RULE 4  personal action - it will depend upon the residence of
VENUE OF ACTIONS the plaintiff or the residence of the defendant at the
DEFINITION
Venue is the place where the case is to be heard or tried.
Procedural laws govern this. So, the rules on venue are found in
the Rules of Court.
Local Actions are actions, which can only be instituted in a
particular place
Section 1.
Venue of real actions. — Actions affecting title to or
possession of real property, or interest therein, shall be
commenced and tried in the proper court which has
jurisdiction over the area wherein the real property involved,
or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced and
tried in the municipal trial court of the municipality or city
wherein the real property involved, or a portion thereof, is
situated.
VENUE OF REAL ACTIONS
General Rule: Actions affecting title to or possession of real
property, or interest therein (e.g. accion publiciana and accion
reinvidicatoria) must be filed with the proper court:
 if the property is P20,000 or less – MTC
 if the property is more than P20,000 – RTC
In determining jurisdiction, if this is the kind of action filed, the
jurisdiction will depend upon the assessed value of the property.
Where in RTC? So that is now the question on venue. The law
says, in the proper area where the real property involved or
portion thereof is situated. If sa Digos ang property, then in the
proper court of Digos.
Q; what if boundary sa Davao del Sur and Davao City.
A: You can choose. Davao or Digos, because one portion is in
Davao and one portion is in Digos.
Exceptions:
The following cases must always be filed with the MTC
regardless of the amount of property:
 forcible entry
 unlawful detainer
Q: How about the venue?
A: In the place again where the real property or portion thereof is
situated.
JURISDICTION VENUE
To which court? What court in To where specifically? Which court and
general where is it located
Authority to hear and decide Place where the case is to be head or for declaration of nullity.
cases tried
Governed by substantive law Governed by remedial law
Establishes a relation between Establishes a relation betweenVenue
the court and the subject matter parties, between the plaintiff andcommenced
of the case defendant or the petitioner andprincipal the
respondent
Always fixed by law and cannot Can be conferred by agreement
be conferred by means of contract (only if civil case, because
agreement by parties criminal case, venue is jurisdictional)
Once conferred, it can never be Can be subjected to the power ofTransitory SC to
taken away from the court order a change of venue in order to
having jurisdiction miscarriage of justice
Limits the court’s authority Limits the plaintiff’s rights
Significance of Distinguishing Real Actions from Personal
Actions
1.Determining which court has jurisdiction
For example, in some cases, there are real properties involved
but the SC said that the action is incapable of pecuniary
estimation. So that would be with the RTC. Or maybe the action is
an action for declaration of nullity of contract, but the SC said it is
a real action not incapable of pecuniary estimation, so the
jurisdiction will depend upon the assessed value of the property.
2.Determination of the venue of the action
 real action - under Section 1, it would depend upon the
place, the location of the property.
option of the plaintiff.
3. Determination of docket fees.
Q: how will you know that is really the primary relief sought and
not merely incidental? Na you’re just seeking the declaration of
nullity of the contract because you want to recover the property,
or the recovery of property is just an incident to the declaration
of nullity of contract.
A: There’s another test that can help. This issue will arise only if
there is real property involved.
Q: If the ownership of the defendant is recognized by the
plaintiff but the plaintiff wants the defendant to deliver the
property to him, what is nature of the action?
A: defendant’s ownership is recognized by the plaintiff only that
performance is compelled. Specific performance.
EXAMPLE 1: A sold to B ang iyahang land. B already paid in full
the price but A did not yet deliver. It is delivery that transfers
ownership. So prior to delivery, wala pa’y ownership si
buyer. The buyer recognizes the ownership. But because of the
contract that you signed with me, the Contract of Sale, you have
an obligation to deliver the property to me.
 So that is an action for specific performance. That is
an action incapable of pecuniary estimation.
EXAMPLE 2: A sold his land to B however A changes his mind.
Whether nabayaran na or wala pa, wala pa niya nadeliver and
property. And now he's saying that there's fraud because he was
tricked into signing the contract. He files an action for the
annulment of the Deed of Sale. What is that action?
 That action is still incapable of pecuniary estimation.
It's (CRIS: not?) really for recovery of ownership
because in the first place, he did not part with the
ownership of his property. Ownership is recognized
on the part of the defendant or plaintiff. Basta wala
question sa ownership. Only performance is
compelled.
EXAMPLE 3: If the plaintiff asserts prior ownership and wants
to get the property from the defendant (Seller already delivered
the property to the buyer. There is now transfer of ownership),
but the seller says there is fraud, so he wants to recover the
property. He recognizes na there was already transfer of
ownership kay nadeliver naman, but he says na null and void ang
contract, or maybe it should be annulled because it is voidable.
His action is declaration of nullity of the contract with recovery
of ownership. What is the ultimate purpose here?
 It's actually to recovery the ownership, but of course
you have to declare the contract as null and void. So
here, the plaintiff asserts that he has ownership over
the property. But because of fraud or maybe because
of some other scheme, it was transferred to the
defendant and he wants to recover his ownership.
So that is a case for recovery of possession. That is a
considered as a real action although he filed an action
Section 2.
the of personal actions. — All other actions may be
the and tried where the plaintiff or any of the
plaintiffs resides, or where the defendant or any of
the principal defendants resides, or in the case of a non-
or defendant where he may be found, at the election of
resident
of
the plaintiff.
actions are actions, the venue of which depends on
avoid
the residence of the parties. Here, we're talking of a personal
action. It does not depend upon title or possession of real
property. The other one is a real action or a local action.
REAL ACTION PERSONAL ACTION
Actions affecting title to or All other actions
possession of real
property or interest
therein
Local action Transitory action
Commenced and tried in Commenced and tried where
the proper court which has the plaintiffs or any of the
the jurisdiction over the principal plaintiffs reside, or
area wherein the real where the defendant or any of
property involved, or a the principal defendants
portion thereof, is situated reside, or in the case of a non-
resident defendant, where he
may be found at the election of
the plaintiff
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 Docket fee is based on the Docket fee is a flat rate based
assessed value of the on the type of personal action
property
When we say real - we're referring to the subject matter
When we say local - it now refers to the venue.
When we speak of personal actions - it could also contemplate
jurisdiction.
When we say transitory - we are more referring to the venue.
Personal actions are transitory actions.
VENUE WHERE THERE ARE SEVERAL PLAINTIFFS AND
DEFENDANTS
 We have here the plaintiff, he has the option. It could
be the residence of the plaintiff.
 If there are several plaintiffs and they have different
residences, they could use any of those residences.
 Or the residence of the defendant or any of the
defendants, if there are several defendants, at the
option of the plaintiff.
VENUE IN THE CASE OF A NON-RESIDENT DEFENDANT
a resident of the PH but he is found in the PH, the same rule
applies.
VENUE WHERE THERE ARE SEVERAL OR ALTERNATIVE
RELIEFS PRAYED FOR
The main remedy determines the venue. Nature of the action or
main relief sought:
a. by the PRIMARY OBJECT OF THE SUIT or
b. by the NATURE OF THE PRINCIPAL CLAIM
Q: What if there are several claims in the case? Like, recovery of
ownership + damages. Recovery of ownership which is a real
action, plus damages which you can consider as a personal
action.
A: In jurisdiction, what is the primary relief sought is what
determines jurisdiction. In the same manner, this determines
venue. In that case, it is really the recovery of ownership. So that
will determine the venue.
RESIDENCE OF THE PARTIES
General Rule:
Residence means ACTUAL OR PHYSICAL RESIDENCE and not
domicile or legal residence.
Exception:
An American citizen who resides in US filed a complaint and
alleged that he temporarily resides in Manila where he filed the
case. in this case the SC said, residence is synonymous with
domicile, which is the permanent home, the place to which
whenever absent for business or pleasure, one intends to return.
(Corre vs Tan-Corre) – aberrant case
Residence for Purposes of Election Law
Residence for purposes of election law is more stringent, in that
it is admitted with the term domicile. For the said purpose in
election law, the term residence imports not only an intention to
reside in a specific place but also personal presence.
There are two elements:
1. Intention to reside in the particular place
2. Personal or physical presence in that place coupled with
conduct indicative of such intention
The Court said the place where a party actually lives or
constructively has a permanent home, no matter where he may
be at the moment, as long as he eventually intends to return and
remain, that is his domicile. That is the meaning when the
Constitution speaks of residence for the purpose of election law.
Residence for Purposes of Venue
The less technical definition of residence is adopted. It is
understood to be the personal, actual, or physical habitation of a
person, actual residence or place of abode. The term means
merely residence. In the ROC for purposes of venue, they are
referring to personal residence, actual residence, physical
residence and not really legal residence or domicile.
Take note: Residence itself alone is not domicile. But domicile is
residence coupled with intention to remain therein for an
unlimited time. Residence does not necessarily mean domicile,
but domicile necessarily means that you are a resident.
VENUE AS TO CORPORATIONS
The residence of the corporation is its principal place of
business found in the Articles of Incorporation filed in the SEC.
Juridical persons can also sue and be sued.
Q: If a corporation has several branches, can it also be sued in
that in the places where it has branches?
A: No. The fact that it maintains branch offices in some parts of
the country does not mean that it can be sued in any of these
places. To allow an action to be instituted in any place where the
corporate entity has its branch offices would create confusion
and burn untold inconvenience to the corporation.
General Rule: A corporation can sue and be sued at the place of
its residence or the residence of the defendant at the option of
the corporation (if it is the plaintiff).
Exceptions:
1. If the action is a REAL ACTION – the venue would be
where the property or a portion thereof is situated
2. When the corporation is the DEFENDANT in a
personal action – the venue would be at the option of
the plaintiff therefore the venue may be at the place of
residence of the plaintiff
3. If the corporation is a CO-PLAINTIFF in a personal
action – the venue may be at the place of residence of
the other co-plaintiff
4. If the corporation is a CO-PLAINTIFF and they decided
to sue at the address of the defendant
5. If the case falls under SECTION 4 – the venue would be
that provided by a specific rule or law or that stated in
the parties‘ written agreement.
6. When the address stated in the Articles of
Incorporation of the said corporation is no longer its
actual physical address and any other party has
knowledge of such fact (Golden Arches vs St. Francis
Square)
 Remember it would apply if wala na jud syay office sa
Makati, kay kung halimbawa naa gihapon syay office sa
Makati and sa Mandaluyong, the rule that we discussed
before (branches, offices), dili syay pwede. kani sya,
wala na jud syay office did to sa Makati which was the
address indicated in the Articles of Incorporation.
Section 3.
Venue of actions against nonresidents. — If any of the defendants does not
reside and is not found in the Philippines, and the action affects the personal
status of the plaintiff, or any property of said defendant located in the
Philippines, the action may be commenced and tried in the court of the place
where the plaintiff resides, or where the property or any portion thereof is
situated or found.
VENUE OF ACTIONS AGAINST NON-RESIDENTS
What we referring to here is the venue of actions against non-
residents. Actually, that is also mentioned in Section 2, non-
resident but found in the Philippines. In Section 3, we have a non-
resident who is not found in the Philippines.
SECTION 2 SECTION 3
The non-resident defendant may The non-resident defendant is not found
be found in the Philippines in the Philippines
He may be sued for personal He may be sued:
action wherever he may be 1. For personal actions (personal)
found or actual or physical status:
residence Where the plaintiff resides
2. For real actions (real property)
Where the property or a portion
thereof is situated or found.
The rule says the action may be commenced and tried in the
court of the place where the plaintiff resides or where the
property or any portion thereof is situated.
Take note, there is an additional requirement: The action must
affect:
1. The personal status of the plaintiff
 Example: Action for recognition. You want to be
recognized as the illegitimate child of your father. The
res here is the status. So even if your father is a non-
resident and is not found in the Philippines, the court
can acquire jurisdiction over the res, the status. That is
allowed. The venue here is the place of residence of
the plaintiff
2. Any property of the said defendant located in the
Philippines.
 Example: Defendant borrowed money secured by a
REM but later on defaulted in the payment. An action
for foreclosure of mortgage can be filed where the
property or any portion thereof is situated or found.
Take note: When we say non-residents, we're not referring to
foreigners only. Even Filipinos but non-residents.
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If the action affects the personal status of the plaintiff or any
property of the said defendant located in the Philippines, it
should be construed as an action in rem or quasi in rem. In
the cases we discussed before and in the cases we will discuss for
summons, it is a requirement that jurisdiction must be obtained,
if not over the person, then over the res.
 Example: In a foreclosure of mortgage, you cannot
obtain jurisdiction over the defendant if he is outside
of the Philippines. You can just file an action for
foreclosure, you can subject his property to judgment
of the court. But if there is a deficiency judgment there,
that will not be binding against the defendant. Hindi ka
makarecover kung maforeclose nimo ang mortgage.
Because in so far as the deficiency judgment is
concerned, that already his personal liability. You
cannot make him personally liable without acquiring
jurisdiction over his person. So it should be at least
an action in rem or quasi in rem.
Section 4.
When Rule not applicable. — This Rule shall not apply.
(a) In those cases where a specific rule or law provides
otherwise; or
(b) Where the parties have validly agreed in writing before
the filing of the action on the exclusive venue thereof.
CASES WHERE A SPECIFIC RULE OR LAW PROVIDES
OTHERWISE:
1. Civil action arising from libel
 Libel is a crime under Art. 350 of the RPC. We are
referring here to the civil liability arising from the
crime itself. If you wish to file a separate civil action
arising from libel, the rule says, venue shall be:
a. In the province or city where the libelous article
is printed and first published
b. Where any of the offended parties actually reside
at the time of the commission of the offense
c. If one of the offended parties is a public officer,
whose office is in the city of Manila at the time of
the commission of the offense, the action shall be
filed with:
i. the RTC of Manila, or
ii. the RTC of the province where he held office
at the time of the commission of the offense.
Section 5, paragraph 4 of Article VIII of the 1987 Constitution
provides that the Supreme Court may order a change in venue or
place of trial to avoid the miscarriage of justice even if the
venue is different from what was laid down under Sections 1 to 3
of the ROC.
In labor cases, the venue is where the place of work.
2. STIPULATION OF VENUE IN CONTRACTS
Requisites:
1. the stipulation must be in writing, and
2. the stipulation must be made before the filing of the
action
2 TYPES OF STIPULATIONS ON VENUE
1. Mandatory stipulation – the agreement is restrictive in
a sense that the suit may be filed only in the place
agreed upon
2. Permissive stipulation – the parties may file their suits
not only in the place agreed upon but also in the places
fixed by the ROC, meaning it‘s an additional venue
If they have an agreement that the case shall be filed in another
venue, then it should be in that venue.
But of course, we have to consider what are the requirements. It
must be very clear that the said venue as stipulated in the
contract is the venue exclusive of all other venues. Otherwise, we
apply the ruling of the SC in Polytrade Corporation vs Blanco
POLYTRADE v BLANCO (October 31, 1969)
Facts: The case was filed before the CFI of Bulacan to recover the purchase
price of goods delivered by the plaintiff to the defendant. The plaintiff's
principal office was in Makati, Rizal. Defendant is a resident of Bulacan.warrant the invalidation of the stipulation.
However, the contracts stipulate that the parties agreed to sue and be sued in
the city of Manila.
Issue: WON venue was improperly laid. NO
Ruling: The Supreme Court held that the stipulation, in which the parties
agreed to sue and be sued in the courts of Manila does not preclude the filing
of suits in the residence of the plaintiff or defendant.
As to the agreement, the SC said the plain meaning is that the parties merely
consented to be sued in Manila. The qualifying or restrictive words, which
would indicate that Manila and Manila alone is the venue, are totally
absent from the stipulation.
POLYTRADE DOCTRINE
A stipulation in a promissory note that ―the parties agree to sue
and be sued in the City of Manila—is not exclusive but
permissive.
The stipulated venue is considered as an additional venue in
addition to where the parties reside unless the stipulation
contains restrictive words which shows the intention of the
parties to limit the place stipulated as the exclusive venue.
GESMUNDO v REALTY CORPORATION (July 14, 1994)
Facts: The parties entered into a lease contract. Under the contract, there was
a stipulation as to the venue.
“The venue for all suits, whether for breach hereof or damages or
any cause between the lessor and the lessee and persons claiming
under each be in the courts of appropriate jurisdiction in Pasay
City.”
Issue: Is Pasay City the exclusive venue? YES.
Ruling: "The venue for all suits" are the qualifying words. By laying in Pasay
City the venue for all suits, the parties may claim that in no other place may
they bring suit against each other for breach of contract or damages or
anything cause. The intention here is to name Pasay City as the exclusive
venue.
EXCEPTION TO POLYTRADE DOCTRINE
1. Void Stipulations
SWEET LINES v TEVES (May 19, 1978)
Facts: Tandog and Tiro filed a case for breach of contract of carriage and
damages against Sweet Lines.
Sweet Lines moved to dismiss the complaint on the ground of improper
venue. At the back of the ticket, Condition No. 14 provides that the aggrieved
party will have to file suits against the petitioner only in the city of Cebu.
Issues: Was the stipulation as to venue at the back of the ticket valid? NO.
Ruling: The validity of the stipulation indicated at the back of the ticket,
which is a contract of adhesion, will be considered under the peculiar
circumstances obtaining in the case.
However, considering in the context of circumstances prevailing in the inter-
island shipping industry in the country, Condition No. 14 should be held as
void and unenforceable for the following reasons:
1. It is not just and fair to bind passengers to the terms and
conditions printed at the back of the ticket considering that they
were constrained to get the ticket for they had no their choice. The
conditions were also printed in very fine letters.
2. The condition subverts the public policy on transfer of venue of
proceedings of this nature, since it will prejudice the rights and
interest of innumerable passengers in different parts of the
country who will have no choice but to file suits in Cebu. The
condition is unenforceable.
3. Under the circumstances, it is hardly just and proper to expect the
passengers to examine their tickets received from crowded
congested/counters for conditions that may be printed especially if
there are a number of such conditions in fine print.
Following the general rule on the ROC, since the action is personal, the
venue shall be the residence of the plaintiff or the residence of the defendant
at the election of the plaintiff. So insofar as the vessel was concerned, it had
the financial capacity to institute the suit anywhere but not the passengers. It
will cause inconvenience to the petitioners.
General Rule: Contracts of Adhesion are valid until annulled.
Exception: Presence of certain peculiar circumstances that would
ARQUERO vs. FLOJO
G.R. No. L-68111, December 20, 1988
Facts: Here Atty. Calasan was the recipient of telegram.
“Send the following message subject to the condition that the RCPI shall not
be liable for any damage howsoever same may arise except for the refund of
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telegraphic tolls. The sender agrees that as a condition precedent for a Makati
cause City."
of action against the RCPI any complaint relative to the transmittal
telegram must be brought to the attention of the company within Issue: three can you stipulate the venue even if it is a real action?
months from date, and that venue thereof shall be in the courts of Quezon
City alone and in no other courts. Held: Yes, there is no prohibition. Again, the ROC stating
that this is the venue for personal actions. This is the venue
Atty. Eleazar S. Calasan received a copy of the telegram the next day but for hereal actions. That is subject to exceptions. One
was made to pay the sum of Php 7.30 for delivery charges. And then theexception
next is where there is a provision as to venue.
day he met the sender. And then iyahang gi-away kay “kuripot kayo ka, akoa
ang message then ako ang imohang pabayaron sa 7 pesos.” Now if does not clearly appear that such venue stipulated is
the exclusive venue, then it shall be merely considered as an
So gikasab an sya. So the petitioner filed a case against RCPI additional venue. But if it is very clear that such venue is the
according to the portioner, he already paid the charges. So ngano pa dawsole gipaand exclusive venue, then you cannot file the case,
bayad ang recipient sa message. So he was embarrassed. So the issuewhether here it is a personal action or a real action, elsewhere but
was regarding venue. So the case was filed with RTC of Appari, Cagayanin the place
stipulated.
Issue: So RCPI filed a motion to dismiss on the ground of improper venue.
FILING THE CASE IN THE WRONG VENUE
RCPI said that venue was improper because the transmittal, “in the  the action can be dismissed on the ground of improper
Quezon city alone and in no other courts”. And then there was a venue.
stipulation as to the exclusive venue.
GUMABON, et al., vs. LARIN
The petitioner, who was a lawyer said that “we apply the ruling in the case of G.R. No. 142523, November 27, 2001
Sweet Lines, Inc. v. Bernardo Teves, et al., 83 (SCRA 361), because this one Can the court motu proprio, dismiss the action on the
Issue:
was a contract of adhesion and I had no hand in the preparation ofground this of improper venue?
stipulation. So it is void and unenforceable.
Held: No, it cannot.
Held: According to the Supreme Court, NO. We cannot apply the ruling The in the
court can motu proprio dismiss a claim:
case of Sweet Lines, Inc. v. Bernardo Teves because you are a lawyer 1. When it appears from the pleadings or evidence on
you have read the provisions of the Transmittal. So the transmission was record that it has no jurisdiction over the subject
printed clearly in the upper front portion of the form. matter;
2. When there is another cause of action pending
Considering the petitioner's educational attainment (being a lawyer by between the same parties for the same cause (litis
profession and the Municipal Mayor of Sta. Teresita, Cagayan), he must be pendentia); or
charged with notice of the condition limiting the venue to Quezon City,3. Where the action is barred by a prior judgment or
and by affixing his signature thereon, he signified his assent thereto by statute of limitations. 
Thus, the ruling in Sweet Lines, Inc. vs. Teves, et al., is not applicable in
Sothis
those are the only instances when the court can dismiss
case. the case motu proprio, meaning on its own.

PILIPINO TELEPHONE CORPORATION vs. DELFINO TECSON
G.R. No. 156966, May 7, 2004
Facts: Here, there was a contract and venue was also
stipulated. It was a Mobile Service Agreement (for the
subscription of mobile phone).
So this was the provision as to venue:
“Proper courts of Makati, Metro Manila. Subscriber
hereby expressly waives any other venues.”
So there was such a provision. And then again there was a
conflict regarding the contract. So the case was filed. So here
the case was filed in another venue.
Issue: Is venue limited only to Makati, Manila?
Because here the plaintiff argued that the contract is a
contract of adhesion and we have no had in the preparation of
the contract.
Held: The supreme court said that again, there was a
stipulation as to venue. And then we cannot say that you did
not understand the venue considering that you
subscribed 6 times. So you had to those contracts renewed 6
times. And in all those times, you had the opportunity to read
the provisions of the contract.
So It would be difficult to assume that, during each of those
times, respondent had no sufficient opportunity to read and
go over the terms and conditions embodied in the
agreements.
UNION BANK OF THE PHILIPPINES vs. MAUNLAD HOMES,
INC.
G.R. No. 190071, August 15, 2012
Facts: The case was for unlawful detainer. It was filed in
the court of Makati City. But the property was located in
Malolos, Bulacan. So it was questioned. Citing the provisions
of the Rules of Court on venue, If it is an action for an unlawful
detainer which is a real action, it should be filed in the place
where the real property is located.
However, in this case, there was a contract between the
parties stating that the venue of all suits and actions arising
out or in connection with the Contract to Sell shall be in
With respect to venue, if it is not raised by the defendant
either in a motion to dismiss or in the answer, although it is a
ground to dismiss but if it is not raised, it is deemed barred.
So it can be waived. Meaning if you do not file a motion to
dismiss or you did not plead that as an affirmative defense in
your answer. Then you are deemed to have waived that. So
the defendant is deemed to have waived the defense. So no
motu proprio dismissal.
LEY CONSTRUCTION AND DEVELOPMENT CORPORATION
vs. MARVIN MEDEL SEDANO G.R. No. 222711, August 23,
2017
Facts: Here, the case was collection of sum of money and
damages against respondent Sedano, doing business under
the name and style "LOLA TABA LOLO PATO PALENGKE AT
PALUTO SA SEASIDE. The case was filed before the RTC of
Valenzuela.
There was a provision If the lease contract between the
parties:  All actions or case[s] filed in connection with this
lease shall be filed with the Regional Trial Court of Pasay
City, exclusive of all others.
Issue: But the plaintiff tried to argue that this stipulation is
not valid because it tries to stipulate as to the jurisdiction
of the court. Regional Trial Court of Pasay City, exclusive
of all others.
Held: The SC said that, yes, it is correct. You cannot stipulate
as to the jurisdiction of the court because law confers
jurisdiction. However, this was also a valid stipulation as
to venue. Because it mentions here Pasay City, exclusive of
all others.
Although again, we cannot follow that it should be that
Reginal Trial Court but in this particular case, the place also
was with the jurisdiction of the Regional Trial Court because
of the amount of the money claim. It is a valid stipulation. It
does not mean that the same is a stipulation which attempts
to curtail the jurisdiction of all other courts.  It is fundamental
that jurisdiction is conferred by law and not subject to
agreements of the parties. However, as to venue, it is a valid
stipulation.

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How about if it says the Municipal Trial Court of Pasay City
exclusive of all other courts and then the case was filed in
the RTC of Pasay City, would it be valid?
Valid gyapon sya because, again, katong sa stipulation as to the
court it is not controlling. It is the law. Even if it says na
Municipal Trial Court, but as to the amount, it should fall within
the Jurisdiction of the RTC. It should be with the RTC. But
because the venue is stipulated na its Pasay City, then it should
be with the proper court of Pasay City. So bisag pa naa nay mali
didto sa portion designating the court which should hear the
case, but as to the venue, valid gyapon to say na condition or
stipulation.
The issue here is: the fact that defendant had filed several
motions for extension of time to file a responsive pleading.
According to plaintiff, because of his motion for extension he has
deemed to waive to answer his affirmative defense of a proper
venue.
Ruling: No, it is not a waiver because objection as to venue
should be brought at the earliest opportunity either at the
motion to dismiss or in the answer. So even if you file for a
motion for extension if in his motion to dismiss, he interposed
that defense or in his answer he also interposed that defense
then he is not deemed to have waived the objection as to venue.
He timely raised the ground of improper venue since it is one of
the affirmative defenses which he raised in his answer. So, there
was no waiver. So that would be regarding venue.
allegation that may be contained in the answer of the
defendant. If the plaintiff says you owe me 500,000
then the jurisdiction will be with the RTC. Even if the
defendant will say, it is only 100,000 because I already
paid the 400,000. The jurisdiction is still with the RTC.
3. The pleadings also limit the issues being tried. As a general
rule, the court cannot take cognizance and rule on issues which
are not raised on pleadings of the parties. The pleadings, the
complaint and the answer, and after that the issues are already
joined.
So, the issues are determined based on the allegations in the
complaint, and the answers of the defendant. Although in some
cases, if some issues though not embodied in the pleading but
discussed in pre-trial or the parties were able to present
evidence on these issues and no objection -- the court can take
cognizance of those issues and even order an amendment of
the pleading to include those issues.
When you file a case, it is important on how to write your
pleadings because even if you argue very well but it will not be
put into record everything that you have argued. Then, mag base
ang court didto sa written pleadings. For example, the judge died
and napulihan siya ug lain, didto langna siya mag base unsa ang
naa sa pleadings. Although naay oral argument, but it is very
difficult to include all your allegations, arguments in oral
arguments in court kay limited lang ang time na gna hatag for
that.

RULE 5
UNIFORM PROCEDURE IN TRIAL COURTS
Section 1.
Uniform procedure. — The procedure in the Municipal Trial
Courts shall be the same as in the Regional Trial Courts,
except (a) where a particular provision expressly or impliedly
applies only to either of said courts, or (b) in civil cases
governed by the Rule on Summary Procedure.
De Ysasi Vs Arceo
Here the trial court was admonished by the Supreme Court
because it rendered judgment based on issues not raised in
the pleadings of the parties. They were not touched upon the
pleadings normally the subject of evidence at the trial.
A judgment going outside the issues and purporting to
adjudicate something upon which the parties were not heard,
is not merely irregular, but extrajudicial and invalid.

Since we’re talking of Civil Procedure so generally, the procedure, Based on Section 1, pleadings are in writing, so they are written
whether it is the Municipal Trial Court or sa Regional Trial Court, statements of respective claims and defenses. There is no such
is the same lang na sila except where a particular provision of the thing as an oral complaint.
rules expressly or impliedly applies.
PLEADING VS MOTION
So remember, when the Rule on Summary procedure would PLEADINGS MOTIONS
apply. Of course, It would be applicable in the Municipal Trial Pleadings are the written A motion is an application for
Courts. What you need to remember in so far as the Rules on statements of the relief other than by a pleading.
Summary Procedure is concerned is what are the procedures? respective claims and (Rule 15 Sec. 1)
And what are the prohibited pleadings there because usually pag defenses of the parties.
Summary Procedure, filing lang of position papers. It is not a pleading because,
pleadings are enumerated in
Section 2. Section 2.
Meaning of terms. — The term "Municipal Trial Courts" as Should always state a Not necessarily refers to a
used in these Rules shall include Metropolitan Trial Courts, claim or defense. claim or defense.
Municipal Trial Courts in Cities, Municipal Trial Courts, and Ex:
Municipal Circuit Trial Courts. Related to the claim/defense.
 Motion for summary
judgment, motion to
RULE 6 dismiss, motion for
KINDS OF PLEADINGS demurrer.
Not related to claim/defense.
Section 1.  Motion for extension,
Pleadings defined. - Pleadings are the written statements of motion for postponement.
the respective claims and defenses of the parties submitted to Prays for judgment on the May or may not pray for
the court for appropriate judgment. merits. judgment on the merits.
Ex:
The definition of the term “pleading,” is still the same. What you • For judgment – motion to
will submit to the courts are formal pleadings, although not declare defendant in default.
everything you submit to the court is a pleading. Under Rules of • Not for judgment – motion for
Court, there are 7 pleadings, all others, they are not considered as bill of particulars.
pleadings.
The relief sought on the The relief sought by a motion is
IMPORTANCE OF PLEADINGS pleading is the one which more immediate.
1. It is in your pleading where you allege your cause of action is threshed out after the
or your defense. It sets the judicial machinery into motion, trial.
because the court on its own, it would not act., the court will As a general rule, Motions also require hearings
not initiate the filing of pleadings. Without filing any pleading, pleadings would always but there are certain types of
the court cannot act. require a hearing, motions that are called non-
contentious which no longer
2. Also, the pleadings determine the jurisdiction of the court. How require hearings.
do we know if the court has jurisdiction over the case? Ex: Motion for postponement.
 We only look at the allegations of the complaint. As a Must always be in the May be oral or written.
general rule, jurisdiction is determined in the written form.
allegations of the complaint, regardless of any other Limited in number of Motions are virtually unlimited,

5
 pleadings, 7 kinds. (Sec. 2, subject only to the limitation of
Rule 6) propriety and judicial COMPLAINT
efficiency.  A complaint is an initiatory pleading. It sets forth a
party’s causes of action against the defendant.
Section 2.
Pleadings allowed. - The claims of a party are asserted in a CONTENTS OF THE COMPLAINT
complaint, counterclaim, cross-claim, third (fourth, etc.)-party The rule says, allegation constituting plaintiff’s cause of action,
complaint, or complaint-in-intervention. the name of the plaintiff and defendant and their residences. (dili

The defenses of a party are alleged in the answer to the

pleading asserting a claim against him or her.

An answer may be responded to by a reply only if the

defending party attaches an actionable document to the
answer.

Still there are 7 pleadings:

1. Complaint;
2. Counterclaim;
3. Cross-claim;
4. Third (fourth, etc.)-party complaint;
5. Complaint-in-intervention;
6. Answer; and
7. Reply

PREVIOUS NEW
Before, in a reply, there is Pero, nahimo na siyang,
no condition wherein you pwede ka mag file ug reply if
can file a reply. But the the defending party attaches
filing of a reply is optional an actionable document to the
under the previous rules, it answer. daw sure sa baba na pic)
says, “an answer may be
responded to by a reply…” Actually “may” lng ghapon Plaintiff
ang g’gamit sa new rule, Comes now plaintiff--- thru the undersigned counsel and to this
By reason of the word meaning it is optional. Pwede honorable court most respectfully avers that:
“may,” it means it is ghapon ang reply kung naay 1. Plaintiff is of legal age, Filipino Citizen, single and a
optional on the part of the actionable document sa resident of Jacinto Street Davao City for the purpose of
plaintiff. Although there are answer. this instant suit, plaintiff is to be served with pleadings
some exceptions as to that, and other processes of the honorable court in the office
but the exceptions is now of Atty. Jurilex Maglinte.
written in the rule.
Kung halimbawa, representative lang then,
Q: What if wala ka nag file ug reply? “----, represented by ----, attorney-in-fact.”
A: It is your call as a plaintiff. Because you might have it
construed that you have deemed admitted the genuineness of
the execution of the actionable document mentioned in the
answer. Then sa first paragraph,
“Plaintiff is to be represented by her attorney-in-fact, ---,
Section 3. by virtue of Special Power of Attorney attached hereto
Complaint. - The complaint is the pleading alleging the as Annex A.”
plaintiff’s or claiming party’s cause or causes of action. The
names and residences of the plaintiff and defendant must be NOTE: It is now required under the new rules to attach it.
stated in the complaint.
In the first paragraph, you have to allege the legal capacity of the
plaintiff to institute the suit and the address of the plaintiff to
2 KINDS OF PLEADINGS: which the notices and other processes of the court will be sent.
 Initiatory Pleadings
1. Complaint; Defendant
2. Counterclaim; Defendant ---- is of legal age, Filipino citizen, Single and
3. Cross-Claim; a resident of … Davao City, where he may be served
4. Third (fourth, etc.)-party complaint; and summons and processes of this honorable court.
5. Complaint-in-intervention.
You have to assert that to show na naay legal capacity to be sued
 Responsive Pleadings si defendant. If married, you have to include the spouse unless
1. Answer; and naay exception. Then, you indicate the correct address for the
2. Reply. purpose of the summons.

Q: Why do we have to know whether a pleading is an initiatory Cause of Action

or a responsive pleading?
A: If it is an initiatory pleading, there are additional requirements
under the Rules of Court. One important requirement is that your
initiatory pleading must be accompanied with a certification of
a forum shopping (Rule 7 Section 5).
It is also mentioned in,
Administrative Circular No. 04-94
XXX XXX
The complaint and the initiatory pleadings referred to and the
subject of this Circular are the original civil complaint,
counterclaim, cross-claim, third (fourth, etc.) party complaint,
or complaint-in-intervention, petition, or application wherein
a party asserts his claim for relief.
XXX XXX
After that you recite your cause of action.
On January 1, 2000…
You recite the following:
- Your right as the plaintiff;
- What right does the plaintiff have;
- What is the obligation of the defendant to the said
right;
o You have to be specific as to the facts, how
the defendant violated the rights of the
plaintiff, and as a consequence the damages
- What are the damages and other injuries suffered by
the Plaintiff suffered by the act of the defendant; and
- Other causes of actions.
“The plaintiff was not able to sleep for a month, she
was hospitalized, she not able to eat, she lost weight.”
“That because of the act of the defendant she suffered
moral damages for which the plaintiff must be
indemnified to for the amount of 1 Million pesos.”

