahit wala kang
titulo.
Eh pano pag occupant ka tas wala kang title? Eto yung
case ni Mangutara. So in this case, what happened here is
that the property belongs to the republic. Yung defendant ay
occupant lang, walang titulo. So when the property already
appears to belong to the republic, there is no sense for the
republic instituting expropriation proceedings against itself. It
can however, file an expropriation case against the occupant
of the property. In such expropriation case, the owner of the
property is NOT an indispensable party. Ideally, the owner is
an indispensable party although, based on the provision of the
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law you can still implead as defendant possessors or
occupants of the property.
JUST COMPENSATION
Paano ba macompensate? Two mandatory stages:
1. Expropriation; THEN
2. Just Compensation.
The decision and order of expropriation is by itself appealable,
no need to wait for the just compensation. What is your mode
of appeal? it is a RECORD ON APPEAL, it involves multiple
appeals. It requires Record on appeal because, if you file an
appeal in the RTC, record will be elevated to the CA. What will
be elevated to the next level court is the Record on Appeal.
Yung original record maiiwan sa husgado, para tumuloy yung
kaso hangang Just Compensation. Ngayon yung kinequestion
mo edi questionin mo, aakyat yung record yung record on
appeal. The Record on Appeal is just a compilation of all the
pleadings and orders filed within the court.
How about compensation? What formula will you have to
follow? Consequential damages less consequential benefits,
in no way should consequential benefits exceed consequential
damages( memorize this). Para maintindihan nyo, ano ba
yung mga perwisyong inabot ko dito less ano bang
pakinabang na kinuha ko ditto. Ngayon, pero sinabi ng batas,
in no way should benefits exceed damages because if there is
no such law, believe me the government will insist that you
benefited from what they’re doing. That’s what the law says in
no way will the benefit exceed damages. So in all cases the
government will have to pay.
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If there is no action for expropriation, there is no need to
strictly comply with the provision on determination on Just
Compensation. There is no need to have to appoint at least
three commissioners and you don’t need to follow the
procedures mandated under Just Compensation. Why?
Because there is no expropriation case, but you are entitled to
compensation. And the court will ascertain your entitlement.
According to case of NAPOCOR vs CA, the Supreme Court
said: “We clarify that when there is no action for expropriation
and the case involves only complaint for damages or just
compensation, the provisions of the rules of court on
ascertainment of just compensation are no longer available
and no longer applicable”. Pag may expropriation kailangan
mong sundin ang provisions on just compensation, this is a
mandatory stage. Pero kung wala, habol ka nalang ng
compensation.
In the case of REPUBLIC vs CA, petitioner took possession of
the property without initiating expropriation proceedings.
Consequently, private respondent filed the case for just
compensation.
In the case of NPC vs SANTA LORO, aba magaling na NPC
National Power sabi nya: “hindi ko naman ineexpropriate yan
e, nakikiraan lang naman ako e, so what I will have to pay is
the right of way of an easement.” Sabi niya(NPC) “nakikiraan
lang naman ako e, ginamit ko baa ng lupa niyo? E nagtayo
lang naman ako”. Ang sabi ng Supreme Court: “It is clear that
the petitioner’s acquisition an easement of right of way on the
lands of the respondents Santa Loro amounted to
expropriation of the portions of the property and perpetually
deprived the respondents of their proprietary rights there on
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and which they are entitled to a reasonable and just
compensation”. So sabi ng Supreme Court dito, the NPC has
prevented the Santa Loros from making vertical construction to
horizontal construction. Anong pinagsasabi mo(NPC) na wala
expropriation? THERE IS EXPROPRIATION. Sabi ng Court:
“having established that the petitioners acquisition of the right
of way on easement over the lots was definitely a taking, and
is an exercise of the power of Eminent Domain, and for that
reason they will have to pay just compensation.”
Diba kanina class ang sabi ko sa inyo, under Rule 67, if the
government takes possession, they pay assessed value for
real property. Now, if it is a Local Government Unit
expropriating, they will have to pay 15% of the fair market
value. And please bear this in mind, if a LGU expropriates,
there is a need of an ordinance. Hindi pwedeng mag
expropriate ang LGU ng walang ordinance.
Papaano kung Government Infrastructure Project? Kinuha
ng gobyerno, inexpropriate, and the classic example is NAIA
3. Kasi yan lupa nila yan, ng Republic. So inexpropriate nila
alin? Yung construction nung contractor ng NAIA 3. Diba ang
tagal niyang sarado (NAIA3), panahon pa ni Gloria sarado
yan. Pinagawayan yan. Kaya binuksan lang yan panahon ng
President Aquino. Now, inexpropriate yan panahon ni Gloria,
dun sila nag file ng kaso, and yung leading case diyan
Gingoyon. Ang sabi ng Court: “Referring to Republic Act
8974, not only do you need to deposit under RA 8974. Under
the statute, the government is required to make immediate
payment to the property owner upon the filing of the complaint
to be entitled to the writ of possession whereas in Rule 67, the
government is required only to make an initial deposit with the
authorized depository bank. In rule 67, the initial deposit is
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equivalent to the assessed value unlike in RA 8974 which
provides as the relevant standard for compensation, the
market value of the property as stated in the current relevant
zonal valuation of the BIR.”
