POINTS TO CONSIDER ANENT

AFFIRMATIVE DEFENSES

On affirmative defenses, Section 12, Rule 8 of the Amended Rules provides, in part:

Section 12. Affirmative defenses. — (a) A defendant shall raise his or her affirmative
defenses in his or her answer, which shall be limited to the reasons set forth under Section
5(b), Rule 6, and the following grounds:

1. That the court has no jurisdiction over the person of the defending party;

2. That venue is improperly laid;

3. That the plaintiff has no legal capacity to sue;

4. That the pleading asserting the claim states no cause of action; and

5. That a condition precedent for filing the claim has not been complied with.

A brief discussion of the foregoing affirmative defenses is in order.

1. THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY:

 Objection on this ground is premised on non-compliance with the provisions of Rule 14 of the
Amended Rules on service of summons upon the defendant.

 The former doctrinal rule is that the party may challenge the court’s jurisdiction over his person
by filing a motion to dismiss, but under the Amended Rules one can no longer file a motion to
dismiss on this ground, as this can only be raised in the answer by way of affirmative defense.

 But the trouble under the Amended Rules is that by raising this ground in the answer by way of
affirmative defense, the defending party may be deemed to have submitted already to the
jurisdiction of the trial court because, in the first place, he has already filed an answer. What may
be applied by analogy is the uniform ruling in the cases of De Midgely v. Ferandos, L-34313, May
13, 1975 and the case of Republic vs. Ker & Co, Ltd., 124 Phil. 823, to the end if the motion to
dismiss on the ground that the court has not validly acquired jurisdiction over the defendant is
coupled with another ground or grounds, then the defendant is deemed to have submitted
already to the jurisdiction of the court.

 Even if the defendant is not deemed to have submitted himself to the jurisdiction to the trial
court, this lack of jurisdiction over the person of the defendant can easily be remedied by the
issuance and service upon him of an alias summons (Far Corp. vs. Francisco, G.R. No. 57218,
December 12, 1986.)
2. THE VENUE IS IMPROPERLY LAID:

 Relate this to our previous discussion on venue of actions under Rule 4 of the Rules of
Court.

 This used to be a ground for filing a motion to dismiss. But under the Amended Rules one can no
longer file a motion to dismiss on this ground, as this can only be raised in the answer by way of
affirmative defense.

 But the trouble under the Amended Rules is that even if this ground is raised in the answer by
way of affirmative defense but the case is not dismissed on this ground, the rule is that, under
Section 12(e), Rule 8 of the Amended Rules, such denial SHALL NOT be the subject of a motion
for reconsideration or petition for certiorari, prohibition or mandamus, but may be among the
matters to be raised on appeal after a judgment on the merits. In other words, the trial will
proceed. If such be the case, the defendant may be deemed to have waived his objection on
venue because of the doctrine that objection to venue is also impliedly waived where the party
enters into trial, cross-examines the witnesses of the adverse party and adduces evidence (Vda.
de Suan, et al. vs. Cusi, et al., L-35336, October 27, 1983; Paper Industries Corp. of the Phil. vs.
Samson, et al., L-30175, November 28, 1975).

3. THE PLAINTIFF HAS NO LEGAL CAPACITY TO SUE:

 Relate this to our discussion of the provision under Section 1, Rule 3 of the Rules of Court on who
may be parties to a civil action.

 This used to be a ground for filing a motion to dismiss. But under the Amended Rules one can no
longer file a motion to dismiss on this ground, as this can only be raised in the answer by way of
affirmative defense.

 Lack of legal capacity to sue means that the plaintiff is either not in the exercise of his civil rights
or does not have the character or representation that he claims (Lunsod vs. Ortega, 46 Phil. 664).
This refers to minority, insanity, coverture, marital status, lack of juridical personality,
incompetence, or civil interdiction.

 On this score, take note that a foreign corporation doing business in the Philippines without the
requisite license to do so cannot maintain any suit in the Philippines (Section 133 of the
Corporation Code; Mashall-Wells Co. vs. Elser & Co., 48 Phil. 70), except where the case involves a
mere isolated transaction (Hathibhai Bulakhidas vs. Navarro, L-49695, April 7, 1986).

4. THE PLEADING ASSERTING A CLAIM STATES NO CAUSE OF ACTION:

 Relate this to our discussion on Rule 2 of the Rules of Court pertaining to Cause of Action.

 This used to be a ground for filing a motion to dismiss. But under the Amended Rules one can no
longer file a motion to dismiss on this ground, as this can only be raised in the answer by way of
affirmative defense.
  The pleading asserting a claim states no cause of action if it does not sufficiently aver all the
essential elements of a cause of action, which are: 1.) legal right pertaining to the plaintiff; 2.)
correlative obligations of the defendant; 3.) violation of plaintiff's right by the defendant; and 4.)
damage suffered by the plaintiff.

 Likewise, where the case is filed by or against a person who is not the real party-in-interest
(as differentiated from the ground that plaintiff has no legal capacity to sue), the ground for the
dismissal of the action is that the pleading asserting a claim states no cause of action (Aguila vs.
Court of Appeals, 319 SCRA 246; Balagtas vs. Court of Appeals, 317 SCRA 69).