6
 “In order that the act of the defendant will not be
repeated, and to serve as an example, exemplary
damages.”
“Attorney’s fees, because the act of the defendant the
plaintiff was restrained to institute this action, therefore
the defendant should be assessed of attorney’s fees in
the amount of 10 Million pesos.”
Section 4.
Answer. - An answer is a pleading in which a defending party
sets forth his or her defenses.
When a complaint is filed, the court may issue summons to the
defendant. In the summons, the defendant will be given a period
of time within which to file his answer. That is now the pleading
to be filed by the defendant. In the answer, the defending party
sets forth his or her defenses. As to what are these defenses, let
us go to Section 5:
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.
2 KINDS OF DEFENSES:
1.Negative defenses
 The rule says it is a defense of specific denial. It denies
the material facts averring the complaint essential to
establish the cause of action.
Example:
a case for collection of a sum of money. So in the complaint, the
plaintiff alleges that the defendant borrowed 1M from the
plaintiff. So in his answer, the defendant would like to interpose a
negative defense. In the answer, you have to deny everything and
address all the allegations in the complaint because the
complaint would have, in the first paragraph, the personal
circumstances of the plaintiff, second, the personal circumstances
of the defendant and then maybe he would start stating his
allegations, his cause of action. So, defendant denies the
allegations in paragraph A of the complaint. The truth of the
matter is that defendant did not borrow any money from the
plaintiff. The defendant did not sign any promissory note. The
signature in the promissory note attached by the plaintiff in the
complaint is a forgery because it was not participated by my
defendant. So that is a negative defense. But it is not enough
that one merely denies the allegations – if you deny, then
what is the truth? If you just deny without explaining the
truth, then that would be what we call a general denial
which equivalent to admission. So you have to
superficially(?) deny the material facts alleged in the
pleading.
2.Affirmative defenses
 It is a defense of confession and avoidance. The rule
says although the defendant admits the material
allegations of the complaint, still, the complainant or
plaintiff is barred from recovering because of the
affirmative defense, such as:
a. Fraud – I admit that I signed the promissory note, but I
was tricked by the plaintiff because he told me it was a
love letter. So you did not know it was a promissory
note because it was dark and his vision was blurred.
b. Statute of Limitations – I admit I signed the
promissory note but the right of action of the plaintiff
has already prescribed. So even if that is correct,
recovery is still barred.
c. Estoppel– barred by laches.
d. For former recovery, I admit I borrowed 1M but I have
already paid the full amount as evidenced by the
acknowledgement receipt signed by the plaintiff attach
hereto as Annex.
e. For discharge in bankruptcy, and
f. any other matter by way of confession and avoidance –
Here we have the additional rules in the last paragraph
including affirmative defenses, which may include no
jurisdiction.
When you allege this, you are hypothetically admitting
the admissions in the complaint. Assuming for the sake
of argument: Someone you owe 1M filed a case, but
there was no jurisdiction because the case was filed in
the MTC. The case may be dismissed in the MTC, but
when the case reaches the RTC, you are bound by your
admission. So you will not say anything about it, but
you will say that the court has no jurisdiction over the
subject matter because the amount is beyond
jurisdiction of the MTC. So here, the allegations are
just deemed being hypothetically admitted. That is
the consequence if you include the defense of no
jurisdiction over the subject matter. Or litis pendentia,
there is another action pending between the parties of
the same case. So even if your allegations are true, the
complaint will have to be dismissed because of litis
pendentia, or by res judicata. Even if your allegations
are true, the action should be dismissed because there
was a prior judgement involving the same subject
matter, same parties, the same causes of action.
How do you interpose the affirmative defense?
Like the payment? Defendant admits the allegations in paragraph
3 of the complaint that he signed the promissory note
undertaking to pay 1M. However, the defendant has already paid
the same amount. So that is an example of an affirmative defense.
Section 6.
Counterclaim. — A counterclaim is any claim which a defending party may
have against an opposing party.
Here, the law says it is any claim, so any claim which a defending
party may have against an opposing party. So when you say any
claim, it could be a claim for money or any other relief that the
defending party has against the opposing party.
KINDS OF COUNTERCLAIM:
1. compulsory counterclaim
2. permissive counterclaim
COMPULSORY COUNTERCLAIM
Bungcayao vs Fort Ilocandia Property Holdings and Development
Corporation
A compulsory counterclaim is any claim for money or any relief which the
defending party may have against the opposing party, which at the time of the
suit, arises out of or is necessarily connected with the same transaction or
occurrence that is the subject matter of the plaintiff’s complaint. It is
compulsory in the sense that
1. it is within the jurisdiction of the court,
2. does not require for its adjudication the presence of third parties
over whom the court cannot acquire jurisdiction, and
3. will be barred in the future if not set up in the answer to the
complaint in the same case. Any other counterclaim is permissive.
Why do we allow counterclaims?
The usual reason is in the case of:
Raymundo vs. Felipe
To prevent the multiplicity of suits by allowing the determination in one
action of the entire controversy between the parties, thus avoiding
inconvenience, expense, waste of the court’s time, and injustice. A
counterclaim also enables a defendant to make his defense more complete
and effectual than it would be in one answer alone.
For example, A filed a case against B for recovery of possession of
property. So B filed his answer. He denied his allegations in the
complaint and then he set up a counterclaim that regardless of
the result of the case, B the defendant would like to claim for
damages and indemnification against the plaintiff for the value of
the construction which the defendant made on the property. So
he has a claim against the plaintiff.
 So when there is a counterclaim interposed by the
defendant in his answer, actually, there are two
complaints now. We have the complaint of A against B
for recovery of possession, and then the counterclaim
of B against A which is also a complaint for
indemnification of damages. So there are basically two
complaints.
How to set up a counterclaim?
7
It depends. If it is a compulsory counterclaim, then you have no
other choice but to set it up in your answer, otherwise, if you fail,
the compulsory counterclaim is already deemed barred.
So what does an answer look like?
The same as what we discussed before. You have the caption: the
title of the court, regional trial court, the Republic of the
Philippines, you should not lie in court, 11th judicial region,
Branch 16, Davao City, then title so, you have A vs B and then
Civil Case No. – which is already there. This is because when you
receive the summons, there is already a case number in place,
unlike a complaint, that when you file it, the case number is
blank. And then fourth – this would be the title of the case, which
is for recovery of possession. Then there would be Answer With
Counterclaim, or just Answer.
So here comes defendant through the undersigned counsel, to the
honorable court, most respectfully filed, the instant answer. So you
have to address everything in the complaint. It depends.
First, do you deny the circumstances of the plaintiff? The defendant
denies the allegations in paragraph 1 of the complaint because
defendant does not know at all the person of the plaintiff, so he
cannot admit the personal circumstances, whether he is of legal
age, married, President of the Philippines, etc.
Second, defendant admits allegations in paragraph two of the
complaint.
So all the allegations in the complaint, you either have to admit or
deny. If you deny, it could be a negative defense or an affirmative
defense. And then when you’re done with your defenses, you go
to your counter claim.
HOW TO INTERPOSE A COUNTERCLAIM
Now, if it is a compulsory counterclaim, again, it has to be
included or interposed in the Answer – defendant repleads all the
allegations in the foregoing paragraphs and by way of
counterclaim, alleges that on January 1, 2005 – it is just like the
complaint, you have to recite the facts of the cause of action of
your counterclaim. That is how you interpose a compulsory
counterclaim.
COMPULSORY PERMISSIVE
COUNTERCLAIM COUNTERCLAIM
you have to set it up in your If you choose to also include
answer. You cannot make it a that in your answer, the
subject of a separate format is that same. But, you
complaint. Failure to set it up are not compelled to
in the Answer will bar you include the counterclaim
from later on asking for in your answer. Why?
recovery. Because you can make it a
subject of a separate case
against the plaintiff. Again,
even if you don’t set it up in
your Answer, you are not
barred.
Section 7.
Compulsory counterclaim. — A compulsory counterclaim is
one which, being cognizable by the regular courts of justice,
arises out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing
party's claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire
jurisdiction. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and the nature
thereof, except that in an original action before the Regional
Trial Court, the counterclaim may be considered compulsory
regardless of the amount. A compulsory counterclaim not
raised in the same action is barred, unless otherwise allowed
by these Rules.
A compulsory counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or is connected with the
transaction or occurrence constituting the subject matter of the
opposing party's claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire
jurisdiction. Such a counterclaim must be within the jurisdiction
of the court both as to the amount and the nature thereof, except
that in an original action before the Regional Trial Court, the
counter-claim may be considered compulsory regardless of the
amount.
REQUISITES
1. It arises out of or is connected with a transaction
or occurrence constituting the subject matter of
the opposing party’s claim –
Meaning it should be related or arise out of the
transaction which is the subject matter of the
complaint filed.
For example, A filed a case against B for collection of
1M. In this counterclaim, B alleged that he already paid
the 1M, so the suit of A is unfounded, because he has
merely intended to harass him and for that reason, he
suffered moral damages. He could not sleep for one
month, he suffers anxiety, moral shock and for that, he
is claiming 1M by way of damages. Is that a permissive
or compulsory counterclaim? It is compulsory,
because it is related to the complaint. Without the
complaint, he would not even suffer those moral
damages and so, it arises out of the occurrence of the
subject matter of the plaintiff
2. It does not require, for its adjudication, the
presence of third parties of whom the court cannot
acquire jurisdiction.
If your counterclaim would include indispensable
parties, persons who are not in the Philippines for
example, like recovery of possession and you file a
counterclaim for partition, but in partition, you have to
include all the co-owners, but two of the co-owners are
abroad, so the court cannot acquire jurisdiction. Can
you file that partition case? Actually you can file it
separately. How about the fact that the co-owners are
not here? You can still include them as defendants,
although the service of summons is different. Actually,
it involves property, so even if their non-residents, it is
still allowable, but not as to compulsory
counterclaims. In fact, the court will order you to
file a separate case for that.
Assuming for the sake of argument that the partition
arises out of the same subject matter of the complaint,
but there are indispensable parties there over whom
the court cannot acquire jurisdiction, it will not be
allowed as a compulsory counterclaim. You will have
to try a separate case for that.
3. It must be within the jurisdiction of the court, both
as to the amount and the nature of the claim.
Bungcayao vs Fort Ilocandia Property Holdings and Development
Corporation
The Court has ruled that the compelling test of compulsoriness characterizes
a counterclaim as compulsory if there should exist a logical relationship
between the main claim and the counterclaim. The Court further ruled
that there exists such a relationship when conducting separate trials of the
respective claims of the parties would entail substantial duplication of time
and effort by the parties and the court; when the multiple claims involve the
same factual and legal issues; or when the claims are offshoots of the same
basic controversy between the parties.
The criteria to determine whether the counterclaim is compulsory or
permissive are as follows:
(a) Are issues of fact and law raised by the claim and by the counterclaim
largely the same?
(b) Would res judicata bar a subsequent suit on defendant's claim, absent the
compulsory rule?
(c) Will substantially the same evidence support or refute plaintiff's claim as
well as defendant's counterclaim?
(d) Is there any logical relations between the claim and the counterclaim?
A positive answer to all four questions would indicate that the counterclaim
is compulsory.
Logical relationship between the main claim and
counterclaim
There exists such a relationship when conducting separate trials
of the respective claims of the parties would entail substantial
duplication of time and effort by the parties and the court.
So when this claims involve the same factual and legal issues or
when the claims are offshoots of the same basic controversies
between the parties. So in that case we can say that there is a
logical relationship between the main case and the counterclaim.
In that case it is a compulsory counterclaim.
Example:
8
A filed a case for recovery of possession against B. B in his
counterclaim asked for damages and indemnities on the value of
the improvements constructed because according to B he is a
builder in good faith even if assuming that A is entitled to recover
the property, he has to be indemnified on the value of the
improvements or instructions.
What’s the nature of that counterclaim? Compulsory
Counterclaim. It is an offshoot of the main case. If he is allowed to
recover, B will be paid the value of damages. So they are related.
NOT COMPULSORY CC EVEN IF THERE IS LOGICAL
CONNECTION
However, there are instances that even if there is a logical
connection, it cannot be considered a compulsory counterclaim if
the amount exceeds the jurisdiction of the court.
So for example the recovery of possession is filed before the MTC,
it can be filed depending on the assessed value of the property
and then in the answer with counterclaim the defendant
interposed claim for damages and would like to be indemnified
for the value of the improvements and constructions made as a
builder in good faith amounting to Php 5,000,000. The MTC has
no jurisdiction over the amount of Php 5,000,000.00 even if there
is a logical connection between the subject matter of the
complaint and counterclaim. However, the MTC cannot grant
such amount of damages. It is beyond the jurisdiction of the MTC.
Although the defendant has an option, he could waive the
balance so that his counterclaim will be limited to the amount
within the jurisdiction of the MTC.
There are also instances where the defendant already knows that
his counterclaim is beyond the jurisdiction of the MTC and he
knows it will not be granted nonetheless naapil gihapon just to
weaken the claim of the plaintiff. Para mahuraw si plaintiff na dili
na lang magpadayon sa kaso kay mas dako pa man diay ang iyang
bayaran kesa sa defendant as discussed in the case of Maceda vs
CA and Agustin vs Bacalan.
As to that waiver that was discussed in the case of Reyes vs CA,
there is *inaudible*.
CC IF FILED IN RTC EVEN IF NOT WITHIN ITS JD PROVIDED
RELATED
Even if it is said that the Court cannot consider it as a compulsory
counter claim if the claim is not within the jurisdiction of the
court, but in the RTC if the counterclaim is necessarily connected
or related to the complaint regardless of the amount of the
counterclaim it can still be considered compulsory counterclaim
in the RTC.
Ex. So again recovery of possession in the answer with
counterclaim, defendant said he wants to be indemnified for the
improvement and the constructions he made on the land
amounting to Php 200,000. The Php 200,000 claim for damages
is what jurisdiction? With the MTC. Still if the case is filed with
the RTC, it will be considered as a counterclaim as long as
the subject matter of the counterclaim has a logical
connection to the subject matter of the complaint. Again sa
MTC dili pwede pero pwede i-waive ni defendant ang balance
para didto lang siya kutob sa jurisdiction of the MTC.
CASES NOT ALLOWED IF NOT W/IN RTC’S JD
There are also cases na dili siya pwede like because it is not
within the jurisdiction of the RTC.
Example 1: Plaintiff filed an action for damages against the
defendant for Php 500,000. That is within the jurisdiction of the
RTC. Now the defendant filed an answer with counterclaim and
alleges facts which would constitute unlawful detainer. Pwede
ba na siya ma-consider as a counterclaim in the RTC? NO because
an unlawful detainer case is within the jurisdiction of the MTC.
EXAMPLE 2. Employer filed a case for collection against the
employee in the RTC because the amount is Php 1,000,000. In the
counterclaim, the employee interposed the defense assuming for
the sake of argument na the employee is liable for the amount
but the employer is also liable because the employee was illegally
dismissed from employment. So ang iyahang counterclaim is for
illegal dismissal. Can that be considered as a counterclaim in
the RTC? NO because illegal dismissal cases is within the
jurisdiction of the Labor Arbiter under the NLRC.
PERMISSIVE COUNTERCLAIM
It is permissive when any of the requisites of a compulsory
counterclaim is not present.
The usual test is the absence of a logical connection between the
claim of the plaintiff and the counterclaim of the defendant. They
arise out of different occurrences so they are separate but still
that can be allowed as a counterclaim. As long as the permissive
counterclaim is within the jurisdiction of the court where that
counterclaim is made.
Example: Plaintiff filed a case for damages based on quasi-delict
and then the defendant files a counterclaim for collection of sum
of money. Walay relation ilahang claims but that may be allowed
as a permissive counterclaims.
Why do we have to bother whether a counterclaim is
compulsory or permissive?
Because there are certain rules which may apply only to
compulsory counterclaims which are not applicable to
permissive counterclaims.
IS THERE A NEED TO ANSWER THE COUNTERCLAIM?
For example plaintiff filed a complaint against the defendant.
Then defendant files an answer with counterclaim, so when we
say counterclaim it is also a complaint by the defendant against
the plaintiff. When a defendant fails to file an answer, he can be
declared in default that’s why he has to file an answer. Now the
defendant is filing a counterclaim against the plaintiff, does the
plaintiff have to answer the counterclaim? Can the plaintiff be
declared in default if he refuses or fails to file an answer to the
counterclaim? It would matter if the counterclaim is compulsory
or permissive.
COMPULSORY PERMISSIVE
you don’t have to file an answer. But if it is a permissive
All the matters interposed in the counterclaim it is entirely
compulsory counterclaim are a different claim. It has no
deemed controverted because relation to the facts or
there is a logical relation occurrences alleged in the
between the complaint and the complaint. That is why if
counterclaim. So necessarily the plaintiff fails to
kung mutubag man si answer the permissive
complainant sa counterclaim, counterclaim, he can be
ang iyahang tubag pareha ra declared in default in the
gihapon sa gibutang niya sa permissive counterclaim.
iyang complaint because naa
may connection. Ang defense ni
plaintiff sa counterclaim ni
defendant didto sa compulsory
counterclaim would be the same
allegations mentioned in his
complaint
ARE DOCKET FEES NEEDED TO BE PAID IN CC?
It would matter if it is a permissive counterclaim or a compulsory
counterclaim. There are jurisprudence but the latest says when it
comes to compulsory counterclaims there are no docket fees.
Although in the case of Korea Technologies Limited vs Lerma
citing A.M. No. 04-2-04-SC that docket fees are not only for
permissive counterclaims but are now required to be paid in
compulsory counterclaim, cross-claims, third-party complaints,
etc., and complaints in intervention.
But in the case of Villanueva-Ong vs Enrile, the Supreme Court
clarified that the ruling in Korea Technologies Limited vs
Lerma is suspended.
Villanueva-Ong vs Enrile
A counterclaim purely for damages and attorneys fees by reason of the
unfounded suit filed by the respondent, has long been settled as falling under
the classification of compulsory counterclaim and it must be pleaded in the
same action, otherwise, it is barred.
Neither should her counterclaims be dismissed pursuant to this Court's
ruling in Korea Technologies Co. Ltd. v. Hon. Lerma, et al., which held that
"effective August 16, 2004 under Section 7, Rule 141, as amended by A.M. No.
04-2-04-SC, docket fees are now required to be paid in compulsory
counterclaim or cross-claims." Note must be taken of OCA Circular No. 96-
2009 entitled "Docket Fees For Compulsory Counterclaims," dated August 13,
2009, where it was clarified that the rule on imposition of filing fees on
compulsory counterclaims has been suspended. Such suspension
remains in force up to this day.
Enrile filed a civil case for damages against Yolanda Villanueva-
Ong. Ngano man? The damages because of the libelous article. So
defamation. The alleged libelous article entitled "Like father like
Son?" was published in page, Opinion Section of the Philippine
Star. The article was authored by petitioner. Basta mao na siya
ang subject sa complaint ni Enrile against Ong. Now in the
9
answer with counterclaim, Ong said that bad faith or malice on In a cross-claim, the cross-claim must necessarily be related to
the part of respondent in instituting the complaint for damages. the subject matter of the original complaint.
That the complaint was filed merely to harass or humiliate her
and that Enrile singled her out and is actually violating her legal Example 1: “subject matter of the original action”
and constitutional rights. So these allegations are founded on A filed a case against B and C for collection of sum of money. B
malicious prosecution. Enrile moved to dismiss the counterclaim can file a cross-claim against C. (because according to B it was C
on the ground that Ong failed to pay docket fees for the who owes the debt.)
counterclaim and Enrile cited whether it is permissive or
compulsory, you have to pay the docket fees based on the case of Example 2: “subject matter of a counterclaim therein”
Korean Technologies. A filed a case against B. B files a counterclaim against A. A here
argues that it should not be him, rather X. so A here files a cross
The Supreme Court said the Korean Technologies ruling is claim against X.
suspended. Now there is a need to determine whether it is
permissive or compulsory counterclaim because if this is Example: (continuation of Example 1)
compulsory, there is no need to pay docket fees. Is Ong’s What if the original complaint of A against B and C was
counterclaim permissive or compulsory? Based on the criteria dismissed? Would the cross-claim of B against C continue? NO,
which we discussed, the subject matter of the counterclaim is because the cross-claim is dependent upon the existence of the
actually related to the complaint. Actually it arises out of the main case.
complaint because according the Ong the complaint filed against
her was meant to humiliate or harass her because she was CROSS-BILL
singled out that’s why she filed a counterclaim for damages. So Cross-claim originated from the concept of a Cross-Bill. It is
there’s a logical relation between the complaint and the defined as one brought by a defendant in an equity suit against
counterclaim. The counterclaim necessarily arises out of the facts the other defendants in the same suit touching matters in
contained in the complaint. So that is a compulsory counterclaim. question in the original bill. It is also considered as an auxiliary
Therefore there’s no need to pay the docket fees. suit dependent on the original bill and can be sustained only on
matters growing out of the original bill. In other words, it has the
COMPULSORY PERMISSIVE same concept as that of a cross-claim.
A compulsory A permissive counterclaim Example: (continuation of Example 1)
counterclaim which the may be set up or interposed B filed a crossclaim against C arising out of the complaint filed by
party has at the time the as part of the answer or as A against B and C.
answer is filed shall be an independent civil action.
contained in the answer. RUIZ, JR. VS CA
If failed to be set up in the G.R. No. 101566, August 17, 1992
So all compulsory answer even if it has already Because the cross-claim arises out of the very same subject matter of the
counterclaims which matured at the time the complaint, the cross-claimants cannot claim more rights than the plaintiffs
already matured at the defendant filed his answer, it themselves, on whose cause of action the cross-claim depended.
time when the defendant would not be deemed barred.
filed his answer must What happens if the original complaint is dismissed?
already be included in The dismissal of the complaint divested the cross-claimants of whatever
that compulsory appealable interest they might have had before and also made the cross-claim
counterclaim alleged in itself no longer viable
the answer otherwise the
compulsory counterclaim LIGON VS CA
is deemed barred. G.R. No. 127683, August 7, 1998
A compulsory A permissive counterclaim is
counterclaim is not an written as an initiatory FACTS:
initiatory pleading pleading Islamic Director of the Philippines (IDP) mortgaged a
A compulsory A permissive counterclaim property in favor of Ligon. Subsequently, IDP sold the
counterclaim, does not should be accompanied by a: mortgaged property to Iglesia ni Cristo (INC).
require the 2 certificates (1) Certification against
in a permissive forum shopping and There were conditions in the contract of sale of IDP and INC.
counterclaim because it is whenever required by the INC alleged that IDP failed to comply with the said conditions,
not initiatory in character law, also a prompting INC to file an action for specific performance
(2) Certificate to file action against IDP.
issued by the Lupong
Tagapamayapa because it is RTC ruled in favor of INC.
an initiatory pleading.
Cannot be defaulted - May be defaulted - A INC filed a complaint for annulment of mortgage against
Failure to answer a permissive counterclaim Ligon, IDP and two other persons.
compulsory must be answered by the
counterclaim is no a party against whom it is Ligon then filed the following:
cause for a default interposed otherwise, he may 1. a counterclaim against INC;
declaration. A be declared in default as to 2. a cross-claim for foreclosure of mortgage against
compulsory the counterclaim. Without IDP; and
counterclaim that automatic controversion. 3. a third-party complaint against the parties who
merely reiterates signed the loan and mortgage agreement, who alleged
special defenses are themselves to be the representatives of IDP.
deemed controverted
even without a reply, or IDP filed a cross-claim against Ligon alleging that Ligon knew
raises issues which are that the parties who signed the contracts of loan and
deemed automatically mortgage are not authorized by the company or IDP.
joined by the allegation Moreover, that IDP did not benefit from the loan.
of the complaint, need
not be answered. With In the cross-claim for foreclosure of mortgage filed by Ligon
Automatic against IDP, the latter did not answer. Hence, IDP was
controversion. declared in default and the mortgage was foreclosed.
No need to pay docket The docket and other lawful
fees. fees should be paid for a ISSUE:
permissive counterclaim Was it proper for the court to declare IDP in default and
authorize the foreclosure of the mortgage? NO
Section 8.
Cross-claim. - A cross-claim is any claim by one party against RULING:
a co-party arising out of the transaction or occurrence that is A cross-claim it arises out of the same subject matter of the
the subject matter either of the original action or of a complaint, hence, it should be necessarily related to the object
counterclaim therein. Such cross-claim may cover all or part or subject matter of the complaint. That is why the existence
of the original claim. of the cross-claim is dependent upon the existence of the
complaint.

10

Would it be possible that the case in the cross-claim is
decided ahead of the original complaint as what happened in
this particular case? Wherein the court decided the cross-
claim of Ligon for foreclosure of mortgage against IDP ahead
of the case of INC against IDP which is annulment of
mortgage? What happens now to the annulment case of INC?
 The SC said that it is improper. The partial decision
resolved this issue against INC through the
backdoor and without INC having presented its
evidence. In short, the trial court disregarded the
fact that Ligon's cross-claim was connected with, or
dependent on, the subject of INC's original
complaint.
How about the fact that in the cross-claim of Ligon against
IDP, IDP failed to answer and as such IDP should be declared
in default?
 The SC said, you cannot be declared in default for
failing to answer a cross-claim if you already
answered the original complaint Here, IDP
answered to the original complaint filed by INC.
Necessarily, the allegations and the defenses of IDP
in its answer to the cross-claim of Ligon is the same
as those defenses it stated in its answer to the
original complaint filed by INC. In other words, as
long as IDP answered to the original complaint, the
allegations in the cross-claim of Ligon are deemed
controverted.
Therefore, it would not be possible that the cross-claim will
be decided ahead of the original complaint because again, the
cross-claim is dependent upon the existence of the original
complaint. Hence, it was irregular for the court here to
declare IDP in default and to foreclose the mortgage.
being the owner of the property, there was unauthorized use
of the property and such is based on law while as to A that he
can foreclose the mortgage based on contract.
His proper remedy is to file a cross-claim for foreclosure. The
SC said, C cannot now claim that it had to wait for the decision
of the court in the nullity case before it could institute the
foreclosure. Its actuations clearly manifested that it knew its
rights under the law but chose to sleep on the same.
The filing of a cross-claim would have been proper there. All
the issues pertaining to the mortgage - validity of the
mortgage and the propriety of foreclosure - would have been
passed upon concurrently and not on a piecemeal basis. This
should be the case as the issue of foreclosure of the subject
mortgage was connected with, or dependent on, the subject of
annulment of mortgage.
Section 9.
Counter-counterclaims and counter-cross-claims. — A
counterclaim may be asserted against an original counter-
claimant.
A cross-claim may also be filed against an original cross-
claimant.
Example 1: Counter-counterclaims
A files a case against B.
B files a counterclaim against A.
A now files a counterclaim on the counterclaim against B.
Example 2: Counter-cross claims
A files a case against B and C.
B files a cross-claim against C.
C now files a counterclaim on the cross-claim against B.

B & I REALTY CO., INC. VS CASPE COUNTERCLAIM CROSS-CLAIM

G.R. No. 146972, January 29, 2008 Filed against opposing Filed against a co-party.
FACTS: party. Defendant against a co-
D, debtor, mortgaged a property to C, creditor. O, the person It is when defendant files a defendant.
alleging to be the owner of the mortgaged property filed an case against the plaintiff.
action for the declaration of nullity of mortgage against both C Considered a distinct suit It is considered as an auxiliary
and D. O filed his case on the ground that D cannot mortgage that is independent to main suit dependent on the action,
the property because in a contract of mortgage, it is essential action. The dismissal of thus dismissal of the original
that the mortgagor is the owner of the property mortgaged original claim on the merits action affects the cross-claim.
but here, D is not the owner. (not through MTD under
Rule 16) does not affect the
Now, C, during the pendency of the case for annulment, dismissal of the
threatened to foreclose the property. But later, it was counterclaim. The dismissal
contended here that the action for foreclosure has already must be on the merits and
prescribed. not an MTD.
It may be permissive or The claim must arise from the
ISSUES: compulsory. same transaction or
1. Can the creditor wait until the nullity case was If permissive, it need not occurrence of the subject
decided before he can foreclose the mortgage? NO arise out of the same matter of the original action.
2. Does the filing of the nullity case interrupt the occurrence which is the
prescriptive period for foreclosure of mortgage? NO subject matter of the A cross-claim is necessarily
3. If the creditor files an action for foreclosure of original or main action. compulsory.
mortgage while the case for declaration of nullity of mortgage It may be asserted against It may be asserted against
is pending, is it tantamount to forum shopping? NO an original original cross claimant.
counterclaimant.
RULING: A files a case against B and C. B
1. Actually, there is no need for him to wait because he has a files a cross-claim against C. C
remedy. Such remedy is to file a cross-claim for foreclosure of on the other hand files a
mortgage against D, the debtor. counterclaim(?) on the cross-
claim against B. (cross-claim
So, when O filed a case for declaration of nullity of mortgage against an original cross-
against C and D, in that same case, C can file a cross-claim claimant) – HA?
against D for foreclosure of mortgage. There is no counterclaim There can be a cross-claim
against a cross-claim. This against a counterclaim.
Therefore, C cannot use an excuse that there was still a case is technically a cross-claim.
for declaration of nullity of mortgage before he can institute A and B, plaintiffs file a case
an action for foreclosure of mortgage. The SC said, in that Cris: pwede lagi based sa against C, defendant.
particular situation, it would even mean to the best interest of ex. above? Defendant C files a
the creditor to interpose a cross-claim in that case so that the counterclaim against one of
court will have a wider perspective of the case. The Court will the plaintiffs. Based on C’s
be able to see all the issues of the parties involved in the case counterclaim, A files a cross-
claim against B.
2. The SC said that what would interrupt is the filing itself of
the action for foreclosure. Article 1142 of the NCC provides
Section 10.
that the prescriptive period institute an action for foreclosure
Reply. — All new matters alleged in the answer are deemed
of mortgage is 10 years. Hence, when O filed a complaint for
controverted. If the plaintiff wishes to interpose any claims
declaration of nullity, the same had no effect to the
arising out of the new matters so alleged, such claims shall be
foreclosure as it was an entirely different case.
set forth in an amended or supplemental complaint. However,
the plaintiff may file a reply only if the defending party
3. Their causes of action although related is not the same for
attaches an actionable document to his or her answer.
they are holders of different rights. O’s cause of action is that

11
 But if it is permissive, you have to file an Answer to the
A reply is a pleading, the office or function of which is to deny, counterclaim.
or allege facts in
denial or avoidance of new matters alleged in, or relating to, Can you incorporate your answer to the counterclaim in
said actionable document. your reply?
NO ACTIONABLE WITH AD AND NEW REPLY WITH CC TO THE
In the event of an actionable document attached to the reply, DOCUMENT MATTERS ALLEGED COUNTERCLAIM
the defendant may file a rejoinder if the same is based solely AND PERMISSIVE CC
on an actionable document. General Rule: You If it is an Answer with such claims shall be set
do not have the Counterclaim and then he forth in an amended or
PREVIOUS AMENDED right to file a Reply attaches an actionable supplemental complaint
the plaintiff files a complaint General Rule: Dili pwede mag-file ug in Replythe first place. document and then there
and the defendant files his si plaintiff. So, kung naa syay are new matters alleged
answer, it could be an answer counterclaim and it then you can file a Reply
purely or an answer with Exception: if the Answer aside isfrom a permissive to the Answer. Pwede ra
counterclaim. The plaintiff alleging new matters, the answer iscounterclaim also you sa isa ka document: Reply
has the option as to whether based on an actionable document which haveis to file an to the Answer and
or not he will file a reply to properly alleged and attached toAnswer the to the Answer to the Permissive
the answer. Now, there are Answer. Here, it now becomes mandatory counterclaim (title Counterclaim.
instances when the filing of a for the plaintiff to Reply. (“MAY”) of the pleading).
reply became mandatory Purpose: Because it will be deemed
when: admitted. The genuineness andHowdue about in your Reply you have a counterclaim to the
1. There is an allegation of execution of the actionable documentcounterclaim?
which
Diba Complaint; Answer with Counterclaim. Ang iyang
usury in the Answer. Because, is the basis of the defense of the defendant
the plaintiff has to deny that will be deemed admitted if not refuted counterclaim,
by if permissive, you have to answer that. How about
under oath or; the plaintiff in the Reply. sa iyang counterclaim? Di ba ang counterclaim is also a
2. if the answer alleges a complaint. On the basis of this counterclaim naa pud kay
defense based on an The law says, however, a plaintiff may counterclaim
file a sa iyang counterclaim. Can you incorporate that in
actionable document. your an
Reply only if a defending party attaches Reply? Reply with Counterclaim. The law says, “if the
plaintiff
actionable document to his/her Answer. It wishes to interpose any claims arising out of the new
Here, the plaintiff has to file a says “MAY,” so you may or may not matters
file a so alleged, such claims shall be set forth in an amended
Reply otherwise he will be Reply. But again, ang effect if you will or supplemental
not complaint.” So that is the rule, you have to
deemed to have admitted the file a Reply you’re deemed to have admitted amend your pleading or complaint or supplement.
genuineness and due the genuineness and due execution of the
execution of the document actionable document attached in the Answer AMENDED SUPPLEMENTAL
attached in the Answer and of the defendant.’ when you say amended you are Supplemental naman, you change or
make it as the basis of the correcting, amending, or modify your complaint based on facts
defense. *Usury no longer applicable modifying your complaint based which arose after you filed your original
on facts which already existed at complaint.
the time you filed your original
complaint, wala lang nimu sya
OPTIONS OF PLAINTIFF WHEN NEW MATTERS ALLEGED IN nabutang.
ANSWER
What if there are new matters alleged in the answer na gusto In the case of Veluz vs CA where the Supreme Court mentioned
tubagon ni plaintiff? na, again, the filing of a Reply is optional except when there is an
1. Even if there are new matters alleged in the answer, even if the allegation of Usury in the Answer or when the Answer is based
plaintiff will not file a reply, those new matters including on the actionable document --- this has already been modified,
everything in the answer are deemed controverted meaning wala na tong usury. And the filing of a Reply as a general rule is
denied to sya. There will be no admission on the part of the no longer allowed unless there is an actionable document which
plaintiff. Mao na sya iyahang first option, just ignore, deadma; or is admitted(?) in the Answer.
2. Kung dili jud sya mahimutang, he still cannot file a Reply. He
has to file an amended or supplemental pleading. May be an In the last paragraph it says, “in the event of an actionable
amended complaint na sa iyahang complaint balikon niya tung document attached to the Reply, the defendant may file a
iyang gipang alleged before dugangan niya daan so kadtong mga rejoinder if the same is based on solely on an actionable
new matters nga naa sa Answer ni defendant na wala niya na document.”
mention sa complaint, ibutang niya daan didto.
How about the usury? Meaning:( 1) Complaint --- (2) Answer attaches an actionable
Wala nana sya kay under the new rules wala nan aka mention document that’s why a plaintiff files a Reply --- (3) Now, if the
didto ang usury. In the first place, the Usury Law has been Reply also attaches an actionable document, here, the defendant
suspended a long time ago. If there is an interest imposed in a may file a rejoinder (CRIS googled: a defendant's answer to the
promissory note or a contract of loan even if it is so high, still, it is plaintiff's reply or replication), only if the rejoinder is also based
no longer considered usurious because the law no longer on an actionable document.
imposes a ceiling in the interest rates. But it doesn’t mean na ang
creditors, sige patuyangan nalang nato pila ang interest --- 100% Reply Answer to the Counterclaim
per day interest--- it can still be declared iniquitous and Filed after the defendant Filed after the defendant files
unconscionable. files his/her pleading his/her pleading
Response to the new Response to the cause of action
ACTIONABLE DOCUMENT matters with an actionable claimed by the defendant
That is the document which is the basis or the foundation. document interposed by against the plaintiff. So, an
PLAINTIFF DEFENDANT the defendant in his/her Answer to the Counterclaim
If you’re the plaintiff If you’re the defendant it is the basis or foundation
answer. In short, a Reply answers a claim in defense.
the basis or foundation of your defense. Like bayad na ang utang or answersthere the defense but
of your cause of action. was condonation. So, your obligation has already does not defend.
Example is a contract been extinguished. It could be the document Filing of a Reply is not If it is a permissive
of loan. Unsa man ang evidencing the condonation or the document of as a general rule counterclaim it must be
allowed
actionable document the acknowledgment receipt evidencingbased the on the amended answered by the party against
diha? Ang contract payment. rules. whom it is interposed.
itself. Otherwise he may be declared
in default as to the
What if in the Answer, there is a counterclaim? counterclaim.
Di ba kung naay counterclaim, ang atuang gi-mention is: if it is a If it is a compulsory
compulsory counterclaim and wala pa nag-answer, so deemed counterclaim, there is no need
controverted sya. Because pag imung i-answer sa compulsory to file an Answer, all the
counterclaim, the same lang gihapon na sya ug unsay gibutang allegations in the compulsory
nimu sa imuhang complaint. counterclaim are deemed
controverted.

12
 Without the Reply, all the Insofar as the Answer to a
matters – the old and the permissive counterclaim is
new—alleged in the concerned, there is no
Answer are deemed automatic controversion.
automatically
controverted.
Section 11.
Third, (fourth, etc.)-party complaint. — A third (fourth,
etc.)-party complaint is a claim that a defending party may,
with leave of court, file against a person not a party to the
action, called the third (fourth, etc.)-party defendant for
contribution, indemnity, subrogation or any other relief, in
respect of his or her
opponent's claim.
The third (fourth, etc.)-party complaint shall be denied
admission, and the court shall require the defendant to
institute a separate action, where: (a) the third (fourth, etc.)-
party defendant cannot be located within thirty (30) calendar
days from the grant of such leave; (b) matters extraneous to
the issue in the principal case are raised; or (c) the effect
would be to introduce a new and separate controversy into
the action.
You know the concept of a third, fourth, etc. party complaint:
It has to be with leave of court.
A files a case against B for collection because B is a solidary
debtor. The debt is 1 Million. Actually B and C borrowed the
amount from A. Assuming that their obligation is solidary; A can
collect the entire 1 million from any one of them, B or C. Now, A
files a case against B only for the collection of the 1 million, so,
between B and C there is an obligation for reimbursement. C will
have to reimburse B for 500k. What if B for 1 million and nisibat
na si C? So mangita napud ko sa iyaha? Maayo pa apilon nako sya
sa kaso. So he files a third party complaint against C.
 Now, he cannot just file immediately, he has to seek
leave of court. Unsa man ng leave of court?
LEAVE OF COURT
WHAT: You ask for permission from the court to file a third party
complaint.
HOW: Motion for Leave to file a third party complaint (mao na
imuhang title). Under the rules, dapat pag mangayo ka ug motion
for leave to file anything attached na nimu daan diha ang
imuhang pleading. So, i-attach na nimu daan didto imuhang third
party complaint. You will have to wait for the court to allow you.
But anyway naka-attach na daan diha imuhang complaint itself.
PURPOSE OF THIRD, FOURTH, ETC PARTY COMPLAINT
The law says it could be for contribution, for indemnity, for
subrogation or any other pleading. In my example it is for
contribution because if you will be made to pay the entire 1M, in
reality, you can demand reimbursement from C of the 500k.
In respect of his/her opponent’s claim meaning the third or
fourth etc. party complaint should be related to the claim of the
complainant because you are asking for the contribution
indemnity. Meaning you will be adjudged to pay the 1 M you will
be allowed to demand contribution from your solidary debtor—
co-solidary debtor. It should always be in relation to the
original complaint. Di ka pwede mag file ug third, fourth, etc.
party complaint na walay labot sa original complaint, it has to be
in relation to the complaint. It must be related to or arise out of
the subject matter in the main action.
For example: You’re involved in a hit and run accident. So, gi-filan
ka ug kaso sa imung naligsan—quasi-delict for example. And
then naa kay insurance, dapat sa insurance diba? Unya kay ikaw
man gi-filan ug kaso alangan ingnon nimu sya nag,”ayaw lang ko
fili, kadto rang insurance company.” In your case you can also file
a third party complaint for indemnity. Once i-adjudge ka to pay
him (imung naligsan) you have also a collectible from the
insurance company. That is also related to the claim embodied in
the complaint.
What are the instances where the third, fourth, etc. party
complaint will not be allowed by the court? (New Provision)
1. If the third party defendant cannot be located within
30 calendar days from the grant of such leave. Why?
That third, fourth, etc. party complaint should not be
allowed to delay the proceedings. Anyway, you can file
a separate case in relation to that.
2. Matters extraneous to the issue of the principal case
are raised. Way labot, way connection sa principal
case. If it’s not related, file a separate case.
3. The effect would be to introduce a new and separate
controversy into the action. It would just complicate
and delay the proceedings. So just file a separate case
to exclusively to discuss that issue between you and
the third-party defendant.
Section 12.
Bringing new parties. — When the presence of parties other than those to
the original action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall order them to
be
brought in as defendants, if jurisdiction over them can be obtained.
If there are parties who have to be impleaded, the rule says “the
court shall order them to be brought in as defendants if
jurisdiction over them can be obtained.”
Who are these parties?
1. necessary parties
2. indispensable parties
 Ang sa indispensable parties as long as the court has
not yet acquired jurisdiction they can be brought in.
pero kung naka render na si judge ug decision then
wala na bring into the picture ang indispensable party,
What is the consequence? The proceedings are
actually NULL and VOID not only as to the persons
present but also as to the parties who were not
brought into the picture.
“the court shall order them be brought in as defendants if
jurisdiction over them can be obtained”
 this should refer more to necessary parties. Kay ang sa
indispensable parties you have to bring them as
parties, otherwise the court has no jurisdiction over
the proceedings. Kay diri murag optional “if
jurisdiction over them can be obtained”. Kung dili then
let us proceed even without these parties.
Section 13.
Answer to third (fourth, etc.)-party complaint. — A third
(fourth, etc.)- party defendant may allege in his or her answer
his or her defenses, counterclaims or cross-claims, including
such defenses that the third (fourth, etc.)-party plaintiff
may have against the original plaintiff's claim. In proper cases,
he or she may also assert a counterclaim against the original
plaintiff in respect of the latter's claim against the third-party
plaintiff.
This refers to third, fourth, etc party complaint. Just take note,
what can he allege as his defenses:
1. He can just simply answer; or
2. He just file a counter-claim against sa katong nag file
sa iyaha ug third party complaint. Even against the
original complainant;
3. He can also file cross-claim.
Example: si Defendant duha iyang gi-filan ug third, fourth, etc.
party complaint. Si third, fourth, fifth, etc. may file a cross-claim
against each other.
RULE 7
PARTS AND CONTENTS OF A PLEADING
Section 1.
Caption. — The caption sets forth the name of the court, the title of the
action, and the docket number if assigned.
The title of the action indicates the names of the parties. They shall all be
named in the original complaint or petition; but in subsequent pleadings, it
shall be sufficient if the name of the first party on each side be stated with an
appropriate indication when there are other parties.
Their respective participation in the case shall be indicated.
Pag original complaint na sya, blanko pa nang docket number. So,
the name of the parties. Indicate who is the plaintiff and who are
the defendants. Kung original complaint na sya or petition you
have to include the names of all the parties. Pero kung
subsequent pleadings na sya (answer or reply, motions tanan)
filed after the complaint, halimbawa 5 imong defendants or 5
imong plaintiffs you do not have to write down all of their names,
although naa man tay computer, sa una type writer ra kapoy
gyud na itype tanan nimo. Pero again, for example, 5 sila kabook
you can just place ‘LINO BARTOLOME, ET AL”
13

IMPORTANCE OF THE NAME OF THE COURT
The name of the court, why is it important to write the name of
the court? Alangan, asa man diay ifile ang case? Dili mag ingon si
court sa imuha asa ifile. Diba mag matter ma sya depending on
the assessed value of the subject matter involved or the type of
action filed. You really have to indicate kung asa na court. Kay
kung mali ka, the other party may file a motion to dismiss
because of lack of jurisdiction, that is why it is really important to
indicate the court.
What are the instances where the law does not require the
name of the parties to be stated in the pleading?
We discussed before that in the original complaint the name of
the parties must be completely indicated. There are cases when
you do not have to indicate all:
1. subsequent pleadings
2. in a class suit (only sufficient number)
3. when there is an unknown defendant under Rule 3,
Section 14 (though you have to have a description)
4. entity without juridical personality under Rule 3
Section 15
5. party sued in his official capacity (as Municipal Mayor
of Matanao Davao del Sur)
Docket Number:
When you file the original pleading, it is blank. But in all
subsequent pleadings dapat naan a gyud na syay number,
otherwise how will the court know kung iyaha ba gyud to na
case? It will be easier for the court to identify.
WITH
AFFIRMATIVE DEFENSES AND COUTERCLAIM
NOW COME, Defendants, ABC CORPORATION (“ABC” for
brevity), BEN P. BARRETO, RAMON RIVERA…
Section 2.
The body. — The body of the pleading sets forth its
designation, the allegations of the party's claims or defenses,
the relief prayed for, and the date of the pleading.
(a) Paragraphs. — The allegations in the body of a pleading
shall be divided into paragraphs so numbered to be readily
identified, each of which shall contain a statement of a single
set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by its number in
all succeeding pleadings.
(b) Headings. — When two or more causes of action are
joined, the statement of the first shall be prefaced by the
words "first cause of action,'' of the second by "second cause
of action", and so on for the others.
When one or more paragraphs in the answer are addressed to
one of several causes of action in the complaint, they shall be
prefaced by the words "answer to the first cause of action" or
"answer to the second cause of action" and so on; and when
one or more paragraphs of the answer are addressed to
several causes of action, they shall be prefaced by words to
that effect.

ALLEGATIONS ARE CONTROLLING AND NOT THE CAPTION (c) Relief. — The pleading shall specify the relief sought, but it
Genato vs Viola (GR 169706, February 5, 2010) may add a general prayer for such further or other relief as
may be deemed just or equitable.
Wala gibutang sa caption ang tanang pangalan sa parties. But in the body of
the complaint it was written. Would be defective kay wala sa caption? (d) Date. — Every pleading shall be dated.

Ruling: Contents of the Body

It is not the caption of the pleading but the allegations therein that 1. Itsare
designation (e.g. Complaint, Answer, Reply)
controlling. The inclusion of the names of all the parties in the title of aallegation of the party’s claims and defense;
2. The
complaint is a formal requirement. However, the rules of pleadings 3. require
The relief prayed for; and
courts to pierce the form and go into the substance. The non-inclusion4.ofDate
oneof the Pleading
or some of the names of all the complainants in the title of a complaint, is not
fatal to the case, provided there is a statement in the body of the complaint
General Rule: We are referring here to the pleading. It could be
indicating that such complainant/s was/were made party to such action. the complaint, answer, counter-claim. So, we discussed before
the caption, title.
Respondent Viola, although her name did not appear in the title as aSo, party,
the body of the pleading. We have here the paragraphs. Dapat
was one of the persons who caused the preparation of the complaint and who sya into paragraphs.
divided
verified the same. The allegations in the body of the complaint indicate that
she is one of the complainants. She categorically considered, and held out,
A. Paragraphs
herself as one of the complainants from the time of the filing of the complaint
Suppose the scenario is that Mario Reyes borrowed from Juan de
and up to the time the decision in the HLURB case became final and evidenced by a Promissory Note and the note became
la Cruz,
executory. To repeat, the averments in the body of the complaint, not the
duetitle,
and demandable January 1, 2000, Juan de la Cruz demanded
are controlling. from Mario Reyes the amount but did not pay, thus constraining
him to file a case for a sum of money for P1,000,000.
Although in some cases like in special proceedings, for example,
Petition to Change of Name, kay daghan kag ginagamit na names, COMPLAINT
you have to allege all of those names na imuhang ginagamit. So, it COMES NOW, Plaintiff, JUAN DELA CRUZ, through the undersigned counsel
will affect the jurisdiction of the court. and unto the Honorable Court, most respectfully file the Complaint, and aver
that:
(Lifted from last year’s tsn 2019) Illustration:
In a Legal size bond paper (8.5 in. x. 13 in). The caption is like 1. Plaintiff JUAN DELA CRUZ, Filipino Citizen, of legal age, married and a
this: [Based on the sample given]. resident of Davao City, Philippines, served with the orders, decisions, papers
and other processes of the Honorable Court in the address of the undersigned
Republic of the Philippines counsel.
11th Judicial Region
REGIONAL TRIAL COURT [This is for the court to note the propriety of the venue and to note that
BRANCH 20 plaintiff is represented by a lawyer so that orders and processes shall be sent
DIGOS CITY to his counsel’s address.]
Province of Davao del Sur
2. Defendant MARIO REYES, Filipino Citizen, of legal age, married and
THE HEIRS OF GERRY CIVIL CASE NO. 14344 resident of Davao City, Philippines.
S. MAGWAYER AS
REPRESENTED HEREIN FOR: CANCELLATION OF A [Note also note the address of the defendant so where he may be served with
BY: THEIR CO-HEIR DOCUMENT OF TRANSFER OF the orders and processes of the court.]
AND ATTORNEY-IN- RIGHTS, RECOVERY OF
FACT LIRIO C. POSSESSION/OWNERSHIP, [In the third paragraph, here you start narrating the cause of action and
MAGWAYER, Plaintiffs. DAMAGES AND ATTORNEY’S establish the elements of the cause of action. Juan de la Cruz has a right; that
FEES Mario Reyes has an obligation and he breached that obligation and by reason
-versus- of that the plaintiff suffered damages.]