RA 8974 provides for a procedure eminently more favorable to
the property owner than Rule 67 sabi ng court. This is
Republic vs Holy Trinity Corporation, RA 8974 inescapably
applies in the instances when the national government
expropriates property for national government infrastructure
projects.
Yung case of Republic represented by DPWH vs Tatad
(2013). DPWH filed a complaint for expropriation of several
parcels of land affected by the construction of the EDSA-
Quezon Avenue flyover. Here class, the problem was because
there was someone claiming ownership over certain parcels of
land. So yung inexpropriate ng government, hindi ngayon alam
ng gobyerno si babayaran nya, kasi may dalawang nagaaway
kung sino may ari ng lupa e. Now, can expropriation
continue even if there is a dispute over the ownership the
land? The pertinent provision is Section 9 of rule 67. The
Supreme Court ruled that DPWH may be allowed to present
evidence to assert its ownership over the property, but only for
the purpose of determining who is entitled to just
compensation. The court is empowered to entertain the
conflicting claim of ownership of the condemned property or
sought to be condemned in the same expropriation case. This
is evident according to the court in Section 9 of Rule 67.
Laging tatandaan, can the court entertain the issue of
ownership? Yes, but only to determine who is entitled to just
compensation.
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Pwede bang magwithdraw yung Republic? Can the
Republic change its mind? Yes, at any time before there is
an order of expropriation. However class, I have to qualify that.
That has been the long-standing rule as early in the Philippine
reports; City of Manila vs Ruyman, MWSS vs Delos
Angeles. The key is, hangat walang order of expropriation,
pwede mag withdraw ang gobyerno. Now the next question
is, what happens to the damages caused by the
government by reason of its initial action or activities in
the property? Kinuha niya e, sinira niya binungkal niya,
dinemolish niya yung mga improvement mo. Are you entitled
to damages? Yes, you are entitled to damages. My next
question is what if the public purpose sought is no longer
present? Okay pending yung kaso, pero the public purpose
sought is no longer present. Can it be withdrawn by the
Republic? Yes, for as long as the public purpose is no longer
available, not just because they want it, then the government
can withdraw.
At what point will the just compensation be counted? Is it
the time of the taking or the time of the filing of the
complaint? Whichever comes first, kung ano man ang
mauna.
What if the government doesn’t know to whom payment
should be made? The amount of money will have to be
deposited to the court, and the court will hold on to it until the
one entitled to possession is, or the one entitled to just
compensation is, determined.
In the case of Barido vs. Nonato, it was held that MTC has
jurisdiction to take cognizance of real action and those
affecting title to real property or for recovery of possession or
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partition or for condemnation of or foreclosure of a mortgage
on real property. You have to look at it base on the factual
antecedent of the case because there are times the Supreme
Court will say, if it says foreclosure of mortgage, MTC. Class, it
is still inconsistent with the basic theory of the exercise of the
right a foreclosure. So I will agree in the case of Barido in the
sense that foreclosure of mortgage, if it involves an assessed
value that falls within the jurisdiction of the MTC. But to say
exclusive jurisdiction, mahirap yun. Now more important class
is the question condemnation. How do we interpret
condemnation in this case? Unless it is expressly an
expropriation case, then I will not hang on to this because the
RTC has exclusive jurisdiction over expropriation cases.
Nasabi lang na may condemnation, ang tanong dun, yun ang
main case sa kaso? Kung yun ang main case sinabi dun, ang
next question is, what are the factual antecedents? Because
condemnation does not automatically mean I expropriate.
Because class, eminent domain is the right of the government
and expropriation is the procedure to be able to take the
property. Condemnation class is a very generic word. Again if I
will say, and which a doubt, if this is an expropriation case, I
will still hang on the the rule that it is the RTC who has
jurisdiction. Pagtinanong yan sa bar RTC yan. In the case of
Sabitsana, the basic issue is quieting of title, they say it’s with
the RTC. Class, do not focus in this very thin distinction, baka
makalimutan niyo yun mas importante.
May a TRO be issued against the government in
expropriation cases? Answer is generally NO because this
an exercise of one of the inherent powers of the state. The
power of the state is to take it for public purpose. Therefore,
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unless you could show that there is a clear and unmistakable
right, you cannot prevent the government from expropriating.
Exactly the provision of Rule 67 recognizes, what if the party
opposes and/ or the defendant does not oppose? If the
defendant does not oppose, he only enter his appearance. If
defendant opposes, can he file a motion to dismiss? No, I
will file an answer. In fact whether you like it or not it will
continue. A motion to dismiss is not allowed. Ang
determination nalang diyan, what is the just compensation. So
it’s wiser to just participate in the proceedings and determine
the exact amount of just compensation.