 Where the objection is that the complaint states no cause of action, such fact can be determined
only from the facts alleged in the complaint (Mindanao Realty Corp. vs. Kintanar, et al., L-17152,
November 30, 1962). This means that the issue must be passed upon on the basis of the
allegations in the complaint assuming them to be true and the court cannot inquire into the truth
of the allegations and declare them to be false (Ventura vs. Bernabe, L-26769, April 30, 1971).

 The exception to the foregoing rule is when extraneous evidence (those not found in the
complaint) is introduced anent this issue, without objection from any of the parties, or where
the parties stipulate on such extraneous evidence (Tan vs. Director of Forestry, et al., L-24548,
October 27, 1983; Pascua vs. Court of Appeals, G.R. No. 76851, March 19, 1990; City of Cebu vs.
Court of Appeals, 258 SCRA 175).

5. A CONDITION PRECEDENT FOR FILING THE CLAIM HAS NOT BEEN COMPLIED WITH:

 This used to be a ground for filing a motion to dismiss. But under the Amended Rules one can no
longer file a motion to dismiss on this ground, as this can only be raised in the answer by way of
affirmative defense.

 Relate this to our discussion on Section 3, Rule 8 of the Amended Rules.

 Among the so-called conditions precedent are as follows:

1. Tender of payment is required before making a consignation (Art. 1256 of the Civil
Code);

2. Prior resort to barangay conciliation proceedings in certain cases (Chapter 7, Title I,

Book III of the Local Government Code of 1991);

3. Earnest efforts toward a compromise must be undertaken when the suit is between
members of the same family and if no efforts were in fact made, the case must be
dismissed (Article 151 of the Family Code);

4. Exhaustion of administrative remedies before resorting to judicial action (Lopez v. City of

Manila, 303 SCRA 448);

5. Arbitration proceedings, especially when the contract between the parties provides for
-such mechanism before recourse to judicial action.
  Take note that this requirement on earnest efforts toward a compromise between members of
the same family under Article 151 of the Family Code, as a condition precedent before filing of a
suit, does not apply and is not required in actions where there could be no valid compromise, as
mentioned under Article 2035 of the Civil Code, involving:

1. The civil status of persons;

2. The validity of a marriage or legal separation;
3. Future Support;
4. The jurisdiction of courts;
5. Future legitime

 As to who are considered members of the same family, Article 217 of the Family Code, provides
the answer, in providing that family relations shall include those:

1. Between husband and wife:

2. Between parent and child;
3. Among other ascendants and descendants;
4. Among brothers and sisters.

 Verily, the requirement under Article 151 of the Family Code is not applicable where one of the
parties is a stranger (Gonzales vs. Lopez, 160 SCRA 346), or even in an action where a brother-in-
law is involved (Esquivias vs. Court of Appeals, G.R. No. 119714, 272 SCRA 803), or where the suit
is between collateral relatives who are not brothers and sisters (Mendez vs. Bionson, L-32159,
October 28, 1977).

 Take note that where there is a compliance of the requirement under Article 151 of the Family
Code but the plaintiff somehow failed to allege the same in the complaint, the plaintiff be may be
allowed, upon motion for leave, to amend the complaint (Verzosa vs. Verzosa, L-25609,
November 27, 1968).

Section 5(b), Rule 6 of the Amended Rules also provides for other grounds which should be pleaded also in the
answer by way of affirmative defenses, thus:

Section 5. Defenses. — Defenses may either be negative or affirmative.

(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading
of the claimant essential to his or her cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically

admitting the material allegations in the pleading of the claimant, would nevertheless prevent
or bar recovery by him or her. The affirmative defenses include fraud, statute of limitations,
release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of confession and avoidance.

A discussion of some of the notable grounds under Section 5(b), Rule 6 of the Amended Rules may also prove
useful, thus:
6. STATUTE OF LIMITATIONS/PRESCRIPTION OF ACTION:

 This can be raised in the answer by way of affirmative defense.

 Notably, this ground can also be raised in a motion to dismiss, in accordance with Section 12(a)
(3), Rule 15 of the Amended Rules, thus:

Section. 12. Prohibited motions. — The following motions shall not be allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of the claim;
2) That there is another action pending between the same parties for the same
cause; and
3) That the cause of action is barred by a prior judgment or by the statute of
limitations;

 Conversely, if this ground, therefore, is not raised in a motion to dismiss, then this ground can
still, as the same should, be raised in the answer by way of affirmative defense.

 But even if this ground is not raised in the motion to dismiss or pleaded in the answer by way of
special defense, the case or claim may still be dismissed on this ground, among others, when it
appears from the pleadings or the evidence on record that the action is already by statute of
limitations, pursuant to Section 1, Rule 9 of the Amended Rules, viz.

Section 1. Defenses and objections not pleaded. — Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the action is barred
by a prior judgment or by statute of limitations, the court shall dismiss the
claim

 However, in civil cases, prescription, just like estoppel, cannot be invoked against the State
(Republic vs. Court of Appeals, L-45202, September 11, 1980).