ABC ALPHABET 3. On [certain date] JUAN DELA CRUZ lent P1,000,000 to MARIO REYES and
CORPORATION, MARIO REYES accepted the amount as evidenced by the Acknowledgement
Defendant Receipt attached hereto as ANNEX “A”, he also executed a Promissory Note
attached hereto as ANNEX “B”.
ANSWER

14
 [Each paragraph should state different circumstances; this is so the judge  You just have to add (for Cagayan de Oro City,
would not be confused. It must be short and concise, like how one answers Philippines) if you are going to file the case in the
questions. Thus, if you already have alleged in the paragraph about the Court of Appeal in CDO City.
circumstances surrounding the presence of the debt. Do not include the Andpart
then the Name of the counsel. Write your:
1.
for the demand letters, that Juan de la Cruz suffered sleepless nights, separate Roll Number
that in paragraphs. Aside from the failure to pay upon demand, you must 2. also IBP Official Receipt Number, Date and Place of
specify the circumstances if you want to claim for damages] Issuance
3. Professional Tax Receipt, Date and Place of Issuance
4. Because of act of defendant MARIO REYES. Plaintiff JUAN DELA CRUZ 4. was MCLE Compliance Nuber or MCLE Exemption
Certificate
unable to sleep; he could not go out of his house because of his eye bags; he Number
suffered besmirched reputation because he has no money to settle own 5. his Telephone Number
debts; [Signature here]
[Thus, you must allege also entitlement to attorney’s fees] ATTY. LIELANIE C. YANGYANG-ESPEJO, CPA
Roll No. 70112
5. Because of the unjustified refusal of the defendant to pay his debt, despite IBP OR No. XXXX/12-28-2016/Davao City
demand, plaintiff JUAN DELA CRUZ was constrained to hire the services of PTR No. XXXX/12-28-2016/Davao City
counsel to which he paid attorney’s fees in the amount of P100,000.00, plus MCLE Exemption No. XXXX
appearance fees of [amount] per hearing, and costs of litigation amounting to Valid from February 22, 2016 until April 14, 2019
[amount]. Telephone No. 089-1234

[This would end you statement of your case of auction].

First paragraph you have to indicate the personal circumstances
of the plaintiff. Under the new rules, if the plaintiff, for example,
is represented by another person, you have to indicate the
special power of attorney of that person. Or if the plaintiff is a
corporation it could be a board resolution. You also have to
attached as annex the document showing the authority of the
representative to file.
And then, the personal circumstances of the defendant, that they
can sue and be sued.
Nganung need na butangan ug paragraph? Naa syay paragraph
pero wala syay number? Lisod sya to identify kay “the Defendant
denies the allegations in paragraph 6.” So ang court “asa man ang
paragraph 6?” mag ihap pa sya! Dapat nakabutang na imong
complaint daan. So that is why naka paragraph and number.
Pwede second cause of action: Plaintiff repleads all the
allegations in the preceding paragraphs and further allege that
defendants acted… para ni sya sa damages (moral damages,
exemplary…)
B. Headings
This is not mandatory, more so a matter of style. This is no longer
required if you only have one cause of action thus no need to put
a header for “first cause of action” you can go directly to allege
the cause of action if you only have one.
C. Relief
The pleading shall specify the relief sought, but it may add a
general prayer for such further or other relief as may be deemed
just or equitable. After your allegation, you have another portion:
Section 3.
Signature and address. — (a) Every pleading and other written submissions
to the court must be signed by the party or counsel representing him or her.
(b) The signature of counsel constitutes a certificate by him or her that he or
she has read the pleading and document; that to the best of his or her
knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances:
(1)It is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
(2)The claims, defenses, and other legal contentions are warranted by
existing law or jurisprudence, or by a non-frivolous argument for extending,
modifying, or reversing existing jurisprudence;
(3)The factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after availment of the modes of
discovery under these rules; and
(4) The denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
information.
(c) If the court determines, on motion or motu proprio and after notice and
hearing, that this rule has been violated, it may impose an appropriate
sanction or refer such violation to the proper office for disciplinary action, on
any attorney, law firm, or party that violated the rule, or is responsible for the
violation. Absent exceptional circumstances, a law firm shall be held jointly
and severally liable for a violation committed by its partner, associate, or
employee. The sanction may include, but shall not be limited to, non-
monetary directive or sanction; an order to pay a penalty in court; or, if
imposed on motion and warranted for effective deterrence, an order
directing payment to the movant of part or all of the reasonable attorney’s
fees and other expenses directly resulting from the violation, including
attorney’s fees for the filing of the motion for sanction. The lawyer or law firm
cannot pass on the monetary penalty to the client.

What are the significances?

PRAYER At the end of the pleading, you have to write the name of the
WHEREFORE, premises considered, after due notice and hearing, it lawyer.is most Diha pod niya ibutang iyang signature and the address.
respectfully prayed of the Honorable Court to grant to the plaintiff the
following reliefs: 1) You have read the pleading and the documents attached that
to the best of his or her knowledge the information, and belief,
1. DIRECT the defendant to pay P1,000,000.000 plus legal interest starting
from the date of demand; formed after an inquiry reasonable under the circumstances
2. DIRECT the defendant to pay:  Meaning wala ka nagpataka. Gikan gyud na sya sa
a. MORAL DAMAGES in the amount of ONE HUNDRED THOUSAND PESOS imong study, interview sa imong client.
(P100,000.00); 2) It is not presented for any improper purpose, such as to
b. EXEMPLARY DAMAGES in the amount of ONE HUNDRED THOUSAND harass, cause unnecessary delay, or needlessly increase the cost
PESOS (P100,000.00); of litigation
c. ATTORNEY’S FEES AND LITIGATION EXPENSES in in the aggregate amount  Nag file lang kag kay case kay gusto lang ka mang-
of ONE HUNDRED THOUSAND PESOS (P100,000.00); and Appearance Fees of harass, knowing that your client really has no cause of
THREE THOUSAND (P3,000.00) per hearing; and action. pero kay dako man ang attorney’s fee sige
d. THE COSTS OF THE SUIT nalang. Your signature is a certification na this
complaint is not for the intention of harassing the
Other just and equitable reliefs also prayed for. -- [This last statement is the defendant or to cause unnecessary delay.
general prayer]. 3) The claims, defenses, and other legal contentions are
warranted by existing law or warranted existing law or
Necessity of the General Prayer
jurisprudence, or by a non-frivolous argument for extending,
The part “other just and equitable reliefs also prayed for” is to
modifying, or reversing existing jurisprudence
able to get some relief which you did not specify. So you will be
 Meaning naa jud syay basis, wala lang sya nagpataka.
entitled such relief even if you did not specify such relief. Kaning
You will not be penalized if you have a wrong
“other just and equitable reliefs” usually generic na sya
interpretation of the law. Naa man gyuy mapildi sa
ginabutang kay basin nay reliefs na wala nimo nabutang at least
kaso. Kung mag file ka ug kaso, of course, dapat naa
naa pa kay catch-all provision.
man gyuy kay basis. The court will resolve the case
based on the contentions… kung asa ang tama
Date
Every pleading must be dated:
“The factual contentions have evidentiary support”,
Respectfully submitted this 10th day of January 2019, in the City of
Davao (for Cagayan de Oro City, Philippines).

15
So unsa mana na evidentiary support? It could be documents, it
could be testimonial, so depende. Kay di man pud tanan na
documents.
“Or will likely to have evidentiary support, after the
availment of the modes of discovery.” Meaning as of now wala
pa kay evidence, but you have a strong belief naa gyud ni sya,
tinuod jud ni sya pero ang document or evidence wala sa imong
possession, nasa possession sa defendant or sa 3rd party na dili
mo pwede makuha kung wala ka nag avail of modes of discovery.
 Like for example, bank deposit. Di man ka pwede na
wala kay kaso or anything, mutan-aw ka didto sa bank
deposit. Diba naa may Secrecy of Bank Deposit? So
kabalo ka naa kay cause of action based on those bank
deposits pero as of now, wala pa. So you have to asked
order from the court to allow you to examine the bank
deposit. Here at least at present, bisag wala sa imong
possession ang document but you have a strong belief
that you still have evidentiary support after you avail
of the modes of discovery.
4) The denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.
 So for example, ang basis sa imong defense, naa gyud
reason, naay legal basis or factual basis, or In
Damages, ang plaintiff nagclaim ng moral damages,
sleepless nights, mental anguish, serious anxiety. Sa
imohang answer, you deny. Kay ngano, nagtapad diay
ta every night, para makabalo ko na you suffer
sleepless nights. So in that case your denial will be.
“Defendant has no knowledge or information sufficient
to form a belief as to the truth in the allegation set
forth” kay wala man syay personal knowledge about
his damages. So part na sya sa, mao na sya imong i-
certify, if you are the lawyer you signed in to that
pleading. That is the significant of your signature.
Q: Unsa man ang consequence if you violated, these items
mentioned?
A: So the court, upon motion (by the party) or moto proprio
(belief on its own) after notice and hearing and found to have
committed a violation in any of these items or matters, they could
be imposed an appropriate sanctions. Or the court may refer the
violation to the proper office, like IBP for disciplinary action or
the Supreme Court against any of the lawyer, the law firm, or the
party.
LIABILITY OF THE LAW FIRM:
So this rule is also new, on the liability of the law firm. It says. “a
law firm shall be held jointly and severally liable for a
violation committed by its partner, associate, or employee”
so kung law firm mo, you know what is “jointly and severally”
meaning solidarily liable.
So if you are a partner, because of this rule even if it is only your
associate who signed the pleading pero “for the law firm of __”
then kung naa to sya’s violation. All of you, the law firm will be
jointly and severally liable.
Q: So what are the possible sanctions?
A: The sanction may include, but shall not be limited to:
 Non-monetary directive or sanction – suspension,
disbarment
 Pay a penalty in court; or,
 Impose a motion and warranted for effective
deterrence, an order directing payment to the movant
of part or all of the reasonable attorney’s fees and
other expenses directly resulting from the violation,
including attorney’s fees for the filing of the
motion for sanction.
Take note ha, under the old rule, wala ni siya. So for example:
mag counter-claim si defendant,
“…because of the filing of the instance suit defendant was
constraint to engage the services of counsel for which the plaintiff
should be made to pay attorney fees and litigation in the amount of
1 million pesos.”
*Again this is a claim against the party himself filing the case,
pero because of this rule if the lawyer knowingly instituted, or
drafted the complaint and filed it in representation of the client
knowing that it is frivolous, or it was intended to harass. Pwede
maapil ang lawyer or the law firm. Tanan sila are jointly and
severally liable.
The lawyer or law firm cannot pass on the monetary penalty
to the client.
So look out for this, na as a lawyer, not only to agree whatever
case na your client would like you to file but ensure na it really
has a factual and legal basis. Otherwise you’ll be penalized for
signing your name on the pleading. Actually naa na syay
jurisprudence before na the lawyer was made to pay damages
because of the frivolous claim which was filed in the
representation of the client.
Section 4.
Verification. — Except when otherwise specifically required
by law or rule, pleadings need not be under oath or verified.
A pleading is verified by an affidavit of an affiant duly
authorized to sign said verification. The authorization of the
affiant to act on behalf of a party, whether in the form of a
secretary’s certificate or a special power of attorney, should
be attached to the pleading, and shall allege the following
attestations:
(a) The allegations in the pleading are true and correct based
on his or her personal knowledge, or based on authentic
documents;
(b)The pleading is not filed to harass, cause unnecessary
delay, or needlessly increase the cost of litigation; and
(c) The factual allegations therein have evidentiary support
or, if specifically so identified, will likewise have evidentiary
support after a reasonable opportunity for discovery.
The signature of the affiant shall further serve as a
certification of the truthfulness of the allegations in the
pleading.
A pleading required to be verified that contains a verification
based on “information and belief,” or upon “knowledge,
information and belief,” or lacks a proper verification, shall be
treated as an unsigned pleading.
As a general rule pleading need not to be verified. But there are
certain pleadings under the Rules of Court which must be
verified.
VERIFICATION
It is a statement under oath. It is verified by an affidavit of an
affiant duly authorized to sign the verification. Usually kung kina
hanglan ug verification ang pleading. It is the party himself who
will sign it. If it is a petition, the petitioner himself must sign the
verification. If it is an Answer, the defendant must sign the
verification.
Q: What if the case is instituted by a representative or what if the
defendant is abroad?
A: the rule says that there has to be an authorization to sign the
verification. It is not enough that you allege that you are the
representative of the plaintiff Juan dela Cruz. The rule says that
you have to attach the authorization to the pleading.
if it is a natural person: Piolo Pascual authorizing Juan dela
Cruz, you must attach to the pleading the Special Power of
Attorney from Piolo Pascual authorizing Juan dela Cruz to sign
the verification.
If it is a juridical entity: XYZ Corporation authorizing its
President perhaps to sign the verification, there has to be a
board resolution or secretary certificate which must be
attached to the pleading.
Another important amendment sa SPA. Example:
I, Piolo Pascua.… I hereby constitute and appoint Juan dela Cruz
as my attorney-in-fact to do and perform the following acts:
1.To file a case against Cardo Dalisay for collection of sum of
money,
2. to sign the verification and other pleading;
3. to file the appeal etc..
PREVIOUS AMENDED
Dati it is required na didto sa But now, the rule says ”The
verification na gipirmahan ni authorization of the affiant to act on
Juan dela Cruz, didto na naka behalf of a party, whether in the form
enumerate tong mga statements of a secretary’s certificate or a special
which under the rule must be power of attorney, should be attached
mentioned in the verification. to the pleading, and shall allege the
Diba wala didto sa SPA na gikan following attestations.” Mismo ang SPA
kay Piolo Pascual padulong kay or secretary certificate dapat imention
Juan dela Cruz katong mga nya ning mga statements.
statements. Didto na sya sa
verification.
Why? Kay kung ma perjury, pwede raman mag ingon si principal
na “ako ba diay nagpirma sa verification, ang SPA nako is to file,
16
wala man ko niingon na ang pleading is true and correct and Golden Food Corporation in the instant case;
based on his personal knowledge, that the pleading is not filed to 2. I have caused the preparation of the foregoing
harass. Wala koy giingon ana sa akong SPA. Nag ingon ana is Complaint;
katong akong representative in his verification”. So he can easily, 3. I have read and understand all the contents thereof
or the corporation if it is a juridical person can easily avoid the and the factual allegations contained therein are
consequence of the verification. Walay problema kung ikaw true and correct based on my personal knowledge
mismo si plaintiff or defendant kay sa imong verification ikaw and on authentic documents;
man gyud ang nagstorya. So here, again pati ang authorization 4. The Complaint is not filed to harass, cause
required ibutang tong mga statements. unnecessary delay or needlessly increase the cost
of litigation and;
So bantayan na ninyo if naa moy case whether for plaintiff ka or 5. The factual allegations therein have evidentiary
kay defendant, ang imong kalaban kay required sya ana. Ikaw si support. (or of specifically so identified will
defendant, naa kay actionable document sa imong Answer so likewise have evidentiary support after a
dapat ideny sya, magfile ng reply si plaintiff. That reply must be reasonable opportunity for discovery.)
verified. For example ang representative lang niya nag nagpirma
sa verification, and naay SPA. Tan-awon ninyo iyang SPA na IN WITNESS WHEREOF: we hereunto affixed our signatures
nakaattached if nakamention maning mga allegations. Because this______________________.
again even in the authorization, it shall allege these attestations.
RIRICARDO DALISAY
So now we are referring to the party himself kay katong
Affiant
signature sa ibabaw, we are referring to the lawyer kaning
verification, it refers to the party himself. (HA?)
SUBSCRIBED AND SWORN to before me in the City of Davao
this ___________ day of _________________, 20___________ by
ATTESTATIONS
___________________ with Residence Certificate No. ________________
So, the same man gihapon sya sa old rule, which says that a
issued at ___________________ on ______________, 20_____.
pleading is required to be verified, that contains a verification
based on information and belief or upon knowledge,
Doc No.:_________
information and belief or lacks a proper verification,
Page No.:_________
meaning you did allege any of those item mentioned, shall be
Book No.:_________
treated as an unsigned pleading.
Series of 2020
The same pud tong sa signature sa lawyer, kay kung wala syang
Actually the same nman gihapon basically ang old rule and new
signature sa complaint, answer, etc, It is considered as unsigned
rule. Nadungag lang tong ubang statements. Unless the Supreme
pleading.
court will make a new pronouncement.
Q: What is a consequence if it is an unsigned pleading?
LACK OF VERIFICATION IS A FORMAL DEFECT
A: It is considered a mere scrap of paper. It does not have any
But when you say lack of verification, it is not a jurisdictional
value.
defect. Actually in the case decided by the Supreme court before,
So if you filed and answer and your lawyer did not signed, you
mas lenient sya in so far as verification is concerned. The Court
can be declared in default because it is a mere scrap of paper.
has consistently held that the requirement regarding verification
of a pleading is formal, not jurisdictional. Such requirement is
Q: What if your pleading has a verification but it is defective?
simply a condition affecting the form of the pleading, non-
A: GR: when we strictly apply the rule, it says, it is treated also
compliance with which does not necessarily render the pleading
as unsigned pleading. Even if nipirma si lawyer sa imong
fatally defective. The court can just order the correction of the
Answer but in your verification, or even if ipirma pud ka, pero
pleading. Pwede idismiss sa court but upon motion for
defective imohang verification. Or you mentioned na based on
reconsideration, as long as you comply with the proper
information and belief. It is still considered an unsigned pleading,
verification, the court will usually grant that.
thus it is a mere scrap of paper.
So, let's review, under Section 4: 'except when otherwise
PURPOSE OF VERIFICATION:
required by law or law, pleadings need not be under oath or
1. It seeks to forestall perjury by requiring party
verified' So, in general, pleadings need not be verified or, when
concerned from making false allegations.
you say verified - under oath, but when required to be verified,
Because when you made representation or untruthful
these should be the content of the verification. So, it is a
statements in a material matter in a sworn statement.
statement under oath by the complainant or by the defendant,
That is perjury and that is criminal case.
depende kung it is an answer or it's a complaint. And then it
2. Because of the danger of being liable for perjury,
states under oath:
the requirement seeks to avoid filing of baseless
and groundless suits. You would not take the risk that
Now, there are additional statements that must be included in
you would file a baseless and groundless suit because
the verification. If you noticed, these statements are mentioned
you know that you could be held liable for perjury if
in Section 3, meaning: when the lawyer signs the pleading there
your allegations turn out to be not within your personal
is an undertaking na, again, the pleading is not filed to harass but
knowledge (2019 TSN).
the lawyer does not mentioned that in the pleading, implied na
3. Seeks to ensure that whatever will be brought to
siya - implied certification na when he signs the pleading he
the consideration of the court will only be matters
undertakes these things, the matters mentioned in Section 3.
susceptible to proof.
Pero pag ikaw si complainant or defendant, you have to state.
As much as possible if you file a case, you can really
Dili na siya implied, not just because you signed it, it is implied
prove it. You will not file a case recklessly because
na, na mao ni imung mga undertakings. So, it is in a form of an
anyway, there is no consequence if it turns na mali diay
affidavit and it is subscribed and sworn before the Notary Public.
ko. It doesn’t follow also na kung mapildi ka sa kaso, ma
So, that’s why, kung kulangan ang imuhang verification sa mga
perjury napud ka diritso because there might be
statements which the law or the rule requires it written - that is a
instances na the facts are within your personal
defective verification.
knowledge but for some reason naa pud proper defense
ang pikas. Besides, as a general rule, a complaint is not
Now, same lang gihapon sa old rule, diba there is a provision na
verified. (2019 TSN)
when the provision is based on the knowledge, information or
belief it is considered as an unsigned pleading. WHY? Because
FORMS OF VERIFICATION
again when you file a complaint or when you file your answer. All
the allegations must be true and you must have personal
Republic of the Philippines )
knowledge of those allegations. Meaning you cannot allege
City of Davao )S.S
matters which are not within your personal knowledge or which
x---------------------------------------------x
are just hearsay. You cannot say na “according to X, he saw B”,
dapat ikaw mismo ang nakakita. That is the meaning of personal
VERIFICATION
knowledge.
I, RIRICARDO DALISAY, of legal age, Filipino citizen, married
Although in your complaints, naa man jud instances na wala jud
and a resident of Davao City, after having been duly sworn to
kay personal knowledge. Like for example: Nag allege ka didto na
in accordance with the law, hereby depose and say that:
naay contract of loan, you are the creditor, so B is the debtor. He
(STATEMENT)
borrowed 1 million, and then despite the lapse of due date and
1. I am the authorized representative of Complainant

17
despite of the demand, he did not pay. So you allege in your
complaint na gi sugo nimo imo hang staff to go to the house of B
to collect. Pag abot nya didto sa balay ni B, and pagka dawat ni B
sa demand letter. Iyang gi kuha iyang armalite and gi ratrat nya
imong demand letter. So kakita ba ka, kakita ba imong client.
Wala ang staff man ang nakakita. You can still allege that, but
you have to attach the Affidavit of the person who has
personal knowledge of the circumstance. Dili nimo angkonon
na ikaw gyud ang nakakita. So that is still allowed. So, still it is
not hearsay, it is based on his personal knowledge.
Basta all of those factual allegations based on information lang
nimo you have to allege and attach the testimony or statements
of those persons who have personal knowledge.
The rule also says, it could either be: based on
1. a personal knowledge of the pleader or
2. based on authentic records. Because there are cases
na, even if you have no knowledge but there is an
authentic record.
Example: A Special Power of Attorney, actually, who signs the
SPA? It is the principal. Pwede na na-dili magpirma didto si
agent. So, si agent, he did not actually see when the principal
signed the SPA. Gipadala lang sa iyaha and then 'o, gi-authorized
daw ka, nga ikaw ang magcollect, ikaw ang magprocess, etc.'. So,
here, he does not have personal knowledge that the principal
signed the SPA, but based on document there is here a signature
in the SPA which appears to be the signature of the principal. So,
that is based on authentic record.
Marohomsalic vs. Cole
547 SCRA 98, G.R. No. 169918 February 27, 2008
Ang question lang dire is, what if ang naka butang sa
verification, 'based on the personal knowledge of the pleader',
or wala ang word na 'based on personal knowledge', it says
'based on authentic records'. It was questioned here, the rule
says, personal knowledge and it also mentions authentic
records.
Well anyway, when you go to Rule on Evidence, wala na diay ang
'best evidence rule'. Lahi na ang pangalan niya 'Original
Document Rule'. So, na-usab na pud ang Rule on Evidence, like
Civil Procedure. Pero pare-pareho lang sa Civ Pro na, ang mga
jurisprudence kay gi-incorporate lang nila sa Rules.
The Rule says 'except when otherwise provided' because the
general rule is you don't have to verify a pleading, but there are
certain pleadings or documents mentioned under the Rules of
Court which require to be verified.
PLEADINGS OR DOCUMENTS REQUIRED TO BE VERIFIED
(memo at least 10)
1. RULE 8 SECTION 8, on actionable documents.
Section 8. How to contest such documents. - When an action
or defense is founded upon a written instrument, or attached to
the corresponding pleading as provided in the preceding
section, the genuineness and due execution of the instrument
shall be deemed admitted unless the adverse party, under oath
specifically denies them, and sets forth what he or she claims to
be the facts; but the requirement of an oath does not apply
when the adverse party does not appear to be a party to the
instrument or when compliance with an order for an inspection
of the original instrument is refused. (8a)
 For example, you had a complaint, the foundation of which is
an actionable document, like: a contract of loan, and if you
are the defendant (so, this is a case for collection) you will
file your answer. Your answer has to be verified, because
you will be denying the existence of that contract of loan.
Otherwise, even if in your answer you denied na 'I did not
sign any contract of loan' so you deny. So, pero dili siya
verified, dili siya under oath imung answer. Under the Rules,
you're deemed to have impliedly admitted the genuineness
and due execution of that document. That's why you have to
verify.

Issue: Would be the verification be defective? If it mentions

only 'personal knowledge' or 'authentic records.

Held: The Supreme Courts said, No. Because the rule uses the 2. RULE 9 SECTION 3. Default
word "or".
The use of the preposition “or” connotes that either source
When you declare in default, that pertains to the defendant or
qualifies as a sufficient basis for verification and, needless to
may be the plaintiff when there is a counterclaim, a permissive
state, the concurrence of both sources is more than sufficient,
counterclaim. So, you are the defending party, and you failed to
but either it could be based on personal knowledge "OR"
file your answer. So, you can be declared in default. What is the
based of authentic record, or it could be both. So, could not be
consequence if you are declared in default, meaning wala naka'y
defective. So, the range of permutation is not left to the
right to present your defense in the case. So, most likely the
pleader’s liking, but is dependent on the surrounding nature
plaintiff will win, so here that's the consequence of default.
of the allegations which may warrant that a verification be
based either purely on personal knowledge, or entirely on
authentic records, or on both sources. The same with the
present rules.

EX. A Deed of Sale executed between A and B, under the present Now, there's what we call lifting an order of default. So,
rule, actually, documents (as we will discuss in Rule 8), even meaning if you are already declared in default, naa paka'y
evidentiary matters are required already to be mentioned in remedy. Pwede pa ka magpa-lift sa order of default. So, the
the pleading. So, for example, under the Rule on Verification, the motion which you will file to set aside the order of default should
pleader avers na; the allegations in the, for example: complaint, also be under oath or verified.
are based on personal knowledge or based on authentic records.
So, what if the complainant, for example, he has no original copy
3. RULE 24 Depositions Before Action or Pending Appeal
of the Deed of Sale, but he was one of the signatories. He entered
into a Deed of sale with B. So, A entered into a Deed of Sale with
B, and then he only has a photocopy, he does not have the 4. RULE 38 Petition for Relief from Judgments
original and he can longer find the original copy; he is one of the
signatories.
5. RULE 42 Petition for Review from the RTC to the CA

Q: Would it be a defective verification, if he alleges na - the

6. RULE 43 Appeals from the Court of Tax Appeals and
allegations in the complaint is based on his personal knowledge.
Quasi-Judicial Agencies to the Court of Appeals
There is nothing there which says based on authentic records but
the foundation of his cause of action is the Deed of Sale. But he
cannot say authentic because what he has is merely a photocopy 7. RULE 45 Appeal by Certiorari to the Supreme Court
could he still properly verify the allegations in the complaint?
A: Yes, because again as we have already discussed it could be
8. RULE 47 Annulment of Judgment of Final Orders and
based on personal knowledge or based on authentic records. So,
Resolutions (Petition for Annulment should be
still it is based on his personal knowledge. So, again, you can
verified)
still prove that man gihapon even if you don't have the original
copy, as long as you can prove na there was really an original
which existed and you have the prof of the loss and destruction 9. RULE 58 SECTION 4. When you apply for a Writ of
of the original, that it cannot be found without the fault of the Preliminary Injunction or a Temporary Restraining
offerors. Order your application must also be verified

18
 10. RULE 57 Application for an Appointment of a Receiver
11. RULE 61 Application for Support Pendente Lite (as
well as comment to the application)
12. RULE 64 Review of Judgment, Resolutions, or Final
Orders of the COMELEC and the COA
13. RULE 65 Petition for Certiorari, Prohibition and
Mandamus
14. RULE 66 Quo Warranto
15. RULE 67 Petition for Expropriation
16. All pleadings under RULE 70: Forcible Entry, and
Unlawful Detainer
17. RULE 71 Contempt
18. RULE 93 Appointment of Guardian
19. RULE 95 Selling or Incumbering the Property of a
Ward
20. RULE 97 Termination of Guardianship
21. RULE 102 Habeas Corpus
22. RULE 103 Petition for a Change of Name
23. RULE 104 Voluntary Dissolution of Corporations
24. RULE 108 Cancellation or Correction of Entry with the
Civil Registry
25. RULE 138 Application to Take the Bar Exams (The use
of type writers)
26. All pleadings under Summary Rules
27. Petition for Declaration of Absolute Nullity of Marriage
and Annulment of Marriage
28. AM no. 07-11-08- SC Special Rules of Court in
Alternative Dispute Resolutions
29. Petitions for Writ of Habeas Data and Writ of Amparo
30. Small Claims and others
Under on Rules on Electronic Evidence
A.M. NO. 01-7-01-SC
RULES ON ELECTRONIC EVIDENCE
RULE 9 METHOD OF PROOF
Section 1. Affidavit evidence. – All matters relating to the
admissibility and evidentiary weight of an electronic
document may be established by an affidavit stating facts of
direct personal knowledge of the affiant or based on authentic
records. The affidavit must affirmatively show the
competence of the affiant to testify on the matters contained
therein.
So, meaning verified gihapon.
EX: The evidence is based on screenshot, sa Facebook or
Instagram or cellphone. So, dili man tanan techy gyud diba? Even
if you have a Facebook screenshot, well, first how would you
know na tinuod dyud to siya na dili lang siya naka photoshop and
even if there is a screenshot of that Facebook post na bisag
tinuod dyud, how do you know na ang nagbuhat ani na account
kay siya dyud? Kato gyud naka-name? Basig nagbuhat-buhat lang
ug account under his name?
So, basically, when you introduced such kind of evidence it
should be authenticated by the one having personal knowledge.
Like, ako ang nagtake sa screenshot sa kani na post, so I should
authenticate that by an affidavit. It must be verified. That is how
you authenticate an electronic evidence. Otherwise, dili siya
admissible. That's the first step. Although, if you are the opposing
counsel, of course, you have other means to destroy the
testimony of that person who testified but, basically, how do
you make that admissible - it has to be authenticated by an
affidavit.
How about verification by a lawyer, are lawyers allowed to
verify? Well, under the Rules it should be the parties.
Uy vs. Workmen’s Compensation Commission
Held: The SC said: “A verification by the attorney is adequate
compliance with Rule 7, Sec. 6, it being presumed that facts by
him alleged are true to his knowledge in view of the sanctions
provided in Sec. 5 of the Rules of Court.”
Actually, the same sanctions man gihapon, the lawyer when he
signs his name in the pleading, he certifies na, again, it was not
intended to harass, that there is evidentiary support for the
allegation.
Now, under the new Rules, naa na gyud naka dugang, if it is the
lawyer - you just be authorized to sign the verification. So,
meaning naa'y authorization, how is he authorized? Well, if the
plaintiff or the defendant is a:
•natural person: SPA in favor of that lawyer, authorizing him to
sign the verification
•juridical person: Board Resolution or Secretary's Certificate
However, as we had already discussed, verification is not
jurisdictional. So, even if there might be a defect - it is not a
jurisdictional defect.
What happens if you attach a verification to a pleading which the
law or the rule does not require to be verified, would it make it
defective?
 No, it will not. It will just be considered as surplusages
because this is not supposed to be verified but you
verified it but anyway so far as the case is concerned it
will not take anything from your case. Another, which
is a graver consequence, you open yourself to a charge
of perjury unnecessarily because under oath man siya.
Kung dili diay to tinoud imung gi ingun didto then you
are opening yourself to perjury.
Torres vs Specialized packing Dev't Corporation
G. R. no 149634 | July 6, 2004
25 petitioners but the verification was signed only by 2 of
them,
Question: is that a fatal defect?
Answer: The Supreme Court held, In the present case, the
problem is not the lack of a verification, but the adequacy of
one executed by only two of the 25 petitioners. These two
signatories are unquestionably real parties in interest, who
undoubtedly have sufficient knowledge and belief to swear to
the truth of the allegations in the Petition. This verification is
enough assurance that the matters alleged therein have been
made in good faith or are true and correct, not merely
speculative. The requirement of verification has thus been
substantially complied with. So the SC considered the
substantial compliance.
Tanjuatco vs Gako
Am RTJ-06-2016| March 23, 2009
Again, it should liberal when it comes to verification even if
the verification is flawed or defective, the court may still give
due course to the pleading if the circumstances warrant the
relaxation of the rules in the interest of justice.
Section 5.
Certification against forum shopping. — The plaintiff or
principal party shall certify under oath in the complaint or
other initiatory pleading asserting a claim for relief, or in a
19
 sworn certification annexed thereto and simultaneously filed
therewith:
(a) that he or she has not theretofore commenced any action
or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his or her
knowledge, no such other action or claim is pending therein;
(b) if there is such other pending action or claim, a complete
statement of the present status thereof; and
(c) if he or she should thereafter learn that the same or
similar action or claim has been filed or is pending, he or she
shall report that fact within five (5) calendar days therefrom
to the court wherein his or her aforesaid complaint or
initiatory pleading has been filed.
The authorization of the affiant to act on behalf of a party,
whether in the form of a secretary’s certificate or a special
power of attorney, should be attached to the pleading.
Failure to comply with the foregoing requirements shall not
be curable by mere
amendment of the complaint or other initiatory pleading but
shall be cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after hearing.
The submission of a false certification or non-compliance with
any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding
administrative and criminal actions. If the acts of the party or
his or her counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct contempt,
as well as a cause for administrative sanctions.
What is forum shopping?
Basically you have one cause of action and then you file several
cases before several courts or tribunals hoping to increase your
chances of getting a favorable decision in any of those cases.
Q: Would that be allowed?
A: That is not allowed. That would be splitting your cause of
action because if you have one cause of action, you only have one
case. So its not just a ground for the dismissal of the case, it is
also a ground for the disciplinary action of the lawyer who
follows several cases, involving the same cause of action.
Polanco vs Cruz
Gr. No. 182426 | February 13, 2009
There is Forum-Shopping when as a result of an adverse
decision in one forum, or in anticipation thereof, a party seeks
a favorable opinion in another forum through means other
than appeal or certiorari.
Pwede ranang you file a case before the Regional trial Court and
there's an adverse decision and then you appeal to the higher
court. That is NOT forum shopping because your case is already
terminated in the Regional Trial Court.
So Forum-Shopping exists when two or more actions involve the
same transactions, essential facts, and circumstances and raise
identical causes of action, subject matter, and issues.
Another tests of Forum-Shopping is when the elements of litis
pendencia are present or where a final judgment in one case will
amount to res judicata in another whether in the two or more
pending cases, there is an identity of:
a) Parties (or at atleast such parties as represent the same
interests in both actions),
b) Rights or causes of action, and
c) Reliefs sought
For example: Kung sa first case kay ang papa tapos kay sa 2nd
case kay namatay naman ang papa, anak napod pero the same
issue, the same cause of action.
Chavez vs Court of Appeals
G.R. No. 174356 | January 20, 2010
So here, was the owner of the 5 hectare coconut plant on the
other hand, Chavez have been staying on the portion of the
land, thus she planted coconut seedlings and supervised the
harvest. There was an agreement between the two of them to
divide the harvest of the coconut and the products of the land.
Since Fidela was busy with her law practice, Evelina
undertook to hold in trust for Fidela her half of the profits.
Now, according to Fidela (lawyer), Evelina failed to remit her
share in the profits, she made several demands but still
Evelina failed to turn-over the proceeds as well as the
administration of the property.
So Fidela here, filed cases against Evelina:
Action to recover possession of the property, rent and
damages with prayer for the appointment of a receiver. ( Filed
in the Regional Trial Court)
In the answer of Evelina, She interposed the defense na, the
court has no jurisdiction because I am a tenant thus it is a
agrarian dispute therefore it should be referred to the
DARAB.
RTC- Case was dismissed for lack of jurisdiction, then it was
appealed to the Court of apeals.
CA- Continued here prayer for the appointment of a receiver
and it was granted by the Court of Appeals
Here, aside from the case of recovery of possession, Fidela
Filed another case which is
1. Estafa before the Regional Trial Court, and another
case for
2. Dispossession under Republic at 8048.
So in all these cases, Fidela asked for appointment of a
receiver.
ISSUE: Is there Forum Shopping? Remember that in all those
cases, there is a common relief sought which is appointment
of a receiver
Ruling
That Supreme Court Held that NO. The elements of forum
shopping are the same as in litis pendentia or where the final
judgment in one case will amount to res judicata in the other.
The elements of forum shopping are:
(1) identity of parties, or at least such parties as would
represent the same interest in both actions; ICAB: PRESENT
(2) identity of rights asserted and relief prayed for, the relief
being founded on the same facts; and
ICAB: In the first case, recovery of possession of the property
filed with the RTC. The Second Case is Estafa and the third is
dispossession which was filed in the DARAB. Similar and
reliefs? NO! They are not similar although it does involved the
same land.
(3) 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.
Q: in the recovery of possession of cases is decided with
finality does it affect the case in estafa? or if the estafa case is
dismissed or maybe the accused is convicted, will it affect the
cases for recovery of possession in the RTC and the ejectment
case before the DARAB?
A: No. They will not affect each other.
So here, why only be considered as a case of forum shopping,
again please remember what we have discussed before, there
are 5 sources of obligation. It would only considered as
Forum Shopping if you file these cases with the same cause of
action or only 1 cause of action. Like breach of contract you
filed these cases with the same contract and the same parties
that would be generally considered as forum shopping the
same factual circumstances.
Even if the same parties or factual circumstances but
1. You file a case for breach of contract of carriage.
2. You filed a case for Quasi-Delict
3. You filed a criminal case for Reckless imprudence resulting
to damage
Even if the same parties, facts but you have different causes of
actions. So that would not be considered as forum shopping.
In the case at bar, the cases are based on different causes of
action. The case for recovery of possession, it could be based
on contract because according to Fidela, there was an
implied agreement between them that Fidel would take care
of the land and she would remit the proceeds so therefore
there is a contractual agreement. And estafa, based on Delict
and then the Dispossession is based on law, because under
the law if there are certain violations, it could actually ask for
the dispossession of the tenant so there are different sources
of obligations.
The above cases are similar only in that they involved the
same parties and Fidela sought the placing of the properties
under receivership in all of them. But receivership is not an
action. It is but an auxiliary remedy, a mere incident of the
suit to help achieve its purpose. Consequently, it cannot be
said that the grant of receivership in one case will amount to
res judicata on the merits of the other cases. The grant or
denial of this provisional remedy will still depend on the need
for it in the particular action.
20
 circumstances or compelling
Certification of Non-Forum Shopping reasons.”
Q: What pleadings required a certification against forum Verification is deemed The certification against
shopping? substantially complied with forum shopping must be
A: Initiatory pleadings when one who has ample signed by all the plaintiffs or
knowledge to swear to the petitioners in a case;
Q: What are initiatory pleadings? truth of the allegations in the otherwise, those who did not
A: They are 7 pleadings dba, only 2 of them are responsive complaint or petition signs sign will be dropped as
(answer and reply) all others are initiatory pleadings. the verification, and when parties to the case. Under
matters alleged in the reasonable or justifiable
When it comes to permissive counter-claim as initiatory petition have been made in circumstances, however, as
pleading, the compulsory counter-claim is not considered as good faith or are true and when all the plaintiffs or
initiatory pleading. Kung compulsory siya it does not require as correct. petitioners share a common
certification against a forum shopping because in the first place interest and invoke a
you have no choice, you cannot opt to just file your counter-claim common cause of action or
in another proceeding, you have to interpose that when you file defense, the signature of only
your answer otherwise the compulsory counterclaim is deemed one of them in the
barred from permissive because you have the option to attach a certification against forum
certification against forum shopping in your counter-claim. shopping substantially
permissive ha. complies with the Rule.
Executed by counsel. The certification against
So Initiatory pleadings, if it is not an initiatory pleading, it does forum shopping must be
not need a certification against forum shopping. How does it executed by the party-
look? Usually in practice, we lumped them. For example it is an pleader, not by his counsel.
initiatory pleading, which requires a verification, and
certification, again it is similar to an affidavit to these are the Reasonable or justifiable circumstances- what would these
allegations circumstances be?
"I hereby certify that we have not commenced or caused to EX: When all the plaintiffs or petitioners share a common
commenced any other action or proceeding involving the same interest and invoke a common action or defense, the signature of
issue of the subject matter with the Supreme Court, The Court of only one of them under the certification against Forum Shopping
Appeals or any other tribunal or agency and to the best of my substantially complies with the rule. So, dili gihapon siya i-drop
knowledge there is no such action or proceeding pending therein. because they all share the same cause of action or defense. Kay
I undertake that should I learn that there is a similar action parehan naman kung bisan pag siya ang signors, pareha lang
pending any such courts, tribunal or agencies" gihapon ang ilahang gistorya.