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
Pag mortgage, pwedeng judicial, wag magcoconclude na
laging extra-judicial. Bakit? Because class, you will see the
difference.
How do you initiate a judicial foreclosure? Just like any
action, you will have to file and pay docket fees and it would
be raffled. For extra-judicial foreclosure, it’s different. You file a
petition for extra-judicial foreclosure before the office of the
clerk of court under the executive judge. Yung extra-judicial
foreclosure, hindi na niraraffle. Hindi ito yung clerk of court ng
branch ha, ito yung clerk of court ng buong station. File ka
dun, and then they will assess the necessary fees for notice
and publication, and then they will set the date for the
foreclosure sale. Magkaiba ang way to initiate.
What is the redemption period? In judicial foreclosure, it is
what you call equity of redemption.
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EQUITY REDEMPTION
Equity of redemption is a period of not less than 90 days but
not more than 120 days. Para lang for better understanding
class this is how it works. Pag nag file ka ng judicial
foreclosure, of course it’s rooted on the “o hindi na ko
nakapagbayad ng amortization yan or ng installment payments
or ng loan, the principal obligation. Therefore I will have to
foreclose. You file an action which is judicial foreclosure. Now,
what you pray for is first, the payment of the sum, and only if
he doesn’t pay within the period of not less than 90 nor more
than 120 days will the court order foreclosure. That is why in
the judgement for foreclosure, what will appear is you pay,
hindi yung you sell. But if you don’t pay in the period of not
less than 90 nor not more 120 days, the court will sell the
property.
In extra-judicial foreclosure, the redemption period is one
year. Ngayon tanungin kita, pwede ba ang judicial
foreclosure 1 year? Yes, it’s possible that it is 1 year if there
is a law that gives a longer period. An example is the Banking
Law. Pag may batas na nagbibigay ng mas mahabang period
to redeem, yun ang preprevail over equity of redemption.
Who will be in possession during the redemption period?
It will be the owner regardless if it’s judicial or extra-judicial.
Who will be entitled to profits and rents during
redemption period? It's the owner regardless if it’s judicial or
extra-judicial.
I will compare dagdagan ko ng execution di kasama yan dito di
yan kasama ha dinadagdag ko lang for comparison purposes
para madali nyo maalala. Of course for execution, the
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judgment is already final and executory. Therefore to initiate it,
file a motion for execution. The court cannot execute it moto
proprio. If there is an execution, (I'm talking about real property
remember under Rule 39 you cannot redeem a personal
property) you could redeem a real property and based on the
provision of rule 28 and 29, the redemption period is one year.
How about in case of possession during the redemption
period, ithe judgment obligor the one who will be in
possession? Who will be entitled to profits and rents?
Same! (Judgment obligor).
Why am I doing it this way? Because class I will now compare
this with the Banking Law. We have to present two scenarios.
1st Scenario
The lender is the bank basta tandaan nyo pag banking loan
nagpapautang lang banks. Nagaapply lang tong discussion na
to when we talk of banks and finanacial institutions. If it is not a
bank or a financial institution, ito ang maglalaro (Rule 68). The
banks are placed in a favored position. Why? I will illustrate.
Ang lender class ay bangko, ang borrower ay, borrower
mortgagee is who an individual or a natural person get it, a
natural person. What is the redemption? The redemption
period is one year. Whether it be a judicial or extrajudicial
foreclosure basta bank nagpautang or financial institution, ang
redemption period ng isang tao whether judicial or extra
judicial is one year. That is by law yan ang example ng law,
hindi sya equity of redemption, maliwanag class?
Who is entitled to the possession? The bank (if it is the
purchaser) or the purchaser is entitled to possession. Nakita
nyo baliktad na. dati owner diba, baliktad na because I told
TANNER NOTES
you the bank is in a favored position it will be the bank or the
purchaser. If there is a refusal to surrender possession, they
could immediately apply for a writ of possession. What if the
owner wants to continue with his possession? He will have
to post a bond. so nakita nyo, pabor na pabor sa bank. “kami
may possession nyan, yung buyer may possession nyan.
Gusto nyo mag take possession, mag post kayo ng bond”
2nd Scenario
The lender is a bank or financial institution, the borrower-
mortgagor is a juridical entity. If the borrower-mortgagor is a
juridical entity, the redemption period is 3 months or
registration of the certificate of sale whichever comes first. So
90 days kapareho nyan judicial foreclosure.
That is why in the 1st scenario, it only covers extrajudicial
because judicial also gives not less than 90 at more than 120.
In the 2nd scenario, juridical entity, the redemption period is
only three months or registration of the certificate of sale which
ever comes first.