7. STATUTES OF FRAUD:

 This used to be a ground for filing a motion to dismiss. But under the Amended Rules one can no
longer file a motion to dismiss on this ground, as this can only be raised in the answer by way of
affirmative defense.
 Statutes of Fraud are governed by Articles 1403 (2) of the Civil Code:

1403. The following contracts are unenforceable, unless they are ratified:

xxx xxx xxx

(2) Those that do not comply with the Statute of Frauds as set forth in this number. In the
following cases an agreement hereafter made shall be unenforceable by action, unless the
same, or some note or memorandum, thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement cannot be received
without the writing, or a secondary evidence of its contents:

(a) An agreement that by its terms is not to be performed within a year from the
making thereof;
(b) A special promise to answer for the debt, default, or miscarriage of another;

(c) An agreement made in consideration of marriage, other than a mutual promise to

marry;

(d) An agreement for the sale of goods, chattels or things in action, at a price not
less than five hundred pesos, unless the buyer accept and receive part of such
goods and chattels, or the evidences, or some of them, of such things in action or
pay at the time some part of the purchase money; but when a sale is made by
auction and entry is made by the auctioneer in his sales book, at the time of the
sale, of the amount and kind of property sold, terms of sale, price, names of the
purchasers and person on whose account the sale is made, it is a sufficient
memorandum;

(e) An agreement of the leasing for a longer period than one year, or for the sale of
real property or of an interest therein;

(f) A representation as to the credit of a third person.

 Take note, however, that Statutes of Fraud is applicable only to executory contracts, not to
contracts that are totally or partially executed (Almirol vs. Monserrat, 48 Phil. 67).
 POINTS TO CONSIDER ANENT
GROUNDS FOR FILING A MOTION TO DISMISS

On motion to dismiss, Section 12(a) (3), Rule 15 of the Amended Rules, thus:

Section. 12. Prohibited motions. — The following motions shall not be allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of the claim;
2) That there is another action pending between the same parties for the same
cause; and
3) That the cause of action is barred by a prior judgment or by the statute of
limitations;

As above stated, there are four (4) permissible grounds for filing a motion to dismiss, viz:

1. The court has jurisdiction over the subject matter of the claim
2. There is another action pending between the same parties for the same cause;
3. The action is barred by prior judgment; or
4. The action is barred by the statute of limitations

It is interesting to note that the above grounds for filing a motion to dismiss may also be pleaded in the answer by
way of affirmative defenses, as provided for under Section 5, Rule 6 of the Amended Rules, thus:

Section 5. Defenses. — Defenses may either be negative or affirmative.

(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of
the claimant essential to his or her cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting
the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery
by him or her. The affirmative defenses include fraud, statute of limitations, release, payment,
illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance.
 Affirmative defenses may also include grounds for the dismissal of a complaint, specifically, that
the court has no jurisdiction over the subject matter, that there is another action pending between
the same parties for the same cause, or that the action is barred by a prior judgment.

Verily, it may be amiss to state that:

1) The filing of a motion to dismiss prior to the filing of the answer is STILL ALLOWED for as long it is
based on any or all of grounds: (1) that the court has no jurisdiction over the subject matter; (2)
that there is another action pending between the same parties for the same cause ; or (3) that
the action is barred by a prior judgment; or (4) that the claim is barred by statute of limitation.
These are the four permissible grounds for filing a motion to dismiss;

2) If no such motion to dismiss is filed based on any or all of the above-enumerated grounds, then
any or all of the said grounds must be pleaded in the answer by way of affirmative defenses,
together with any or all of the grounds enumerated under items (1) to (5) of paragraph (a),
Section 12, Rule 8, of the Amended Rules (which are no longer grounds for filing a motion to
dismiss, as they should just be pleaded in the answer by way of affirmative defenses);

3) But even if any or all of the of the above-enumerated grounds are not raised in the motion to
dismiss or pleaded in the answer by way of special defenses, the case or claim may still be
dismissed on any or all of those grounds, when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the action is barred by a prior
judgment, or by statute of limitations, pursuant to Section 1, Rule 9 of the Amended Rules, thus:

Section 1. Defenses and objections not pleaded. — Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the evidence on record
that the court has no jurisdiction over the subject matter, that there is another
action pending between the same parties for the same cause, or that the action is
barred by a prior judgment or by statute of limitations, the court shall dismiss
the claim.

Ordinarily, a motion to dismiss should be filed within the reglementary period for filing a responsive pleading and
before such responsive pleading is filed. However, even after answer has been filed, the defendant can still file a
motion to dismiss based on the foregoing grounds stated under Section 1, Rule 9 of the Amended Rules and also
where the evidence that would constitute a ground for dismissal is discovered only during the trial (Quiaoit vs.
Consolacion, et al., L-41824, September 30, 1976), but in such case there must be leave of court.

If the motion to dismiss is denied, then the movant shall file his answer to the complaint. An order denying a
motion to dismiss, being in the nature of an interlocutory order, is not subject to appeal, but it may be among the
matters to be raised on appeal after a judgment on the merits (Harrison Foundry & Machinery, et al. v. Harrison
Foundry Workers Association, et al., G.R. No. L-18432, June 19, 1963).