Signature dayun and then subscribed and sworn to, this is the
Jurat. MUST BE EXECUTED BY THE PARTY
Finally, the certification against forum shopping must be
Kung halimbawa because you already mentioned and you filed a executed by the party-pleader, not by his counsel. If however, for
complaint and it does not have to be verified, you can just omit reasonable or justifiable reasons, the party-pleader is unable to
the word verification so ang title kay Certification against Forum- sign, he must execute a SPA designating his counsel of record to
Shopping. Magsugod dayun ka didto sa "I am bla bla bla" If it is sign on his behalf. Which is, included now in the rules. In fact, the
just a certification against forum shopping lang ni ha. Kung gusto rules say that the authorization must be attached in the pleading.
ka magkapoy2 pwede pod magbuhat kag verifaction separately
and then mag buhat sad kag lain certification against forum Consequence if lawyer signs without authorization
shopping na separate, but usually, e lump lang na siya by But for example, if it was just a lawyer who signed, and he has no
affidavit. authorization? What will be the consequence? Like in this case, it
was the lawyer who signed on behalf of the other parties. He had
Lynman Bacolor vs VL Makabili Memorial Hospital no authorization.
790 SCRA 20 | G.R. No. 204325 | April 18, 2016
Facts: This is a petition for Certiorari filed with the Court of appeals. Naay
Q: Should we consider the parties represented by these lawyers
tulo ka separate verification kadtong pareha sa ako gbuhat bitaw na gi lump
as dropped from the case?
na nia which is signed by Doctor Tidula, the other one by Bacolor, and the
A: The SC said, that there was substantial compliance. Why?
other one by Helen. Mga petitioner ni silang tulo, and then there is another
Because in this particular case, 3 out of 6 petitioners signed 3
one executed and signed by Atty. Francisco for in behalf of Doctor Villegas
separate verifications. Their signatures are significant assurance
and Canlas and Zeila; kani sila mga Petitioner pod. The 3 signed on their
to the allegations in the petition. They were in good faith. We're
owned behalf and then the other 3 kay nag sign si Francisco in behalf of the
talking here of the verification requirement.
other 3 doctors.
The Court of Appeals: Dismissed the petition for certiorari since the
ABERILLA vs. NLRC
Verification Certification of Non-Forum Shopping was signed by Atty.
Francisco was not authorized although he was the counsel of record but there
How about the certification requirement? The SC cited cases
was no authorization signed by the three (3) petitioners authorizing Atty.
here. In this case, 47 out of 88 petitioners signed the
Francisco to signed the verification.
certification against forum shopping. But the SC considered it
So, of course the petitioners argued na we should relax the rules because the
as substantial compliance because they all shared a common
3 petitioners who made the verification are the real party in interest and the
cause of action- illegal dismissal, against the same employer.
counsel who also verified the petition had been in possession of the pending
So when petitioners also appealed, they pursued the case as a
documents and relevant records of the case.
collective body, invoking one argument in support of their
cause of action (illegal dismissal).
As compare to a verification, mas relax and rule sa verification, mas
strict ang rule sa certification against non-forum shopping.
Torres vs. Packing Dev. Corporation
Here the SC summarized the distinctions between certification and
G.R. No. 149634 | July 6, 2004
verification.
2 out of 25- again, there are compelling grounds.
There was apparent merit in the substantive aspect of the
case. Here, the LA and the NLRC had different rulings. So the
Verification Certification of NON-
SC said there is a leave to really identify which is the proper
FORUM SHOPPING
cause of action or defense in this particular case. Kay for
Noncompliance therewith or Noncompliance therewith or
example, parehang ruling si LA ug si NLRC. Chances are, mao
a defect therein does not a defect therein, is generally
na gyud na siya. There's no need to further take a look into
necessarily render the not curable by its
the case. Kay chances are, tama na to siya. Pero in this case,
pleading fatally defective. subsequent submission or
lahi man sila ug ruling. So there's a need to look deeper-
correction thereof, unless
There's a compelling ground to examine the allegations in the
there is a need to relax the
petition. There is a need for a leave on the merits. And an
Rule on the ground of
outright dismissal of the petition would be prejudicial to the
“substantial compliance” or
substantive rights of the parties. So in this particular case, the
presence of “special
same cause of action. They were all resident physicians who

21
 were purportedly re-employed by the hospital even after the
expiration of the 1 year contract. They were all demoted, they
were accused of violations of the hospital rules and
regulations and they were dismissed. So here, the SC said that
the mandatory requirements supposedly of the certification
against forum shopping allow substantial compliance.
Because there is a justifiable circumstance. And then
there is a common cause of action.
Digital Employees Union vs. Digital Telecomms
G.R. Nos. 184903 | October 10, 2012
In this case, the petition here was a petition for certiorari. And
then the verification and certification was signed by the
President of DEU, Mr. Ricardo. Now take note that the petition
was filed at October 20, 2014. Dapat ang petition naka-attach
na diha ang verification and certification. At that time, wala pa
naka-attatch. And it was only on December 15, 2014 that it
was compliance that the petitioners submitted the Board
Resolution authorizing Ricardo to represent DEU. So of course
ang kalaban, it was cited as a defect. Because at the time that
he filed the petition, wala pay verification and certification. So
at the time when the petition was filed, he had no authority to
sign the same on behalf of DEU. So it should be dismissed
because it was effective pursuant to Rule 45, Secs. 1 and 4.
Again here, the SC reiterated the same distinctions between
verification and certification. So ang question here is: There
was a defective verification and certification. But would that
be a ground to dismiss the petition? Actually the SC said, in
past cases also, that the authority of the President of a
juridical entity whether a corporation or a union, to sign
verifications and certifications without prior board approval
is based on the role and function of a president within the
juridical entity. That president is in a position to verify the
truthfulness and correctness of the allegations in the petition.
So even without a board reso, that president- due to his
position, he can actually sign the verification and
certification. Even without a board resolution, or
secretary certificate.
And in this case, there was subsequent compliance also
because his authorization in the form of a Board Resolution
was also submitted. So there was substantial compliance. And
the substantive issues raised in this case, and the indications
they have for the likelihood of Digital's workers compel this
court in the name of justice to relax the rules and allow the
litigation to be tried on the merits. So if justice is to be done to
the workers of Digitel, we must be afforded the utmost
opportunity for the proper and just determination of their
cause without regard to technicalities.
Banco Filipino Savings vs. Bangko Sentral ng Pilipinas
G.R. No. 200678
June 04, 2018
This is a bank that was already placed under receivership.
Now although we know before na ang receiver, actually is not
a real party in interest, it is just the representative. It's not
even a co-party. However, because the bank is already placed
under receivership, the powers of the Board of Directors and
Officers are already suspended. So the BOD could not have
validly authorized its executive VP to file the suit on its behalf.
So, the president also- even if naay Board Reso ha, he cannot
sign the verification and certification against forum shopping
because the bank is already under receivership. The closed
bank may sue and be sued only through its receiver. Any
action filed by the closed bank without its receiver may
be dismissed. So that is the consequence of a
receivership.
So the signatories were not validly authorized by the receiver. So
the petition does not produce any legal effect. The court did not
acquire jurisdiction over the petition.
Victoriano vs. Dominguez
G.R. No. 214794 | July 23, 2018
In this case, the petition for review with the CA. The CA
dismissed the petition because wala na gibasa sa CA kung
unsa imong gipangyawyaw didto sa imong petition. Unahon
gyud nimo nang tanaw kanang formal requirements:
1. Statement of material things. Because in your petition for
review dapat isulat nimo kung kanus-a nimo na receive ang
order or resolution dismissing your case of motion for
reconsideration. Kay diha mustart ang reglementary period.
2. There is no explanation why the preferred mode of
personal service was not resorted to. There has to be an
explanation ngano wala ka naka personal service.
3. Now in relation to verification and certification, mao ni
siya ang defect. The verification does not state that the
allegations in the petition are true and correct, of the
affiant's personal knowledge and based on affecting
records.
4. And then, the certification against forum shopping does
not state that to the best knowledge of the affiant no such
other action is pending therein.
5. Notarization on the verification certification. It violated the
Rules on Notarial Practice. There is no properly
accomplished jurat subscribed and sworn to showing the
competent evidence of identity. Under the Notarial Rules,
government ID ang ipakita.
6. And the IBP number of the counsel, walay date of issuance.
It does not appear to be updated.
The SC reversed the CA. As to this allegation- as we have
already discussed, dili kinahanglan na "and". "The allegations
are true and correct of the affiant's personal knowledge and
based on..." it could be kana lang, or both. So it could be na the
allegations are true and correct of the affiant's personal
knowledge- wala na siya nag sabi na based on authentic
records. The SC said it constitutes sufficient compliance with
the rules. So we already discussed, it is "or". It's not "and."
It could either be "or" or "both". Bearing both a disjunctive
and conjunctive sense, This parallel-legal certification avoids
a construction that would exclude the combination of the
alternatives or bar the efficacy of anyone of the alternatives
standing alone.
Katung iyahang certification which failed to state that there is
no other similar action pending, wala niya na mention. The SC
said its really not a fatal defect. Citing the case of Santos vs.
Litot Mills Inc. Here the petitioners Mills attested that they
have not commenced any other action or proceeding
involving the same issues with the SC, or any tribunal or
agency. Wala siya nag ingon na walay pending case. Ang
iyahang gi-ingon is wala siya nag file ug any other case
before the SC, the CA involving the same cause of action.
So the SC said, applying this to the case at bar the assurance in
the certification that he had not filed any other case in court
shall likewise constitute substantial compliance.
As to the requirement of Cedula
Well actually its not allowed as a competent evidence of
identity, but under the Notarial Rules, if the affiant is
personally known to you- it is not required na mangayo pa ka
ug ID. Although ha, dili ko pwede man notaryo ug relatives of
affinity or consanguinity within the 4th civil degree. So up to
sa first cousins.
Lack of IBP Number
How about the fact na wala na identify ni Atty. and iyahang
IBP number? The SC said that it was an inadvertent mistake,
and it was rectified. In the motion for reconsideration, the
lawyer subsequently indicated the date and place of the
issuance of his IBP number. So there was substantial
compliance.
De Lima vs. Guerrero
G.R. No. 229781 | October 10, 2017
Certification against forum shopping. According to the lawyer
who notarized the Certification against Forum Shopping, she
prepared the document- the pleading. And then she
forwarded the pleading to Senator De Lima, who was in
prison, in Muntinlupa. And then gihatag niya didto ang
pleading, gibasa, gi-review ni De Lima, and then gipirmahan
niya ang verification and certification. And then niadto si
lawyer hoping to have an audience with De Lima. But the
lawyer was not allowed entry in the detention facility where
De Lima was actually staying. So she just got the signed
pleading, and said (because De Lima was her client and she's
familiar with the signature), so she notarized the certification-
verification. And in fact, the next day, she again attempted to
go and verify with De Lima if it was really signed by her, but
wala gihapon siya kasulod. Ang question here: Was there
proper verification and certification?
RULING:
The SC said No. Strict sila. Why? Because it violated the rules
on Notarial Practice. The rules say that you do not notarize if
not in the presence of the affiant. Dapat in his or her's
22
presence. So the admission of the lawyer herself shows na it lawyer can sign, not just
was signed not in the presence of the notary public. So the SC any lawyer- it must be the
said it was a defective verification. While there is lawyer who has ample
EXE: Under reasonable or
jurisprudence to the effect that an irregular notarization knowledge to swear on the
justifiable circumstances, when
merely reduced the evidentiary value of the document to that facts alleging the complaint
all the plaintiffs or petitioners
of a private document, which requires proof of his due or petition. And when
share a common interest or
execution and authenticity to be admissible as evidence, the matters alleged in the
invoke a common cause of
same cannot be considered as controlling. For example, naay petition have been made in
action, or defense, any one of
mga cases. Deed of Sale. And then muana ang pikas, "Atty. Mag good faith, or are true and
their signatures in the
file-kug kaso." "Unsa man?" "Ipa-annul nako ang Deed of Sale. correct, the verification
certification will be considered
Why? Because its defective, its not notarized. Or maybe it was may not be signed by all the
as substantial compliance with
notarized pero wala gyud ko niadto ana sa lawyer. Would that parties.
the rules.
render the Deed of Sale defective? No. Because in general,
Section 6.
contracts are valid in whatever form they are entered into,
Contents. — Every pleading stating a party’s claims or defenses shall,
unless the law requires a certain form for its validity or
in addition to those mandated by Section 2, Rule 7, state the following:
enforceability. So ang Deed of Sale, does it require ba a proper
(a) Names of witnesses who will be presented to prove a party’s claim
form? No because it is a consensual contract. Although under
or defense;
the Statute of Frauds, it must be in writing for it to be
(b)Summary of the witnesses’ intended testimonies, provided that the
enforceable. But if there is already compliance, even if it is not
judicial affidavits of said witnesses shall be attached to the pleading
in writing, it can be enforced already.
and form an integral part thereof. Only witnesses whose judicial
affidavits are attached to the pleading shall be presented by the
So here, it does not reduce the validity of the sale just because
parties during trial. Except if a party presents meritorious reasons as
the notarization was defective. But because the law does not
basis for the admission of additional witnesses, no other witness or
require a deed of sale to be notarized in the first placed for its
affidavit shall be heard or admitted by the court; and
validity. But here the rule says that the verification and
(c) Documentary and object evidence in support of the allegations
certification must be under oath. So its part of the
contained in the pleading.
formality of a verification and certification. That is why,
because it was defective in the sense that it was notarized
without the presence of the affiant, it is defective. This is a new provision under the amended rules. So, other than
those mandated by Section 2, Rule 7 – we discussed already the
matters that must be included in the pleadings. Section 6 now
VERIFICATION CERTIFICATION
says, we have to include:
PURP The purpose is to secure It is rooted in the principle that
(a) Names of witnesses who will be presented to prove a
OSE the assurance that the the party litigant shall not be
party’s claim or defense;
allegations of the petitioner allowed to pursue simultaneous
This is required for pleadings stating a claim or a defense. It
have been made in good remedies in different fora as this
could be the:
faith, are true and correct, practice is detrimental to
1. Complaint;
and not merely speculative. orderly judicial procedure.
2. Answer;
CONT The party verifies that he The plaintiff or principal party
3. Counterclaim;
ENT has read the pleading, and certifies under oath that he has
4. Cross-claim;
that the allegations therein not commenced any action, or
5. Third-party (etc.) complaint.
are true and correct of his filed any claim involving the
personal knowledge or same issues in any court, or
This was NOT required under the old rules. This was only
based on authentic records quasi-judicial agency and to the
required when you file your pre-trial brief. In the pre-trial brief,
and the other allegations best of his knowledge, no such
that is where you indicate the:
mentioned in the amended action or claim is pending
1. Names of the witnesses; and
rules. therein.
2. The substance of their proposed testimonies.
APPLI The verification This requirement applies But to now, ibutang na nimo sa imohang complaint or answer.
CATIO requirement applies only complaints and other initiatory
N when the law or rule state pleadings which include (b) theSummary of the witnesses’ (…) by the court;
that the pleading must be original civil complaint, counter-
So, aside from including in the complaint the names of the
verified. As a general rule, claim, cross-claim, third party
witnesses and the summary of their proposed testimonies, you
pleadings need not be complaint, fourth, etc. now or have to attach the judicial affidavits. This is a new change
verified. complaint in intervention,
because prior to the amendment, the Judicial Affidavit Rule
petition, or application wherein
provides that the judicial affidavit need not be attached to the
a party asserts his claim complaint
for or the answer. You only need to submit the judicial
relief. affidavits at least 5 days prior to the preliminary conference, or
EFFEC Non-compliance of the It is generally not curable bypre-trial
the or hearing, where those judicial affidavits are intended
T OF verification requirement subsequent submission toor be identified and presented. Actually, mas lisod na karon mag
NON- does not necessarily render correction, unless there ispreparea ug complaint. Because before you can file your
COMP the pleading fatally ground to relax the rule on complaint,
the you have to complete everything. Maybe the Supreme
LIANC defective. The court may ground of substantial
Court also noticed that this should be done kay magfile-file ka ug
E order its submission or compliance, or presence kaso of unya di man diay ka ready. Mag file ka ug complaint and
correction, or act on the special circumstances then or later on, mag sige ka-postpone kay wala nahuman sa
pleading, if the attending compelling reasons. pagprepare sa judicial affidavits.
circumstances are such that
strict compliance of the Maybe this is also the reason why mas taas-taas na pud ang
rule may be dispensed with period sa defendant to file his answer. Definitely, 15 days under
in order to serve the ends the previous Rules would not be sufficient to accomplish
of justice. everything – the preparation of the answer, the judicial affidavits.
EXEC A verification may be Certification against forum
BY executed by a party or shopping must be executedSo, byonly witnesses whose judicial affidavits are attached to the
WHO counsel. the party-pleader, not pleading his shall be presented by the parties during trial. Kung wala
M counsel. If however siya’y
for judicial affidavit sa imohang compliant, you cannot present
reasonable or justifiable
him during the trial. You cannot later on, as a general rule, submit
reasons, the party-pleaderhisisjudicial affidavit. The same thing for the defendant. Except
unable to sign, he must executewhen there is a meritorious reason as basis for the admission of
a SPA designating his counsel of
additional witnesses. Maybe, the presence or testimony of this
record to sign on his behalf. witness was discovered only after the complaint was filed.
AS TO Verification is deemed Because at the time you filed the complaint, wala ka kabalo na
SUBST substantially complied with naa diay ani na person who can testify to this matter. That would
GEN RULE: All the parties must
ANTIA when one who has ample be an example of a meritorious reason.
sign in the certification.
L knowledge to swear to the
Otherwise, those who did not
COMP truth of the allegations in (c) Documentary and object evidence in support of the
sign will be deemed as dropped
LIANC the complaint or petition allegations contained in the pleading.
as parties to the case.
E signs the verification. So So, mura siya’g complaint na nasagol na didto ang imohang pre-
even if you say that the trial brief. Although, in addition to that, sa pre-trial brief, there’s

23
still the proposed stipulation of facts, the admitted facts or issues. 2. Corresponding obligation of the
Pero katong names of witnesses, substance of proposed defendant;
testimonies, and documentary and object evidence, naa na na 3. How the defendant violated your
siya sa pleading. rights

Q: What if any of these items would not be included in the
complaint or in the answer?
A: The word used here is “shall.” So, wala pa man jurisprudence.
How can we interpret this? I cannot say that this should be
interpreted na discretion because when you say “shall,” it is a
mandate. It should be done.
1. If you are the defendant and the complaint failed to indicate
these items, you can cite that as your affirmative defense – that
the complaint fails to state a cause of action kay kulang man
ang mga requirements.
2. It could also be used as a ground for a judgment on the
pleadings. Because if you just rely on the pleadings and
incomplete siya, you can already render a judgment.
So, this is one of the very different provision under the amended
rules.
RULE 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Section 1.
In general. — Every pleading shall contain in a methodical
and logical form, a plain, concise and direct statement of the
ultimate facts, including the evidence on which the party
pleading relies for his or her claim or defense, as the case may
be.
If a cause of action or defense relied on is based on law, the
pertinent provisions
thereof and their applicability to him or her shall be clearly
and concisely stated.
What are the matters that you need to include in your pleading?
As a consequence of the violation, what
did you suffer?
Factum probandum is a proposition to Factum probans is
be established the material
evidencing the
proposition
Factum probandum is hypothetical Factum probans is
existent – it
proves the
hypothetical
assertion
But, under the old rules, even in the complaint, you did not have
to indicate the evidentiary facts. But in order for you win your
case, you must be able to have both the ultimate facts and the
evidentiary facts. The evidentiary facts under the old rule had to
be threshed out during the trial already. But now, as early as in
your complaint or answer, you should state the evidentiary facts.
Q: What is the reason why you have to state the evidentiary facts
now?
A: Again, if you’re filing a case, you should have everything
already. You should have all pieces of evidence to prove your
cause of action or defense. In the first place, gwapo lagi kaayo
pagkabuhat sa imong complaint, kompleto siya sa statement of
the ultimate facts, pero wala ka’y ebidensya. So, you are just
wasting the time of the Court and of your client. Ngano pa man
nato ni gipa-file ug kaso na kabalo man diay ta na dili siya
madaog kay kulang ang evidence. For the defendant, nganong
nahurot nato ang 10 years trying to defend this person na wala
man siya’y evidence to back up his defense? So, dapat sa
complaint pa lang or sa answer, makita na nato ang status sa case
– is it winnable or is it a losing case?

PREVIOUS AMENDED If a cause of action or defense relied on is based on law, the

the Rule says na you should The law says it shall
state the ultimate facts, contain in a methodical
omitting evidentiary facts. and logical form, a plain,
When you say evidentiary concise and direct
facts, before ha, they are not statement of the ultimate
required to be stated in the facts, including the
pleading because they can just evidence.
be proved later on during the But here again, the Rule
trial. The evidentiary facts are says include the evidence –
intended to prove the ultimate so, evidentiary facts need
facts. So, even if your to be mentioned.
complaint does not state the
evidentiary facts, as long as the
ultimate facts are there, your
complaint is already sufficient.
That is why we have to make a distinction between ultimate facts
and evidentiary facts. Because if your pleading fails to state all
the ultimate facts, your complaint is susceptible to dismissal on
the ground of failure to state an action. It may be that even if in
reality, you may have a cause of action, but the way you drafted
your complaint, it failed to recite all the elements of a cause of
action.
pertinent provisions thereof and their applicability to him or
her shall be clearly and concisely stated.
PREVIOUS AMENDED
Actually, under the But now, even in the complaint
previous rules, this is only or in a pleading asserting a
required in a pleading claim. So in your complaint,
asserting a defense, like kung ang imohang basis is a
an answer. So, if you’re violation of your right based on
defense is based on a the law, you should also cite the
provision of law, you specific legal provision and how
should cite what that law it is applicable to you. Because,
is and how it is applicable again, under the old rule,
to you. ultimate facts lang ang
kinahanglan nimo i-cite sa
imong complaint.
Even if we have the Rules na revised, there are still matters that
need not be stated in the complaint. The law says na they don’t
have a place in your complaint, pero if you include them, would
that make your complaint defective?
 NO. As long as you have the ultimate facts and now,
also the evidentiary facts.

Even under the old rules, bisan pa’g ingon na ultimate facts lang, MATTERS THAT NEED NOT BE STATED IN THE PLEADING:
detailed kaayo ko mag prepare ug pleading. Dili kaayo ko ga rely 1. FACTS WHICH ARE PRESUMED BY LAW;
na dapat ultimate facts lang. Kay feeling nako shabby ra pud Example, contract of breach of carriage. In that kind of contract,
kaayo siya tanawon. So, dapat gwapo imong pleading. But now when there is a violation, negligence is already presumed. So,
I’m right, so advanced lang ko. when you file a case for breach of contract of carriage, it is not
required for the plaintiff to prove negligence on the part of the
Ultimate Facts Evidentiary Facts defendant. The law presumes that there is negligence. The
factum probandum factum probans burden is on the defendant to prove that he was not negligent.
Those essential to one’s cause of action Those intended to Although it may not be the reason for the breach of contract, if
or defense. prove the ultimate you fail to state the negligent act, it does not make your
facts. complaint deficient.
HOW TO DETERMINE WON THE
FACT IS ESSENTIAL (TEST/S): 2. CONCLUSIONS OF FACT OR LAW
1. If the omission of such statement Statement of Fact Conclusion of Law
in a pleading renders the cause of Example: 5 days na wala ka Example: 5 days na wala ka
action or defense incomplete. By nakatulog and nagpa- nakatulog and nagpa-
reason of such omission, an checkup nalang ka sa checkup nalang ka sa
element of cause of action psychiatrist kay feel nimo psychiatrist kay feel nimo
disappears, then it must be a nabuang na ka but it was just nabuang na ka but it was just
statement of an ultimate fact. because of your serious because of your serious
anxiety. anxiety – then, you are
COMPLETE STATEMENT OF THE entitled to moral damages.
ULTIMATE FACTS:
1. Statement of the rights;

24
It is the court which eventually decides what the proper
application of the law is. You can only help the court arrive at the
decision.
3. MATTERS WHICH ARE IN THE DOMAIN OF JUDICIAL
NOTICE
It is a cognizance of certain facts which judges may properly take
and act on without proof because they already know of them. It is
a rule of law or of evidence that allows a fact to be introduced
into evidence and the truth of that fact is so notorious or well-
known that it cannot be refuted.
For example, in the complaint, you said Dajangas pero ang
pangalan niya karon is General Santos. Now, you are contesting
that the venue is improperly laid – what is that Dajangas that you
are referring to? You do not have prove that Dajangas is the same
as General Santos.
Section 2.
Alternative causes of action or defenses. — A party may set
forth two or more statements of a claim or defense
alternatively or hypothetically, either in one cause of action or
defense or in separate causes of action or defenses. When two
or more statements are made in the alternative and one of
them if made independently would be sufficient, the pleading
is not made insufficient by the insufficiency of one or more of
the alternative statements.
We discussed before that a party can have 2 or more causes of
actions embodied in the same complaint. When you say
alternative, you are not praying to recover both of them. Either
lang – quasi-delict or contract of carriage?
Q: Are you allowed to assert alternative causes of actions?
A: Yes. It is mentioned under Section 2. As long as each cause of
action is complete and consistent, you can interpose 2 or more
causes of action.
EX: A passenger wanted to board a bus and then, he was about to
step on the ledge and nidagan ug kalit ang bus. So, nahulog siya
and he suffered damages. But what is your cause of action?
Halimbawa, dili ka sure. Naa ba’y contract of carriage kay wala
man ko nakasakay sa bus? So, if not sure, then you can file in the
alternative breach of contract of carriage or quasi-delict. So,
kinsa imong defendant? If it is the driver alone, dili pwede sa
iyaha ang breach of contract of carriage because you don’t have a
contract. So, your defendant would be the bus company. But
there is also a thing such as alternative defendants. Or you can
just lump them. Anyway, if it is for quasi-delict, it would be both
the driver and the owner of the bus. If it for breach of contract, it
would be the owner of the bus. So, in the alternative also.
Q: What are the possible defenses that the defendant can
interpose in his answer? Can he impose alternative defenses?
A: Yes. For example, A filed a case against B for collection. B, in
his answer, what could be his possible defenses?
1. Payment – that he already paid the loan; or
2. Deny the existence of the loan – that I did not borrow anything
or my signature in the promissory note is forged.
Can he do that? Unsa man gyud? Wala ko ni-pirma unya ni-bayad
na ko. It may sound absurd, but he is not prohibited from
doing that. He can interpose alternative defenses. Although in
the appreciation of these defense, the court may think, “Unsa
man gyud ang tinuod?” Because your defenses could be
inconsistent when compared to each other but as long as it is
consistent in itself, you are allowed to interpose the defense. That
is what we call a shotgun answer, murag sa exam. And in relation
to an answer, chances are ibutang nato tanan possible defenses.
So, bisan pa muingon ka nga na dili siya consistent, but we have
to be aware of the rule na defenses or objections, which are not
raised in the answer, are deemed waived.
So, ibutang jud nimo tanan ang imong defenses because kung
didto pa nimo ma realize later during the trial, wala na waived
na, you cannot prove your defense anymore. Bahala nag
inconsistent imong mga defenses as long as you can prove any of
those defenses and you can have the case dismissed. You don't
have to prove all of your defenses, any of those possible defenses
would be sufficient.
Q: What are the other alternatives provided in addition to Sec 2?
A: Under Rule 2, Sec 5 - Alternative causes of actions and Rule 3,
Sec 6 - Permissive joinder of parties when they are joined jointly,
severally or alternatively. Rule 3, Sec 13 - Alternative defendants
which we already discussed.
Section 3.
Conditions precedent. — In any pleading, a general averment
of the performance or occurrence of all conditions precedent
shall be sufficient.
Again, you have to state the ultimate facts as well as the
evidentiary facts. We've already discussed before the concepts of
a cause of action and the right of action. A person may have a
cause of action but he might not have a right of action.
Example 1: Naay right ang plaintiff, right to retain sa gi utang ni
defendant, si defendant nay obligation to pay. He did not pay and
the plaintiff suffered damages. But as a general rule that kind of
cause of action requires prior conciliation with the barangay if
both parties are residents of the same city or municipality. You
cannot file it directly in court, so dapat naa kay certification to
file an action. How do you incorporate that? You have to
incorporate that in your complaint, otherwise it is insufficient
because it is part of your right of action, which is the observance
of the condition precedent. So, you have to allege that in the
complaint.
"On January 1, the plaintiff filed a case before the barangay and
the barangay issued summons to defendant and there were 3
conciliation proceedings in which the defendant did not appear.
Eventually it was referred to the lupon. “
Q: Do you have to cite the specifics?
A: It can just be averred generally that plaintiff complied with the
prior condition of barangay conciliation, attached to the
complaint is the certification to file action which is exhibit A to
this complaint. So what is needed is general averment , you don't
have to cite the specifics.
EX 2: Earnest effort towards a compromise, this is required if a
suit involves members of the same family. It must be shown
earnest effort towards a compromise was made. We don't have
to prove na nag meeting mo that day, you just have to state that
there was earnest effort towards a compromise but it failed.
EX 3: Exhaustion of Administrative Remedies, for example in just
compensation cases before the court proceeding muagi pa ka ug
administrative proceeding sa DARAB for the preliminary
determination of just compensation and if dili mo ma satisfy then
you can go to court. So you can just aver generally that there is a
prior exhaustion of administrative remedies because there was a
decision by the DAR to sustain the just compensation computed
and that's why you are filing a case before the court.
Section 4.
Capacity. — Facts showing the capacity of a party to sue or be
sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred.
A party desiring to raise an issue as to the legal existence of
any party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which
shall include such supporting particulars as are peculiarly
within the pleader’s knowledge.
For a party to be considered as a plaintiff or a defendant, aside
from the fact that he must be a real party in interest he must have
the capacity to sue and be sued.
NATURAL PERSON: If you are talking of a natural person that
person must be of legal age, he must not be suffering under any
of those disqualifications like a case under civil interdiction. For
example he is under civil interdiction he can only be represented
by a legal guardian.
Now in the pleadings, how do you allege that the plaintiff or
defendant has capacity to sue? Even if in reality naa siyay
capacity to sue but in your complaint or answer how do you say
na naa siyay capacity to sue?
 The rule says na it should be stated with
particularity. You have to state the facts which shows
that he has capacity to sue. If he is a natural person so
for example " Juan Dela Cruz of legal age, married,
Filipino Citizen, and a resident of Davao." So you have
to state those facts. No need to include the specifics
like "to prove that he is of legal age, attached hereto is
the birth certificate" So you don't have to attach or
include the passport, marriage certificate in your
complaint.
Although if in the answer of the defendant he would say na "the
defendant denies the allegations in paragraph 1 of the complaint
25
because plaintiff is not of legal age, not a resident of, not
married." So diri na ka kailangan mag present ug evidence.
There is no presumption of capacity or incapacity to be sued.
Example: The plaintiff is a minor and you are suing in your
capacity as the legal guardian of the plaintiff. If you are the
parent, no problem because under the law the parents are the
legal guardian and you just have to state that you are the parent.
Pero if you are not the legal guardian but only a guardian
appointed by the court, then you have to state on what basis did
you become the guardian, so you will state that under such
decision you were appointed as a guardian.
JURIDICAL PERSON: it must be registered with the SEC for it to
be considered as having the capacity to sue or be sued but
subject to certain exceptions like a labor union that even if it is
not registered with the SEC it can sue or be sued.
Juridical persons, how do you allege the capacity of the juridical
person? If it is a corporation then "Plaintiff ABC corporation is a
corporation duly registered and existing under the laws of the
Republic of the Philippines, attached hereto is the articles of
incorporation of ABC corporation. The corporation for the
purpose of the instance suit is to be represented by its president
Juan Dela Cruz then you attach the Board Resolution or the
Secretary Certificate proving the authorization of the said person
to represent the corporation"
Now, it is important that if it is a corporation you have to
emphasize that it is doing business in the Php. If it is a
domestic corporation there is no problem because they can sue
and be sued in the Philippines but if it is a foreign corporation
you have to allege that it is doing business in the Philippines
for it to have capacity to sue.
In relation to capacity to sue which must be averred with
particularity:
ASSOCIATION OF FLOOD VICTIMS v. COMELEC
G.R. No. 203775, August 5, 2014
A petition was filed in this particular case. The petitioner
Association of Flood Victims represented by Hernandez. In
the petition it was stated that the petitioner Association of
Flood Victims is a non profit and nor partisan organization in
the process of formal incorporation. The primary purpose of
which is for the benefit of the common or general interests of
many flood victims who are numerous, so numerous that it is
impracticable to join all as parties, so they intended to file a
class suit.
The capacity to sue of the petitioner here was questioned.
Does the Association of Flood Victims have the capacity to
sue? Obviously, it does not have capacity. From the very
allegation in the petition itself it says "In the process of
formal incorporation" so it is not yet registered with the
SEC and therefore it does not have a juridical personality
on its own which can sue or be sued.
How about the fact that the association was represented by
Hernandez who is a natural person? So as a natural person he
has the capacity to sue, would that be curative of the fact that
the corporation does not have the capacity to sue but it is
represent by Hernandez who by himself has the capacity to
sue?
 No, it is not curative. Because the petitioner here is
the association and not Hernandez.
How about the premise that it is a class suit? So the one filing
is not the only real party in interest but also the others who
are members of the class. These members may have the
capacity to sue but would that be enough?
 No, because Hernandez was not authorized by the
members to institute the suit. It is not actually a
class suit, he is not authorized by the members to
represent them in this suit.
How about if all the members of the association will file on
behalf of the association? Will it cure the defect?
 No, because the plaintiff is the association and not
the members. Maybe if the members themselves
would file in their own name then they would have
capacity to sue. But when you say the Association
which is not a juridical person represented by all
its members that will not cure the defect that the
corporation does not have the capacity to sue.
The SC said, it is not considered as a juridical person or an
entity authorized by law, which can be a party to a civil action.
Just remember, when you file a case in a representative capacity.
You look at the capacity of both, the capacity of the plaintiff and
of the representative. Even if the plaintiff has the capacity to sue
but he only authorized his 12-year-old son then it would not be
proper because the representative will not have the capacity to
act.
Now let's discuss about the defendant. The rule says a party
deciding to raise an issue as to the legal existence of any party or
of the capacity of any party to sue or be sued in a representative
capacity shall do so by specific denial.
So, if you are the defendant and you want to make an issue as to
the legal capacity to sue of the plaintiff, so you will deny in your
answer. You just don't say "I deny the allegations in paragraph 1
of the complaint." You have to specify why you are denying.
"Defendant denies the allegations in paragraph 1 of the
complaint insofar as the capacity to sue of the corporation is
concerned because in truth this alleged corporation is not
registered with the SEC." So that is a specific denial, you have to
allege with particularity.
Section 5.
Fraud, mistake, condition of the mind. — In all averments of
fraud or mistake, the circumstances constituting fraud or
mistake must be stated with particularity. Malice, intent,
knowledge, or other condition of the mind of a person may be
averred generally.
In your answer or in your complaint you want to allege fraud.
Maybe in your complaint for annulment of contract, so the basis
would be fraud. Or in a case of specific performance and your
defense would be you were induced to sign the contract because
of fraud.
Would that be enough, to state that there was fraud employed by
the defendant which was precisely the reason why the plaintiff
signed the contract?
 No, fraud or mistake must be stated with particularity.
Meaning you have to state what were those facts which
would constitute fraud. Like “The plaintiff already got
himself a ballpen ready to sign the contract but then
suddenly there was a blackout and then the defendant
lighted a gas lamp and the plaintiff went to the comfort
room, then went back to the table and trusting that it is
still the same document which he was about to sign, he
signed the contract. Because it was dark, he was not able to
read the contract before he signed. He was surprised that a
few days later that what he signed was a contract different
from what was presented to him by the defendant.
Subsequently he discovered that there was actually no
blackout in the place but only the house of the
defendant."So, you have to state those facts which would
show that there was fraud. So that is how to allege a fraud
or mistake.
The rule says that Malice, Intent, Knowledge, or Condition of the
mind may be averred generally. So why is general averment
sufficient?
 When you say Malice or Condition of the mind, you cannot
read the mind of a person. In some cases, malice would be
presumed based on the circumstances. So here you cannot
describe in detail what went on in the mind of the defendant.
So, there is no need to aver with particularity.
Section 6.
Judgment. — In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial tribunal,
or of a board or officer, it is sufficient to aver the judgment or
decision without setting forth matter showing jurisdiction to
render it. An authenticated copy of the judgment or decision
shall be attached to the pleading.
PREVIOUS AMENDED
Before, in the previous rule Now, sa imong pleading pa
there is actually no lang daan. If your defense for
requirement to attach an example or cause of action is
authenticated copy of the you have to rely on a
judgment or decision. Before judgment of a domestic,
it is sufficient that it is foreign court, judicial or
alleged that there was a quasi-judicial or etc. You
decision. have to attach an
authenticated copy of the
In your pleading it is enough judgment or decision in your
that you mention it under the pleading, this is now a
26
 old rules but during the
hearing you will still have to
prove the existence of the
judgment by presenting a
certified true copy or
authenticated copy of the
judgment, but this was done
already during the hearing.
requirement. subsequent sections, the law says that the genuineness and
due execution of that document is already deemed refuted.
You don't have to set forth So, naa nay implied deemed admission on the part of the
the matter showing defendant, if that is an actionable document.
jurisdiction to render it, but
when the other party denies Kung dili siya actionable document, which is attached to the
it then that is when you complaint, even if the defendant's answer is not verified, there
present proof. will be no effect of implied admission on the genuiness and
due execution of the document.

This is applicable if you are a defendant and your defense is
based on res judicata because there was already a prior decision
involving the same issue, the same parties and the same subject
matter. So, you have to attach the copy of the decision.
Section 7.
Action or defense based on document. - Whenever an action
or defense is based upon a written instrument or document,
the substance of such instrument or document shall be set
forth in the pleading, and the original or a copy thereof shall
be attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading.
ACTIONABLE DOCUMENT
As defined in several cases, an actionable document is one which
is the basis or the foundation of the cause of action or the defense
and not merely an evidence of the cause of action or defense. It is
the very heart and soul of the cause of action or defense.
If you are the plaintiff, without that document you don't have a
cause of action. If you are the defendant, without that document
it is either you don't have a defense or it is very difficult for you
to prove that defense.
Example: In collection cases, what is the basis of the complaint?
It would be that the parties entered into a contract of loan or a
debtor signs a promissory note because he borrowed money. So
in that particular case, the contract of loan or the promissory
note is the actionable document or the foundation of the cause of
action of the plaintiff. You might have sent demand letters but it
is not the actionable document as it is only one of pieces of
evidence to corroborate the existence of the cause of action.
In so far as the defendant is concerned, what could be one of his
defense? One would be payment although there is already a
promissory note or they admit the existence of the promissory
note but they can say na they paid already the obligation. The
defendant can show an acknowledgement receipt, so this
acknowledgement of receipt is the very foundation of the defense
in this particular example. He relies upon the said document to
be absolved from the case, so it is an actionable document.
Q: Why do we have to distinguish if a document is an actionable
document or not an actionable document?
A: Because the rule requires certain formalities. Like for example
under Sec 7, if your cause of action is based on an actionable
document the law requires that the document must be set forth
in the complaint and a copy of which is attached to your
complaint.
Q: What happens if you mention about a contract of loan or
promissory note but you did not attach a copy of your document?
A: The complaint can also be dismissed for failure to state a
cause of action because part of the statement of your cause of
action is for you to attach a copy of that document in your
complaint to make the statement of your cause of action
complete because it is the foundation of your cause of action.
You might mention the demand letter, even if you attach the
demand letter, still it would not affect the statement of your
cause of action because under the old rules only ultimate facts
need to be stated. Now, under the amended rules, with more
reason na madismiss ang imohang complaint because the law
mentions "Not even the ultimate facts but also the evidentiary
facts must be mentioned or averred in the complaint". Much
more na wala ka nag attach ug copy sa imohang actionable
document.
The same thing for the defendant.
Ex. Plaintiff properly alleged the actionable document in his
complaint. When you say "properly", giset forth niya ang
substance sa document and then attach a copy. The defendant in
his answer denied the existence of the contract of loan or
promissory note. But, he did not make his denial or his answer is
not relevant (?), meaning it's not under oath, what is the
consequence? because it is an actionable document under the
PLEADING AN ACTIONABLE DOCUMENT
The rule says, the substance of such instrument or document
shall be set forth in the pleading and the original or a copy
thereof shall be attached to the pleading. It shall be deemed a
part of the pleading
Example: Defendant and plaintiff entered into a contract of loan
in January 1, 2000 in the amount of 1 million. Payable within 1
month from the time of the execution of the contract. You just
cite the substance of the complaint, you dont have to copy
everything, but you have to attach to your pleading either the
original of the document or a copy of the document. Now take
note, diri sa new rules, isa nalang ang way of pleading an
actionable document.
PREVIOUS AMENDED
Under the old rules, there are Now, under the new
two options if you have an rules, the second option
actionable document: has been removed. So, isa
1.) Set forth the substance of the nalang ang manner of
document and attach an original setting forth the
or a copy to the pleading; or actionable document. So,
2.) You copy verbatim the it is "Set forth the
document. You copy everything substance of the
in the document, even the document and attach an
"signed". You don't need to original or a copy to the
attach a copy anymore under the pleading.
previous rule.
Metropolitan bank and trust company vs. LCDC
This is an action for recovery of sum of money and damages,
with prayer for writ of preliminary injunction and
preliminary attachment. The plaintiff here is Philippine
banking corporation and the defendants are LCDC and Sps.
Ley.
FACTS: According to the plaintiff, LCDC, which is a general
contracting firm, through the oral representations of the
spouses Ley, applied with the bank for the opening of a letter
of credit. Letter of credit man gud, naay gusto paliton si LCDC
abroad, and wala man si LCDC abroad, muapply siya sa bank
ug letter of credit para si bank na karon ang mag pay, mag
transact didto sa iyang palitan abroad. Katong nagpalit sa
abroad, irelease niya ang gipalit ni buyer, so irelease nya but
because diba naay letter of credit? so bale nangutang ni si
buyer kay bank. When the goods are released to the buyer,
aside from the letter of credit, mupirma pud ang trust receipt
agreement ang buyer for the goods received. So, mao na siya
basically ang ilahang transaction. For a letter of credit.
So, ang supplier didto sa abroad kay Global Enterprises
Limited. Ang covered sa ilahang letter of credit is for the
importation of IRAQi cement from IRAQ. So global enterprises
negotiated its letter of credit to the negotiating bank, so nag
transact sila etc. And then, wala nabayaran. So, karon, the
bank filed an action for collection against LCDC the one who
applied for the letter of credit and the spouses because the
sps here also executed a continuing surety agreement to
guarantee the payment of the goods covered by the letter of
credit. So, wala man nagbayad, the bank filed a case, the case I
mentioned, and after the presentation of evidence, the court
dismissed the case filed by the bank. Why? what was the
reason why it was dismissed? According to the Court, the
bank failed to prove its cause of action. Why? according to the
bank, "We proved the cause of action. In fact, we presented in
evidence of the documents (the letter of credit, the trust
receipt agreement, non-payment of amount) so this
sufficiently proved our cause of action.
In the complaint filed by the bank, it mentioned about the
application for a letter of credit between the bank and LCDC.
It also mentioned about the trust receipt agreement between
the bank and the spouses and LCDC. So, here, according to the
court, wala naprove ni bank ang iyahang cause of action