The case of Robles vs. Yapsino (2014). Yapsino constituted
the mortgage in the property in favor of a certain Marcello to
secure an obligation. Ang gusto kong matandaan nyo class sa
nangyari dito. Nagkaroon ng action for judicial foreclosure
kasi nagsangla si Yapsino. Finile-an sya ng Judicial
foreclosure, nanalo yung nagfile tas naging final and
executory. Hindi nabayaran yung utang hindi nabayaran yung
property tumagal ng almost 40 years hindi nailipat. The
problem was it was not registered hindi nairegister but
kailangan ba ng Certificate of Sale kapag Judicial
Foreclosure? Do you need a certificate of sale for a judicial
foreclosure? Look at what the court said, “The Court clarifies
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that the failure of the winning bidder to register the certificate
of sale was of no consequence in this adjudication. The
registration of sale is required only in Extra-Judicial
Foreclosure”. Sa Extrajudicial lang yun kasi class yung ang
mag tritrigger ng redemption period, yung registration ng
certificate of sale. Because the date of the registration,
according to the Supreme Court, is the reckoning point for the
exercise of the right of redemption. Saan yan? Sa Extra-
Judicial Forclosure. Pero yung kaso na to, hindi extra-Judicial
kundi judicial forclosure. In contrast, sabi ng court, the
registration of the sale is superfluous in a judicial foreclosure.
Sabi ng Court, di mo kailangan iregister ang Certificate of Sale
in a judicial foreclosure because only the equity of redemption
is granted to the mortgagor, except that in mortages with
banking institutions. Since the records show that no judicial
confirmation of sale was made despite the lapse of more than
forty years since the date of the sale, it cannot be said that the
title was fully vested in the winning bidder. Kasi ang winning
bidder dito ay si Mr. Cruz. Sabi kasi nya walang Judicial
confirmation. Remember when you talk of judicial foreclosure,
it is not a Certificate of Sale, it is a Judicial Confirmation of
the sale. The effect of the failure, take note, of the winning
bidder to obtain Judicial Confirmation was only to prevent the
title to the property from being transferred. Yung lang kulang.
Hindi nangangahulugan na hindi ikaw ang nakabili. Hindi nga
lang na hindi nailagay sa pangalan mo. For sure, sabi ng
Court, such failure did not give rise to any in favor of the
mortgagor or his successors in interest to take back the
property already sold on public auction. So hindi porket hindi
nairehistro may karapatan na ang Mortgagor. Naibenta na yun
eh, nor did such failure invalidate the forclosure proceedings,
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sabi ng Court. To maintain otherwise is to render nugatory the
judicial forclosure and the foreclosure sale.
Ito lang tatandaan nyo, pag Extra-Judicial Foreclosure,
Certificate of Sale. Pag Judicial Foreclosure, Judicial
Confirmation. Now, hindi najudicial confirmation kahit na
naibenta yan nung dating mortgagor dahil hindi nailipat yung
title, that doesn’t mean that there was no winner in the public
auction sale. The winner in the public auction sale is still
entitled to the same except that it was not transferred in his
name.
The case of Limbs v. DBP. Ang pinagtatalunan lang naman
dito, pwede ka bang mag additional stipulation sa Act
3135? Take note kasi class, ang Act 3135 the only
requirement is posting of notice in three public places and
publication in a newspaper of general circulation. Yun lang nag
requirement para maibenta ang property, which is the security
for the loan. Ang contention dito is there is a special
agreement on the notice to the mortgagor. In this case, the
parties stipulated, sabi ng Court, all correspondence relative to
the mortage including the notification of the judicial or extra-
judicial action be sent to the mortgagor’s specified address. So
here, the mortgagor is making an issue, sandali lang, eto yung
batas, 3135 diba? Notice and publication, pero may stipulation
tayo, yung stipulation natin, bago ka mag jujudicial/extra
judicial foreclosure, dapat I nonotify mo ako. This is our
agreement. Now, the question is what is the effect if there
is no such notice of the Judicial or Extra-Judicial
Foreclosure to the other party to the mortgagor to in the
event of a stipulation in the contract that will make the
foreclosure sale as not valid? According to the case of Limp
v. DBP, maliwanag yung batas pero pag nag stipulate ka, you
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are free to stipulate. Nagkasundo kayo eh, sabi mo bibigyan
mo ako ng notice eh pag binenta mo eh di mo ako binigyan ng
notice. The foreclosure sale is void according to the Supreme
Court.
Extra-judicial foreclosure. If the mortgagee is a financial
institution not covered by banking law, such that it has no
quasi-banking lisence but only secondary license, can the
right of redemption of a mortgagor who is a juridical entity
be 1 year? Tandaan niyo class ang sinasabi lang ng Banking
Law is a bank or a quasi-banking institution, a bank or a
financial institution. So the key is as a banking institution. Kasi
yung mga ganitong tanong class ano na to e medyo hinimay
na to e. You go outside the provision of the law. Kasi
secondary license na pinaguusapan e. Pag ganyan ang
tanong, ang pupuntahan mo parin ay yung basic law. Ang sabi
mo hindi banking institution e, edi pwede yung 1 year
redemption period. Kasi ang nagcocover lang ng 3 months if
juridical entity, if the lender is a bank or a financial institution.