Ordinarily, an order denying a motion to dismiss cannot be the subject of a petition for certiorari as the defendant
still has an adequate remedy before the trial court – that is to file an answer and to subsequently appeal if he loses
the case (Tung Ho Steel Enterprises Corporation vs. Ting Guan Trading Corporation, G.R. No. 182153, April 7, 2014).
In order to justify the grant of extraordinary remedy of certiorari, the denial of the motion to dismiss must have
been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction (Douglas Yu vs. Gertrudes
Nabua, 452 SCRA 298).

But what if the motion to dismiss is GRANTED?

Section 13, Rule 15 of the Amended Rules provides the answer, thus:

Section. 13. Dismissal with prejudice. — Subject to the right of appeal, an order granting a
motion to dismiss or an affirmative defense that the cause of action is barred by a prior judgment
or by the statute of limitations; that the claim or demand set forth in the plaintiff’s pleading has
been paid, waived, abandoned or otherwise extinguished; or that the claim on which the action is
founded is unenforceable under the provisions of the statute of frauds, shall bar the refiling of the
same action or claim.

Conversely, if the motion to dismiss or affirmative defense is granted and the ground for the dismissal of the
pending/present case or claim is that the claim is (1) barred by a prior judgment or (2) barred by the statute of
limitations; or (3) that the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned
or otherwise extinguished; or (4) that the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds, then such order of dismissal (being with prejudice) shall be subject to appeal.
But once the said order of dismissal is affirmed on appeal with finality, then the case or claim CANNOT ANYMORE
BE REFILED.

But where the order of dismissal of the case of claim is based on the grounds other that the four (4) grounds
mentioned under Section 13, Rule 15 of the Amended Rules – these other grounds being, but not limited to, (1) the
venue is improperly laid; or (2) plaintiff has no legal capacity to sue; or (3) that the complaint states no cause of
action; or (4) that a condition precedent for filing the suit has not been complied with; or (5) litis pendentia – such
dismissal, if proper, is NOT A BAR to another action when the circumstances change and warrant the refiling and
prosecution of the same.

Where the ground of dismissal is lack of jurisdiction over the subject matter, the dismissal is without prejudice to
the refiling of the complaint, and from the tenor of Section 1(g) of Rule 41, no appeal may ordinarily be had from
such order of dismissal. Section 1(g), Rule 41 of the Rules of Court provides, thus:

RULE 41

Appeal From The Regional Trial Courts

Section 1. Subject of appeal. — An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these Rules to
be appealable.

No appeal may be taken from:

xxx xxx xxx

(h) An order dismissing an action without prejudice.

By way of exception to the foregoing rule, however, where such dismissal on the ground of lack of jurisdiction
is granted by the first-level courts, an appeal from such order of dismissal may be had before the Regional Trial
Court, in context of Section 8, Rule 40 of the Rules of Court, thus:

Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. — If an appeal is
taken from an order of the lower court dismissing the case without a trial on the merits, the
Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the
ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it
has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it.
In case of reversal, the case shall be remanded for further proceedings.

With the foregoing legal framework, a discussion of the grounds for filing a motion to dismiss is in order.

1. THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM:

 We have already discussed this when we discussed the hierarchy and the jurisdiction of the various
courts, pursuant to B.P. 129, as amended by R.A. 7691.

 Let it not be forgotten that jurisdiction over the subject matter is conferred by law, proceeding as it does
from the power of the Congress to define, prescribe and apportion the jurisdiction of the various courts,
and the 1987 Philippines Constitution. It is never acquired by consent or submission of the parties.
Jurisdiction cannot be conferred by silence of the parties or by waiver. Estoppel or waiver or silence or
failure to object cannot vest jurisdiction in the wrong court because jurisdiction over the subject matter is
conferred by law. It can be raised at any stage of the proceedings. In fact, where the court has no
jurisdiction, the court by itself has the power to dismiss. It can dismiss the case motu proprio.

 The ONLY exception is when there is estoppel by laches, as laid down in tile TIJAM vs. SIBONGHANOY
(April 15, 1968). Note, however, that, in Tijam, the issue of jurisdiction was not questioned for an
unreasonable length of time, or that the same was only questioned long after the finality of the decision.

2. THERE IS ANOTHER ACTION PENDING THE SAME PARTIES FOR THE SAME CAUSE:

 This ground is commonly referred to as litis pendentia. Where there are two or more similar cases that are
both pending in the courts, litis pendentia may be invoked as a ground for the dismissal of any of such
pending actions if the following requirements are met:

(a) Identity of parties, or at least such parties as would represent the same interest in both
actions;
 (b) Identity of rights asserted and relief prayed for, the relief being founded on the same facts;
and

(c) Identity of the two preceding particulars such that any judgment rendered in the other
action will, regardless of which party is successful, amount to res judicata in the action under
consideration (Sps. Isidro & Lea Cruz vs. Sps. Florencio & Amparo Caraos, 23 April 2007, GR
No. 138208).

A discussion of the foregoing elements of litis pendentia is in order.