27
 against LCDC because ang attachment sa complaint, katong
application for a letter of credit, although it was set forth
substantially in the complaint and there was an attachment in
the complaint also, but the back portion of that attachment
was blank. Because of that, the court could not determine
what was really the relationship between the parties, the
terms and conditions in the letter of credit cannot be
determined because again the portion at the back was blank.
So, it is not enough na naay delivery of the goods pendant(?)
in rem to determine the proper relationship, proper
obligation, makita jud didto sa application for a letter of
credit.
But the bank said, the letter of credit is not our foundation of
the cause of action. The foundation of our cause of action is
the trust receipt agreement, according to the bank. We
attached the copy of the trust receipt agreement.
RULING: But the Supreme Court said, in relation to our
discussion, the fact that you considered the application or the
letter of credit as the foundation of your cause of action is
clearly seen in the manner that you feed them these
documents. There was compliance with section 7, rule 8, in so
far as the letter of credit is concerned. So, you pleaded the
letter of credit in your complaint in the same manner that an
actionable document should be pleaded. But, in your
complaint, you did not at all comply as to the trust receipt
agreement. So, you did not rely on the trust receipt agreement
as the foundation of your cause of action or defense, it is
really the letter of credit. But, sadly, your supposed
foundation is in conflict because the second page is blank. So,
the bank failed to prove its cause of action against LCDC and
the spouses. So, the Supreme Court also discussed what is a
cause of action.
Section 8.
How to contest such documents. - When an action or defense
is founded upon a written instrument, or attached to the
corresponding pleading as provided in the preceding section,
the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath
specifically denies them, and sets forth what he or she claims
to be the facts; but the requirement of an oath does not apply
when the adverse party does not appear to be a party to the
instrument or when compliance with an order for an
inspection of the original instrument is refused.
Q: How do you contest an actionable document?
A: We go back to our discussion on verification. Diba, as we have
discussed, not all pleadings need to be verified. Although, there
are certain pleadings under the rules of court which must be
verified. One of them is when the pleading attaches an
actionable document, if you wish to deny that document, your
pleading embodying your denial must be under oath or verified.
Example: Plaintiff: his cause of action is based on breach of
contract-contract of loan. So he files a case for collection of sum
of money based on the promissory note. So, it's an actionable
document. Does the complaint have to be verified? How do you
plead that actionable document? You have to set forth the
substance and then attach a copy.
Does it have to be verified? the complaint setting forth the
actionable document? There is no such requirement. If you just
say how to plead the actionable document, there is no
requirement that the pleading must be under oath. Although,
again, if it is an initiatory pleading, it needs to be under oath
because there is certification against forum shopping. Actually
the complaint need not be verified there has just to be a
certification against forum shopping.
Now, if you are the defendant, and you're filing your answer, and
you're denying the existence and due execution, like: Defendant
denies paragraph 2 of the complaint in so far as the allegation
that he signed the promissory notice concerned, the truth of the
matter being that, the signature in the promissory note is a
forgery. The defendant did not sign any promissory note. Here,
your answer must be verified. It is in that pleading which
DENIES the actionable document that should be made under
oath, that must be verified. Why? what is the consequence if
the answer in that example is not verified? Even if giunsa pana
nimo pag deny, very specific imong denial, but your answer is not
verified or under oath, under section 8, you are deemed to have
admitted the genuineness and due execution of the instrument.
Now, what if in the complaint the plaintiff mention (collection
gihapon ha) about the promissory note and then the obligation of
the defendant, BUT he did not attach in his complaint a copy of
the document and, on the other hand, the defendant also in his
answer, he denied the genuineness and due execution of the
promissory note mentioned in the complaint, BUT it is not
verified.
Q: Will he be deemed to have admitted the genuineness and due
execution of the promissory note mentioned in the complaint?
A: No, because the rule says only if the actionable document is
properly pleaded and attached to the complaint, then if you
file an answer denying such actionable document, you have to
make your answer verified. So, kung wala man diay in the first
place na properly pleaded and attached ang actionable document
in the complaint, even if your answer is not under oath, there is
not such effect of admission. In the first place, deficient ang
complaint for failure to attach the actionable document which is
the foundation of the cause of action of the plaintiff.
Q: Now, when we say that if the defendant or the party fails to
deny under oath, he is deemed to have admitted the genuineness
and due execution of the actionable document. What do we mean
by “Admitted the genuineness and due execution of the
document”? What is the extent of that admission? what does it
cover?
A: So, in the landmark case of (Inaudible):
1.) It means that the party whose signature it bears signed it;
So dili na nimo pwede ideny ang imohang signature. Even if you
deny in your answer, since di siya under oath, you have admitted
the genuineness of your signature in that promissory note.
2.) If it is signed by another, it was signed for him and with his
authority;
Example: A(Agent) told C(Creditor) that her sister P (principal)
wanted to borrow money from C. So, C agreed. There was a
promissory note prepared. It was signed. But, of course, P did not
sign the promissory note. It was A. But, the promissory note it
seemed that P executed because she's supposed to be the
principal but signed by her agent A. So, that is the tenor of the
promissory note.
A did not pay. So, Creditor filed a case for collection against P
(kay si P man ang supposedly nanghiram, agent lang man si A.
Although wla gyud sila nagkita in person ni P). So, si P karon ang
defendant. P said "I did not authorize A to borrow money for me."
so, I deny the promissory note. I did not become a principal in
any debt. I deny. But, his denial is NOT under oath. Even if giunsa
pa to kaspecific ang iyahang denial but it is not under oath, it has
the effect of "Admission of the genuineness and the due
execution of the document" So this is another extent of that
motion. Even if it was signed by A, not P, but because P failed to
verify his answer, it is not made under oath, there's now
Implied admission on his part that it was really signed by A
on her (P) behalf. That she authorized A to borrow money on
her behalf. So, that is the other consequence of failing to make the
denial under oath. So, the defense now of P of unauthorized
signature in his part is already out of the question because he is
deemed to have impliedly admitted that by failing to verify his
answer.
3.) At the time it was signed, it was in words and figures
exactly as set out in the pleading of the party relying upon it;
So, creditor C, sued debtor for collection of a loan: 15,000 pesos.
Basis of the loan was a promissory note which was properly
pleaded and attached to the complaint of C. Now, in his answer, D
said "yes, I borrowed from C, but only 5,000. Gidugangan lang
nilag zero. mao nahimog 50,000. But in fact, it was only 5,000."
So, it was falsified, there was alteration in the promissory note.
But, the answer of D is not verified, not under oath. So, what is
the effect? He is deemed to have admitted the genuineness and
due execution of that promissory note and that the amount
mentioned in that promissory note is really the correct amount.
It was exactly in the words and figures as set forth in the
promissory note or the actionable document. So, wala nato ang
defense niya of falsification.
4.) That the document was delivered.
Meaning, delivered na siya. So, if the pleader fails to deny under
oath the genuineness and due execution or even if he denies it
specifically but the answer has no verification (not under oath)
so it is to be presumed that the document was delivered. Like
katong promissory note gideliver jud to. Gihatag gyud to sa
creditor. Dili nga "Tinuod na nagsign kog promissory note, pero
wala man to nadayon. In fact, gitaguan lang nako tong
promissory note sa akoang drawer. Unya gikawat diay niya and
28
now he's collecting." So, again, if not under oath, presumed that it
was delivered.
5.) The formal requisites of law such as seal,
acknowledgement, or notarization, documentary stamps etc.
are now waived.
So you cannot say na "Yes, there is a promissory note for a
contract of loan. But, actually, we agreed na isuspend lang sa to
siya. In fact, I did not appear before any notary public. I did not
go to the office of attorney bla bla bla to have the document
acknowledged. But again, your answer is not under oath, so
useless lang to siya na answer. Still, because of that, you are
deemed to have admitted that niadto gyud ka sa office ni
attorney. Pero gi waive na to nimo siya defect. So, that's again
another consequence of failing to deny under oath the
genuineness and due execution of the actionable document.
EFFECT: DEFENSES THAT CAN NO LONGER BE USED
As a consequence, because you already admitted these matters
which we already discussed, what defenses now are no longer
possible because you failed to deny the genuineness and due
execution of the actionable document under oath. Unsa na
defense na karon ang dili nimo pwede iinterpose?
Isa lang imong timan an: Those defenses which are already
INCONSISTENT with the genuineness and due execution of the
actionable document. What are these defenses?'
1.) Forgery
2.) Authority to sign - You cannot say na the contract is
unenforceable because it was signed by unauthorized person.
But again, the document as written appears to be signed, so you
failed to deny it under oath, then you are deemed to have
admitted the authority of the person alleging to sign in your
behalf. If it is a corporation, you cannot deny already the
authority of the corporation who signed. So, you cannot
interpose this defense that the Corporation was not authorized
under its charter to sign the instrument. Maybe in reality, wala
gyud siya nag authorize, but again you failed to deny it under
oath. So, you are deemed to have admitted.
3.) The parties charged signed in some other capacity than
that alleged in the pleading. - When you admit impliedly
because you failed to deny under oath, the genuineness and due
execution of the actionable document. You cannot vary the tenor
of that document already. Everything in the document is deemed
to have been admitted. So, you cannot say na "I did not sign it in
my capacity as a principal. I merely signed it in the capacity of a
guarantor." But, in the contract, it says you are the principal. So,
wala na kay ing ana na defense.
4.) That it was never delivered.
If an actionable document is properly pleaded and attached to
the complaint or the counter-claim or any pleading asserting a
claim, the other party should deny it under oath, otherwise he is
deemed to admit the genuineness and due execution of the
actionable document.
Does it follow, na pilde na jud ka as a defendant? That have no
more defense because you have deemed admitted the
genuineness and due execution of the document? You can still
interpose those defenses which are not inconsistent with the
genuineness and due execution of the document.
What are these defenses?
1. Payment – “I admit I signed the PN but I already paid". Even
if your defense is not under oath but your defense is
payment; you may have admitted it is genuine but you are
still not liable to pay.
2. Or the consideration is illegal, or no consideration at all, or it
is an absolutely simulated contract,
3. Or you were defrauded into entering the contract
4. Or mistaken
5. Or there was already a compromise.
6. Or “yes, I signed the PN but the action had already prescribed
because it has been 15 years since the cause of action
accrued hence is barred by the Statute of limitations”.
7. Estoppel – “you are already estopped from filing an action for
declaration of nullity because you allowed me to put
improvements in the property when it’s supposed to be null
and void”.
8. Duress, minority imbecility
The other question is, may the benefit of the admission of the
genuineness and due execution of an actionable document be
waived?
 Supposedly, the defendant had already admitted the
genuiness and due execution of the document, so wala
na siya kawala by failing to put his answer under oath.
Still, there are certain circumstances when that benefit
can still be waived. Meaning, the other party can still
put into issue that the document is not genuine, that it
was forged, that the person who signed there was not
authorized by the party against whom the party is
being enforced.
There are 2 examples.
Here, although there was an implied admission, it was already
deemed waived.
1) When he presented witnesses to prove the genuineness and
due execution.
YU CHUCK vs KONG LI PO
Yu Chuck filed a case against defendant, Kong Li Po because
allegedly there was a violation of their contract of
employment (CoE). According to the plaintiff, he was illegally
dismissed because the contract was illegally pre-terminated.
Under the principle of economy of contracts, you have to
observe all the terms and conditions of the contract, including
the period. So if it is for 5 years, both parties must respect the
contract for 5 years. Neither one can pre-terminate the
contract without the consent of the other.
So there was an illegal pre-termination. Before the
amendment there are 2 ways by which you can allege and
prove the existence of your actionable document.
Katong atong ginagamit karon, you have to set forth in the
complaint the substance of the document and attach in your
complaint the authentic copy of your document. Before you
can also just copy verbatim in the complaint your actionable
document.
So here, it was not really attached but it was translated in the
contract. Sa body sa contract, gisulat niya ang contract but it
was translated. SC in that case considered it a copy, although
again it is no longer applicable pa. So this was how an
actionable document is supposed to be pleaded and attached.
So proper na daw to ingon sa Supreme Court, na even if wala
niya gi-copy ang exact translation example French to, but still
an exact copy.
Now being considered as having been properly alleged,
attached and properly pleaded to the complaint, the
defendant in his answer, if he would deny the genuineness
and due execution of the contract of employment, you should
make it under oath otherwise, there will be an implied
admission of the genuineness and due execution of the
actionable document.
So ang actionable document was the contract of employment
and he did not make his answer under oath. What was the
consequence? He has already impliedly deemed admitted the
genuineness and due execution of the CoE. Wala niya gi-deny
under oath, so there is admission.
Being the plaintiff, naa na may admission, do you still have to
prove the genuineness and due execution of the CoE? NO
NEED because there was already an implied omission.
But here, the plaintiff during the trial, presented evidence to
prove the contract so the existence and due execution, and
also the evidence as to the authority of the agent to sign the
contract on behalf of the alleged principal. Again, supposedly,
there was no need because the defendant has already
admitted the genuineness and due execution, and the
defendant also presented evidence to refute the authority of
the agent to sign on his behalf.
So what is the effect of that? The defense implied admission
was already waived. so the SC said, both parties overlooked
the rule regarding actionable documents. Kung kabalo lang si
lawyer ug si defendant about sa rule, wala na unta siya
nagpresent ug evidence in the first place because it was no
longer needed. So here the SC said, the object of the rule is to
relieve the party of the expense of proving the first instance of
the alleged act the existence of which is necessary to the
knowledge of the adverse party and of the necessity of
establishing that such adverse party is notified by his
opponent’s pleading. But the plaintiff may also waive the rule
and that must be considered to have been done in the first
place by introducing evidence as to the execution of the
document and failing to object of the defendant’s evidence in
presentation.
29

Kay pagpresent pud ni defendant sa evidence to refute the
evidence of the plaintiff, wala man pud siya nag object so this
was already deemed waived. All of this evidence is now
competent and the case must be decided thereupon. So,
the court will no longer dwell on the supposed implied
admission made by the defendant in his answer by failing to
make his answer under oath. The court will now consider the
evidence of the plaintiff presented, precisely to prove the
genuineness and due execution of the document as well as the
authority of the agent, and would also consider the evidence
of the defendant to refute the documents. So kalimtan na nato
dire ang rule on actionable documents.
2) When the pleader fails to object to evidence controverting
the due execution
So here, again the complaint was based on an actionable
document which was properly attached in the complaint but the
lawyer of the defendant, although he denied the document, he
did not put it under oath. So again there is an implied admission.
Now supposedly, because there is already an implied admission,
dili na makapresent si defendant ug evidence to prove na forged
tong document. He is already bound by his implied admission.
The lawyer for the defendant forgot about the rule on actionable
document. When the defendant tried to present evidence to
refute the genuineness and due execution of the admission of
that actionable document, it was the plaintiff’s lawyers duties to
object because why would you present evidence to refute when
in the first place, you have already admitted the genuineness of
execution by failing to make your answer under oath. So sila
duha ka-lawyer nakalimot and what is now the consequence?
Example: C field a case for collection based on a promissory note
supposedly signed by the debtor, the debtor supposedly also. If
he denies, he is supposed to make it under oath. He did not. So
there is implied admission. During the trial, the defendant tried
to present evidence that it was a forgery. Presented on the
witness stand was a handwriting expert to disprove it was not
his handwriting. The plaintiff failed to object. So here, there is
already a waiver of the rule on the consequence of an actionable
document not having been properly denied under oath.
I remember last week, we had a hearing, I was confused because
it was supposedly pre-trial but the lawyer for the defendant said,
“Your honor I am not ready for pre-trial because my client did
not receive the summons, so there was no jurisdiction over the
person of the client”. The judge asked, ”where is your client?”.
The lawyer answered, “she is in the memorial park because the
client is already dead”. Supposedly, pre-trial there was already an
answer so wala siya nakabalo na patay na diay ang iyang client,
so nag move siya na mag file daw siya ug motion to dismiss on
the ground that there is no jurisdiction over the person. Diba the
rule is that if patay na imong client, your atty client relationship
is terminated or extinguished and you no longer have the
authority to act for your client except to manifest in the court na
client nimo patay na. And then the lawyer pud for the plaintiff
said in a motion, orally, that he will amend daw his pleading. So
nganong i-amend man niya? Diba substitution of parties. It was
the case of both parties did not know what they are talking about.
Proper remedy is the substitution of parties. So na waive na ang
consequence sa actionable document being impliedly admitted.
What are those instances even if the denial is not under oath, it
would still be valid and has a consequence? Katong atong
gidiscuss before, the denial was not under oath. So example si
defendant, the document was not under oath, he has already
deemed impliedly admitted the genuineness and due execution
of the document but can still interpose defenses which are not
inconsistent with the genuineness and due execution of the
actionable document. Kani even if not under oath, still they are
not deemed impliedly instituted the genuineness and due
execution of the document.
These instances include:
1) When an adverse party does not appear to be a party to the
instrument
Example: ilang papa signed a contract and namatay, then there is
now a case filed against the estate or against the heirs. The heirs
denied the genuineness and due execution but not under oath,
are they deemed to impliedly admitted? No, because they are not
parties to the document. Only those who are deemed parties to
the document who failed to file under oath are deemed to have
impliedly admitted.
2) When compliance with an order of inspection of the
original document is refused
3) When the document to be denied is not classified as an
actionable document or is merely an evidentiary matter
Example: Demand letter. It is not an actionable document, but
under the amended rules, you need to allege. But again, that
document, even if it is attached to your complaint, but it is not an
actionable document, the other party who denies it does not have
to deny it under oath and there will be no implied admission.
Gen. Rule: A reply, under the present amendment, is NOT
allowed. Under the Rules before, it was optional.
XPN: When the answer of the defendant contains a counter-claim
and there’s an actionable document attached. So you have to
deny it under oath. And in that case, the filing of a reply also
becomes compulsory.
Section 9.
Official document or act.- In pleading an official document or
official act, it is sufficient to aver that the document was
issued or the act was done in compliance with law.
Example: Official letter of the President, official communication
by a government agency. You don’t have to attach a copy of these
documents in your pleading. It is sufficient to aver that the
document was issued or the act was done in compliance with
law. So this is a general averment. This is different from what we
have discussed before – if it is a judgment, you have to attach in
your pleading an authenticated copy of the judgment. Here, you
don’t have to attach any copy of the document. Although, again,
this is different. When you say you did not have to plead or allege
in your pleading, and you don’t have to attach in your pleading
this official document, but when you go to trial, you have to
present, because the court does not take judicial notice that (for
example) the President has issued a letter. You have to present
evidence. So, pleading is different from proving.
Pleading Proving
You mention in your You have to present already
pleadings, complaint, a copy of the document
answer, reply, counter-claim
or cross-claim, etc.
There are some matters that
you just need to plead but
you don’t need to attach in
your pleadings copies of
those documents.
In the verification, it is You have to offer the original
sufficient to state that the or certified true copy.
allegations are based on
authentic records. But you do
not have to attach the
original or certified true copy
of the document in the
pleading
When you plead a Same with proving the
JUDGMENT, you need to existence of the judgment,
attach an authenticated copy you have to present the
authenticated copy.
If you are referring to an You have to present a copy.
OFFICIAL DOCUMENT as one
of your pieces of evidence,
you just aver generally.
Allegations that must be done GENERALLY:
1. Rule 8, Sec. 3 – Conditions precedent
i.e. barangay conciliation: -you don’t have to specifically state
how you arrived at the barangay conciliation and how did you
secure the certificate to file action.
2. Rule 8, Sec. 5, second sentence – conditions of the mind
3. Rule 8, Sec. 9 – Official document or act
Allegations that must be done with PARTICULARITY:
1. Rule 8, Sec. 4 – Capacity to sue or be sued
2. Rule 8, Sec. 4 – legal existence of any party to sue or be sued
3. Rule 8 Sec. 5 – Fraud or mistake
4. Rule 8, Sec. 6 – Judgment
Section 10.
Specific denial. — A defendant must specify each material
allegation of fact the truth of which he or she does not admit
and, whenever practicable, shall set forth the substance of the
matters upon which he or she relies to support his or her
denial. Where a defendant desires to deny only a part of an
averment, he or she shall specify so much of it as is true and
material and shall deny only the remainder. Where a
defendant is without knowledge or information sufficient to
form a belief as to the truth of a material averment made to
30
 the complaint, he or she shall so state, and this shall have the
effect of a denial.
3 MODES OF DENIAL
FIRST MODE
1. A defendant must specify which material allegation of fact
the truth of which he does not admit and whenever
practicable, he shall set forth the substance of the matters
upon which he relies to support his denial.
So meaning, if you are the defendant and you are filing your
answer, so you are denying the allegations in the complaint, it’s
not enough that you just say “I deny all the allegations in the
complaint. The plaintiff is a liar.” Actually, this is already
considered as an admission, because it does not comply with the
rules on how to deny. Denials must be specific.
If for example the allegation is breach of contract of carriage. So
for example, in par.4 of the complaint, it is alleged by the plaintiff
that on Jan 1, 2001 the plaintiff entered into a contract of
carriage with the defendant. Plaintiff boarded the bus with plate
no. xxxx, bound to CDO. So if you are the defendant, it is not
enough that you say “I deny par. 4 of the complaint.” You should
specify why you are denying such. So it must be: “Defendant
denies the allegations in par. 4 of the complaint, there was no
contract of carriage between the plaintiff and the defendant
because the plaintiff did not board the bus of the defendant.”
Q: What happens if your denial violates this first mode of
supposed denial which should be specific?
A: this is a general denial, which has the effect of automatically
admitting the allegations in the complaint.
What if in your answer, you said “I deny specifically par. 5 of the
complaint”? – No, it is still not compliant. It does not become
specific just because you said “specifically. It is still in the nature
of a general denial, therefore you are deemed to have admitted
the allegation. (Cortes v. Co Bun Kim, 90 Phil 167)
SECOND MODE
2. Where a defendant desires to deny only a part of an
averment, he or she shall specify so much of it as is true and
material and shall deny only the remainder.
What if, for example, in one paragraph, there are statements
which are true and there are also some which are not true? How
do you deny that?
You cannot deny everything since there are parts which are
correct. You cannot also admit everything because some parts
are wrong. So you have to specify what portions you are denying
and what portions you are admitting.
Example: The allegation in the complaint is that the defendant is
in possession of the property under litigation in bad faith. Here, it
is true that the defendant is in possession of the property, but he
is not in bad faith.
So in his answer, the defendant can admit some but qualify some.
“Defendant admits that portion of par.2 that he is in possession
of the property in question, but denies that he is a possessor in
bad faith because he was allowed by the plaintiff to possess the
property. There was a contract…” so you have to explain why.
For example, you are just denying everything. “I deny the
allegations in par. 5 of the complaint” even if there are some
allegations which are actually true and are not supposed to be
denied. SC said that when the entire allegation is denied without
qualification, that is what we call a NEGATIVE PREGNANT. In
reality, you are not really denying the entire paragraph, but only
some of the allegations in such paragraph. So when it is a
negative pregnant, it is actually what we call a denial which
is coupled with admission.
RUBY RUTH MAHILUM v. SPS. ILANO
Facts: Ruby Ruth was the registered owner of a parcel of land.
She entrusted the land to an agent. Later on, the agent said
that he lost the owner’s copy of the title. So Ruby Ruth filed an
affidavit of loss with the Registry of Deeds (ROD). In the ROD,
she discovered that there was an annotated Deed of Sale
made in favor of the Sps. Ilano. There was also an affidavit of
non-loss annotated by the Sps. Ilano. So Ruby Ruth filed a
complaint for annulment of the Deed of Sale alleging that she
did not authorize anyone to sell the land; that in fact she was
told that the owner’s copy of the title was lost.
(When you have an owner’s copy of the title, you cannot just
request for another copy before the ROD. You have to file a
case in court for you to be able to get another owner’s copy.
Naay uban na wise, like, kabalo sila na ang owner’s copy kay
naa sa owner or somewhere else, or ang owner mismo
iyahang gi-prenda iyahang land, so nasa laing tao ang owner’s
copy, ang uban muingon na “lost”, so you have to annotate
before the ROD an affidavit of loss. Then you can use that now
as basis for filing a petition in court for the court to issue a
new owner’s copy. What if the owner’s copy was not really
lost? Then that new title and the decision of the court is null
and void because the court has no jurisdiction to order the
issuance of a new owner’s copy if the original is lost. If you are
the owner then you see an annotation of an affidavit of loss
when in fact it was not lost, then you have to file an affidavit
of non-loss.)
In the Answer of the defendant: Sometime in October 2003,
Perez, accompanied by one Corazon Tingson, and a female
person who introduced herself as Ruby Ruth Serrano offered
to sell to them the property covered by TCT-85523.
Held: It is a negative pregnant, because it is actually an
admission that Ruby Ruth DID NOT sell the property. Why
would you say “and a female person who introduced herself
as Ruby Ruth” if she really was the one who introduced
herself? It is very invasive. It must either be you admit or you
deny.
SC: They should not have referred to the supposed seller as
“another person herein named as ‘Jane Doe’ whose identity is
yet to be established who introduced herself as Ruby Ruth
Serrano” or “the person who introduced herself as Ruby Ruth
Serrano” if indeed it was petitioner herself who appeared and
signed the agreement and deed of sale in question. They
should have categorically alleged that they bought the
property from petitioner herself if indeed this was so. Their
ambiguous allegations constitute a negative pregnant, which
is in effect an admission. So it was in effect an admission
that it was NOT the owner who sold to them the property.
As we already discussed before, under the second mode of denial,
if there are allegations in the complaint for example that some
are true and some are not, you would like to deny some but
admit some, you'd have to specify. If your denial is total or
evasive, it could be considered as a negative pregnant and the
effect is it's still not a denial. so where a fact is alleged with
some qualifying or modifying language and the denial is
(inaudible at 01:04 ) a negative pregnant exists. only the
qualification or modification is denied while the fact itself is
admitted.
A denial in the form of a negative pregnant is an ambiguous
pleading since it cannot be ascertained whether it is the fact or
only the qualification that is intended to be denied. Professional
ignorance about a fact which is patently and necessarily within
the pleader's knowledge or means of knowing as ineffectual is no
denial at all.
Caneland Sugar Corporation vs. Hon Alon
FACTS: Caneland Sugar Corporation (petitioner) filed with
the RTC a complaint for damages, injunction, and nullity of
mortgage against the Land Bank of the Philippines
(respondent) and Sheriff Eric B. de Vera, docketed as Civil
Case No. 2067-40, praying for the following reliefs: issuance
of a temporary restraining order enjoining respondent and
the Sheriff from proceeding with the auction sale of
petitioner’s property; declaration of nullity of any foreclosure
sale to be held; declaration of nullity of the mortgage
constituted over petitioner’s property covered by TCT No. T-
11292 in favor of respondent; and award of damages.
In the answer of the defendant, he merely said that the
promissory notes are silent as to whether they were covered
by the Mortgage Trust Indenture and Mortgage Participation
on its property covered by TCT No. T-11292.
ISSUE: what is the nature of the defendant’s answer?
RULING: (as mentioned by Atty. LCYE) Negative pregnants. It
does not categorically deny that these promissory notes are
covered by the security documents. These vague assertions
are, in fact, negative pregnants, i.e., denials pregnant with the
admission of the substantial facts in the pleading responded
to which are not squarely denied.
Negative pregnant, defined
31
 A negative pregnant is a "form of negative expression which
carries with it an affirmation or at least an implication of some
kind favorable to the adverse party.
It is a denial pregnant with an admission of the substantial
facts alleged in the pleading. Where a fact is alleged with
qualifying or modifying language and the words of the
allegation as so qualified or modified are literally denied, has
been held that the qualifying circumstances alone are
denied while the fact itself is admitted."
So when you say silent it does not follow na there's no collateral
to that promissory notes.
EXAMPLE:
Uy naa nako'y uyab -> Gwapo? -> Tangkad sya. ->Gwapo ba?
->Bright, bright.
That's a negative pregnant, you're not really denying. You’re just
being evasive.
THIRD MODE
Here, when the defendant is without knowledge or
information sufficient to form a belief as to the truth of
material averment made in the complaint, he shall so state
and it shall have the same effect of denial.
Here, there's an allegation in the complaint but the defendant is
not in a position to know the truth or the falsity of the
allegations.
EXAMPLE: Allegation on moral damages. So in the complaint, the
plaintiff says: Because of the illegal and deliberate act of the
defendant, the plaintiff suffered sleepless nights, serious anxiety,
moral shock, besmirched reputation for which reasons the
plaintiff is entitled to moral damages amounting to 5 million
pesos. Of course, in the answer of the defendant, you have to
address everything in the complaint of the plaintiff. otherwise,
you are deemed to have admitted those allegations which you did
not deny or even if you deny but deny generally. Even the
allegations of moral damages, the court will not presume na the
defendant has no knowlegde of these allegations. Still, the
defendant has to make a stand - admit or deny.
In this kind of allegation - sleepless nights, ngano nagtapad ba si
defendant ug plaintiff na kabalo sya na nagsuffer si plaintiff ug
sleepless nights? but the defendant, he cannot also deny na dili
tinuod, nagsuffer ug sleepless nights si plaintiff, in fact silingan
mi, kusog kaayo syag hagok every night (but of course, if that's
the case, you can say that) but most of the time, you have no
knowledge or information as to whether or not he really suffered
sleepless nights. so this could be your allegation: Defendant has
no knowledge or information, sufficient to form a belief as to
the truth of the allegation.
now some people would say "and therefore he denies the same"
actually this last phrase is not necessary because it is sufficient
that you have (NO?) knowledge or information, sufficient to form
a belief as to the truth of the allegation. That is the extent and has
the effect of a denial. because again, you are not in a position to
confirm or deny because you are not there. it could be true he
suffered sleepless nights but you don't know about it.
Now, the Supreme court said that we should be careful in using
this kind of denial. Because this would only apply if you are in a
position not to know the truth or falsity of the allegation. We
should not abuse this kind of denial and only use this when you
are not in a position to confirm or deny because for ex. in this
case of
Capitol Motors vs, Yabut
G.R. No. L-28140 | March1970
Capitol Motors filed a complaint against Yabut where it
averred that the defendant executed a promissory note in
Capitol’s favor for the sum of P30,134.25, payable in eighteen
(18) equal monthly installments with interest at 12% per
annum, the first installment to become due on June 10, 1965,
that it was stipulated in the promissory note that should the
defendant fail to pay two (2) successive installments.
The plaintiff filed a motion for judgment on the pleadings, on
the ground that the defendant, not having set forth in his
answer the substance of the matters relied upon by him to
support his denial, had failed to deny specifically the material
allegations of the complaint, hence, must be deemed to have
admitted them. What the defendant merely stated was that
he was “without knowledge or information sufficient to form
a belief as to the truth of a material averment in the
complaint.”
Issue: Did the defendant’s answer constitute a specific denial
under Section 10, rule 8?
Ruling: NO. In this case, a mere allegation of ignorance of the
facts alleged in the complaint, is insufficient to raise an issue;
the defendant must aver positively or state how it is that he is
ignorant of the facts so alleged. The present action is founded
upon a written instrument attached to the complaint, but
defendant-appellant failed to deny under oath the
genuineness and due execution of the instrument; HENCE,
THE SAME ARE DEEMED ADMITTED. (Section 8, Rule 8 of the
Revised Rules of Court)
Is it true? wala ka kabalo kung nangutang ka? kung wala siguro
ka nangutang, you deny. or kung nangutang man ka, pero
nabayaran na nimo, you say " defedant admits the allegation that
he signed a promissory note and borrowed money but he already
paid" But when you say 'the defendant has no knowledge or
information sufficient to form a belief as to the truth of the
allegation in paragraph 1"
 Dili na pwede according to the Supreme Court. You
must admit or deny - you must know kung nangutang
ka or wala. so in this instance, this is equivalent to an
admission. So that's the rule.
Section 11.
Allegations not specifically denied deemed admitted. —
Material averments in a pleading asserting a claim or claims,
other than those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically denied.
PREVIOUS AMENDED
material averments in the pleading
asserting a claim or claims because
Material averment in
this is not limited only to the
the complaint
complaint.
There are pleadings which assert a claim or claims like a
counterclaim, cross claim, 3rd, 4th etc party complaint. Although,
even if under the old rules the phrase "pleading, asserting a claim
or claims was not mentioned, jurisprudence said that this is still
applicable to a counterclaim, cross claim, etc
Valdez vs. Paras G.R. No. L-11474 | May 1959
Supreme court said that this rule extends to counterclaim,
cross claim, 3rd, 4th etc party complaint even if the rule
merely mentioned complaint.
Now it is very clear na in the amended rules that this is
applicable as well to a claim or claims.
WHAT IS DEEMED ADMITTED UNDER SECTION 11?
1. Those material allegations not specifically denied - we
already mentioned before na the denial should be specific. Again,
there are 3 modes of denial. if you did not follow any of those 3
modes, the effect is you are deemed to have admitted the
allegations in the complaint or claim of the claiming party.
What are these material averments deemed admitted or
not?
Note: it doesn't follow that even if your denial is general or
maybe specific but fails to comply with the rules, tanan na imong
giadmit. still, there are matters na even if you are deemed to have
admitted but because of your failure to deny properly, these
items are not deemed admitted. So they are not deemed admitted
even when you did not specifically deny them:
THOSE NOT DEEMED ADMITTED:
1. Amount of unliquidated damages
When you say liquidated damages, these are the damages which
are fixed by the parties in their contract. Example: it is stipulated
in the contract that in case of breach, the aggrieved party is
entitled to recover 1 million to a guilty party. so that's equivalent
to a penal clause. Here, there's no need to prove the amount of
damages because it is already agreed upon. What is necessary for
the plaintiff to prove is the fact of breach. And when there is
proof then it follows that your entitled to liquidated damages.
In a complaint where the cause of action is based on a contract
and liquidated damages are agreed upon, if you are the defendant
and you failed to make a proper denial, you are deemed to have
admitted including the liquidated damages. But if it is
unliquidated damages, like quasi-delict by reason of negligence,
the passenger suffered moral damages amounting to 1 million
and then, exemplary damages, actual damages, these amounts
32
are considered unliquidated damages. They are not admitted
even if the defendant failed to properly deny them. The rule
is you have to prove unliquidated damages.
2. Immaterial averments
Those averments which have no relevance to the complaint. Like
damages. Diba breach of contract to marry is not actionable. But
for damages suffered, you can be sued. So for example the
plaintiff said "defendant is ugly but even if that is the case,
plaintiff who is very beautiful still married the defendant" so
those are immaterial averments.
Eventually it is still the court which decide what is the applicable
law on the matter so these are not deemed included in the
admission take note section 11 no longer mentions usury
because before and section 11 it said allegation of usury in a
complaint to recover usurious interest are deemed admitted if
not denied under oath it's no longer applicable because again the
usury law has been suspended even if you allege usury in the
complaint but the law says it is not applicable. So you are not
deemed to have admitted that allegation that would now fall
under conclusion of law na the defendant imposed interest which
are very high that is usurious - that is against the law. So that is
not correct that is based on his wrong conclusion of law. Which
even if the defendant failed to deny specifically he will not be
deemed to have admitted that allegation and there is no need to
deny it under oath because the rules no longer requires such
kind of denial so forget about that usury.
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.
(b) Failure to raise the affirmative defenses at the earliest
opportunity shall constitute a waiver thereof.
(c) The court shall motu proprio resolve the above affirmative
defenses within thirty (30) calendar days from the filing of
the answer.
(d) As to the other affirmative defenses under the first
paragraph of Section 5(b), Rule 6, the court may conduct a
summary hearing within fifteen (15) calendar days from the
filing of the answer. Such affirmative defenses shall be
resolved by the court within thirty (30) calendar days from
the termination of the summary hearing.
(e) Affirmative defenses, if denied, 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.
Comment: Section 12 is an entirely new rule or provision Dismiss
inserted here because before this was part of section 13 so now
we have this provision on affirmative defenses
What is an affirmative defense?
We already discussed this under rule 6 5(b).
So again 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 even if you admitted but still the plaintiff
is not entitled to his demand because of your affirmative defense.
Affirmative Defenses Allowed
Based on section 12 of rule 8 what are the affirmative defenses
allowed it mentions the affirmative defenses and rule 6 section
5b so what are these affirmative defenses.
1. Fraud
2. Statute of limitation
3. Release
4. Payment
5. Illegality
6. Statute of fraud
7. Estoppel
8. Form of recovery
9. Discharge in bankruptcy and
9. Any other matter by way of confession and avoidance
In addition to the ones mentioned under section 8 of rule 12
which are
1. The court has no jurisdiction over the person of the defending
party and then
2. venue is improperly laid then
3. the plaintiff has no legal capacity to sue and then
4. 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
There are other affirmative defenses that can be found under the
present amended rules these are the others mentioned under
rule 9 section 1
1. Lack of jurisdiction over the subject matter
2. Litis pendentia
3. Res judicata and
4. Prescription
Actually the affirmative defenses before were specifically
mentioned in rule 16 section 1 of the rules of court so these are
from rule 16 under the previous through these grounds can be
used as grounds in a motion to dismiss so for example you are
the defendant and you received summons now some of your
possible options would be :
1. immediately file a motion to dismiss based on the ground
mentioned in the former rule 16 which these are the matters
naturally mention most of them are the ones mentioned in rule
16 or
2. you will not file a motion to dismiss but you will instead file an
answer and then your answer the same grounds you will
interpose as your affirmative defenses
So there are also consequences when you allege them in your
motion to dismiss or in your answer one difference is
1. when you file a motion to dismiss for example that the plaintiff
or that the complaint fails to state a cause of action in the motion
to dismiss under the rules, before the defendant filed a
responsive pleading it is a matter of right on the part of the
plaintiff to amend. So muana si plaintiff "ay tama, thank you
defendant, imo kong gi ingnan that the complaint fails to state a
cause of action.” So what will the defendant do? i amend lang nya
ang iyahang complaint. It's a matter of right so he can amend.
2. If the defendant did not file a motion to dismiss but instead
filed an answer and then he interpose as one of his affirmative
defenses that the complaint failed to state a cause of action here
the amendment is no longer a matter of right because after
the defendant has filed a responsive pleading if the plaintiff
wants to amend the complaint I must ask for a leave of court so
that depends on the court if it allows.
That's one basic distinction why you'd rather file an answer with
affirmative defenses than just file a motion to dismiss but again
these grounds now are already interposed in ulit section 12 so
there's no rule 16 anymore again deleted or some of the
provisions are interposed in other provisions of the amended
rules. so these are the one they are transferred to other rules so
under rule 9 section 1 naa lang gihapon ni siya so gipangbahin
bahin nila.
Now when do you raise the affirmative defenses?
PREVIOUS AMENDED
In a Motion to dismiss or Only in the answer - don’t file
Answer in a motion to dismiss.
WHAT HAPPENS WHEN YOU FILE AN MTD?
Q: How about if you file a motion to dismiss? Just like in the
previous rule.
A: Not allowed. The only ones that can be made as grounds in a
motion to dismiss are those mentioned in Rule 9 Section 1
grounds based on:
1. lack of jurisdiction
2. litis pendentia
3. Res judicata
4. Prescription
A motion to dismiss is not allowed that is one of the prohibited
pleadings under Rule 15 Section 12 in the amended rules so dili
na ka pwede magmotion to dismiss, answer jud. Again, pwede
lang ka magmotion to dismiss if imohang ground kaning upat
under Rule 9 Section 1.
WHEN TO RAISE AFFIRMATIVE DEFENSE
The Rules says you have to raise the affirmative defense at the
earliest opportunity
33
Q: When is the earliest opportunity to raise this affirmative
defense?
A: Again, general rule, you can only raise these affirmative
defenses mentioned in section 8 rule 12 in the answer (kay di na
man ka pwede magmotion to dismiss) so when do you raise
them? Under the present rules, within 30 days so taas2 na, before
kay 15 days lang ang period and then pwede magfile ug
extension. Actually wala nagingon ang old rules kung kapila ka
magfile ug extension which was abused as long as you filed a
motion for extension before the lapse of the period. So here
under the present rules you have 30 days to file the answer
and you can ask for extension for another 30 days provided
you filed the motion for extension within the first 30 days. So
mao na ang imohang earliest opportunity to raise your
affirmative defense.
Now as I mentioned there are still defenses although wala sila
nakamention sa Rule 8 Section 12 in a way affirmative defenses
ra gihapon katong sa Rule 9 Section 1:
1. Lack of jurisdiction over the subject matter
2. Litis Pendentia
3. Res Judicata
4. Prescription
You can raise them in a motion to dismiss at anytime when you
say at any time, before you file the answer magfile na ka dayon
motion to dismiss. So you can raise this grounds. Or even sa
tunga2 sa kaso, you can raise these grounds as soon as they
become apparent, there is no waiver of these defenses under
rule 9 section 1.
EFFECT OF FAILURE TO RAISE AFFIRMATIVE DEFENSES
Q: Now what is the effect of failure to raise these affirmative
defenses like you filed your answer but some of the grounds
which could have been utilized as an affirmative defense were
not raised in the answer? like payment, statute of fraud
A: the rule says the defense is waived except again, katong naa
sa Rule 9 section 1 which you can even raise in your answer.
You can even raise them in your motion to dismiss and you can
raise them anytime.
HOW COURT DISPOSE THE AFFIRMATIVE DEFENSES
Q: How shall the court dispose the affirmative defenses so if you
are the defendant and you filed your answer and your answer
contained affirmative defenses how will the court rule? How it
will treat your affirmative defenses?
PREVIOUS AMENDED
Under the previous rule the court shall motu proprio
it was actually resolve the affirmative defenses
discretionary for the within 30 calendar days from the
court, pwede niya filing of the answer so meaning
ichapa imohang motu proprio (on its own) there
affirmative defenses. is actually no need for a party to
padayon ra gihapon siya move that the affirmative
sa hearing or pwede pud defenses be heard in fact it is a
niya iset for hearing ang prohibited motion. you cannot
imohang affirmative file a motion to hear the
defenses and determine affirmative defenses that is
if naa ba jud ground for prohibited under the amended
dismissal. rules. So maghulat pa ka, so it is
mandatory because the rule says
the court SHALL motu proprio.
AFFIRMATIVE DEFENSES THAT THE COURT SHALL RESOLVE
MOTU PROPRIO
Q: What are these affirmative defenses na the court shall motu
proprio resolve, these are the grounds:
1. The court has no jurisdiction over the person of the defending
party
2. Venue is improperly laid
3. Plaintiff has no legal capacity to sue
4. That the pleading asserting the claim states no cause of action
5. A condition precedent for filing the claim has not been
complied with
So if kani imohang affirmative defenses, it is mandatory that a
court will conduct a hearing. The court will not wait for any
motion, the court on its own shall conduct a hearing.
As to other affirmative defenses, under the first paragraph of
Section 5b Rule 6, kani siya discretionary. The court may
conduct a summary hearing within 15 calendar days from filing
the answer and such defenses will be resolved by the court
within 30 days from the termination of the summary hearing.
So again, there is a distinction if your affirmative defense will fall
under rule 6 5b so any of these affirmative defenses or even all,
the court may conduct a hearing. Dili siya mandatory but
discretionary. But if your affirmative defenses are these grounds
the court, motu proprio shall conduct a hearing. So naa nay
distinction sa present rules before wala.
Q: So can the party move for the court resolve the affirmative
defenses?
A: Again as I mentioned no because under rule 15 section 12 a
motion to resolve affirmative defenses is a prohibited motion
unlike before.
REMEDY IF AFFIRMATIVE DEFENSE IS DENIED
Q: What is the remedy of the party if the affirmative defenses are
denied can you file a motion for reconsideration?
A: The Rule says no, you cannot file a motion for reconsideration
Q: Can you file a petition for Certiorari, Prohibition, Mandamus to
question the denial of the trial court?
A: NO
Q: What is the remedy for the denial of the affirmative defenses?
A: You wait until the case is terminated and then when you
appeal, for example after nahuman na ang kaso and then adverse
gihapon sa imoha ang decision, then now you can appeal. You
may include in your appeal those affirmative defenses. Because
there will be a possibility that even if the court denied your
affirmative defenses but, in the end, nadaog ra gihapon ka so why
would you appeal.
REMEDY IF AFFIRMATIVE DEFENSE IS GRANTED
Q: How about if the affirmative defenses are granted, gidismiss ni
court ang case because the court granted the affirmative
defenses what is the remedy of the plaintiff or the claiming party
A: now we will discuss that under Rule 41 because there is
dismissal with prejudice, or without prejudice so that will be
discussed under rule 41.
SPECIFIC GROUNDS MENTIONED IN RULE 8 SECTION 12
1. FRAUD
Under the previous rule fraud is not among the affirmative
defenses mentioned. So before, for example plaintiff filed a case
against the defendant for specific performance, in reality the
defendant was just actually defrauded in entering into the
contract that his signature was procured by fraud or his consent
was induced by fraud.
Q: What is the remedy of the defendant in his answer? Can he
moved to dismiss on the ground of fraud or can he file his answer
and set fraud as an affirmative defense?
PREVIOUS AMENDED
Previously no because it but now it is already mentioned
is not mentioned as one as one of the affirmative defenses
of the affirmative so it is possible that the court will
defenses. So dili conduct a hearing on this
possible under the Old affirmative defense of fraud. You
Rules na maghearing don't have to go through a full-
preliminarily on the blown trial, pagmadetermine na
allegation of fraud sa court na naay fraud the court
because it's a defense will dismiss the case because of
which is thresh out this affirmative defense of fraud.
during the trial. So go to Again, no need to wait for a full-
trial jud mo, kung mao blown trial on the merits because
na imohang defense. before need jud siya because this
was not an affirmative defense.
TYPE OF FRAUD UNDER SECTION 12 RULE 8
Q: What is the fraud being referred to under section 12 rule 8?
A: In Obligations and Contract, this defense would only be
possible if the cause of action arises from the contract. Again,
let's go back to our 5 sources of obligations
1. Law
2. Contract
3. Quasi-contract
4. Quasi-delict
5. Delict
Didto sa upat na causes of action, dili applicable ang fraud.
1. Law - because it is the law that is the basis your causes of
action
2. Quasi-contract - solution indebiti, negotiorum gestio walay
fraud diha
3. Quasi-delict - negligence so walay fraud
4. Delict - Crime
34
So it's possible in an obligation arising from a contract.
DEFINITION OF FRAUD
So what is the fraud here? As defined in this case:
Fontana Resort and Country Club Inc vs Spouses Tan
there is fraud when one party is induced by the other to enter
into a contract through and solely because the latter's
insidious words or machinations
Not all forms of fraud can vitiate consent. Under Article 1330
fraud refers to dolo causante or causal fraud. In which prior to or
simultaneous in the execution of the contract, one party secures
the consent of the other by using deception, without which such
consent will not be given.
The one which is considered as an affirmative defense is causal
fraud or fraud in the execution (not incidental fraud) Why?
Because it affects the perfection of the contract when there is
fraud which vitiated the consent of one party in the contract. So it
is voidable so that can be a ground for annulling, terminating, or
extinguishing a contract. So if that contract is enforced against
you and your consent was vitiated by fraud and that was the
reason why you entered into the contract that could be your
affirmative defense which would free you from the contract.
There is another kind of fraud - the incidental fraud or fraud in
the performance is not the kind of fraud mentioned here.
Incidental fraud merely entitles the aggrieved party to damages.
It can be interposed as a counterclaim. That is not an
affirmative defense that would free the defendant from his
obligation and therefore warrant the dismissal of the case.
2. STATUTE OF LIMITATIONS AND ESTOPPEL (in relation to
Section 5b Rule 6)
Statute of limitations meaning restriction so under the rules on
prescription under the new civil code. The new civil code
provides for certain period within which actions must be
instituted otherwise the action is already deemed barred.
For example,
1. an action upon a written contract - file it within 10 years from
the time that a cause of action accrues.
2. unlawful detainer or forcible entry - within one year from the
time the cause of action accrues
So nakaspecify didto. Again, we also distinguish between cause of
action and right of action. So even if a person may have a cause of
action but still his case can be dismissed if he no longer has the
right of action because he filed the case beyond the prescriptive
period or beyond the statute of limitations. So that is governed by
articles 1139 to 1155 of the Civil Code.
So take note under the present rules prescription can also be
raised in a motion to dismiss and not just in an answer.
DBT Mar-bay Construction Inc. vs Panes Et al.
The court just mentioned here the concept of prescription
either as an affirmative defense or as a ground in a motion to
dismiss. The same under the present Rules, even if the
defense has not been asserted at all, as where no statement
thereof is found in the pleadings but if the court finds later on
during the trial that the action has already prescribed so there
is also no time limitation within which the defendant could
raise the ground of prescription it could be in the answer, in
the motion to dismiss, or anytime during the trial.
What is essential only, is that the facts demonstrating the
lapse of the prescriptive period be otherwise sufficiently
and satisfactorily apparent on the record; either in the
averments of the plaintiff's complaint, or otherwise
established by the evidence so that could be raised.
Heirs of Tomas Dolleton vs Fil-Estate Management Inc.
the affirmative defense of prescription does not automatically
warrant the dismissal of a complaint under Rule 16 of the
Rules of Civil Procedure. An allegation of prescription can
effectively be used in a motion to dismiss only when the
Complaint on its face shows that indeed the action has
already prescribed. If the issue of prescription is one
involving evidentiary matters requiring a full-blown trial on
the merits, it cannot be determined in a motion to dismiss.
Meaning even if prescription can be raised as an affirmative
defense or as a ground in a motion to dismiss or can be raised at
any time but if it is not clear also from the complaint, na naa nay
prescription because there is certain cases na from the complaint
itself you will see na the action has already prescribed. Like
action for unlawful detainer, the plaintiff alleged that the demand
was made on January ,1 2005 because demand also is an
essential requisite to complete the right of action for unlawful
detainer, demand is necessary. Within one year from the date of
the last demand, action for unlawful detainer should be filed
otherwise the action has already prescribed. But in the complaint
klaro nga gibutang sa plaintiff na mao ni siya ang date sa last
demand and then upon filing (makita man pud kanus a gifile) so
in that case very clear from the complaint that the action has
already prescribed so it is easy for the court to determine no
need for trial, based on the allegations itself. But if dili clear
from the allegations in the complaint na kanus a siya
nagprescribe, you are not even sure kanus a nagstart ang cause of
action ni plaintiff. So here you would need a trial, the court
cannot just on its own determine whether or not there is already
prescription because evidentiary matters would have to be
thresh out first before the court can determine whether or not
the action has already prescribed so it cannot be determined in
a motion to dismiss because summary hearing lang ang sa
motion to dismiss.
LACHES
Sometimes people confuse prescription with laches because both
of them involved the passage of time.
DEFINITION
Laches is the failure of or neglect for unreasonable or
unexplained length of time to do that which by exercising due
diligence could or should have been done earlier or to assert a
right within a reasonable time warranting a presumption that the
party entitled thereto has either abandoned it or declined to
assert it.
In laches, we are also dealing with passage of time but it is not
merely limited to the mere passage of time. There are cases even
if under the law the prescriptive period has not yet lapse but the
action is already barred by laches. Why? because in those cases
after the passage of time coupled with the inaction on the part of
the plaintiff, if the plaintiff would be allowed after how many
years to institute the action at this point in time, it would
already be prejudicial on the part of the defendant so here
the action of the plaintiff is already barred by laches
Example: There is a Deed of Sale between A and B. The DOS is
actually null and void because it is not approved by the executive
department as the seller is a member of the Indigenous Cultural
Community or Indigenous People. Dapat mag agi sila sa NCIP
(National Commission on Indigenous Peoples). Without such
approval, the DOS is null and void. The sale happened for about
how many years ago. At the meantime, after the sale was made,
the defendant occupied the property and made improvements
therein. Almost 50 years after, the heirs of the seller filed an
action to declare the DOS null and void.
Is that action barred by prescription?
No, as held in the case of Miguel vs Catalino. The action to
declare a contract null and void does not prescribe. It may be
filed anytime. In reality, the contract here is null and void
because it is not approved by the executive department.
Can the plaintiff recover the property from the defendant?
No. The action is already barred by laches. After how many years,
the plaintiff just kept silent and allowed the defendant to
introduce improvements over the property and now, after
knowing that the property has considerably increased in value,
the plaintiff has now instituted the case like an ambush. It would
now be prejudicial and inequitable to allow the plaintiff to
recover from defendant. Even if the defense of prescription is
available, the action is already barred by laches – estoppel by
laches.
Other Important Points in the Fulltext Not Discussed
1. Elements of Laches: present in the case at bar, namely:
(a) conduct on the part of the defendant, or of one under whom he
claims, giving rise to the situation of which complaint is made and
for which the complaint seeks a remedy;
(b) delay in asserting the complainant's rights, the complainant
having had knowledge or notice, of the defendant's conduct and
having been afforded an opportunity to institute a suit;
(c) lack of knowledge or notice on the part of the defendant that
the complainant would assert the right on which he bases his suit;
and
(d) injury or prejudice to the defendant in the event relief is
accorded to the complainant, or the suit is not held to be barred.
35
 the cause of action is waived, abandoned, or otherwise
2. The difference between prescription and laches. barred by the statute extinguished - we have to modify
The defense of laches applies independently of prescription. Laches of limitations this because this is under the old
is different from the statute of limitations. Prescription is rule and now under the
concerned with the fact of delay, whereas laches is concerned with amendments, estoppel by laches is
the effect of delay. Prescription is a matter of time; laches is already a specific ground - it falls
principally a question of inequity of permitting a claim to be under another item under Section
enforced, this inequity being founded on some change in the 12 or Rule 8 in relation to Section
condition of the property or the relation of the parties. Prescription 5(b) of Rule 6.
is statutory; laches is not. Laches applies in equity, whereas When an action has but even if there is an unreasonable
prescription applies at law. Prescription is based on fixed time already prescribed, it length of time before a right is
laches is not. may also mean that exercised, it may not mean laches if
there is laches as the exercise is still within the
Prescription Laches there is an prescriptive period fixed by law as
Fact of delay Effect of delay unreasonable length in the case of Miguel vs Catalino.
Matter of time Question of inequity of permitting a of time before a right
claim to be enforced, this inequity is exercised
being founded on some change in the when you say But when you say laches, the period
condition of the property or the prescription, just of prescription may not have lapsed
relation of the parties. count the number of yet but because of laches, the
Statute (Civil Code) Jurisprudence years that had plaintiff is already barred like in the
Law Principle of equity already lapsed. If it case of Miguel vs Catalino – an action
Based on fixed time Not already lapsed, the to declare a contract null and void
action is dismissible does not prescribe so within the
Before, in the previous Rules, estoppel by laches is not mentioned on the ground of prescriptive period pa jud ang case,
expressly as one of the grounds for a motion to dismiss or as an prescription. It could however, even if that is the case, it is
affirmative defense. Silent siya but in one case, the SC said that be possible that already barred by laches so possible
even if laches should not be ground for a motion to dismiss a within that period na barred by laches but not by
complaint in Section 1 of Rule 16 because it did not expressly also, the action is prescription.
mention it, but actually it could be subsumed under that phrase barred by laches
…
“(h) That the claim or demand set forth in the plaintiff's pleading But of course, if you are the defendant and the action has already
has been paid, waived, abandoned, or otherwise extinguished;” – prescribed, even if there might be laches, didto nalang ka sa
Par (h), Sec 1, Rule 16. prescription, mas klaro pa. Kay kung laches man gud, the Court
will have to determine the inequity of permitting the plaintiff of
Under paragraph (h) thereof, where a claim or demand set forth asserting the demand after the lapse of an unreasonable length of
in the plaintiff's pleading has been paid, waived, abandoned, or time. Dira mag arise ang question ang unreasonableness sa
otherwise extinguished, the same may be raised in a motion to period. Unreasonable ba jud nga gi allow niya ang ten years and
dismiss. The language of the rule, particularly on the relation of would there be inequity that would be caused to the defendant if
the words "abandoned" and "otherwise extinguished" to the the plaintiff will be allowed? If the remedy of prescription is
phrase "claim or demand deemed set forth in the plaintiff's available, it would be safer to invoke prescription even though
pleading" is broad enough to include within its ambit the defense you are not prohibited in invoking laches at the same time.
of bar by laches – estoppels by laches.
Again, these are the grounds for dismissal of an action on the
However, when a party moves for the dismissal of the complaint ground of
based on laches, the trial court must set a hearing on the 1. statute of limitations as an affirmative defense or in a motion
motion where the parties shall submit not only their arguments to dismiss and
on the questions of law but also their evidence on the questions 2. estoppel by laches as an affirmative defense but not in a
of fact involved. Thus, being factual in nature, the elements of motion to dismiss.
laches must be proved or disproved through the presentation of
evidence by the parties. As discussed above, an apparent delay in 3. RELIEFS AND PAYMENTS
the filing of a complaint as shown in a pleading does not
automatically warrant the dismissal of the complaint on the They are of different concepts but I lumped them together. This
ground of laches. shall be based in Article 1231 of the New Civil Code – How are
obligations extinguished.
PREVIOUS AMENDED Article 1231.
In the previous rule, laches is but now, under the Obligations are extinguished:
not expressly mentioned as amendments, it is expressly (1) By payment or performance;
one of the grounds for a included. (2) By the loss of the thing due;
motion to dismiss or as an (3) By the condonation or remission of the debt;
affirmative defense (4) By the confusion or merger of the rights of creditor and
debtor;
How do you distinguish prescription from laches? (5) By compensation;
PRESCRIPTION LACHES (6) By novation.
Prescription is a while laches is a creation of equity Other causes of extinguishment of obligations, such as
creation of law as there is no codal provision that annulment, rescission, fulfillment of a resolutory condition,
because it is mentions laches although it is and prescription, are governed elsewhere in this Code.
expressly mention in recognized by jurisprudence (1156a)
the Civil Code
Prescription may be laches is always extinctive meaning
acquisitive (acquire it extinguishes your right of action Take note under the Rules of Court that it mentions relief and
property) or payment. Under Article 1231 of the NCC, asa mana siya?
extinctive (lose (1) By payment or performance
property) (2) By the condonation or remission of the debt.
a cause of action may laches being evidentiary in nature, is
These are reliefs. How about the rest? Affirmative defenses ba
be effectively assailed a fact that cannot be established by
sila? What if a case is filed against you. Then you allege na you
on this ground by a mere allegations in the pleadings as
are already absolved from obligation because of the grounds
mere motion to you cannot just allege inequity so we
other than #1 and #3, can you allege these as your affirmative
dismiss if apparent in have to prove it, hence, a full blown
defense? No, because they are mentioned in the Rules. They are
the pleadings trial, not a mere motion to dismiss is
defenses but are not affirmative defenses, meaning there has
required to dismiss a cause of action
to be a full-blown trial on these defenses. Although, you can
on this ground.
justify them under the last paragraph. Wala pa man gud tay
If a cause of action is If a cause of action is assailed due to
jurisprudence noh.
assailed due to laches, the proper ground is that the
prescription, the claim or demand set forth in the
proper ground is that plaintiff's pleading has been paid,