Can I annotate a notice of lis pendens? Is it a dispute on
title of property? Sabi nyo mortgage loan with a bank, due
date not paid, property foreclosed. Mortgagor redeemed in 1
year and was issued notice of redemption of court. Now BPI
opposed and refuse to return title to mortgagor. The one who
redeemed the property on the grounds of wrong computation,
insists that the computation be based on the banking law.
Ganito lang yun, ang lis pendens, gahit gano kagulo ang facts,
pero ang tanong lang niya kung pwede ba mag lis pendens,
babalik ka doon sa batas. Ang tanong niya kung pwede mag
lis pendens. Ang tanong mo, may kaso ba? Does it involve title
TANNER NOTES
to possession or interest to a property? If it does, lis pendens
mo. Kaya ang problema lang dito yung computation of the
redemption amount e. Ang gagawin ko dito class fafilelan ko
ng kaso to determine the exact amount of the redemption
price. Fafafile ako ng kaso. Kung malabo, wag ka magbayad.
Bakit ka magbabayad kung malabo? Kukunin nila pera mo
tapos sasabihin kulang e, di ka mananalo sa banko. Kung
ganyan di ka nagkakasundo sa presyo fafilelan kita, judicial
determination of the redemption amount, with the statement
that I am willing to tender as soon as the court determines.
Wag ka magbabayad ng hindi ka sigurado ano binabayaran
mo. Kasi class downside ka na noon e. paghawak mo pera mo
lamang ka. So ang tanong niya pwede ba mag lis
pendens? Pag may kaso, and it involves title possession
and interest, pwede mag lis pendens. An adverse claim is
not a lis dispendens.
RULE 69
PARTITION
What are the two Stages of Partition?
1. Determination of the existence of a co-ownership;
and
2. Partition.
Yun ang dalawang stage ng partition, kasi paano tayo
magpapartition kung wala naman palang Co-ownership?
Who are the indispensable parties in an action for Judicial
Partition? The co-owners. Please bear in mind that all co-
owners should be impleaded in the action. Sa madaling salita
may limang estudyante sa harap ko, they are co-owners,
nagdemanda yung isa, dinemanda nya yung tatlo lang.
Thecase should be dismissed because not all indispensable
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parties are impleaded. Therefor any judgement in the case
shall be null and void.
Is there a mandatory stage of the appointment of the
commissioners? The answer is no. While there is a
provision in Rule 69 on appointment of a commissioner, that
will only take place when the parties do not stipulate. Take
note, only when parties do not agree to stipulate. Pag
nagkasundo sila, then there would a compromise
agreement. There being a compromise agreement and if it’s
adopted and accepted by the court there will be a compromise
judgment on partition.
Does the Department of Agrarian Reform have jurisdiction
over Partition? Is judicial partition within the jurisdiction
of the Department of Agrarian reform especially the
PARAD, the Provincial Adjudicator? The answer is no, this
is an agency which has a limited jurisdiction and it is only
limited to agrarian disputes. It cannot determine partition of
properties (Rosario v. Rosario).
The case of Quintos v Nicolas. May kaso ng partition, judicial
partition. Ngayon the case was dismissed for failure to
prosecute. What is the effect on dismissal on a failure to
prosecute? It is an adjudication on the merits. It is with
predjudice. So nagkaroon sya ng failure to litigate. Ngayon
nag enter sila ng agreement (deed of adjudication of transfer
of title). So nagkasundo sila, yung mga siblings, yung mga
dapat maghahatian so nagkapirmahan. The problem was,
moving forward, di na nirerecognize nung ibang parties. So for
that reason there was an action for quieting of title
(subsequent case). Now in this action, there was a counter
claim involving a partition. The question is that is a
TANNER NOTES
counterclaim for partition barred by prior judgment? The
counter claim for partition is not barred by prior judgment. The
Siblings admit that they filed an action for petition which the
RTC dismissed through an order for the failure of the parties to
attend specific hearings. It is with finality sabi ng SC. It cannot
be disputed that the subject property in the present
controversy dun sa quieting of title, are one and the same and
in both. But while the court agrees that the first case has
obtained finality and that the action for partition is with what
that was dismissed for failure to litigate is with prejudice, the
SC said, “Oo, nirerecognize yan. However dismissal with
prejudice under Rule 17 Sec. 3 cannot defeat the
substantive right of the co-owner to ask for partition at
any time provided that there is no actual adjudications of
ownerships yet.” Pertinent here to is Art. 494 of the Civil
Code which reads “no co-owners shall be obliged to remain in
a co-ownership.”
If the subject of a partition is a real property it’s determined by
the assessed value. If its personal property, it’s the residence.
What if it’s a combination? In joinder of causes of action, it
goes to the RTC. For as long as one falls within the jurisdiction
of the RTC, everything goes to the RTC for as long as you
respect the rule on venue. One cause of action or one claim
goes with the RTC everything goes with the RTC. If a property
cannot be partitioned, it is indivisible. It will be sold and the
proceeds of which will be divided to the co-owners.
What if one of the co-owner did not receive anything? First
and foremost, she is an indispensable party. Any judgment is
null and void. Second, of Sec. 12 of Rule 69 paramount rights
cannot be prejudiced.