A) Identity of parties, or at least such parties as would represent the same interest in both actions:

 Well-settled is the rule that only substantial, and not absolute, identity of parties is required for litis
pendentia, or in any case, res judicata to apply. There is substantial identity of parties when there is
community of interest between a party in the first case and a party in the second case albeit the latter
was not impleaded in the first case (Sempio vs. Court of Appeals, G.R. No. 124326, January 22, 1998). In
fact, the inclusion of additional parties in the second case is no obstacle to its dismissal on the ground of
litis pendentia (Investors Finance Corp. vs. Judge Ebarle, G.R. No. 70640, June 29, 1998).

B) Identity of rights asserted and relief prayed for, the relief being founded on the same facts:

 There may be identity of rights regardless of the forms of the actions (Sempio vs. Court of Appeals, supra).

 There can be litis pendentia if the same cause of action is the subject of a complaint in one case and of a
counterclaim in another as long as the other requisites are present (Arceo vs. Oliveros, L-38251, Jan. 31,
1985).

C) Identity of the two preceding particulars that any judgment rendered in the other action will,
regardless of which party is successful, amount to res judicate in the action under consideration:

 A plea of pendency of a prior action is not available unless the prior action is of such character that, had a
judgment been rendered therein on the merits, such judgment would be conclusive between the parties
and could be pleaded in bar of the second action (Valencia vs. Court of Appeals, 263 SCRA 287).

A case in which there is perfect conflux of foregoing requirements is …

Sempio vs. Court of Appeal

G.R. No. 124326, January 22, 1998

FACTS:
Spouses Bernardo Sempio and Genoveva Ligot obtained a loan from DBP for which they
offered their parcel of land by way of real estate mortgage. They failed to pay their loan,
such that DBP foreclosed their property. DBP emerged as the highest bidder during the
foreclosure sale. DBP filed a foreclosure sale. The case was docketed as Civil Case No.
P-1787-89 (first case). The said petition was opposed by Bernardo Sempio in an
appropriate pleading. Subsequently, one Tuazon filed a complaint-in-intervention
claiming to have bought the property from DBP. On the other hand, Sempio spouses filed
a Complaint for Annulment of Foreclosure, Reconveyance of Title and Damages in the
Regional Trial Court, Branch 19, Bulacan. They contended, among others, that they were
not notified of the foreclosure sale in violation of the notice, posting and publication
requirements under Act No. 3135.  Said complaint was docketed as Civil Case No. 181-
M-90 (second case). In the same year, Tuazon filed in the Regional Trial Court, Branch
6, Bulacan, a Complaint for Injunction and Damages, docketed as Civil Case No. 681-M-
90 (third case). She invoked her exclusive right to the land as owner and accordingly
asked the trial court to enjoin petitioner from digging any portion of the land and to
assess against the latter the damages warranted under such circumstances.

The trial court ordered the dismissal of Civil Case No. 681-M-90 (third case) on the
ground of lis pendens or auter action pendant, specifically, the pendency of Civil Case
No. P-1787-89 for issuance of writ of possession filed by the DBP. The trial court also
ratiocinated that respondent Tuazon should have sought protection of her right as new
owner of the land in Civil Case No. 181-M-90 (second case) where the validity of the
foreclosure proceedings undertaken by the DBP, her predecessor-in-interest, was at issue.
DBP's Petition for Issuance of Writ of Possession Ex-parte was denied in Civil Case No.
P-1787-89. Respondent Tuazon's Complaint in Intervention was also dismissed.

Tuazon questioned the dismissal of her case - Civil Case No. 681-M-90 (third case).

HELD:

The dismissal of the Civil Case No. 681-M-90 (third case) is proper.

“First. Respondent Tuazon contends that there is no identity of parties to justify the
application of the doctrine of lis pendens, considering that while she is the plaintiff in
Civil Case No. 681-M-90, she was only an intervenor in Civil Case No. P-1787-89 and
was never at all a party in Civil Case No. 181-M-90. The foregoing argument is,
however, premised on the wrong notion that identity of parties is calibrated by their strict
sameness or a total lack of differentiation among them.

Well-settled is the rule that only substantial, and not absolute, identity of parties is
required for lis pendens, or in any case, res judicata, to lie.  There is substantial identity
of parties when there is a community of interest between a party in the first case and a
party in the second case albeit the latter was not impleaded in the first case. 

Second. Respondent Tuazon adopts the posture of respondent Court of Appeals that
different causes of action underlie Civil Cases Nos. P-1787-89, 181-M-90 and 681-M-90,
which involve issuance of a writ of possession, annulment of foreclosure, and injunction
with damages, respectively.

What impresses us as dissimilar, however, is only the form by which respondent Tuazon
has sought to enforce her right as new owner of the land, following its sale to her by the
DBP. In Civil Case No. P-1787-89, she intervened, anchoring her possessory claim on
her right as new owner of the land. Invoking the same right, respondent Tuazon herself
filed Civil Case No. 681-M-90 to enjoin the Sempios from digging portions of the land
 which she claims to be hers in exclusive ownership and to collect from them the
appropriate damages for violation of her ownership rights. It is this same right that stood
to be defeated in Civil Case No. 181-M-90, should the foreclosure proceedings be voided
and DBP's title to the land, annulled, considering that respondent Tuazon purchased the
same from the DBP with notice that the DBP was neither the registered owner nor the
actual possessor thereof, rendering her a purchaser in bad faith not entitled to any
protection under the law.