36
Remember katong akong gi ingon ha. Naa pay other modes to
extinguish an obligation (those grounds other than #1 and #3),
pero ang gimention lang sa Rules kay #1 - By payment or
performance and #3- By the condonation or remission of the
debt. Under the previous Rules, nay nakabutang na…
“(h) That the claim or demand set forth in the plaintiff's pleading
has been paid, waived, abandoned, or otherwise extinguished;” –
Par (h), Sec 1, Rule 16.
Now in this case of Pineda vs Heirs of Eliseo Guevarra, the
Court said na these other grounds mentioned in Article 1231,
could fall under that the catch all phrase above that the claim or
demand set forth in the plaintiff's pleading has been paid,
waived, abandoned, or otherwise extinguished but under the
present Rules, wala ni siya na mention.
5. ILLEGALITY
Illegality as an affirmative defense is also not mentioned under
the previous Rules in Section 1, Rule 16. Wala siya.
EX: A case is filed against B for specific performance. His defense
is that the contract is null and void because the land sold was
actually his homestead land and under the law, within 5 years
from the award, you cannot sell/ transfer the homestead land. So,
the seller-defendant here alleges that the contract is null and
void.
Q: Can it be raised in a motion to dismiss? Ikaw si defendant –
seller, can you move for a motion to dismiss the case because the
contract is null and void?
A: That is not a ground mentioned under the previous Rules in
Section 1, Rule 16.
Q: How about as an affirmative defense?
A: Dili gihapon because this is not one of those affirmative
defenses mentioned under Section 1, Rule 16.
Now there are grounds to dismiss a case in a motion to dismiss
but if they are not interposed in a motion to dismiss, they can be
utilized as affirmative defenses in the answer. But, this is not
mentioned as one of those. Again, if this is your defense, you can
raise that but not in a motion to dismiss and not as an affirmative
defense in your answer. Just a defense which will be tackled by
the court and there shall be a full blown trial on the merits. Diha
pa na siya ma dismiss in the end kung tinuod jud ug na prove
nimu na the contract is null and void.
Under the present amendment, this is already an affirmative
defense.
PREVIOUS AMENDED
Not a ground in an MTD Affirmative
Cannot be raised as an AD defense
Also not an MTD ground that if not
interposed in MTD may be utilized as
AD but just a defense requiring a full-
blown trial.
Now, what is the consequence?
The Court on its discretion can conduct a hearing on this
affirmative defense and determine kung dismissible ba ang case
or not. So, pwede nga sa start palang ma dismiss na dayun ang
case.
What is the order ba in the trial so you can determine unsa ba
ang significance nganu ba diay kung affirmative defense siya in
an answer or as an ground for a motion to dismiss or mag-trial
nga pareha lang man japun nga ma dismiss siya?
1. First, the plaintiff files a complaint.
2. Then the defendant can file a motion to dismiss or an answer
and interpose an affirmative defense. Kung naay motion to
dismiss, wala pa na siyay answer.
3. The Court will conduct a hearing on the motion to dismiss
because as a general rule, no motion can be granted without a
prior hearing.
4. So kung ma determine sa Court na dismissible diay ang case,
then I dismiss ang case so paspas siya na dismiss without the
defendant having to file an answer and going through trial.
Dismiss na.
5. Now, if there is no motion to dismiss, meaning the defendant
opted to file an answer interposing an affirmative defense, under
the present rules, depende kung unsa imong affirmative defense.
Naay affirmative defenses where the court will conduct a hearing
and resolve. Naa pud discretionary on the part of the Court. If the
court conducts a hearing on your affirmative defense and finds a
ground to dismiss, then dismiss na siya but you filed an answer.
Kana, effort na siya on the part of the defendant.
6. Now if dili siya affirmative defense, di pud siya ground for a
motion to dismiss, what will happen? Or if there is an affirmative
defense but it is not resolved by the Court, what will happen?
Diba, nay affirmative defenses na discretionary lang on the part
of the Court. Pwede nga nay reply. After the reply, the case will be
set for pre-trial but if mediatable ang case, mag mediation sa na
sila. If mediation fails, pre-trial. After pre-trial, start na sa
presentation of evidence si plaintiff tapos si defendant napud.
Didto na mag decide si Court if I dismiss ba niya ang case or not.
In the decision of the Court, the Court may also include in the
determination katong affirmative defenses nga wala niya gi
resolve before. So even if in the end, gi dismiss gihapon ang kaso
pero dugay nahuman and expensive na on the part of both
parties. It would be better if the Court can resolve the case either
in a motion to dismiss or upon hearing on the affirmative
defenses interposed in an answer. So mas paspas siya. Karon ang
illegality is already part of the affirmative defenses. You do not
have to go through the process of a full-blown trial.
What is the illegality mentioned under the Amended Rules?
In cases of obligations, illegality is governed by Article 1409 of
the New Civil Code.
Article 1409.
The following contracts are inexistent and void from the
beginning:
(1) Those whose cause, object or purpose is contrary to law,
morals, good customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of
the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the
principal object of the contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the right to set
up the defense of illegality be waived.
So, if these are the contracts which are the bases for the cause of
action of the plaintiff, the defendant can raise the defense that
the contract is null and void. That is his defense. He will not
perform his obligations under the contract because it is null and
void. Again, defense. That defense cannot be waived. He can
always set that up as a defense regardless of the passage of time.
Manzano vs Garcia (G.R. No. 179323, November 28,
2011)
There are two types of void contracts:
(1) those where one of the essential requisites of a valid
contract as provided for by Article 1318 of the Civil Code is
totally wanting; and
Article 1318. There is no contract unless the following
requisites concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
(3) Cause of the obligation which is established.
(2) those declared to be so under Article 1409 of the Civil
Code
There is, however, a distinction between inexistent contracts and
void ones as to their effects as held in the case
G. HOLDINGS, INC., Petitioner, v. CAGAYAN ELECTRIC
POWER AND LIGHT COMPANY, G.R. No. 226213,
September 27, 2017.
Inexistent contracts produce no legal effect whatsoever in
accordance with the principle "quod nullum est nullum
producit effectum" (not in the fulltext but mentioned by
Maam: so it is equivalent to nothing and because it does not
exist in legal contemplation, it gives rise to no right or
obligations. The parties may treat it as it does not exist. ) In
case of void contracts where the nullity proceeds from the
illegality of the cause of object, when executed (and not
merely executory) they have the effect of barring any action
by the guilty to recover what he has already given under the
contract.
In short, not all void contracts are illegal contracts. There are
void contracts because some of the essential requisites are not
present. There are void contracts because they are prohibited by
law.
37
Now, what is the illegality mentioned by the Rules of Court as an
affirmative defense?
Well, there is still no jurisprudence to this effect. For example,
you are asked, technically, you have to make a distinction
between void contracts and inexistent contracts. When you say
kasi illegal, you can raise that as an affirmative defense by
interposing that in an answer. But if the contract is void not
because of illegality but because of other reasons – not as an
illegal contract and not an affirmative defense, it is still a
defense but not subject to a preliminary trial which is the
consequence supposedly of an affirmative defense.
So, if you are the defendant and your defense is that the contract
is null and void but not because of illegality, then, you have to go
through trial to prove that. Dili siya affirmative defense.
Although, we do not know kay the Supreme Court may come up
with a jurisprudence that say na by analogy illegality is similar to
inexistence just being very technical about it. There is a
difference between an illegal contract and an existent contract.
We just based it on present jurisprudence.
6. STATUTE OF FRAUDS
Purpose: To prevent fraud and perjury in the enforcement of
obligations depending for their evidence upon the unassisted
memory of witnesses by requiring certain enumerated contracts
and transactions to be in writing
So under the SOF, those transactions/contracts enumerated in
Paragraph 2 of Article 1403 of the New Civil Code must be in
writing.
Consequence if not in writing: Valid but unenforceable.
When you say SOF as an affirmative defense, we are referring to
those causes of actions arising from contracts involving these
transactions. So please remember again, because you will discuss
it again in evidence, also in obligations and contracts.
What are these enumerated transactions?
(a) An agreement that by its terms is not to be performed
within a year from the making thereof;
 Like construction agreement but it will start after 1
year, so it cannot be orally made, it has to be in
writing. What if the agreement is A and B agreed that
within one year from the execution of the contract, B
will not pass through the estate of A? Will that fall
under letter A? It is not covered because it is
immediately enforceable. That is a negative obligation
so within 1 year starting from today you will not pass,
it is already being performed.
(b) A special promise to answer for the debt, default, or
miscarriage of another;
 You are not the debtor but you promise to answer for
the debt of the debtor. Specific example is a contract of
guaranty.
(c) An agreement made in consideration of marriage, other
than a mutual promise to marry;
 Because you know, in mutual promise to marry, by
itself, if breached, is not actionable unless there has
been a violation of the scattered provisions of human
relations. We are referring here to, for example
prenuptial agreements. So here the agreement is by
reason of marriage, it has to be in writing.
(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;
 So personal properties limited to goods, chattels or
things in action if the price not less than five hundred
pesos, so at least five hundred. If it is made orally, it is
not enforceable, so it must be in writing.
(e) An agreement for the leasing for a longer period than one
year, or for the sale of real property or of an interest therein;
 Lease for more than 1 year of real property or interest
therein or for sale of real property or interest therein
regardless of value, it has to be in writing
( f ) A representation as to the credit of a third person.
 In letter (f) you do not promise to answer if the debtor
defaults you just say, lend me money because I assure
you we can pay. So that’s different from letter B, but if
your representation turns out to be false, and it is not
in writing. It is not enforceable.
Now what is the importance here? Under the SOF, it is required
na these transactions must be in writing, in a note or
memorandum subscribed by the party charged. So if it is not in
writing, it cannot be enforced.
EX: A and B entered into a contract of sale (for a parcel of land). 1
hectare for P10,000. (Jackpot daw si B because mura) So they did
the transaction while drinking in the sari-sari store of Juan, so
they shook hands, B said tomorrow I will give you the P10,000
and A also said that he will give B the owner’s copy of the title
tomorrow. So it was already a perfected transaction because sale
is a consensual contract. It is perfected by mere consent. So the
next day, B goes to the house of A carrying with him the P10,000.
But A now refuses saying he was only drunk, now that he was
sober he is withdrawing from the contract and that he was in fact
selling the land to Y who was willing to pay P1,000,000.
Q: What is the status of the contract between A and B(verbal)?
A: That contract is unenforceable, because it was a sale of real
property, therefore it must be in writing.
Q: Now B files a case against A for specific performance, what
would be the defense of A, the seller?
A: The contract is unenforceable under the Statute of Frauds. The
rule says the contract has to be in writing, embodying the
essentials of a contract and signed by the party in charge.
Evidence of the agreement cannot be received without the
writing or a secondary evidence of its contents. If you remember
in your Obligations and Contracts, when you say note or
memorandum, does it have to be in a single document? Should
the single document embody all the terms and conditions of the
contract as well as the signatures? NO. Under the Rule on Papers
Connected, several documents can actually be considered as long
as they are properly connected in contents and signature, and
can give life to the nature of transaction.
Example: A offered to B in writing to sell his land, B answered
and made a counter-proposal. So A’s price is P1M payable
immediately cash, B says I’m willing to buy at P1M but can I pay
in 2 installments within 1 month. A agrees to the two instalments
but adds interest of 1% per month. B agrees to the interest but
asks for it to be half of 1% per month. Then A says, okay. So from
that time, there is already a perfected contract. But there is no
single document there that embodies all the terms and
conditions of the perfected contract of sale. So in that case, you
can consider all those letters exchanged between A and B. That
would constitute as sufficient memorandum and satisfy the
requirements of the Statute of Frauds.
Now the purpose again of SOF is merely evidentiary. Meaning,
you cannot prove the existence of the contract of sale by oral or
parole evidence, there has to be a written instrument. Although
again as we said, the contract is valid, although it is not
enforceable.
So, we already discussed the requirements of a Note or
Memorandum:
1. It should state the names of the parties, the terms and
conditions of the contract and the description of the property
2. Subscribed to by the party in charge
Now how do you raise SOF as a defense? Lets go back to the
contract of sale between A and B. So suko kayo si B, nganong lahi
lahi ug isip si A? (B:) I want the land, we already agreed at
P10,000 so he files a case against A for specific performance. If
you’re the lawyer for A, what do you do?
1. Interpose the defense of Statute of Frauds in Answer
 Upon receiving the summons, requiring you to answer, in the
answer you should already interpose the defense of SOF. You
will say “the defendant admits the allegations in paragraph 4
of the complaint ‘the plaintiff and defendant entered into a
contract of sale’ however the contract of sale is not
enforceable because it is not in writing. Under Article
1403(2) of the NCC, A contract of sale of involving real
property or of an interest therein must be in writing to be
enforceable. That is how you interpose your affirmative
defense.
PREVIOUS AMENDED
38
 before the SOF is also a but under the present
ground for a motion to amended rules, it can no
dismiss (so affirmative longer be availed of as a
defense pud?) ground for a motion to
dismiss but it remains to be
an affirmative defense
So again if you are the defendant, you should raise that as an
affirmative defense in the answer.
Consequence if you lawyer forgot to interpose the SOF as an
affirmative defense, instead the lawyer said, “the contract of sale
is voidable because at the time when A agreed to the sale he was
drunk, he was not in his proper frame of mind” That is his
defense, he did not mention about the SOF. What is the effect?
The effect is that defense is already waived. Meaning, B can
present parole or oral evidence to prove the existence of the
contract of sale. That’s one.
2. Demurrer to evidence
 Second possible remedy, if assuming, na the defendant A,
even if he raised SOF in his affirmative defense, but it
depends upon the court whether or not it will conduct a
hearing in that ground. Those affirmative defenses under
Rule 6, Section 5(b) which includes the SOF, it is actually
discretionary on the part of the court whether or not it will
conduct a hearing. Katong naa sa Rule 8 Sec 12, katong nay
no jurisdiction over the person of the defendant, failure to
comply with the condition precedent, etc, kato sila ang
mandatory. So here it is possible na despite the fact that the
defendant raised it in his answer as an affirmative defense,
the judge may opt not to rule on the issue, and just to
proceed with the trial. So trial and then recitation of evidence
for the plaintiff. So it is possible also that in the demurrer to
evidence. What is a demurrer to evidence? It is like a motion
to dismiss, but it is only filed after the trial on the merits.
After the plaintiff has rested his case. So diha, you will file a
demurrer to evidence and ask for the dismissal of the
case because based on the evidence so far presented by
the plaintiff, he is not entitled to relief.
3. Objection to the reception of oral evidence
 Another option, by objection to the reception of the oral
evidence. Because under Article 1305 of the NCC, the defect
under the SOF can actually be ratified or waived. In so far as
Civil Procedure is concerned, one mode of waiving or
ratifying is failure to object to the reception of oral evidence.
So ang lawyer ni A, he interposed the SOF as an affirmative
defense, so wala na waive. Now, during the trial, so plaintiff
B, his lawyer called to the witness stand the owner, Juan, the
owner of the sari-sari store who witnessed the transaction
between A and B. So when you call the witness to testify,
before the witness will testify, you will first state the purpose
of the testimony. You will offer the testimony of the witness
and state the purpose of his testimony. “Your honor, I am
calling to the witness stand Mr. Juan dela Cruz, the following
are the purposes of the testimony of Mr. Juan dela Cruz. So I
am offering the testimony of Juan dela Cruz for the following
purposes: To prove that on January 1, 2000, A and B entered
into a contract of sale orally, regarding the parcel of land
covered by TCT No. 123 …and for other purposes
mentioned.” Now if you are the lawyer for A, the defendant,
what is your move? Usually the judge will ask, what is your
comment on the offer, Atty…? Unsa man imong buhaton? No
comment your honor? *class laughs*. “Your honor, I object
to the presentation of Juan dela Cruz as witness because
his testimony is not admissible, it violates the Statute of
Frauds, the contract of sale between A and B cannot be
proved by Oral Evidence.” So that is your ground for
objection.
 What is the consequence if you did not object? So nagtestify
na si Juan dela Cruz, worse, nag cross examine pagyud ang
lawyer ni A. Then the defect is already cured. You have
already waived the defense of the statute of frauds.
So that’s also the importance, even if it is unenforceable, it
doesn’t mean na if you are B, pildi najud ka. So gi advise na nimo
ayaw na file ug case kay its unenforceable, so even if you file,
even if it is valid, you cannot prove it by oral evidence. So wala ka
kabalo na basi diay ang lawyer sa defendant dili niya maraise and
SOF as a defense, or na waive nila. There are cases na I
encountered na mapildi lang ang pikas because of technicalities.
So dili pa siya hopeless actually. That’s the difference between an
unenforceable contract and a void contract. Because a void
contract cannot be enforced and cannot be waived, pero pag
unenforceable it’s valid and it can be ratified or the defense can
be waived.
So that is also mentioned in the Article 1403 of the New Civil
Code. When is that defense considered waived?
1. By failure to object to the presentation of oral evidence to
prove the same.
2. Or by acceptance of benefit under them.
These are already more substantive. Just remember that even if
supposedly a contract of sale, for example, over real property
must be in writing for it to be enforceable, but if there is already
performance whether partial or full, you can no longer raise the
defense of the SOF. The contract, even if not in writing, it can
already be proved by oral evidence. Why? Because it will be
unfair on the part of the buyer who already paid, and now he will
not be allowed to prove the existence of the contract. It runs
counter to the reason why we have the SOF. The purpose of
which, supposedly, is to prevent fraud. Now if he already paid
and he will not be allowed to present oral evidence as to the
existence of the contract, we will now be perpetrating fraud. So
that will not be countenanced by law.
7. FORMER RECOVERY (new term)
Former recovery simply means that you have already recovered
before on the same cause of action that you are filing. Or even not
in the same cause of action. If you remember, going back to
obligations and contracts, if you’re a passenger in a bus, driven
by D, the driver and owned by O, the owner. You sustained
injuries because the driver was negligent in driving the car. In
that case you have different causes of action arising from the
same facts.
1. You can file a case for breach of contract of carriage against the
owner of the bus only, and then
2. you can file a case for quasi-delict against the driver and the
owner, invoking his vicarious liability.
3. And then you can file a case for reckless imprudence resulting
to physical injuries against D, the driver only, which is a criminal
case, delict.
4. And there is a possibility that you can invoke the subsidiary
liability of the owner if the driver is insolvent.
So those are different cases. But if you have already recovered in
one case, we have the rule that you cannot recover twice for the
same act or omission. So that can also be invoked as a defense,
former recovery.
8. DISCHARGE IN BANKRUPTCY. (new term)
Q: What is a discharge in bankruptcy?
A: It is a court order that states that the debtor is no longer
responsible for certain types of debts.
Q: When will this happen?
A: If there’s already an insolvency proceeding instituted. Under
the present law we have RA 10142 – Financial Rehabilitation and
Insolvency Act of 2010 (FRIA Act) There are several remedies
there. If the debtor is already discharged by reason of the
insolvency proceeding over certain specified debts and there is
another case filed against the debtor for the same debt, he can
invoke discharge in bankruptcy as an affirmative defense. So, I
have already been discharged for this particular obligation.
PREVIOUS AMENDED
So this was not mentioned before But now they really
in the prior rules. But it can be specified that,
applied under the phrase “the discharge in
claim or demand set forth in the bankruptcy as an
plaintiff’s pleading has been paid, affirmative defense.
waived, abandoned, or otherwise
extinguished”.
Although based on my research, it has been noted that in the US
federal rules of procedure, na remove napud sa ilaha ang
discharge in bankruptcy as an affirmative defense. Pero again,
our rules are different from their rules, so we have this now
under the amended ROC.
9. ANY OTHER MATTER BY WAY OF CONFESSION AND
AVOIDANCE.
Meaning, the defendant will say, assuming that you are correct
that we entered into a contract, I admit that, but still I am not
liable because of these reasons. Now we mentioned in the earlier
discussions, release and payment under Article 1231. They are
specified as affirmative defenses. How about the other modes of
extinguishing obligations? Like, confusion, novation, tender of
payment and consignation. How do we invoke that? Because
these are also defenses. Actually, by analogy, they are also
matters of confession and avoidance. So by analogy, you can
say na they can also be invoked as affirmative defense by way of
confession and avoidance. So that is one possible interpretation.
39
Fraud was mentioned, diba we discussed it yesterday, pero diba
we know that in obligations and contracts, fraud is not the only
vice of consent, Mistake, intimidation, undue influence, so
how about these vices of consent? Yes I entered into that
contract, minority, insanity, hypnotism, so I entered in to that
contract but I was mistaken, my consent was vitiated. But these
other vices of consent are not mentioned (in the provi), but again
we can invoke them as matters by way of confession or
avoidance by analogy. So that’s my interpretation kay wala pa
man…
Then we discussed before Illegality as an affirmative defense. But
again, as we have discussed yesterday, a void contract is not only
an illegal contract.
There are 2 types of void contracts.
1. This which are declared Null and Void under Article 1409 of
the NCC; and
2. Those which do not have the essential requisites under article
1318
So illegality lang pud ang gimention for affirmative defense, how
about the other reasons for nullity? Well again, we can use
those ground by way of confession and avoidance.
And if you notice, Rule 8, Section 12 it makes reference to Rule 6,
Sec 5(b). It also specifically mentions other grounds, like the
court has no jurisdiction over the person of the defending party,
failure to state cause of action, failure to comply with condition
precedent, etc. Pero wala niya gimention sa Rule 8, Section 12
tong no jurisdiction over the subject matter, litis pendentia,
and res judicata. They are not mentioned. So do they cease to
be affirmative defenses? Again no, because they are also matters
by way of confession and avoidance. And in fact, as we have
already discussed, these defenses cannot be waived and they can
be invoked at any time. So they are still affirmative defenses.
AFFIRMATIVE DEFENSES UNDER Rule 8, Section 12.
1. That the court has no jurisdiction over the defending party.
We discussed this before under jurisdiction. The court has to
obtain jurisdiction over the subject matter, over the person of the
plaintiff, over the defendant, over the issues and in some case,
over the res. So one defect, if the court does not acquire
jurisdiction over the person of the defendant…
How is jurisdiction over the person of the defendant acquired?
There are 2 ways:
1. Valid service of summons; or
2. Voluntary appearance in court.
So even if wala na-summon or improper ang service sa summons
but the defendant voluntarily appeared in court. Kanusa mana
siya voluntarily appeared? Kanang nisulod siya sa Korte? Your
Honor present? Okay, dili na siya mao. We will discuss later what
do we mean by voluntary appearance in court, voluntary
submission to the jurisdiction of the court.
Q: What is the effect if the court did not acquire jurisdiction over
the person of the defendant? So walay proper service of
summons, and there was no voluntary appearance.
A: All the proceedings in that case would be null and void
because the court again, did not acquire jurisdiction. Any
judgment of the court over the defendant will be null and void as
discussed in the case of Manotok v. Court of Appeals, although it
is no longer a ground for a motion to dismiss today.
PREVIOUS AMENDED
So before, this was a ground but under the Amended
for a motion to dismiss Rules, it’s no longer a ground
under Rule 16 for a motion to dismiss.
Again, just raise this as an
affirmative defense in the
Answer.
What are the limitations on the first ground?
(1) Lack of jurisdiction over the person of the defendant is a
viable ground only for actions that are purely in personam.
 Actually, jurisdiction over the person of the defendant
is not even required in the case of actions in rem or
quasi in rem, but diba we said before na there must be
service of summons? Yes, but not for the purpose of
acquiring jurisdiction over the person. It’s just a
requirement of due process. Technically, you cannot
acquire jurisdiction over that person because they’re
not here. The court’s processes are only limited to our
territory, so territorial.
(2) Lack of jurisdiction over the person of the defendant can be
waived.
 So, even if you raise the affirmative defense that the
court did not acquire jurisdiction over your person,
but it is not sure na the case can be dismissed on that
ground because that defense can be waived as we will
discuss later.
What are the forms by which this defense can be waived?
 Even if there was no proper service of summons on
the defendant, he filed his answer and he did not raise
this as an affirmative defense. - Again, the rule is
objections and defenses not raised in the answer
or in the motion to dismiss are deemed waived.
That is still the rule. So, even if there is such a defect
pero the defendant did not raise it in his answer, it is
waived.
 By the voluntary appearance of the defendant in
court. - Wala na na sya na ground because by his
voluntary appearance, the court has already acquired
jurisdiction over his person. Now, it is provided in
Section 3 of Rule 14. This is different from the
previous rule. The rule here now is under Section 23.
Section 23.
Voluntary appearance. — The defendant's voluntary
appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance.
So, although I will discuss with you my observation on this
amended portion of the Rules of Court, just for our discussion,
these are the two ways by which this defense of lack of
jurisdiction over the person of the defendant is waived. Again,
(1) failure to raise it as an affirmative defense, and
(2) voluntary appearance.
(3) Lack of jurisdiction over the person of the defendant can be
disregarded if the purpose of the law in requiring service of
summons have been attained nonetheless.
 In some cases where summons was improperly served
(summons is singular; summonses, plural), such as in
the case of substituted service upon a person not of
suitable age and discretion, but the defendant was still
able to receive it, the defect is cured. When we go to
summons, it is a requirement na, if for example, you
need to resort to a personal service ang priority. So
dapat si defendant gid mismo ang tagaan nimo sa
summons. Now, if sige kag balik-balik, wala gyud so
naa kay gibilinan. Dapat suitable age and discretion
kaya lang bata pa man tung imohang gibilinan pero
murag na gud syang tigulang ug nawong so mao tung
pagtoo nimo. But nadawat gyud ni defendant ang
summons so the SC said the defect is cured. We apply
the liberal policy of the Rules.
(4) If the reason why service of summons was not effected upon
the defendant was because of the act himself of the defendant.
 Here, the SC said, the plaintiff should not be allowed to
suffer due to lapses on the part of the officers of the
court. If for example, the failure was due to the act
itself which is attributable to the defendant.
LINGNER & FISHER v. INTERMEDIATE APPELLATE COURT
G.R. No. L-63557, October 28, 1983
Summons was served improperly on the defendant. Because
of this, the defendant filed a motion to dismiss. Again, under
the previous rules, pwede ka magfile motion to dismiss on the
ground of lack of jurisdiction over the person of the
defendant. So nagfile sya motion to dismiss based on this
ground.
But the Court said, a case should not be dismissed simply
because an original summons was improperly or wrongfully
served. It should be difficult to conceive, for example, that
when a defendant personally appears before a Court
complaining that he had not been validly summoned, that the
case filed against him should be dismissed. The remedy here
is issue an alias summons that can be actually be served upon
the defendant. So the Court may not dismiss the case just
because of that ground.
40
 G.V. FLORIDA TRANSPORT, INC. v. TIARA
G.R. No. 201378, October 18, 2017
Dili dismissal ang first response to that complaint na the court
did not acquire jurisdiction over the person of the defendant
because of improper service of summons. The remedy is to
issue alias summons, which is also applicable under the
present case.
We discussed the limitations on this affirmative defense. So
based on our discussion, lisod sya i-invoke because pwede ma-
cure, pwede ma-waive, and then pwede mag issue ug alias
summons ang court. Now under the Amended Rules, it’s even
more difficult to invoke this ground to dismiss by way of
affirmative defense (based on Atty. LCYE’s Word document):
1. Rule 14, Section 13 states that:
 This is a new provision. So wala kay lusot. (??? 40:46-
40:51) So the court will just cure the defect by
deputizing the defendant’s lawyer.
2. This is no longer a ground for a motion to dismiss [Rule 15,
Section 12(a)]. So it is also impossible that the defendant will just
file a motion to dismiss based on this ground alone.
3. Because the defendant is not allowed to file a motion to
dismiss based on this ground, he will have to necessarily file an
answer and interpose this as an affirmative defense. By filing an
answer, the defendant is submitting voluntarily to the
jurisdiction of the court.
PREVIOUS AMENDED
Section 20. Voluntary Section 23. Voluntary
appearance. — The appearance. — The
defendant's voluntary defendant's voluntary
appearance in the action appearance in the action
shall be equivalent to service shall be equivalent to service
of summons. The inclusion in of summons. The inclusion in
a motion to dismiss of other a motion to
grounds aside from lack of dismiss of other grounds
jurisdiction over the person aside from lack of
of the defendant shall not be jurisdiction over the person
deemed a voluntary of the defendant shall be
appearance. deemed a voluntary
appearance.
Ang (…) is you have no choice because under the Omnibus
Motion Rule you have to include everything for as long as you did
not ask for affirmative relief from the court even if you included
other affirmative defenses. So lahi nang affirmative relief, lahi
pud nang affirmative defenses.
Affirmative relief -> injunction, TRO, etc.
Affirmative defenses -> katong for example, the defense of
confession and avoidance.
Ana ang Supreme Court, katong La Naval Doctrine, na dili sya
considered as voluntary appearance kung nag include kag other
grounds but karon, waiver na sya so going back niingon sya
didto nga inclusion in a Motion to Dismiss of grounds other than
lack of jurisdiction over the person but in fact, this is not even
available as a ground for a Motion to Dismiss.
When you go to Rule 15 and Rule 9, dili na sya ground for a
motion to dismiss in the first place. So unsa imong buhaton? So
that’s impossible for you to include this in your motion to
dismiss. So unsa ang consequence? Because you’re not allowed
to include this in your Motion to Dismiss, you will have to
include this in your answer as an affirmative defense. But
jurisprudence says na when you file your answer, that is
submission to the jurisdiction of the court. That is equivalent to
voluntary appearance.
Also, it would be difficult for you if you are the defendant if you
will not include other grounds kay again the Omnibus Motion
Rules still exist. So you will have to include everything otherwise
the other defenses are deemed waived except kung lack of
jurisdiction, di to sya ma-waive. Pwede nimo sya nga, mag-file sa
ko ug Answer but in the first place, the filing of an Answer is a
voluntary appearance. So the Supreme Court is (…) Wala na gyud
kay ground if kung mao ni sya imohang ground lack of
jurisdiction over the person of the defendant atik lang ni sya kay
necessarily you’ll be forced to submit to the jurisdiction of the
court. (ngeee)
I already mentioned the effect na it’s dangerous on the part of the
defendant because if you will not cite the other grounds, wala na
waived na to sila. And then the fact that he filed his Answer, he is
submitting himself to the jurisdiction of the court. Rule 9, Section
1 still says:
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.
So, these are the only affirmative defenses which are not
deemed waived even if they are not raised in the answer or in a
motion to dismiss.
Some of you have asked if applicable pa ba ang provision on
appearance, special appearance? Yes. That is the one precisely
contemplated under Rule 14 na a lawyer makes a special
appearance in court for the purpose of questioning among
others, the validity of the service of summons because if he
enters an appearance unconditionally, he will be deemed to have
submitted and his client to the jurisdiction of the court. So the
court does not have to deputize him, to issue summons, because
they have already submitted to the jurisdiction of the court. Sa
kani, wala sya nagsubmit to the jurisdiction of the court precisely
because they’re questioning the service of summons. But the
Court, “okay, that is the case, I will deputize you to serve the
summons to your client so that maclear nato ang defect sa
improper service of summons.”
When a lawyer appears, it does not follow na nagvoluntary
submit na gid na sa jurisdiction of the court. It could be na
conditional or special kay kung wala gyuy ingana conditional or
special appearance without mentioning the objection, the entry
of appearance of the lawyer has the effect of his client submitting
to the jurisdiction of the court.
Q: How can the lawyer enter his appearance?
A: He can do it when he goes to court kung naay schedule sa
hearing. But he can file notice of appearance.
Section 13. Duty of counsel of record. — Where the summons
is improperly served and a lawyer makes a special
appearance on behalf of the defendant to, among others,
question the validity of service of summons, the counsel shall
be deputized by the court to serve summons on his or her
client.
Again, kung wala pa kay intention to submit to the jurisdiction of
the court, you have to specify na it is conditional or special.
Otherwise, your client is deemed to have submitted to the
jurisdiction of the court. So lahi pud nang answer. When you
enter your appearance, it does not follow naa na kay answer.
You just enter your appearance. Wala pa kay motion to dismiss.
Entry of appearance lang gyud.
NATION PETROLEUM GAS, INC. v. RIZAL COMMERCIAL
BANKING CORPORATION
G.R. No. 183370, August 7, 2015
This is still under the previous rules which cited na the
inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance.
Here, the Supreme Court made a distinction between
including in the motion to dismiss, affirmative defenses, and
asking for affirmative relief. These are different things. When
you include in your answer or in your motion to dismiss other
affirmative defenses in addition to lack of jurisdiction over
the person of the defendant under the old rules, you are not
deemed to have submitted to the jurisdiction of the court. It’s
not equivalent to voluntary appearance because that is
precisely mentioned under Section 20, Rule 14. But if you
include other affirmative relief, like here. The petitioners ask
for the discharge of the writ of attachment on their
properties; they ask for the denial of the motion to declare
them in default; they ask for the admission of the comment or
opposition to the motion to declare them in default; they ask
for the denial of the respondent’s motion to strike off from the
records their opposition to the motion to declare them in
default. These are affirmative reliefs. So, by asking for
affirmative reliefs, they are deemed to have submitted to
the jurisdiction of the court.
A party cannot invoke the jurisdiction of a court to secure
41
 affirmative relief against his opponent and after obtaining or
failing to obtain such relief, repudiate or question that same
jurisdiction.
Kani sya sa prior rule. Under the present rule, even if you
include affirmative defenses, not affirmative relief, but
affirmative defenses other than lack of jurisdiction over
the person of the defendant, you are already deemed to
have submitted to the jurisdiction of the court. Kani sya
nga ruling has already been superseded or modified by the
present Rule. Even seeking affirmative defenses will be
considered as voluntary appearance.
Lack of jurisdiction over the defendant is a personal defense. So
as discussed in the case of Atty. Sarsaba v. de Te, so this is still
applicable. Meaning, if you are the defendant who was not served
summons, or over whose person the summons was improperly
served, only you can invoke that as a defense. Kung katung imong
mga co-defendants were properly served summons, then the
court acquires jurisdiction over their person. They cannot say
that this case shall be be dismissed because one of our co-
defendants was not able to receive summons, or summons upon
him was improperly served.
ATTY. SARSABA v. DE TE
G.R. No. 175910, July 30, 2009
Held: Failure to serve summons on Sereno’s person will not
be a cause for the dismissal of the complaint against the other
defendants, considering that they have been served with
copies of the summons and complaints and have long
submitted their respective responsive pleadings.
2. Improper venue as an affirmative defense.
This is the same in the old rule. Venue is improperly laid,
meaning, it was filed in the wrong place. It means that the
plaintiff has filed the complaint at the wrong place, although not
necessarily before the wrong court.
Example: It’s a real action, the property is located in Panabo. So,
the venue is in Panabo. The assessed value of the property let’s
say is P100K. The proper court which has jurisdiction is the
Regional Trial Court. What if he filed it in Tagum RTC? It was filed
in the proper court but wrong venue. So here, the case is still
dismissible.
Q: If it is filed in the wrong court?
A: It is dismissible. Lack of jurisdiction over the subject matter.
Q: What is the rule regarding improper venue as an affirmative
relief?
A: That defense can be waived
1. if it is not seasonably interposed, or ‘
2. even if the defendant interposed it seasonably but he asked for
other relief from the court.
PANGASINAN TRANSPORTATION CO., INC. v. NICASIO
YATCO, ET AL.
G.R. No. L-23090, October 31, 1967
Facts: The complaint here was for recovery of damages. It was
filed before the CFI or the RTC. The defendant filed an answer
with counterclaim and third party complaint. During the
hearing, the plaintiff testified that he was a resident of
Dagupan City and was merely taking a vacation in Quezon
City. The defendant moved to dismiss on the ground of
improper venue. And then there was presentation of evidence
on the claim for damages.
Issue: Regarding the affirmative defense of improper venue,
what did the Supreme Court say about it?
Held: The petition herein is untenable, not so much because
the objection to venue is deemed waived, when, as in the
present case, it is not set up before the filing of the answer, as
because the filing of Pantranco’s claim in the CFI of Rizal, and,
later, of Pantranco’s third party complaint against the La
Mallorca Pambusco, necessarily implied a submission to the
jurisdiction of the court, and accordingly, a waiver of such
right as the Pantranco may have had to object to the venue,
upon the ground that it had been improperly laid. The
introduction of part of the evidence for the Pantranco after
the denial of its MTD and before the institution of the present
case, tended, also, to have the same effect.
Q: When do you interpose the affirmative defense of improper
venue?
A: Under the present Rules, it could only be in the answer.
Answer with affirmative defense. You cannot file anymore a
motion to dismiss on the ground of improper venue because that
is expressly prohibited by the rules. So bawal na ang motion to
dismiss except for grounds in lack of jurisdiction over the subject
matter, prescription, litis pendentia, res judicata. Mao na lang
gyud na sila ang pwede na motion to dismiss. Under the present
rules, your only possible way is filing an affirmative defense
regarding improper venue is in the answer.
In addition to that, using this case, assuming na you file that in
your answer, but if you ask for other relief from the court, like in
this case, nagfile kag answer unya affirmative defense nimo is
improper venue pero you filed a counterclaim and a third party
complaint. So meaning you are asking for relief from the very
same court na imohang gi-repudiate ang iyahang taking
cognizance because of improper venue. So, you are deemed to
have waived also this defect. And also in this case, the Supreme
Court said na, nagpresent na gani mog evidence, nya ang
defendant himself ang nagpresent na ug evidence and then later
on giquestion nya ang venue, so that is already waived.
VENUE JURISDICTION OVER
SUBJECT MATTER
Complaint was filed at the Complaint was filed before
wrong place. the wrong court.
Dismissal on this ground is Dismissal in this ground may
generally without prejudice also allow re-filing before the
to the re-filing of the same court of proper jurisdiction
case before the courts of
proper venue.
Must be raised as an Can be raised in a Motion to
affirmative defense in the Dismiss or as an affirmative
Answer. defense in the Answer.
Can be raised only in the Can be raised at any time,
Answer within 30 days from even after the Answer was
receipt of summons, subject already filed.
to extension.
Waived if not seasonably As a general rule, not lost by
raised. waiver or estoppel, except in
exceptional circumstances.
Q: What is the difference between the rules in venue in civil and
in criminal cases?
A: When you speak of criminal cases, venue us synonymous of
jurisdiction. Kung diri nahitabo ang crime, diri pud na court ang
naay jurisdiction.
Q: What is the remedy of the defendant in case the court of a
proper venue exist in proceeding with the case? Nagreklamo na
ka the case is filed before the wrong venue, then the court did not
dismiss the case, the court denied your affirmative defense.
PREVIOUS AMENDED
your remedy is to file under the present rules that we
an action for petition discussed in Section 12 (e), when
for prohibition to your affirmative defense is denied,
prevent the court you cannot file a motion for
from trying with the reconsideration, you cannot file a
case again, because it motion for certiorari, prohibition or
is a court of improper mandamus. Your remedy is to wait
venue. Before you file until the court has decided on the
a petition for merits and still you deduce, kay
prohibition, usually kung ni daog ka dili na ka mag
you first file a motion reklamo sa venue, pero kung na pildi
for reconsideration. ka, you appeal the decision in merits
including your affirmative defense of
improper venue.
3. Plaintiff has no legal capacity to sue
Q: When is a person or the plaintiff without legal capacity to sue?
A: If you are a minor you do not have a legal capacity to sue.
EXAMPLE:You are a minor and there is a person representing
you claiming that he is your guardian, and he or she is not your
parent or legal guardian. Then, he files a case in your behalf.
Q: A represented by B (guardian). Assuming that B has not been
appointed by the court as the guardian, what is now the defect
here?
A: B has no legal capacity to sue because he does not have the
authority to institute a case for and behalf of the minor, he does
not have the legal representation that he claims.
42
When you say that the plaintiff lacks legal capacity to sue, action can be determined defense is concerned. When
these are the 2 possible meanings: only from the allegations in you say, the plaintiff does not
1.The plaintiff does not possess the necessary qualifications to the complaint. We don’t need have a cause of action, even if
appear at the trial or he does not have the capacity to act. to go beyond the complaint. iyahang complaint gwapo
CAPACITY TO ACT JURIDICAL PERSONALITY We don’t need to present pagkasulat but after the
capacity to act is to give legal juridical personality arises evidence to determine if the presentation of evidence, the
effects, like entering into a from birth, you have civil complaint fails to state a defendant proves na dili
contract (minor, insane, personality and you can be cause of action. tinuod ang ubang
person suffering from civil the subject of legal relations Didto lng mag tan’aw sa nakabutang sa complaint or
interdiction, aliens) complaint. If tama tanan, they do not exist. So, dili
2. The plaintiff does not have the character or representation that nakabutang tanan didto then complete, therefore he does
he claims the complaint states a cause not have a cause of action.
- he is not authorized by any court of action. Then, failure to His complaint may perfectly
-claims to be representative of A but there is no SPA in his favor state a cause of action, that is state a cause of action, but in
-a person alleges that he is the representative of a corporation, determined only from the reality, he does nor have a
but he does not have a board resolution or secretary’s certificate face of the complaint. cause of action. So, whether
in his favor In most cases also, the the plaintiff lacks a cause of
- The complaint is dismissible on the ground that the plaintiff has complaint is defective or action, that can be
no legal capacity to sue. Even if the person being represented has insufficient because there determined only after trial
legal capacity, pero wala man gud siyay authority kay ang nag file are certain matters that are on the merits.
sa case kay agent man, so he does not have legal capacity to sue. vague or ambiguous.
Q: Can we now say that plaintiff won the case?
LACK OF LEGAL LACK OF LEGAL A: No, because he still has to prove these allegations.
CAPACITY TO SUE PERSONALITY TO
SUE Q: Kung ikaw si defendant, unsa imohang possible na remedies?
The qualification to The fact that plaintiff is 1. You can file an answer and then cite as an affirmative defense,
the plaintiff to sue. not the real party-in- that the complaint fails to state a cause of action.
Refers to The ability to interest. 2. instead of filing an answer, you move for a bill of particulars.
institute the suit. This means that, you ask the court to tell the plaintiff to clarify
Ground specifically lack of failure to state a cause what are these vague and ambiguous in his complaint.
for capacity to sue. of action.
dismissal Most likely the court will just grant for a bill of particulars, kay sa
Affirmative defense Not an affirmative I’dismiss ni court because of failure to state a cause of action.
defense Usually the Supreme Court said na, it will consider a motion to
dismiss as a motion for bill of particulars. So, even if dili siya
SCENARIO 1: motion for bill of particulars it is a motion to dismiss, but the
Agent (A) files an action in his own name involving the property tenor of motion is that it can be addressed by a bill of particulars,
of the supposed principal. So ang case is, A vs B, but he is the the Supreme Court said na, mas unahon nato ang bill of
agent, siya ang plaintiff sa kaso. particulars instead of dismissing the case.
Q: What is the defect? What is the ground for dismissal? How
does he have a cause of action, when in the first place he does not PREVIOUS AMENDED
have a right? Before, this was a ground for failure to state a cause of
A: He does not have a legal personality to institute the action, a motion to dismiss. Before, action is no longer a ground
that’s why the case is dismissible for failure to state a cause of the defendant instead of for a motion to dismiss. But
action. filing an answer, he can just now, because this affirmative
file a motion to dismiss and defense is no longer a
SCENARIO 2: allege that the complaint fails ground for a motion to
B (principal), represented by A vs C. In reality, A here has no to state a cause of action. dismiss, that defendant will
authority, he has no SPA from B. Then, the plaintiff when that have to file his answer and
Q: What is the defect? happens, he can just allege it as an affirmative
A: He does not have the representation that he claims, although immediately amend his defense. Dili na a matter of
in reality naa siyay capacity to sue on its own because he is a complaint and rectify right on the part of the
natural person and of legal age. Iyang principal naa sad capacity whatever those omissions plaintiff to amend. Kung
to sue. Pero, wala siyay authorization from the principal and he is because before filing a gusto ni plaintiff I’amend, he
not suing on his own. The defect is lack of legal personality to responsive pleading, will have to move, mag
sue, because he does not have the representation that he amendment is a matter of motion siya for leave to file
claims. right, the plaintiff can always an amended complaint, ang
amend. MTD is not a court ang mag decide if it
4. That the pleading asserting the claim states no cause of responsive pleading; the will allow.
action responsive pleading is the
Just remember what we already discussed, what are the elements answer
of a cause of action. For your complaint to be sufficient in form,
your complaint should be able to recite all the factual allegations PNB vs Spouses Rivera
not only to complete the cause of action but also the right of
action. If any of the elements is absent, the complaint becomes The Supreme Court distinguish between a failure to state a
vulnerable to motion to dismiss, karuna ano na sya, to dismissal cause of action and lack of cause of action.
by way of affirmative defense because it failed to state a
cause of action. Lack of cause of action refers to the insufficiency of the factual
basis for the action. Dismissal due to lack of cause of action
Q: What is the test of sufficiency? How do you know na pwede na may be raised any time after the questions of fact have been
ba sya mag stand imong complaint? resolved on the basis of stipulations, admissions or evidence
A: The test of sufficiency rest on whether hypothetically presented by the plaintiff. It is a proper ground for a
admitting the facts alleged in the complaint. Assuming for the demurrer to evidence under Rule 33 of the ROC, which
sake of argument na tinuod ba jud ng tanan na nakabutang sa provides:
imohang complaint, is the plaintiff entitled to relief? Can the Section 1. Demurrer to evidence. — After the plaintiff has
court render a valid judgment upon the same in accordance with completed the presentation of his evidence, the defendant may
the prayer in the complaint? Whether or not tinuod ng mga move for dismissal on the ground that upon the facts and the
gpang ingon sa complaint, we are not concerned about that when law the plaintiff has shown no right to relief. If his motion is
we invoke the ground that the complaint fails to state a cause of denied he shall have the right to present evidence. If the motion
action. Ang basis here is the sufficiency, if kumpleto na ba ang is granted but on appeal the order of dismissal is reversed he
recital sa complaint that would constitute a cause of action, shall be deemed to have waived the right to present evidence.
whether or not tinuod ng allegations in the complaint.
In this case, the RTC could not have dismissed the complaint
FAILURE TO STATE CAUSE LACK OF CAUSE OF ACTION due to lack of cause of action for as stated above, such ground
OF ACTION may only be raised after the plaintiff has completed the
Failure to state a cause of in so far as affirmative presentation of his evidence.