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How about if it is an extra-judicial partition? There is no
will, there are no debts. If there are minors, they are
represented by guardians ad litem appointed by the court.
Papaano pag may di nasama sa extrajudicial partition, are
they entitled to their share? Yes, for as long as they lay
claim for a period of two years from the time of distribution.
What falls within the definition of extra judicial partition?
1. If there is an extra judicial partition among the heirs
which is reflected in a notarized public instrument;
2. If there is only one heir. You call it affidavit of self-
adjudication; and
3. If there is a stipulation in an action for judicial partition
on the respective shares of the parties and they have
agreed that is it effectively converted into an extra
judicial partition, it is treated as extra judicial partition.
That is found in Rule 74. Therefore, it requires
publication consistent with Rule 74.
Who has jurisdiction over mortgage? One school of thought
would say because it is foreclosure, it is with the RTC. Others
would say involves an interest over the property. Therefore, it
is dictated by the assessed value of the property. I am inclined
to follow the second one.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
When do you need a demand letter? Do you need a
demand letter for an action for forcible entry? The answer
is NO. You need a demand letter in unlawful detainer cases.
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What should it contain? You have to comply and vacate or
pay and vacate. In all cases you have to demand to vacate.
In the case of Cebu Automatic Motors v. General Milling, is
the demand letter correct? The SC said, mere failure to pay
rent due to the violation of the terms of the lease does not
automatically render a person’s possession unlawful. Further,
giving of such demand must be alleged in the case. Otherwise,
the MTC cannot acquire jurisdiction over the case. Take note a
demand letter is necessary for MTC to acquire jurisdiction of
the case. A close examination of the demand letter tells us the
letter merely informed recipient that the lease has been
terminated based on the violations of the terms of the
agreement. And on the basis of the violation, required CAMI to
vacate by the end of the month. So class, sinasabi ng court, to
inform ka lang eh kasi sinabi mo di ka nagcomply eh dahil dito
tinerminate ko na contrata mo umalis ka na. Sabi ng court in
other words the letter did not require compliance with the
lease. A demand letter should not be to inform. A demand
letter should require recipient to comply and vacate or to
pay and vacate. If you do not have a demand letter, or the
demand letter is inadequate, the Court and MTC cannot
acquire jurisdiction over the case.
Air Transport Office v. CA. What I would like you to take
note is the effect of a judgement. Ang MTC pag nagdecide,
executory to. Pwede ba pigilan Sec. 19 of Rule 70 even if
this is executory? If you file the appeal within the
reglemantary period, you post the supersedeas bond within
said period and thereafter pay, on a monthly basis, the rentals
with the appellate courts. The judgement will not be executed
on. The judgment will be stayed. What does the
supersedeas bond cover? It covers the unpaid rentals from
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time of non payment until judgement. It is equivalent to rentals. 1. That he was in prior possession of the disputed
Note: MTC to. property; and
2. That the defendant deprived him of his possession of
How about the RTC? In Air Transport Office case, such
any means provided in Section 1 of Rule 70 force,
judgment is not stayed by the appeal unless otherwise ordered
intimidation, strategy, stealth.
by the RTC to modify it or unless next level court issues a
TRO preliminary injunction (Benedicto vs. CA). Execution of
Do you need a demand letter? No.
RTC judgment in an ejectment case is not discretionary
execution under Sec. 2 of Rule 39. Yung pag pasok ko ba doon sa premises unlawfully
entering the premises is that considered as force? The
Can you file an MR in an Ejectment case? No, it is a
Court says that unlawfully entering the subject property
prohibited pleading (Sec 14). You cannot file a motion for
excluding therefrom the prior possessor would necessarily
reconsideration what you could of a judgment. Pag
imply the use of force. Basta pumasok ka that implies force. In
interlocutory order, pwede. Pag MR of a judgment it is
order to constitute force, the trespassers do not need institute
prohibited. Judgment continues to run because it is final and
a state of war. No other proof is necessary. In the instant case,
executory. The MR will not interrupt the running of a period.
it is thus irrefutable that respondents sufficiently allege that the
Kasi pwede ka din mag file ng MR sa interlocutory order and
possession of property was rested from them through violence
bawal MR of a judgement.
and force.
Ano yung counting ng one year sa Demand Letter? I made
In the case of Arviso v. Santillan, it was held that the acts of
a demand in 2001, bayad bayad sya tinanggap ko 2005 nag
unlawfully entering the disputed premises ERECTING A
demand ako August, I filed an action Jan 2006. Can I file an
STRUCTURE AND EXCLUDING A PRIOR POSSES
action for unlawful detainer? Yes. Because the one year is
CONSTITUTES FORCE.
counted from the last demand. Kahit na madaming demand
yan yung last demand ang basehan according to EJECTMENT
jurisprudence.