Thus, whether we inquire into the unity of rights asserted in the various actions filed on
the basis of an identical set of facts involving respondent Tuazon, or we apply the true
test of identity of causes of action that transcends the form of the action and rather
evaluates whether or not the same evidence would support and establish the several
actions pending,  there is no denying that identity of causes of action lies in the instant
case.

There is only one cause of action running through respondent Tuazon's litigious
undertakings: the continued violation of what she believes to be her right to exclusive
possession and enjoyment of the land. Therefore, evidence of her exclusive ownership of
the land is indispensable in prosecuting her claims in both Civil Cases Nos. P-1787-89
and 681-M-90. Although respondent Tuazon could not have proffered such evidence in
Civil Case No. 181-M-90 where she was not impleaded, her rights are inherently
contingent on those of the DBP since she may not be deemed a purchaser in good faith
and accorded legal protection as such. At any rate, the parties are bound not only as
regards every matter offered and received to sustain or defeat their claims or demand but
as to any other admissible matter which might have been offered for that purpose and
of all other matters that could have been adjudged in that case.” 

 And where there is litis pendentia, the GENERAL RULE is that it is the second case that should be
dismissed (Sanpiro Finance Corporation v. Intermediate Appellate Court, 220 SCRA 527). This is what is
known as The Priority-in-Time Rule. Thus, where the first action is for recovery of land and the second
case, action to quiet title, the second case should be dismissed (Francisco vs. Vda. de Blas,93 Phil. 1).

 The aforesaid general rule is not an iron-clad rule, in that it admits of EXCEPTIONS whereby it is the first
or the prior case that should be dismissed, instead of the second case, applying the following rules:

A. The More Appropriate Action Rule

B. The Interest of Justice Rule
C. The Anticipatory Rule

Consider the following discussions:

A. The More Appropriate Action Rule:

 Under this rule, where the second case is the more appropriate vehicle for litigating the issues between
the parties, then it is the first case that should rather be abated. Illustrative of this is the case of …

Anastacio Teodoro vs. Armando Mirasol

G.R. No. L-8934, May 18, 1956

FACTS:
Defendant  leased to Plaintiff a parcel of land situated along Taft Avenue, Ermita,
Manila. The contract provides that the term of the lease is two years, which may be
extended for another period not exceeding two years with the written consent of both
parties. Sometime in 1954, Defendant wrote Plaintiff that the lease expired on October 1,
1954, and that as the latter has lost interest in renewing the same and the retention by the
lessee will mean a great financial loss to the owner, Defendant is giving Plaintiff notice
of the termination of the contract.

It is alleged in Plaintiff’s complaint that it is not true that Plaintiff has lost interest in the
renewal of the lease contract;  that as Defendant allowed Plaintiff to choose to continue
the lease for another two years, Defendant is now estopped from denying that the said
period had actually been extended for another period of two years;  and that Plaintiff has
already paid Defendant a considerable sum of money, besides spending another big sum
for the improvements on the land. Plaintiff prays that the court fix a longer term for the
lease, etc.

Upon receipt of the summons, Defendant promptly filed a motion to dismiss the

complaint on the grounds, among others, that there is another action pending between the
same parties and for the same cause. In connection with the allegation that another action
is pending between the same parties and for the same cause, a copy of a complaint for
ejectment filed by the Defendant against Plaintiff in the Municipal Court of Manila on
December 20, 1954, was attached as Exhibit 1. The complaint for ejectment alleges that
the lease was terminated on October 1, 1954, and that even if the contract could be
extended for another period of two years the same had already expired on December 20,
1954.
In his reply to the motion for dismissal, Plaintiff argues, among others, that as the
ejectment suit in the Municipal Court of Manila was filed later than Plaintiff’s action in
the Court of First Instance, the former must be dismissed. The trial court, after
considering a rejoinder of Defendant to Plaintiff’s reply, sustained the motion for
dismissal on the ground that in view of the filing of the action for ejectment or unlawful
detainer, all matters alleged in the Plaintiff’s complaints could be decided therein. After
the denial of Plaintiff’s motion for the reconsideration of the order, Plaintiff appealed to
the Supreme Court.

HELD:

“There is no doubt in our mind that the order of dismissal appealed from should be
sustained. The real issue between the parties is whether or not the Plaintiff-Appellant
should be allowed to continue occupying the land under the terms of the lease contract.
This is the subject matter of the action for unlawful detainer filed by Defendant in the
Municipal Court, and it is also the main or principal purpose of this Action. As we have
held in the case of Pue, et al. vs. Gonzales, 87 Phil., 81 and in the recent case of Lim Si
vs. Lim, 98 Phil., 856, the right of a lessee to occupy the land leased against the lessor
should be decided under Rule 72 of the Rules of Court. The mere fact that the unlawful
detainer or ejectment case was filed later did not deter us from applying this ruling in the
case of Lim vs. Lim, supra.