43
 failure to state a cause of action.
If the allegations of the complaint do not state the Meaning assuming tama na tanan
concurrence of the above elements, the complaint becomes ang naa sa complaint, assuming
vulnerable to a motion to dismiss on the ground of failure to na tinuod tanan ang documents
state a cause of action which is the proper remedy under na naka attached sa complaint,
Section 1(g) of Rule 16 of the Revised Rules of Civil maski pag tama pa siya kulang
Procedure, which provides: siya kay mao lang man na iyang
g’ingon, it fails to state a cause of
Section 1. Grounds. — Within the time for but before filing action.
the answer to the complaint or pleading asserting a claim, The issue is the veracity The issue is the sufficiency of the
a motion to dismiss may be made on any of the following of the facts, whether or allegations
grounds: not these facts are true.
(g) That the pleading asserting the claim states no cause of It is raised in demurrer It is raised as an affirmative
action; x x x to evidence under Rule defense in the answer.
33 after the plaintiff has
By filing a motion to dismiss, a defendant hypothetically rested its case.
admits the truth of the material allegations of the ultimate If the demurrer is If the complaint is dismissed on
facts contained in the plaintiff’s complaint. When a motion to granted, it can be a the ground of failure to state a
dismiss is grounded on the failure to state a cause of action, a subject of appeal on cause of action, it can be a subject
ruling thereon should, as a rule, be based only on the facts questions of fact and of appeal only on the question of
alleged in the complaint. law. law, because the facts are already
hypothetically admitted.
The foregoing allegations of non-receipt by plaintiffs-
appellants of any notice of the auction sale and their full EXAMPLE: You file an answer and invoked the affirmative
payment of their obligation to defendant-appellee PNB are defense of failure to state a cause of action and it is granted. The
hypothetically admitted by the latter and sufficiently make court will now dismiss the case. Then, plaintiff will appeal.
out a cause of action against defendants-appellees. Whether
said allegations are true or not are inconsequential to a Q: Unsa man ang issues na pwede I’raise ni plaintiff sa iyang
determination of the sufficiency of the allegations in the appeal?
complaint. A: Only questions of law. If the dismissal is because of failure to
state a cause of action, again, the allegations are deemed
Lack of cause of action If the complaint fails to state hypothetically admitted. So, assuming na tinuod imong
refers to the insufficiency of a cause of action, the complaint pero kulang siya ug elements of cause of action. That is
the factual basis for the remedy of the defendant is to why it has to be dismissed. So, walay question as to the facts.
action, it goes to the evidence ask for the dismissal of the Didto lang mo mag daog unsa ang applicable law, because the
to support your allegations complaint by way of his plaintiff might say na, “this is not an element of this particular
in your complaint. affirmative defense in the cause of action, the law is this but you applied it differently RTC
answer. or MTC.” So, again, didto lang mo sa applicability of the law. The
plaintiff could just insist na sufficient iyang complaint because all
Q: If there is no cause of action, what is the remedy of the the elements are mentioned there. Wala nay question unsa pang
defendant? facts ang dapat I’allege, it is not part of the issues.
A: You will have to wait for the presentation of evidence of the
plaintiff and after the plaintiff rests his case, the defendant ST. MARY OF THE WOODS SCHOOL, INC., ET AL. v. OFFICE
can move to dismiss the case in the ground that the plaintiff OF THE REGISTRY OF DEEDS OF MAKATI CITY, ET AL.
lacks a cause of action.
In a Motion to Dismiss based on failure to state a cause of
Q: How does he do that? action, there cannot be any question of fact or "doubt or
A: By filing a demurrer to evidence, this is actually a motion to difference as to the truth or falsehood of facts," simply
dismiss (Rule 33). Because based on the evidence presented by because there are no findings of fact in the first place. What
the plaintiff, he was not able to establish his cause of action. He the trial court merely does is to apply the law to the facts as
was not able to prove the allegations in his complaint, even if the alleged in the complaint, assuming such allegations to be true.
complaint states a cause of action but in reality, he has no cause It follows then that any appeal therefrom could only raise
of action so the case can be dismissed by way of demurrer to questions of law or "doubt or controversy as to what the law
evidence. is on a certain state of facts." Therefore, a decision dismissing
a complaint based on failure to state a cause of action
In the case of PNB vs Spouses Rivera, the Court held that it was necessarily precludes a review of the same decision on
improper for the RTC to dismiss the complaint based on lack of questions of fact. One is the legal and logical opposite of the
cause of action when in fact there no presentation of evidence. other.
So, pwede lang ma dismiss on failure to state a cause of action
again, mu tan’aw lang ka sa complaint kung complete ba ang HYPOTHETICAL ADMISSION
recitals. If complete then, go to trial and after that kung walay It can be described as an admission for the sake of assumption.
supporting evidence then demurrer to evidence because of lack Assuming for the sake of argument that the allegations are true,
of cause of action. but still the complaint is dismissible.
When the defendant interposes an affirmative defense then
Lack Of Cause Of Failure To State A Cause Of assuming for the sake of argument, that allegation is true, still the
Action Action plaintiff cannot win because of affirmative defense.
This is similar into This is similar into saying that the
saying that the evidence complaint does not allege a When you invoke an affirmative defense, so, this applies to all
does not sustain the sufficient cause of action. affirmative defenses, confession and avoidance. So, meaning
cause of action alleged. assuming that the allegations in the complaint are true but still
Proven at the trial on Limited to what is stated in the the case has to be dismissed because, for example the complaint
merits complaint fails to state a cause of action; or the complaint is filed in an
The trial court must limit itself to improper venue; or there was fraud; or no observance under the
examine the sufficiency of the statute of frauds.
allegations in the complaint as
well as the annexes. It is EXCEPTIONS TO HYPOTHETICAL ADMISSIONS
proscribed from inquiring into the 1. Only the allegations relevant and material to the resolution
truth of the allegations in the of the issue raised in the dismissal, but not the other facts of
complaint or the authenticity of the case.
the documents attached or EXAMPLE:
referred to in the complaint. If you raise the affirmative defense of statute of limitations or
The trial court Because all these allegations and prescription, you are only deemed to have hypothetically
necessarily examines documentary evidence attached admitted those facts relating to prescription. Like, the dates. The
the evidence on record to the complaint are dates are related to prescription. But not as to the other facts,
hypothetically admitted when like those which relates to entitlement of damages. You are not
invoked the affirmative defense of

44
hypothetically admitting those because they do not relate to your
affirmative defense.
2. The hypothetical admission extends only to such matters of
fact that which has been sufficiently pleaded.
3. The hypothetical admission does not extend to mere
epithets charging fraud, allegations of legal conclusions or
erroneous statements of law, inferences from facts not stated
matters if evidence or irrelevant matters (De Dios vs Bristol
Laboratories) nor does it cover allegations of fact the falsity
of which is subject to judicial notice (U. Banez Electric Light
Co. vs Abra Electric Cooperative, Inc.).
4. In addition, the Supreme Court ruled in a case that:
HEIRS OF MARAMAG VS DE GUZMAN MARAMAG ET AL
G.R. No. 181132 June 5, 2009
There is no hypothetical admission of the veracity of the
allegations if:
1. the falsity of the allegations is subject to judicial notice;
2. such allegations are legally impossible;
3. the allegations refer to facts which are inadmissible in
evidence;
4. by the record or document in the pleading, the allegations
appear 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.
Discussion as to exception no. 5
During the trial, as the case progresses, the parties can actually
make stipulations. If those stipulations are different from what
was alleged in the complaint, the stipulations prevail over
those alleged in the complaint. Even if there is a previous
hypothetical admission before, but superseded na na sila what
are the stipulated facts by the parties.
Only deemed hypothetically admitted are material allegations,
not conclusions. An allegation that a contract is an “equitable
mortgage” is a conclusion and not a material allegation. Hence, it
is not deemed admitted by the motion to dismiss (Dalandan vs
Julio).
Now again, in determining whether or not a complaint states a
cause of action we only look into the complaint itself
regardless of the allegations in the answer of the defendant.
Maramang vs De Guzman
Actually, the question here was in determining the merits of a
motion to dismiss (so before it was motion to dismiss) for
failure to state a cause of action may the court consider
matters which were not alleged in the complaint, particularly
defenses put up by the defendants in their answers?
FACTS:
What was filed here was for recovery of insurance proceeds.
This was filed by the children of the decedent claiming that
the said proceeds should be nearer to the estate of the
decedent.In the insurance policy, the decedent designated his
mistress (Eva) as the insurance beneficiary and also listed his
illegitimate children with the mistress. According to the
petitioners in their complaint, there was an insurance policy
taken out by the decedent. That according to them, under the
Insurance Code, Eva is disqualified from being instituted from
being a beneficiary. That is why that insurance proceeds
pertaining to Eva should go to the estate of the decedent.
Therefore, the plaintiffs (who are the petitioners in this case)
are the ones entitled to the insurance proceeds because they
are the legal heirs there being no last will and testament. That
was the allegation.
Now Insular and (…) filed a motion to dismiss stating that the
complaint failed to state a cause of action. Why? Because
according to the answer even if Eva was disqualified, the
illegitimate children as the remaining named beneficiaries
should be the ones entitled to the proceeds of the insurance.
And as to the premiums those have already been refunded.
Now according to the petitioners, in determining whether the
complaint states a cause of action, you should only limit the
examination on the face of the complaint. So we will not take
into account the answers of the defendant i.e. even if Eva was
disqualified still the petitioners are not entitled because the
other named beneficiaries are the illegitimate children of the
decedent who are not DQ to get the insurance proceeds.
So the court actually granted the motion of Insular. So this
went all the way to the SC.
ISSUE:
Was it proper to dismiss the complaint? YES.
Because according to the petitioners, in dismissing the
complaint the court did not limit only to the allegations of the
complaint. It took into account the answers of the defendant.
RULING:
The SC said that again, in determining the question of
whether or not the complaint states a cause of action, we
limit our discussion on the contents of the complaint.
Here, according to the petitioners their petition should not
have been dismissed for failure to state a cause of action
because the finding that Eva is whether DQ as a beneficiary by
the insurance companies or that her designation was revoked,
hypothetically admitted as to was raised only in the answers
and the motions for reconsideration of Insular.
According to the SC, you are wrong. Again, when a motion to
dismiss is premised on this ground, failure to state a cause of
action, the ruling thereon should only be based on the facts
alleged in the complaint. The court must resolve the issue on
the strength of such allegation assuming them to be true.
So the test of sufficiency of a cause of action rests on:
whether, hypothetically admitting the facts alleged in the
complaint to be true, the court can render a valid
judgment.
Did the court take into account the allegations in the answer
of the defendants in determining whether the complaint
failed to state a cause of action?
Actually the SC said NO. The complaint is sufficient because
insurance is different from succession. Succession who are
the beneficiaries they are provided for by law. The law
provides who are the compulsory heirs in case there is last
will and testament and who are the legal heirs in case there’s
no will. In insurance, the beneficiaries are the ones they
designate in the insurance policy. Nowhere is it alleged in
the petition or complaint that the complainants were the
named beneficiaries. So, according to the SC that alone, the
complaint failed to state a cause of action. It is evident
from the face of the complaint that petitioners are not entitled
to a favorable judgment in light of Article 2011 of the Civil
Code which expressly provides that: insurance contracts shall
be governed by special laws especially the Insurance Code
specifically under section 53.
So, the insurance proceeds shall be applied exclusively to the
proper interest of the person in whose name or for whose
benefit it is made, unless otherwise specified in the policy. So,
it is obvious that the only persons entitled to claim the
insurance proceeds are either the insured (if still alive) or the
beneficiary (if the insured is already deceased).
So, the exception to this rule is a situation where the
insurance contracts was entered for the benefit of third
persons who are not parties to the same in the form of
favorable stipulations or indemnity. So, petitioners are 3rd
parties to the insurance contracts and they are not entitled to
the proceeds.
It is only in cases where the insured has not designated any
beneficiary or when the designated beneficiary is DQ by law
to receive the proceeds. That the proceeds shall redound to
the benefit of the estate of the insured.
Here, again, there was no allegation that they were the
ones designated beneficiaries of the insurance. There was
also no allegation that no one was designated as
beneficiary in the insurance policy.
Therefore, plaintiffs complaint failed to state a cause of action.
GENERAL RULE: when the motion to dismiss or in our case
today because of the amended rules, when the affirmative
defense is failure to state a cause of action, the court will only
have to look in the 4 corners of the complaint.
EXCEPTION
The court may go beyond the allegations of the complaint if there
is evidence which has been presented to the court by
45
stipulation of the parties or in the course of the hearings
related to the case. That is before the court resolves the motion
to dismiss or the affirmative defenses in the answers. There are
facts that have come to the knowledge of the court. (alangan
naman magpabungol-bungol si court) So that would be the
exception.
Santiago vs Pioneers Savings and Loan Bank
There was a motion to dismiss on the ground that the
complaint failed to state a cause of action. But simultaneously
with that motion to dismiss there was also a hearing on the
preliminary injunction because the plaintiff applied for this
writ. So it was still plaintiff who asked for this injunction and
then the court set the hearing for the application of the writ.
During the hearing on that application there were facts which
were brought up to the attention of the court. Which also
affected the issue of whether or not the complaint failed to
state a cause of action.
ISSUE:
Whether or not the complaint failed to state a cause of action.
RULING:
The SC said, after the hearing, here comes the defendant
moving to dismiss the entire case because there is no cause of
action based on the evidence presented during the hearing for
preliminary injunction.
The SC said the it is true that the determination of the
sufficiency of a cause of action must be limited to the facts of
the complaint. However, where a hearing was held and
documentary evidence was presented, not on the motion to
dismiss, but on the issue of granting or denying an application
for a preliminary injunction, a motion to dismiss for
insufficiency of cause of action will be granted if
documentary evidence admitted by a stipulation
disclosed facts sufficient to defeat the claim which
authorizes the court to go beyond the complaint. So, this
was the exception. The Court went beyond the statements
made in the complaint in determining whether or not the
complaint failed to state a cause of action.
5. That a condition precedent for filing the claim has not been
complied with.
So, there are cases when you cannot go directly to the court. You
have to comply with certain prerequisites.
What are these examples?
1. Failure to exhaust administrative remedies (doctrine of
primary jurisdiction)
For example on cases of just compensation. The jurisdiction is
with RTC. For example, if the land is covered by the agrarian
reform program. So before you go to the RTC, you must first go to
the DAR-Adjudication Board. It will be the DARAB which will
determine just compensation. If you are not agreeable, then now
you go to court. So that is one condition precedent.
2. Failure to undergo barangay conciliation
So here there are cases that must undergo brgy. Conciliation. And
you need a certification to file action before you can go to court.
That would apply if the parties are residents of the same cities or
municipalities although there are certain exceptions.
3. And under Article 151 of the Family Code in cases or suits
involving members of the family –
It must be alleged in the complaint (although this is just general
averment) that earnest efforts towards a compromise was made.
Between
1. husbands and wife;
2. parents and children;
3. ascendants and descendants;
4. brother and sisters whether full or half.
It should be shown that before you instituted the action (because
we have this policy of preserving the family as a social
institution; we have to protect). So as much as possible we must
make sure that we would not allow litigations among members of
the family unless there was earnest efforts towards a
compromise.
A compromise is a contract whereby the parties by making
reciprocal concessions avoid litigation or put an end to one
already commenced. So here in compromise you actually meet
halfway. Is it possible for you to arrive at a settlement.
So, going back to the case of brgy conciliation as a condition
precedent, in the case
Aquino vs Aure
What is the effect if the complaint fails to show that brgy
conciliation was not resorted to?
It will be known that no brgy conciliation was resorted to if
there is no attachment of a certification to file action. For
example, there really was no brgy conciliation and you filed a
case and the other party was also not able to notice this. So
the case continued until they eventually realized that there
was no brgy conciliation. Now they filed a motion to dismiss
on the ground lack of jurisdiction.
ISSUE: Whether non-recourse to brgy conciliation process is a
jurisdictional flaw that warrants the dismissal of the
ejectment suit?
RULING:
The SC said that it is true that the precise technical effect of
failure to comply with the requirement of Section 412 of the
LGC or Brgy Conciliation is much the same effect produced by
non-exhaustion of administrative remedies. The complaint
becomes tainted with the vice of prematurity and the
controversy there alleged is not ripe for judicial
determination. The complaint becomes vulnerable to a
motion to dismiss.
However, the conciliation is NOT a jurisdictional
requirement. Non-compliance therewith cannot affect the
jurisdiction of the court which has otherwise acquired
jurisdiction over the subject matter or over the person of the
defendant.
So, here what happens if the defendant fails to invoke that in
his answer?
It will be deemed waived. So, here where the defendant, as
in this case, failed to object to such exercise of jurisdiction in
their answer even during the entire proceedings, it will not
prevent the court from exercising its power of
adjudication over the parties.
Here, they are deemed to have waived this pursuant to Rule 9
Section 1.
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.
The SC also said that because it can be waived the court does
not have the power to motu proprio dimiss the case. The
court has to wait the answer citing this affirmative defense
before the court can dismiss.
Because if this is not interposed as a defense then it is
considered waived. It is not one of those grounds which are
mentioned for the dismissal by the trial court on its own
initiative.
KATARUNGANG PAMBARANGAY
(Sections 399-422, Chapter 7 Title One, Book III of RA
7160)
What is important here you have to know what are those cases
which are subject to barangay conciliation; what are those cases
subject for amicable settlement.
Again number 1, before you look at these cases, you have to
know whether the parties reside in the same city or
municipality. Kay kung dili, dili mag apply ang barangay
conciliation.
SECTION 408. Subject Matter for Amicable Settlement;
Exception Thereto. – The Lupon of each barangay shall have
authority to bring together the parties actually residing in
the same city or municipality for amicable settlement of all
disputes except:
(a) Where one party is the government, or any subdivision or
instrumentality thereof;
(b) Where one party is a public officer or employee, and the
dispute relates to the performance of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1)
year or a fine exceeding Five thousand pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in
different cities or municipalities unless the parties thereto
agree to submit their differences to amicable settlement by an
appropriate lupon;
46
 (f) Disputes involving parties who actually reside in
barangays of different cities or municipalities, except where
such barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an
appropriate lupon;
(g) Such other classes of disputes which the President may
determine in the interest of justice or upon the
recommendation of the Secretary of Justice.
The court in which non-criminal cases not falling within the
authority of the lupon under this Code are filed may, at any
time before trial, motu proprio refer the case to the lupon
concerned for amicable settlement.
NOTE: Just memo the exceptions
(c) Offenses punishable by imprisonment exceeding one (1) year
or a fine exceeding Five thousand pesos (P5,000.00); -> for
criminal offenses
(d) Offenses where there is no private offended party;
 Pag civil action di siya pwede kay naa dyud na siya’y
kalaban sa pikas. Kana sila wala na sila’y private
offended party. It is the State which is offended so di
na siya kinahanglan muagi ug barangay conciliation.
This will apply in criminal cases like
1. gambling,
2. illegal possession of firearms,
3. dangerous drugs or treason.
(f) Disputes involving parties who actually reside in barangays of
different cities ..
 So kung isa lang mo ka city although different
barangays covered mo. Pero kung lahi na dyud ang city
or municipality sa imong kalaban di na mo covered sa
barangay conciliation except where such barangay
units adjoin each other and the parties thereto agree
so kung nagsabot lang sila, kung okay lang sa ilaha to
submit to the appropriate Lupon. Pwede nimo sila
mapugos in this case.
The court in which non-criminal cases not falling within the
authority of the Lupon under this Code are filed may, at any time
before trial, motu proprio refer case to the Lupon concerned for
amicable settlement.
 So pwede pud ang court bisag not falling under the
authority of the Lupon, the court can still refer to the
Lupon for amicable settlement.
SECTION 409. Venue. – (a) Disputes between persons
actually residing in the same barangay shall be brought for
amicable settlement before the lupon of said barangay.
(b) Those involving actual residents of different barangays
within the same city or municipality shall be brought in the
barangay where the respondent or any of the respondents
actually resides, at the election of the complainant.
(c) All disputes involving real property or any interest
therein shall be brought in the barangay where the real
property or the larger portion thereof is situated.
(d) Those arising at the workplace where the contending
parties are employed or at the institution where such parties
are enrolled for study, shall be brought in the barangay
where such workplace or institution is located.
Objections to venue shall be raised in the mediation
proceedings before the punong barangay; otherwise, the
same shall be deemed waived. Any legal question which may
confront the punong barangay in resolving objections to
venue herein referred to may be submitted to the Secretary of
Justice or his duly designated representative, whose ruling
thereon shall be binding.
(b) Those involving actual residents of different barangays …
 Ang election or option sa complainant maggawas lang
na siya kung daghan respondents of different
barangays. Magpili siya didto kung asa siya na
barangay pero wala siya’y option to choose his
barangay.
(c) All disputes involving real property or any interest therein …
 Diba pwede man ng naa kay property sa boundary so
duha ka barangay. Pwede ka magfile sa either. Pero
pwede where or the larger portion thereof is situated.
(d) Those arising at the workplace where the contending parties
are employed …
 So kung mgaway mo diri unya lahi-lahi mog barangay,
ang uban kay taga-Kidapawan ug taga-Panabo, pero
nagaway mo diri. So didto mo magkita sa barangay
covered sa Jacinto street. (Cris: abi nako covered lang
ang same municipality/city???)
Objections to venue shall be raised in the mediation proceedings
before the punong barangay; otherwise, the same shall be
deemed waived.
 So pwede ka mag file sa barangay where the
complainant resides kay kung di magreklamo si
respondent, okay na toh siya. Pero kung magreklamo
balhin gyud mo sa brangay where the respondent
resides.
SECTION 410. Procedure for Amicable Settlement. – (a)
Who may initiate proceeding – Upon payment of the
appropriate filing fee, any individual who has a cause of
action against another individual involving any matter within
the authority of the lupon may complain, orally or in writing,
to the lupon chairman of the barangay.
(b) Mediation by lupon chairman – Upon receipt of the
complaint, the lupon chairman shall, within the next working
day, summon the respondent(s), with notice to the
complainant(s) for them and their witnesses to appear before
him for a mediation of their conflicting interests. If he fails in
his mediation effort within fifteen (15) days from the first
meeting of the parties before him, he shall forthwith set a date
for the constitution of the pangkat in accordance with the
provisions of this Chapter.
(c) Suspension of prescriptive period of offenses – While the
dispute is under mediation, conciliation, or arbitration, the
prescriptive periods for offenses and cause of action under
existing laws shall be interrupted upon filing of the complaint
with the punong barangay. The prescriptive periods shall
resume upon receipt by the complainant of the complaint or
the certificate of repudiation or of the certification to file
action issued by the lupon or pangkat secretary: Provided,
however, That such interruption shall not exceed sixty (60)
days from the filing of the complaint with the punong
barangay.
(d) Issuance of summons; hearing; grounds for
disqualification – The pangkat shall convene not later than
three (3) days from its constitution, on the day and hour set
by the lupon chairman, to hear both parties and their
witnesses, simplify issues, and explore all possibilities for
amicable settlement. For this purpose, the pangkat may issue
summons for the personal appearance of parties and
witnesses before it. In the event that a party moves to
disqualify any member of the pangkat by reason of
relationship, bias, interest, or any other similar grounds
discovered after the constitution of the pangkat, the matter
shall be resolved by the affirmative vote of the majority of the
pangkat whose decision shall be final. Should disqualification
be decided upon, the resulting vacancy shall be filled as
herein provided for.
e) Period to arrive at a settlement – The pangkat shall arrive
at a settlement or resolution of the dispute within fifteen (15)
days from the day it convenes in accordance with this section.
This period shall, at the discretion of the pangkat, be
extendible for another period which shall not exceed fifteen
(15) days, except in clearly meritorious cases.
(a) Who may initiate proceeding
 So naa’y filing fee. How do you complain? Orally or in
writing. Dili mag apply tong atong mga complaints na
atong gi-discuss. Pwede ka magsulat or pwede ka
magstorya didto uny i-record na nila sa ilahang
minutes.
(b) Mediation by lupon chairman
 Take note pila ka number of days ang mediation. If the
Lupon Chairman fails in his mediation effort within
fifteen (15) days from the first meeting of the parties
before him, he shall forthwith set a date for the
constitution of the pangkat.
Take note that the barangay cannot decide. It will not say who is
right or wrong. Ang mahitabo lang sa barangay is settlement kay
naa pay possibility of settlement. Kung dili ma-settle ang parties
then it is the duty of the barangay to issue a Certification to file
action.
47
 SECTION 411. Form of Settlement. – All amicable
settlements shall be in writing, in a language or dialect known
to the parties, signed by them, and attested to by the lupon
chairman or the pangkat chairman, as the case may be. When
the parties to the dispute do not use the same language or
dialect, the settlement shall be written in the language known
to them.
SECTION 412. Conciliation. – (a) Pre-condition to Filing of
Complaint in Court. – No complaint, petition, action, or
proceeding involving any matter within the authority of the
lupon shall be filed or instituted directly in court or any other
government office for adjudication, unless there has been a
confrontation between the parties before the lupon chairman
or the pangkat, and that no conciliation or settlement has
been reached as certified by the lupon secretary or pangkat
secretary as attested to by the lupon or pangkat chairman or
unless the settlement has been repudiated by the parties
thereto.
(b) Where Parties May Go Directly to Court. – The parties may
go directly to court in the following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings;
(3) Where actions are coupled with provisional remedies
such as preliminary injunction, attachment, delivery of
personal property and support pendente lite; and
(4) Where the action may otherwise be barred by the statute
of limitations.
(c) Conciliation Among Members of Indigenous Cultural
Communities. – The customs and traditions of indigenous
cultural communities shall be applied in settling disputes
between members of the cultural communities
(a) Pre-condition to Filing of Complaint in Court.
 Ang primero ana sa Lupon. Kung dili ma-settle i-
constitute ang Pangkat. So dili na siya diretso na
Certification to File an Action. Muagi pa na’g pangkat
unless di gihapon ma-settle then Certification to File
Action.
(b) Where Parties May Go Directly to Court. – The parties may
go directly to court in the following instances:
(1) Where the accused is under detention;
Di na ka muagi ug barangay because of the urgency of
the situation.
(2) Where a person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings;
Again urgency ang consideration.
(3) Where actions are coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal property
and support pendente lite;
Kung naa’y provisional remedies. Again because the
concept or premise here is naay urgency. Now this is a very ___
procedure. Why? Daghan kayo mga tao or mga clients na dili
gusto muagai ug barangay kay samok kaayo kay barangay sa
respondent basig madunggaban ang complainant didto siyempre
kaila niya ng mga Chairman. Mangutana na sila unsa’y paagi na
dili na lang muagi ug barangay. Magbutang ug Prayer for
Preliminary Injunction pero dili lang magexpect na i-grant na
siya kay wala’y reason. Gibutang lang na siya kay para di muagi’g
barangay. I’m not saying na butan na ninyo ha but in reality
mao na siya ang ginagamit para maka skip ka sa barangay
conciliation process. Although wala gud merit ang imong
injunction. Gibutang lang nimo didto para dili ka muagi’g
barangay.
(4) Where the action may otherwise be barred by the statute of
limitations.
So gamay na lang ang period kay delikado naman pag
muagi kag barangay basig mag prescribe na ang imong right of
action.
(c) Conciliation Among Members of Indigenous Cultural
Communities.
 So ilaha ang atong gamiton na way of settling their
dispute.
SECTION 413. Arbitration. – (a) The parties may, at any
stage of the proceedings, agree in writing that they shall abide
by the arbitration award of the lupon chairman or the
pangkat. Such agreement to arbitrate may be repudiated
within five (5) days from the date thereof for the same
grounds and in accordance with the procedure hereinafter
prescribed. The arbitration award shall be made after the
lapse of the period for repudiation and within ten (10) days
thereafter.
(b) The arbitration award shall be in writing in a language or
dialect known to the parties. When the parties to the dispute
do not use the same language or dialect, the award shall be
written in the language or dialect known to them.
SECTION 414. Proceedings Open to the Public; Exception.
– All proceedings for settlement shall be public and informal:
Provided, however, That the lupon chairman or the pangkat
chairman, as the case may be, may motu proprio or upon
request of a party, exclude the public from the proceedings in
the interest of privacy, decency, or public morals.
SECTION 415. Appearance of Parties in Person. – In all
katarungang pambarangay proceedings, the parties must
appear in person without the assistance of counsel or
representative, except for minors and incompetents who may
be assisted by their next-of-kin who are not lawyers.
So bawal ang lawyer sa barangay. So do not commit a mistake na
magenter ka ug appearance didto sa barangay kay that would be
very embarrassing. So dili ta pwede sa barangay except kung
ikaw mismo ang complainant. For minors and incompetents,
dapat ang ilang next-of-kin must not be lawyers except kung
lawyers ilang parents wa nay mabuhat ana.
How about mag-SPA? Kay daghan kog mga ingana na clients kay
dili sila gusto muadto sa barangay. Technically speaking, the law
says must appear in person. Although naay barangays na okay
lang sa ilaha pero naa’y mga barangays na dili gyud musugot.
Dapat dyud paaatuon ang parties.
SECTION 416. Effect of Amicable Settlement and
Arbitration Award. – The amicable settlement and
arbitration award shall have the force and effect of a final
judgment of a court upon the expiration of ten (10) days from
the date thereof, unless repudiation of the settlement has
been made or a petition to nullify the award has been filed
before the proper city or municipal court.
However, this provision shall not apply to court cases settled
by the lupon under the last paragraph of Section 408 of this
Code, in which case the compromise settlement agreed upon
by the parties before the lupon chairman or the pangkat
chairman shall be submitted to the court and upon approval
thereof, have the force and effect of a judgment of said court.
SECTION 417. Execution. – The amicable settlement or
arbitration award may be enforced by execution by the lupon
within six (6) months from the date of the settlement. After
the lapse of such time, the settlement may be enforced by
action in the appropriate city or municipal court.
SECTION 418. Repudiation. – Any party to the dispute may,
within ten (10) days from the date of the settlement,
repudiate the same by filing with the lupon chairman a
statement to that effect sworn to before him, where the
consent is vitiated by fraud, violence, or intimidation. Such
repudiation shall be sufficient basis for the issuance of the
certification for filing a complaint as hereinabove provided.
Actually kanang enforcement sa award sa barangay is already
covered by the Small Claims Act.
Unsay reason sa repudiation? Consent is vitiated by fraud,
violence, or intimidation. So kung naay repudiation, what
happens? Wala nay settlement. So that will be the basis of the
barangay to issue a certification to file an action.
SECTION 419. Transmittal of Settlement and Arbitration
Award to the Court. – The secretary of the lupon shall
transmit the settlement or the arbitration award to the
appropriate city or municipal court within five (5) days from
the date of the award or from the lapse of the ten-day period
repudiating the settlement and shall furnish copies thereof to
each of the parties to the settlement and the lupon chairman.
SECTION 420. Power to Administer Oaths. – The punong
barangay, as chairman of the lupong tagapamayapa, and the
members of the pangkat are hereby authorized to administer
oaths in connection with any matter relating to all
proceedings in the implementation of the katarungang
pambarangay.
SECTION 421. Administration; Rules and Regulations. –
48
 The city or municipal mayor, as the case may be, shall see to
the efficient and effective implementation and administration
of the katarungang pambarangay. The Secretary of Justice
shall promulgate the rules and regulations necessary to
implement this Chapter.
SECTION 422. Appropriations. – Such amount as may be
necessary for the effective implementation of the katarungang
pambarangay shall be provided
ADMINISTRATIVE CIRCULAR NO. 14-93 July 15, 1993
This is a directive to all ALL REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS
AND MUNICIPAL CIRCUIT TRIAL COURTS.
I. All disputes are subject to Barangay conciliation pursuant to
the Revised Katarungang Pambarangay Law (formerly P.D.
1508, repealed and now replaced by Secs. 399-422, Chapter
VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160,
otherwise known as the Local Government Code of 1991), and
prior recourse thereto is a pre-condition before filing a
complaint in court or any government offices, except in the
following disputes:
1. Where one party is the government, or any subdivision or
instrumentality thereof;
2. Where one party is a public officer or employee, and the
dispute relates to the performance of his official functions;
3. Where the dispute involves real properties located in
different cities and municipalities, unless the parties thereto
agree to submit their difference to amicable settlement by an
appropriate Lupon;
4. Any complaint by or against corporations, partnership or
juridical entities, since only individuals shall be parties to
Barangay conciliation proceedings either as complainants or
respondents (Sec. 1, Rule VI, Katarungang Pambarangay
Rules);
5. Disputes involving parties who actually reside in barangays
of different cities or municipalities, except where such
barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an
appropriate Lupon;
6. Offenses for which the law prescribes a maximum penalty
of imprisonment exceeding one (1) year or a fine over five
thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent
injustice from being committed or further continued,
specifically the following:
a. Criminal cases where accused is under police custody or
detention (see Sec. 412 (b) (1), Revised Katarungang
Pambarangay Law);
b. Petitions for habeas corpus by a person illegally deprived of
his rightful custody over another or a person illegally
deprived or on acting in his behalf;
c. Actions coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal
property and support during the pendency of the action; and
d. Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in
the interest of justice or upon the recommendation of the
Secretary of Justice;
10. Where the dispute arises from the Comprehensive
Agrarian Reform Law (CARL) (Sec. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-
employee relations (Montoya vs. Escayo, et al., 171 SCRA 442;
Art. 226, Labor Code, as amended, which grants original and
exclusive jurisdiction over conciliation and mediation of
disputes, grievances or problems to certain offices of the
Department of Labor and Employment);
12. Actions to annul judgment upon a compromise which may
be filed directly in court (See Sanchez vs. Tupaz, 158 SCRA
459).
Again the Supreme Court reiterated that all disputes must
undergo Barangay Conciliation and prior recourse is a pre-
condition before the filing of the complaint except in the
following disputes. Some of them are already covered by the
Local Government Code.
4. Any complaint by or against corporations, partnership or
juridical entities…
 They are not covered by the Barangay Conciliation
proceeding. Why? Persons dapat ang magadto sa
barangay so kung corporation di na siya covered sa
barangay conciliation.
 How about Estate ang imong kalaban? Di na siya
covered because it is a juridical entity.
10. Where the dispute arises from the Comprehensive Agrarian
Reform Law (CARL)
 Agrarian disputes are not required to go through
Barangay Conciliation. Lahi na sa ilaha- sa Barangay
Agrarian Reform Council (BARC). Barngay gihapon but
not under the LGC.
11. Labor disputes or controversies arising from employer-
employee…
 Illegal Dismissal. Underpayment of Wages. Illegal
Strike. Unfair Labor Practices. These are not covered
by the Barangay Conciliation. Illegal Dismissal- Labor
Arbiter or NLRC. Money Claims- DOLE.
12. Actions to annul judgment upon a compromise which may be
filed directly in court (See Sanchez vs. Tupaz, 158 SCRA 459).
IV. A case filed in court without compliance with prior
Barangay conciliation which is a pre-condition for formal
adjudication (Sec. 412 [a] of the Revised Katarungang
Pambarangay Law) may be dismissed upon motion of
defendant/s, not for lack of jurisdiction of the court but
for failure to state a cause of action or prematurity
(Royales vs. IAC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA
289), or the court may suspend proceedings upon petition
of any party under Sec. 1, Rule 21 of the Rules of Court; and
refer the case motu proprio to the appropriate Barangay
authority, applying by analogy Sec. 408 [g], 2nd par., of the
Revised Katarungang Pambarangay Law which reads as
follows:
The court in which non-criminal cases not falling within the
authority of the Lupon under this Code are filed may at any
time before trial, motu proprio refer case to the Lupon
concerned for amicable settlement.
So it can be failure to state a cause of action or prematurity –
failure to comply with condition precedent. That will be the
proper ground. Again it is not jurisdictional.
Pwede pud dili i-dismiss para pud di kaayo ulaw na derecho
nimo gi-file sa court na dapat muagi pa diay kag barangay. The
court may suspend the proceedings upon petition of any party
and refer the case motu proprio to the appropriate barangay
authority.
---------------------------------------------
xxxxxxx------------------------------------------------------
Now let’s go to another condition precedent which we already
mentioned.
Even if most of them are members of the family but there is a
stranger included in the suit, the rule is, that requirement to
state that earnest efforts towards a compromise agreement is
not applicable because there’s already a third party included.
Under the last paragraph also of Article 151 of the Family Code, it
says
Article 151. xxx. This rule shall not apply to cases which may
not be the subject of compromise under the Civil Code.
So, if the case itself is one of the cases mentioned in Article 2035
of the CC where the law does not allow a compromise then
there’s no requirement to state in the complaint that earnest
efforts were made.
Article 2035. No compromise upon the following questions
shall be valid:
1) The Civil Status of persons;
2) The validity of a marriage or a legal separation;
3) Any ground for legal separation;
4) Future Support;
5) The jurisdiction of courts;
6) Future Legitime.
1. The Civil Status of persons
You cannot subject that to compromise because the law which
says unsa ilang civil status.
2.The validity of a marriage or a legal separation
In cases involving annulment of marriage and declaration of
nullity of marriage, if there is any appearance that there is a
collusion between the parties, the Court may dismiss the case.
Na-encounter na nako na sya na case, “attorney di gyud
magpirma ang pikas gusto nagyud nako ma-annul” Ha? Mao na
ang impression sa uban na need magpirma ang pikas. When in
fact di na sila pwede mag sabot na magpa-annul kay collusion na
sya.
49