The case of Corpus v. Agustin and every law student who
FORCIBLE ENTRY goes to the Bar Exam should know this. If there is a dispute as
to the matter of ownership, can the MTC which is the court
What are the important allegations in Forcible Entry?
of original jurisdiction in ejectment case determine who is
PTA v Hersnatiel. In an action for forcible entry, the plaintiff the owner of the property? Yes, that is provisional
must prove: determination of ownership, to determine who is entitled to
possession. Please bear in mind the determination of the MTC
on the matter of the ownership is not res judicata. You are

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foreclosed, you are not prevented from raising the matter of
ownership and raising the matter of ownership in the RTC.
You could file an action in another court. The determination of
the MTC is purely provisional.
RULE 71
CONTEMPT
What is a Direct Contempt? It is the act of disrespect in the
presence of the court or so near the judge. For example, you
are required to raise your hand to be placed under oath. You
refuse? That’s contempt. Any act of disrespect in the presence
of the court or so near the judge. Let say you made unfounded
allegations or accusations tending to embarrass the court or
bring it to disrepute in a pleading. That would amount to what?
Direct contempt. Any unfounded or baseless accusations
toward a judge or a court appearing in a pleading is direct
contempt. That is the case of Atty. Noel S. Sereda. This is
464 SCRA, so lumabas to sa Supreme Court. So pag
naglalagay ka ng malicious accusations towards the judge or a
court in a pleading, It’s direct contempt. Now, e papaano
kung nag make face ka sa judge, is that direct contempt?
Yes, that is in the presence of the court or the judge. Basta in
the presence of the court or so near of the judge contempt
agad yan, ganon lang kasimple. Kasi class direct siya kasi, it is
summary.
What do you mean by summary? Kasi no notice and
hearing. Ano meaning ng no notice and hearing? Galitin mo
ko impose kita ng penalty, ganun yun. There is no opportunity
to be heard, kaya nga siya direct e. Do you have a remedy?
Ofcourse you have a remedy, I’ll tell you later on what is your
remedy. You come to court with a round neck shirt, attorney ka
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tapos naka blazer ka. Ano kayang mangyayari sayo? Direct
contempt pwede, in the presence of the court or so near the
judge. Di ka tatanonging ng judge kung bakit ka naka t-shirt,
iimpose nalang yung contempt sayo.
Pag indirect contempt naman ano? Notice and hearing.
Syempre dahil lalo na, ang indirect contempt mas mataas ang
penalty. Tingnan natin para ma compare niyo.
• Procedure: Summary sa direct contempt, notice and
hearing naman sa indirect.
• Penalty: Ano bang penalty ng direct contempt? Pag
RTC or higher court, a fine of not exceeding 2000
pesos or imprisonment of 10 days. Pag MTC, a fine of
not exceeding 200 pesos and imprisonment of 1 day.
Makita niyo hindi naman ganun kabigat e. pero kong
parin yun.
Papaano naman pag indirect? Aba mas Malaki. Pag
RTC or higher court, a fine of not exceeding 30,000
pesos and imprisonment of not exceeding 6 months.
Pag MTC, a fine not exceeding 5000 pesos and
imprisonment of not more than 1 month.
• How initiated: Sa indirect contempt class, there are
ways to initiate it. Hindi katulad sa direct na idisrespect
mo lang ang judge contempt ka na agad.
Sa indirect, you could initiate it upon a verified petition.
So sir magiging dalawa kaso ko? Yes, if you are going
to file a verified petition, file and docket it separately.
So ang mangyayari you have a principal case and you
have a direct petition case with an option to
consolidate. There is another way of initiating it without
you doing anything. By the judge or the court motu
proprio. Grounds ng indirect contempt ay makikita sa
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 section 3. Ang general ground ay any violation of writ
order or process of the court. Ano pa? you made
representation that you are a lawyer but in fact you are
not. Nagkunyari ka authorized ng client mo. Nag
perform ka ng act that would impede directly or
indirectly the administration of justice. Ano pa? non
compliance to a subpoena. All act of disrespect not
falling under direct contempt.
• Remedies: What are your remedies? Pag direct
contempt, your remedy is certiorari or prohibiton, you
have 60 days to prepare.
For indirect, your remedy is an appeal. Please bear in
mind that both are executory. Therefore, to stop its
executory nature you will have to post a bond. While
the case is pending, they cannot compel you to suffer
the penalty for contempt.
What is the clear and present danger rule? In the of
Marantan vs Diokno, ang ginawa kasi yung si attorney
lumabas sa tv patrol kasama yung client nya kasi may
napatay. Tapos yung dinedemanda nila ay military officer. Nag
vevent out sila na walang nangyayari, the usual. As important
as the maintenance of freedom of speech is the maintenance
of the independence of the judiciary. The clear and present
and danger rule means that the evil and consequence of the
comment must be extremely serious and the degree of
imminent must be extremely high before an utterance can be
punished. There must exist a clear and present danger that
the utterance will harm the administration of justice. Freedom
of speech shall not be impaired through the exercise of the
power of contempt unless there is no doubt that utterance in
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question makes a serious and imminent threat to the
administration of justice.