In case at bar, we are led to the belief that the present action in the Court of First Instance
was prompted by a desire on Plaintiff’s part to anticipate the action for unlawful detainer,
the probability of which was apparent from the letter of the Defendant to the Plaintiff
advising the latter that the contract of lease expired on October 1, 1954. The Defendant
evidently desired to give Plaintiff sufficient time to leave the premises because no action
for unlawful detainer was filed immediately after the giving of the notice of the
expiration of the lease. But Plaintiff took advantage of Defendant’s delayed unlawful
detainer suit to file this case in the Court of First Instance of anticipation of the action for
 unlawful detainer, in order perhaps that he may claim that the action in the Court of First
Instance was prior to the unlawful detainer case, and, therefore, should enjoy preference
over the action filed in the Municipal Court.

It is to be noted that the Rules do not require as a ground for dismissal of a complaint that
there is a prior pending action. They provide that there is a pending action, not a pending
prior action. The fact that the unlawful detainer suit was of a later date is no bar to the
dismissal of the present action. We find, therefore, no error in the ruling of the court a
quo that Plaintiff’s action should be dismissed on the ground of the pendency of another
more appropriate action between the same parties and for the same cause.

xxx xxx xxx

It is not true that Plaintiff’s supposed rights to an extension cannot be decided in the
unlawful detainer suit. If the Plaintiff has any right to the extension of the lease at all,
such right is a proper and legitimate issue that could be raised in the unlawful detainer
case, because it may be used as a defense to the action. Plaintiff suit, therefore, violates
the principle prohibiting multiplicity of suits, as the court a quo correctly ruled.”

B. The Interest of Justice Rule:

 Under this rule, the criterion to be used is the interest of justice, such that if would serve the best of
justice to abate the first case, instead of the second case, then so should it be. Case in point is …

Roa-Magsaysay v. Magsaysay
G.R. No. 28885, July 17, 1980

FACTS:

The husband filed an action for the custody of his children in the Court of First
Instance of Zambales, on January 13, 1978. The wife commenced a similar
proceeding for the custody of the same children with the Juvenile and Domestic
Relations Court at Quezon City, on January 19, 1978, or just six days after the
filing of the first case in Zambales. On the basis of which, the wife filed a
motion to dismiss in the case before the Zambales court. The Zambales court,
however, insisted to take cognizance of the case before it, and, thus, denied the
motion to dismiss.

HELD:

“Respondent insists that the Zambales case was filed by him six (6) days earlier
than the filing by petitioner of the Quezon City case. It has already been ruled
that priority in the filing of one action ahead of another is not decisive on the
issue of which one of two Identical actions in two separate courts of concurrent
jurisdiction should be dismissed, for the ground of dismissal under Section 1(e)
of Rule 16 of the Rules of Court is simply "that there is another action g
between the same parties for the same cause" and not necessarily a "prior"
pending action. (Moran, Rules of Court, Vol 1, 487, 1979 ed.)
 xxx xxx xxx

In any event, since We are not really dealing with jurisdiction but mainly with
venue, considering both courts concerned do have jurisdiction over the causes of
action of the parties herein against each other, the better rule in the event of
conflict between two courts of concurrent jurisdiction as in the present case, is to
allow the litigation to be tried and decided by the court which, under the
circumstances obtaining in the controversy, would, in the mind of this Court, be
in a better position to serve the interests of justice, considering the nature of the
controversy, the comparative accessibility of the court to the parties, having in
view their peculiar positions and capabilities, and other similar factors. Without
in any manner casting doubt as to the capacity of the Court of First Instance of
Zambales to adjudicate properly cases involving domestic relations, it is easy to
see that the Juvenile and Domestic Relations Court of Quezon City which was
created in order to give special attention to family problems, armed as it is with
adequate and corresponding facilities not available to ordinary courts of first
instance, would be able to attend to the matters here in dispute with a little more
degree of expertise and experience, resulting in better service to the interests of
justice. A reading of the causes of action alleged by the contending spouses and
a consideration of their nature, cannot but convince Us that, since anyway, there
is an available Domestic Court that can legally take cognizance of such family
issues, it is better that said Domestic Court be the one chosen to settle the same
as the facts and the law may warrant.

Before closing, it is pertinent to state that what the Court is doing here is in the
exercise of its power now expressly answered upon it by the Constitution of the
Philippines of 1973 "to order a change of venue or place of trial to avoid a
miscarriage of justice." (Section 5 (4), Article X. Constitution of the Philippines
of 1973.) In other words, the rule of exclusive jurisdiction based on prior
acquisition 6f injunction even as already qualified Alimajen supra must yield to
the constitutional authority of this Court to take the measure indicated in the
cited provision of the fundamental law of the land.

C. The Anticipatory Rule:

 Here, where the filing of the first case is but an anticipatory defense against an expected suit, then it
should be abated. This doctrine is emphatically ordained in the case of …

Anastacio Teodoro vs. Armando Mirasol

(cited before)

HELD:

“In case at bar, we are led to the belief that the present action in the Court of First
Instance was prompted by a desire on Plaintiff’s part to anticipate the action for unlawful
detainer, the probability of which was apparent from the letter of the Defendant to the
Plaintiff advising the latter that the contract of lease expired on October 1, 1954. The
Defendant evidently desired to give Plaintiff sufficient time to leave the premises because
no action for unlawful detainer was filed immediately after the giving of the notice of the
expiration of the lease. But Plaintiff took advantage of Defendant’s delayed unlawful
detainer suit to file this case in the Court of First Instance of anticipation of the action for
 unlawful detainer, in order perhaps that he may claim that the action in the Court of First
Instance was prior to the unlawful detainer case, and, therefore, should enjoy preference
over the action filed in the Municipal Court.”

 While litis pendentia would result to an abatement of action, the same may, however, allow or pave the
way for CONSOLIDATION OF CASES, as this is, in fact, the PREFERRED SOLUTION, especially where the
similar or related cases are all filed in good faith. In point is the case of…

Vallacar Transit, Inc. vs. Celestino Yap

G.R. No. L-61308, December 1983

FACTS:

On May 16, 1979, Bus No. 646 of Vallacar, with Mario Hambala at the wheel, figured in
a collision with a dump truck owned by Hanil Development Co., Ltd. As a result of the
accident, private respondents Celestino Yap and Jenny Yap passengers of the Vallacar
Bus, suffered physical injuries, while Eddie Gonzaga, driver of the dump truck, died.

On August 23, 1979, respondents Yap filed an action for damages against Vallacar,
Mario Hambala and Hanil in the Court of First Instance of Agusan del Sur, docketed as
Civil Case No. 264. The cause of action against Vallacar was based on culpa contractual,
while that against Hanil was on quasi-delict.

On October 21, 1979, Vallacar and Mario Hambala filed their answer with cross-claim
against Hanil, laying the blame for the accident on the latter’s driver Eddie Gonzaga.

Respondents Celestino Yap and Jenny Yap subsequently filed an undated motion to
discharge Hanil as party-defendant in said case, on the ground that the latter, whose
address was unknown, could not be served with summons. On November 18, 1980, the
Court of First Instance of Agusan del Sur issued an order discharging Hanil as defendant.
:red

Meanwhile, on September 30, 1979, Hanil filed a separate complaint for damages against
Vallacar before the Court of First Instance of Misamis Oriental, docketed therein as Civil
Case No. 6742. Hanil alleged that the accident of May 16, 1979, which resulted in the
death of its (Hanil’s) driver Eddie Gonzaga and the destruction of its dump truck, was
due to the reckless and gross negligence of Vallacar’s driver.

On November 5, 1979, Vallacar filed its answer with counter claim in Civil Case No.
6742, alleging that the mishap was due solely to the fault of Hanil’s driver and that it
exercised due diligence in the selection, recruitment and supervision of its employees.

On August 8, 1981 Vallacar filed in Civil Case No. 264 of the Agusan del Sur Court a
motion for leave to file a third-party complaint against Hanil. Said motion was granted by
the court. In its third-party complaint, Vallacar sought to hold Hanil liable for damages
suffered by its injured passengers as well as its vehicle.
 On November 20, 1981, Hanil moved to dismiss the aforesaid third-party complaint
advancing, as ground therefor, the pendency of Civil Case No. 6742 in the Court of First
Instance of Misamis Oriental, involving the same parties, and the same cause and reliefs
sought. The Court of First Instance of Agusan del Sur, finding merit in the motion, issued
the challenged order of January 7, 1982, dismissing petitioners’ third-party complaint on
ground of litis pendentia.

HELD:

“We agree with the observation of respondent court that, as between the third party
complaint filed by petitioners in Civil Case No. 264 and respondent Hanil’s complaint in
Civil Case No. 6742, there is identity of parties as well as identity of rights asserted, and
that any judgment that may be rendered in one case will amount to res judicata in the
other. But the pendency of these two (2) cases in two different courts and the possibility
of conflicting decisions being rendered by them are factors that will not subserve the
orderly administration of justice.

Civil Case No, 6742 should therefore be consolidated and tried with Civil Case No, 264
of the Regional Trial Court of Agusan del Sur. The latter court, to Our mind, is the more
suitable forum for the determination of the controversy since Civil Case No. 264,
instituted by respondents Yap against Vallacar, Hambala and Hanil, had already been
pending before the filing of Civil Case No. 6742. Such consolidation is desirable in order
to prevent confusion, to avoid multiplicity of suits, and to save unnecessary cost and
expense. Needless to add, this procedure is well in accord with the principle that the rules
of procedure "shall be liberally construed in order to promote their object and to assist the
parties in obtaining just, speedy and inexpensive determination of every action and
proceeding."

3. THE ACTION IS BARRED BY PRIOR JUDGMENT:

 This ground is commonly referred to as res judicata.

 The elements of litis pendentia and res judicata are basically the same. They just differ, in that in litis
pendentia the similar actions are still pending in court, while in res judicata one of the similar cases has
already been decided with finality and such final decision is pleaded to abate the related pending case.

4. THE ACTION IS BARRED BY STATUTE OF LIMITATION:

 Recall that, in civil cases, prescription, just like estoppel, cannot be invoked against the State (Republic vs.
Court of Appeals, L-45202, September 11, 1980).

 Prescription cannot also be invoked as ground if the contract in question is alleged to be void ab initio
(Castillo vs. Madrigal, 198 SCRA 556).

 Likewise, a petition for quieting of title although essentially of reconveyance should not be dismissed on
ground of prescription where it is alleged that plaintiff is in possession of the property (Cabrera vs. Court
of Appeals, G.R. No. 108547, February 3, 1997).