How about contempt for quasi- judicial agencies? This is
the last section of Rule 71. If the quasi judicial agency has an
internal rule, then that internal rule will apply. However, if that
agency of the government has no rules on contempt, these
Rules of Court will have suppletory application. For that reason
the actions can be instituted in the RTC where the
contemptous act was committed. In one case decided by the
court, the NLRC was being cited for contempt for non-
compliance. The SCCourt held that the NLRC has its own
rules on contempt. And because of this, the rules of court will
not apply.
If the order is not obeyed, the court can order someone’s
imprisonment. Who should order the release? If you are
required to be imprisoned, who should order your
release? Any judge? In the case of Inoturan vs Limsiaco, it
is the judge who ordered the confinement of the person for
contempt who can issue the order of release. Yun lang
nagpakulong ang pwede magpa- release.
How about criminal and civil contempt?What is the
difference between criminal and civil contempt?
• The proceedings are to be regarded as criminal when
the purpose is for punishment. It is civil when the
purpose is primarily compensatory or remedial.
• Where the dominant purpose is to enforce compliance
of an order of the court for the benefit of a party in
whose favor the order runs the contempt is civil. If the
dominant purpose is to vindicate the dignity and
authority of the court and to protect the general public,
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 that is criminal. Criminal proceedings protect, preserve
and enforce the right of the parties and compel
obedience to the court. This is the case of Lorenzo
Shipping vs Distribution Association Management.
Pwede ka ba magpacontempt pag hindi nag comply sa
execution? Generally, contempt is not a means of enforcing a
judgment. The mere refusal of a judgment debtor to comply
with an order of the court to vacate is not sufficient ground to
hold him in contempt because there is a writ of possession.
The writ of possession is directed upon the sheriff to
implement the writ of possession. A writ of compliance is not
directed against a judgment debtor but to a sheriff who is
ordered to deliver the property to a party. As such right does
not command the judgment debtor to do anything, he cannot
be guilty of disobedience or resistance. BUT if you have been
dispossessed but you RETURN or RE-ENTER, you could be
LIABLE FOR CONTEMPT (Rule 71, Section 3 (B)). It is only
on special judgment that the non-complying party can be held
liable for contempt because there is no one else who will
perform. Unlike in money judgment, specific performance, you
will not find a section for contempt.
EXECUTION
An officer who disobeys a writ of certiorari can be held liable
for contempt. This is under Rule 65 Cection 9.
The case of Saint Louis University vs Olairez (2014). May
mga graduating medical students. Ngayon, nagalit sila kay
dean. Dahil daw si dean karga ng karga ng requirements. May
additional comprehensive oral and written examination so ang
nangyari, daming oral requirements. Nagreklamo sila pero
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nakagraduate naman. Nabigyan sila ng diploma. Similarly,
they were able to take their internship. Kaya lang, the dean
refused to issue certification in their favor. Because they did
not comply with the minimum requirements. Dinemanda nila si
dean at ang Saint Louis. Panalo sila sa RTC. Ang sabi,
kailangan daw si dean mag comply for the school to issue a
certification. Hindi inintindi ng school. So pina contempt nila si
dean. The RTC cited the school and the officers in contempt.
Was the RTC correct? The Supreme Court said, NO. In
contempt, the intent goes to the gravamen of the offense. The
good faith or lack of it of the contemnor is considered. Where
the act complained of is ambiguous or does not clearly show
on its face that it is contempt, and is one of which, if the party
acting in good faith is within his rights, the presence or
absence of a contumacious intent is, in some instances, held
to be determinative of its character. A person should not be
condemned for contempt for what he believes to be right. And
in good faith institutes proceedings for that purpose, however
erroneous it may be in his conclusion as to his rights.
There is one procedural matter here that is important. Ang
nagnyari hasi dito for example, finile kasi yung urgent motion
to declare in contempt, it did not comply with the 3-day notice
rule, it was heard immediately. That was why the dean and the
representatives of the school were not present during the
proceedings. Sabi ng court that was wrong because the school
was not given the opportunity to be heard because that was a
litigated motion.
The case of Marantan vs. Diokno. This case also mentioned
the sub judice rule. Eto yung napunta sa TV patrol si attorney
at yung cliente. Is there a violation of the sub judice rule?
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The Supreme Court ruled against Marantan. The sub judice
rule restricts comments and disclosures pertaining to judical
proceedings in order to avoid perjudging the issue influencing
the court or obrstucting the administration of justice. Kaya daw
bawal ang sub judice rule. And for that reason you can be held
in contempt. A violation of this rule can render one liable for
INDIRECT CONTEMPT. The proceedings for indirect
contempt are criminal in nature this form of contempt is
conduct that is directed against the dignity of the court or the
judge acting judicially. However, the court said, yung mga
comments ba ni attorney diokno and the client were in
violation of the sub judice rule? No. These were merely
statements of their opinion and restatements of their
arguments in their position. There was no attack on the dignity
of the court. Hence, they cannot be held liable for contempt.

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