Now what happens under the new rules of annulment of
marriage and declaration of nullity.
Number 1, daghan napud cases na ifile nimu dire kay ng judge
dire kay relax lang kay sya or before sa Cotabato, dali ra kaayo
ang annulment kay for sale sya wherein naa ra ka certain amount
to pay for as long as the parties are sure nga sila duha walay mu-
oppose, then 15 days lang mugawas na ang annulmet, gina-ante-
date lang nila ang filing of the action. Then sila napud bahala mag
process sa LCR. Mao na sa petition resident of Cotabato City. So,
nakabalo si Supreme Court, that’s why tanan na Cotabato cases
for annulment or declaration of nullity gihalungkat nila. Ang
issue nila usually kay psychological incapacity under Article 36,
So wala na na ang sa Cotabato. Kay wala naman sa Cotabato, iba
naman karun, magpa convert into muslim tapos magpa- divorce
under Sharia Law. Kana siya i-annotate man na nila sa PSA nga
marriage contract. Kung wala nagreklamo okay lang na siya.
Pero, I tell you, kung nagpa kasal mo civil, and then later on
magpa-muslim ka kay magpa divorce ka or magpakasal ka ug isa
pa, that’s bigamy. It doesn’t mean na nagpa-muslim ka pwede ka
na magpakasal ug daghan because again, the first marriage is a
civil wedding which is covered ka under the Civil Code. Even if
you apply for divorce, dili na niya maresolve and civil wedding
under the sharia law, married lang gihapon ka. So, it’s a
misconception nap ag magpa-muslim ka pwede naka magpakasal
ug daghan. So, i think nabantayan napud na sa supreme court.
That’s why now, kung magfile kag declaration of nullity or
annulment of marriage, dapt mag-attach jud ka sa imong petition
ug certification from the Barangay nga you are a resident of that
Barangay at least 6 months prior to the institution of the petition.
Mag-attach pud ka ug bills nimu, like water and electricity bills sa
imong name to prove na taga diha gyud ka. And kung naa kay
property, titulo or contract of lease.
And then, for example, magfile kag petition and dili mutubag ang
pikas, magorder ang court to the fiscal to investigate kung naa
bay collusion between the parties. Because again, the validity of a
marriage cannot be the subject of compromise. Di pud ka
madeclare in default kay kung pwede edi dali ra kayo magpa-
annul magfile ra ka na in-default si defendant tapos annulled na.
3. Any ground for legal separation
4. Future Support
Past support, pwede na sya kay it already happened. Naa naka
proper judgment kung i-waive nako or dili ang support.
5. The jurisdiction of courts
6. Future legitime
When we say future, habang buhi pa imong parents, di mo pwede
magcompromise na kani ra akong kuhaon, kana ra imuha, ka
wala ka kabalo na you will survive your parents nga ang legitime
presupposes na you are an heir and you will become heir kung
namatay na imong parents pero kung namatay ka una, syempre
dili ka heir.
So again, in all these cases, even the case involves members of the
same family, it is not required that you should allege na earnest
efforts towards a possible compromise had been made because it
is not allowed. Or, even involving members of the same family
pero nay stranger na naapil, again, it’s not required.
Section 13.
Striking out of pleading or matter contained therein. —
Upon motion made by a party before responding to a pleading
or, if no responsive pleading is permitted by these Rules, upon
motion made by a party within twenty (20) calendar days
after the service of the pleading upon him or her, or upon the
court's own initiative at any time, the court may order any
pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous matter be
stricken out therefrom.
So, here, there is a pleading, the pleading itself or any matter
contained in the pleading or there are matters that are sham or
false, redundant, immaterial, impertinent, or scandalous, the
court may order that those matters be stricken out.
So, upon motion made by a party before responding to a
pleading, so if it is the complaint which contains these matters, so
you can file a motion, to strike out the complaint or some matters
in the complaint. Or if there’s no responsive pleading is
permitted upon motion made by a party within 20 calendar days,
upon the court’s own initiative, or upon motion, may order.
So what if it’s the reply, well, the reply is no longer permitted
under the new rules, except, when there is an actionable
document alleged in the answer. So kung nagreply ka, what if nay
scandalous matter, or diba pwede man ka magrejoinder, siya
najud tong last na pleading allowed, and there is something there
which is scandalous, sham, or false, and you have 20 days to file
the motion.
What are these matters that can be stricken out in the pleading?
Sham or false, redundant, immaterial, impertinent, or scandalous
GUTIERREZ VS ABILA ET. AL.
FACTS: there was a complaint filed. Actually, complaint and
then answer. So, in the answer, according to the plaintiff,
there were scandalous, impertinent, irrelevant matters which
were mentioned. So he filed a case, against the defendant
saying that those were libelous matters. Now, if you
remember your criminal law, kanang mga pleadings in court,
usually, privileged communication so dili ka pwede macharge
for libel because that’s also part of your defense. But here,
gifile-an niyag separate case si defendant on the ground na
malicious, willful ang mga statements sa answer. Mao ni ang
answer: that he specifically deny x x x and for the plaintiff to
do such acts with a twisted color is indicative of a twisted
mind.
And then paragraph 5: that they specifically deny x x x it is
only a dirty minded mind of the plaintiff that can concoct an
equally dirty thinking.
And then paragraph 7: that they specifically deny the
accusations of par. 10 and 11 of the complaint as purely false,
a devise of wickedness as earmarks of plainiff’s traits x x x not
have been unjust. Malicious and with conspiracy, to think and
to allude the way plaintiff did is again characteristic of
plaintiff’s wicked, twisted and ignominious mentality.
And then paragraph 8: that they deny the braggadocio in par.
12 of the complaint x x x for he cannot be a dignified pater
familias, as plaintiff claim he is because he had been hailed to
the police station, the fiscal’s office and the courts many times
for crimes which do not bespeak of a dignified person, much
less a ‘dignified pater familia’ which is indeed a big joke.
And lastly, paragraph 9: that they specifically deny x x x
instead of capitalizing on it for vindictiveness and in
procuring money from his neighbors under a disguise of a
court action, since such results are very ordinary in the
course of human relations.
ISSUE: W/N the defendant can be charged for libel
considering that pleadings are supposed to be privileged
communication.
RULING: Well-entrenched in the Philippine and American
jurisprudence is the rule that for reasons of public policy,
utterances made in the course of juridical proceedings,
including all kinds of pleadings, petitions and motions are
absolutely privileged when pertinent and relevant to the
subject under inquiry, however false or malicious such
utterances may be.
However, the Court defined the restriction to the privilege
enjoyed by pleadings thus:
"The pleadings should contain but the plain and concise
statements of the material facts and not the evidence by
which they are to be proved. . .. if the pleader goes beyond the
requirements of the statute and alleges an irrelevant matter
which is libelous, he loses his privilege."
Meaning, bisag unsa pa to ka scandalous pero related sya s
aimong defense, material siya in proving your defense as
such, they are considered to be privileged and not libelous.
The requirement of materiality and relevancy is imposed so
that the protection given to individuals in the interest of an
efficient administration of justice may not be abused as a
cloak from beneath which private malice may be gratified
Now, how do you know kung material siya? The Sc said, we
examine. Will the defendant’s stand even without those
statements? The SC said, they can stand. A most liberal view
of the questioned statements casts a shadow as to their
relevancy and materiality to the issue involved in Civil Case
whether the said suit for damages instituted by the plaintiff
was meritorious or not.
Repeated litigations between the same parties might indeed
be tiresome, even nettlesome, but this alone is not sufficient
cause for calling another "dirty-minded," and of a "limited
mind," "twisted mind" or to characterize his act as a "device of
wickedness as earmarks of plaintiff’s traits.”
50
 The aforementioned personal opinions of the defendants,
expressed in vituperative and intemperate language, are
palpably devoid of any relation whatever to the subject of
inquiry and have no place in a pleading. Meaning, even
without the statements, the defendant can prove his defense.
While indeed lawyers should be allowed some latitude of
remark or comment in the furtherance of the causes, they
uphold such remarks or comments should not trench beyond
the bounds of relevancy and propriety. Besides, the language
vehicle does not run short of expressions which are emphatic
but respectful, convincing but not derogatory, illuminating
but not offensive.
So again, as I said, you can insult your opponent in a nice way
and do not use this kind of words. So, these can be stricken
out but also be careful because this can be sued for damages
as these are not entirely privileged communications.
RULE 9
EFFECT OF FAILURE TO PLEAD
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.
Rule 9 Section 1 is what we call the Omnibus Motion Rule, that
if you have objections and you have defenses --- before, you have
an option: you can either set them forth in your motion to
dismiss so that is before you file the Answer, you ought to file a
Motion to Dismiss or you file an Answer and you interpose these
affirmative defenses. But again, based on our discussion under
Rule 15, a Motion to Dismiss is no longer allowed except for
these grounds:
1. Lack of jurisdiction over the subject matter
2. Litis Pendentia
3. The action is barred by prior judgment (Res Judicata)
4. Statute of Limitations or Prescription
Now as to the other affirmative defenses that we discussed, you
cannot raise them in a Motion to Dismiss. You can only raise
them in the Answer.
Regarding the four mentioned, you have an option either:
1. you file a motion to dismiss on these grounds or
2. you can file an Answer and also interpose this as your
affirmative defense.
Even if these objections in Section 1 are not pleaded in the
Answer or in the Motion to Dismiss, they are not deemed
waived. Actually, you can raise them any time, during the trial,
before the decision; you are not barred from raising these
matters even on appeal. When it appears from the pleadings or
the evidence on record, the court shall dismiss the case.
What is the rationale why you have to set forth your
defenses either in the Answer or in the Motion to Dismiss?
 That is to prevent surprises. Sa sugod pa lang dapat
makabalo na ang parties kung unsa ang standing: mao
ni sya ang complaint, mao ni sya ang allegations in the
complaint, mao ni sya ang answer and then mao ni sya
iyahang defenses. So you cannot say na ‘okay, naa
paman answer’ so giuna sa nimu tong uban na
grounds, ‘kini sya last nani sya, I’ll just give this, and
this later na’ and in the middle of the trial nagpresent
ka karon ug Acknowledgment Receipt to prove
payment.
Are you allowed to do that?
 No more. Because, when you filed your Answer you
should have already included the defense and again
pursuant to the Omnibus Motion Rule, those which are
not interposed are already deemed waived even if they
are material. You should have raised them unless you
have these four grounds, you can always raise
them at any time.
1. Lack of Jurisdiction over the subject matter
Jurisdiction over the subject matter is determined by the
allegations in the complaint, although again, the law says
which court has jurisdiction over this particular case. But now
when you file a complaint, how do we prove na kining complaint
na imung gi file naa jud ni sya sa jurisdiction sa RTC? That is
determined based on the allegations of the complaint. Because
even if property involved is real property in your complaint, pero
imung complaint diay based on the allegations, they do not
involve any title to or possession, or ownership of real property
kundi specific performance lang and annulment of contract. So,
here based on your allegations, we will determine which
court has jurisdiction, is it with RTC because it is incapable of
pecuniary estimation based on your allegations? Or is it with the
MTC because the property involved is only 15k? So it is
determined upon the allegations.
Again, based on the allegations of the complaint whether or not
the plaintiff is entitled to the allegations of the complaint. Didto
lang jud tha mag base regardless of what the defendant says.
Because if you do that we will now subject the determination of
jurisdiction on the allegations of the defendant as discussed in
the case of Lourdes Eristincol(?) vs CA.
When your defense is that the court has no jurisdiction over
the subject matter of the complaint.
Actually, in all affirmative defenses, there is a hypothetical
admission. You are saying that, assuming, for the sake of
argument that the allegations in the complaint are correct, but
still, the case must be dismissed because the court has no
jurisdiction over the subject matter. And again, based on our
discussion, the hypothetical admission is only limited to
those matters relating to your affirmative defense. If it is
about the lack of jurisdiction over the subject matter, then you
are only hypothetically admitting all those allegations in relation
to the subject matter. Like, you say, affirmative defense, based on
the allegations in the complaint, the amount of the assessed value
of the property is 15k so jurisdiction is with the MTC. So you are
admitting na 15k ang assessed value, so okay sige, di nako
mureklamo kay mali akong gikaso , unya pag abot sa MTC
muingon na lack of jurisdiction, why? Kay 50k ang value sa
property. No, dili na na sya. You’re hypothetically admitting all
the allegations in relation to your affirmative defense.
Everything must be decided based on the face of the complaint.
Where the court has already obtained and exercised
jurisdiction over a controversy its jurisdiction to proceed to
the final determination of the case is not affected by new
legislation placing such jurisdiction in another tribunal.
As long as at the time of the filing of the complaint, the court
had jurisdiction over the subject matter, regardless of any
amendment or any new law passed wherein there is a new
jurisdictional requirement or the court is now bereft of
jurisdiction, pero as long as the law itself does not say all
cases pending before the RTC as of the effectivity of this Act
shall be transferred to the MTC, as long as walay giingon na
ingon ana, jurisdiction is retained by the Court --Continuity of
jurisdiction.
Jurisdiction is also not lost by waiver or estoppel. Whenever
it appears that the court has no jurisdiction over the subject
matter, the action shall be dismissed. This can be interposed
at any time even on execution stage. Once the court has no
jurisdiction over the subject matter, everything that happens in
the court is a nullity.
In relation to that, you cannot enter into any agreement
regarding jurisdiction. That is different from venue where you
can actually agree on the venue.
Recovery of Possession of real property valued at P 50,000 filed
before the RTC. Nya wala nireklamo ang pikas (party)
Q: Is that cured already (the lack of jurisdiction)?
General Rule: Jurisdiction cannot be conferred by the silence of
the parties, nor by waiver. It cannot also be the subject of
estoppel; by laches.
Exception: JURISDICTION BY ESTOPPEL
This happened in the very exceptional case of Tijam vs
Sibonghanoy
TIJAM v SIBONGHANOY
GR L-21450, April 15, 1968
Tijam filed a case for recovery of sum of money. The claim
was for 1,000 and was filed at the RTC. The defendant filed a
counterbond. There was a judgment in favor of the plaintiff
and there was a writ of execution, so final na ang decision.
The defendants moved for a writ of execution against the
surety and then the surety moved to quash the writ but was
denied. The surety appealed to the CA without raising the
51
 issue of jurisdiction. Later on, when the CA decided against
the surety, that was the time when the surety raised the issue
of jurisdiction.
(The jurisdiction of MTC that time was up to 2,000 so dapat sa
MTC siya gi file.)
Held: Surety is now barred by laches from invoking this plea
at this late hour for the purpose of annulling everything done
heretofore in the case with its active participation. It has been
15 years before the surety filed his Motion to Dismiss raising
the question of lack of jurisdiction. A party may be estopped
or barred from raising a question in different ways and for
different reasons. Thus, we speak of estoppel in pais
(conduct), or estoppel by deed or by record (if there is a
document), and of estoppel by laches (effect of delay).
It has been held that a party cannot invoke the jurisdiction of
a court to sure affirmative relief against his opponent and,
after obtaining or failing to obtain such relief, repudiate or
question that same jurisdiction…the question whether the
court had jurisdiction either of the subject-matter of the
action or of the parties was not important in such cases
because the party is barred from such conduct not because
the judgment or order of the court is valid and conclusive as
an adjudication, but for the reason that such a practice cannot
be tolerated — obviously for reasons of public policy.
Here, after voluntarily submitting a cause and encountering
an adverse decision on the merits, it is too late for the loser to
question the jurisdiction or power of the court. This was
termed by the Supreme Court as the 'undesirable practice'
of a party submitting his case for decision and then accepting
the judgment, only if favorable, but attacking it for lack of
jurisdiction when the decision is adverse.
Here, judgment was rendered in favor of the plaintiff. So,
meaning napildi si defendant. So, the plaintiff filed a Motion for
Execution. There was a Writ of Execution that was issued. This
means that the decision is already final an executory. In
execution cases, execution pending appeal is not usually allowed.
So, here, there was a final and executory decision. Defendants
moved that the writ of execution be implemented against the
surety, which was granted. Surety moved to quash the writ but
was denied. The Surety did not raise the issue on jurisdiction
when they appealed the denial of their motion to quash
before the Court of Appeals. Ang appeal sa surety diri dili ni sya
sa main case, kato ra ning denial sa iyang motion to quash the
writ of execution because the case has already become final and
executory. So, CA dismissed the surety’s appeal. And that was
when the surety filed a motion to dismiss on the ground of lack of
jurisdiction. It happened 15 years after the case was originally
filed.
Here, the Supreme Court there was jurisdiction by laches.
However, you must be very careful because not every situation
that there is some sort of silence or waiver, etc. we can invoke
the case of Tijam vs Sibonghanoy.
Calimlim vs Ramirez
The jurisdiction of a court over the subject-matter of the
action is a matter of law and may not be conferred by
consent or agreement of the parties. The lack of
jurisdiction of a court may be raised at any stage of the
proceedings, even on appeal. This doctrine has been
qualified by recent pronouncements which stemmed
principally from the ruling in the cited case of Sibonghanoy. It
is to be regretted, however, that the holding in said case had
been applied to situations which were obviously not
contemplated therein. The exceptional circumstance involved
in Sibonghanoy which justified the departure from the
accepted concept of non-waivability of objection to
jurisdiction has been ignored and, instead a blanket doctrine
had been repeatedly upheld that rendered the supposed
ruling in Sibonghanoy not as the exception, but rather the
general rule, virtually overthrowing altogether the time-
honored principle that the issue of jurisdiction is not lost by
waiver or by estoppel.
The Supreme Court is saying that Tijam vs Sibonghanoy case is
just an exception. The circumstances of the case must be similar
to circumstances in the Tijam case before you can invoke
jurisdiction by laches.
ADLAWAN v JOAQUINO
GR 203152, June 20, 2016
There was a petition for reconstitution of title before the RTC.
Here were several complaints filed - there was an original
complaint and there was an amended complaint. In the
amended complaint, the defendants were impleaded. The RTC
rendered an adverse decision. The defendant filed an appeal
before the CA questioning the jurisdiction of the RTC.
The second case was for annulment of judgment. Let's say
RTC Branch 14 rendered a decision on the reconstitution of
title and another case was filed before the RTC Branch 17 for
the annulment of that decision of the RTC Branch 14. (We
discussed this in the doctrine of judicial stability na if you are
courts of coequal jurisdiction, you cannot annul or declare as
null and void the decision of a co-equal branch.) Here, a
petition for annulment of judgment of the RTC should be filed
before the CA.
Nag appeal ang Adlawans claiming that walay jurisdiction ang
RTC Branch 17. But, katong appeal nila sa CA, it took 20 years
for that to be raised. So here, the other party cited that in the
case of Tijam v. Sibonghanoy, there is already estoppel by
laches - you failed to invoke that ground for so long. You are
deemed to have abandoned it.
Held: (The SC clarified that Tijam v Sibonghanoy is really just
an exceptional case.) There is no rule in procedural law as
basic as the principle that jurisdiction is conferred by law, and
any judgment, order, or resolution issued without it is void
and cannot be given any effect. The singular exception to the
basic rule mentioned, which the CA applied to this case,
operates on the principle of estoppel by laches - whereby a
party may be barred by laches from invoking the lack of
jurisdiction at a late hour for the purpose of annulling
everything done in the case with the active participation of
said party invoking the plea. The SC said that yes, we apply
this in the case of Tijam v Sibonghanoy, but this is not
applicable to your case.
In Sibonghanoy, the defense of lack of jurisdiction was raised
for the first time in a motion to dismiss filed by a party-
surety almost fifteen (15) years later and at a stage when the
proceedings had already been elevated to the CA. Prior to
this, the party-surety invoked the jurisdictions of both the
trial and appellate courts in order to obtain affirmative
relief, and even submitted the case for final adjudication on
the merits. It was only after the CA had rendered an adverse
decision that the party-surety raised the question of
jurisdiction.
We emphasize that our ruling in Sibonghanoy establishes an
exception which is to be applied only under extraordinary
circumstances or to those cases similar to its factual situation.
The rule to be followed is that the lack of a court's
jurisdiction is a non-waivable defense that a party can
raise at any stage of the proceedings in a case, even on
appeal; the doctrine of estoppel, being the exception to such
non-waivable defense, must be applied with great care and
the equity must be strong in its favor.
So the Court of Appeal ruled that the reconstitution was null and
void and that the petitioners are estopped from questioning the
jurisdiction of Branch 14, for the first on time on appeal after
losing the case in the RTC 20 years later and declared that
Adlawans were not buyers in good faith.
1. Whether or not RTC Branch 17 has a jurisdiction over a
court of same level? -
 RTC Branch 17 has no jurisdiction over the petition for
annulment of judgment involving the decision of
Branch 14. Under BP 129, it is the CA which has
jurisdiction to annul judgement of the RTC and
applying the Doctrine of Non-interference or
judicial stability, courts of co-equal should not
interfere with the exercise of jurisdiction by another
court of the same level. You cannot annul or impugn
the decision render by the RTC. If you wish to question
the decision of the RTC you go to a higher court not the
same level. So it was not within the jurisdiction of the
RTC Branch 17.
2. Whether or not the petitioners (the Adlawans) were
estopped in questioning the jurisdiction of RTC Branch 17?
 The Supreme court said, NO. There is no rule in
procedural law as basic as the principle that
jurisdiction is conferred by law, and any judgment,
52
 order, or resolution issued without it is void and
cannot be given any effect. This rule applies even if the
issue on jurisdiction was raised for the first time on
appeal or even after final judgment.
In this particular case, the SC compared it with the case of
Sibonghanoy. In Sibonghanoy the defense of lack of jurisdiction
was raised for the first time in a Motion to dismiss filed by the
party-surety almost 15 years after the complaint was filed. It
pass at a stage when the proceedings has already elevated to the
CA. Prior to this, the party-surety invoked the jurisdiction of both
the trial and appellate courts in order to obtain affirmative relief
and even submitted the case for final adjudication on the merits.
Katong si surety, when it filed the Motion to Quash the Writ of
Execution before the RTC, wala niya gi question ang jurisdiction.
So by Moving to Quash, nangayo sya ug relief from the RTC.
And then nag appeal pa jud sya sa CA. Never again he the raise
the issue of jurisdiction. So that is why, the surety was estopped,
because it was only after the CA denied the appeal, diha pa sya
nag question ng jurisdiction after seeking relief from both the
RTC and the CA. So there is no sufficient justification to apply
the exception on estoppel by laches in this case because they are
not similar.
First, in this particular case the petitioners raised the lack of
jurisdiction of the RTC Branch 17 in the appeal with the CA. So
although wala nya gi raise sa RTC but gi raise on appeal nya sa
CA. At that time wala pa naka render ng decision ang CA.
Unlike in the case of Sibonghanoy na nakarender na ng decision
ang CA. in fact the decision of his appeal was final and executory.
Second, the unfairness and inequity that the application of
estoppel seeks to avoid is not present in this case. The present
case does not involve a situation where a party who, after
obtaining affirmative relief from the court, later on turned
around to assail the jurisdiction of the same court that granted
such relief by reason of an unfavorable judgment. So the
petitioner and her husband did not obtain affirmative relief
from the very same court whose jurisdiction they are assailing, as
they never won their case.
Also here the petitioners were not privy to the case before the
RTC Branch 14 . So here, they could not raise any defenses in the
RTC. Didto lang sila na implead when the respondents filed a
supplemental complaint to annul the judgment. The spouses at
any stage of the case, never asked for affirmative relief unlike in
Sibonghanoy.
We emphasize that our ruling in Sibonghanoy establishes an
exception which is to be applied only under extraordinary
circumstances or to those cases similar to its factual situation.
The rule to be followed is that the lack of a court's jurisdiction is
a non-waivable defense that a party can raise at any stage of the
proceedings in a case, even on appeal; the doctrine of estoppel,
being the exception to such non-waivable defense, must be
applied with great care and the equity must be strong in its
favor.
How do we know kung pwede or possible ba mag apply ang
principle of jurisdiction by estoppel. So this was the clarification
of the Supreme Court in this particular case:
EUSTACIO ATWELL V. CONCEPCION PROGRESSIVE
ASSOCIATION INC.
GR NO. G.R. No. 169370
In Lozon v. NLRC, this Court came up with a clear rule on
when jurisdiction by estoppel applies and when it does not:
The operation of estoppel on the question of jurisdiction
seemingly depends on whether the lower court actually had
jurisdiction or not.
If it had no jurisdiction, but However, if the lower court
the case was tried and had jurisdiction, and the
decided upon the theory that case was heard and decided
it had jurisdiction, the upon a given theory, such, for
parties are not barred, on instance, as that the court
appeal, from assailing such had no jurisdiction, the party
jurisdiction, for the same who induced it to adopt such
"must exist as a matter of theory will not be permitted,
law, and may not be on appeal, to assume an
conferred by the consent of inconsistent position - that
the parties or by estoppel." the lower court had
jurisdiction....
In short, a party who induced the theory that the court has no
jurisdiction even though in reality it has jurisdiction cannot on
appeal change this theory and say that the court now has
jurisdiction.
Kung sa beginning wla jud syay jurisdiction, dili na sya ma-cure
by laches kasi wa man syay jurisdiction. Pero kung ang court my
jurisdiction and niingon ang isa ka party na walay jurisdiction
and then later on na prove nya na dili sya maayo na defense para
sa ako ha, changed na pud sya ug theory. Ingon na pud sya na
naay jurisdiction. So here, you are not permitted to do that. So he
could not change his theory and say that the court has
jurisdiction.
FEGUEROA V. PEOPLE OF THE PHILIPPINES.
G.R. NO. 147406 : July 14, 2008
HELD: Clearly, the factual settings attendant in Sibonghanoy
are not present in the case at bar. Petitioner Atty. Regalado,
after the receipt of the Court of Appeals resolution finding her
guilty of contempt, promptly filed a Motion for
Reconsideration assailing the said court's jurisdiction based
on procedural infirmity in initiating the action. Her
compliance with the appellate court's directive to show cause
why she should not be cited for contempt and filing a single
piece of pleading to that effect could not be considered as an
active participation in the judicial proceedings so as to take
the case within the milieu of Sibonghanoy. Rather, it is the
natural fear to disobey the mandate of the court that could
lead to dire consequences that impelled her to comply.
The general rule should, however, be, as it has always been,
that the issue of jurisdiction may be raised at any stage of the
proceedings, even on appeal, and is not lost by waiver or by
estoppel. Estoppel by laches, to bar a litigant from asserting
the court's absence or lack of jurisdiction, only supervenes in
exceptional cases similar to the factual milieu of Tijam v.
Sibonghanoy. Indeed, the fact that a person attempts to
invoke unauthorized jurisdiction of a court does not estop
him from thereafter challenging its jurisdiction over the
subject matter, since such jurisdiction must arise by law and
not by mere consent of the parties. This is especially true
where the person seeking to invoke unauthorized jurisdiction
of the court does not thereby secure any advantage or the
adverse party does not suffer any harm.
Applying the said doctrine to the instant case, the petitioner is
in no way estopped by laches in assailing the jurisdiction of
the RTC, considering that he raised the lack thereof in his
appeal before the appellate court. At that time, no
considerable period had yet elapsed for laches to attach. True,
delay alone, though unreasonable, will not sustain the defense
of "estoppel by laches" unless it further appears that the
party, knowing his rights, has not sought to enforce them until
the condition of the party pleading laches has in good faith
become so changed that he cannot be restored to his former
state, if the rights be then enforced, due to loss of evidence,
change of title, intervention of equities, and other causes. In
applying the principle of estoppel by laches in the exceptional
case of Sibonghanoy, the Court therein considered the patent
and revolting inequity and unfairness of having the judgment
creditors go up their Calvary once more after more or less 15
years. The same, however, does not obtain in the instant case.
Moreover, a judgment rendered without jurisdiction over the
subject matter is void. Hence, the Revised Rules of Court
provides for remedies in attacking judgments rendered by
courts or tribunals that have no jurisdiction over the
concerned cases. No laches will even attach when the
judgment is null and void for want of jurisdiction.
Review on Lack of Jurisdiction over the Subject Matter:
Gen. Rule: It is not subject to agreement, consent, silence, waiver
and estoppel.
very exceptional cases: like it should be the same factual
circumstances, as in the case of Tijam v. Sibonghanoy, for you to
be able to invoke jurisdiction by estoppel.
2. LITIS PENDENTIA
Litis pendentia is one of those defenses which can be raised
ANYTIME. So it can be raised even after you file your Answer.
DEFINITION
SUBIC TELECOMMUNICATIONS COMPANY v. SUBIC BAY
METROPOLITAN AUTHORITY:
“It is a Latin term meaning ‘a pending suit’. It is also referred
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 to as lis pendens and auter action pendant. While it is
normally connected with the control which the court has over
a property involved in a suit during the continuance
proceedings, it is interposed more as a ground for the
dismissal of a civil action pending in court.”
Simply stated, if there are 2 or more cases instituted based on
the same cause of action, there is litis pendentia. You cannot
institute 2 or more cases arising from the same cause of action.
“Litis pendentia as a ground for the dismissal of a civil action
contemplates a situation wherein another action is pending
between the same parties for the same cause of action, such that
the second action becomes unnecessary and vexatious.”
So the reason here is we should not put out opponent under
unnecessary vexation. It would already be tantamount to
harassment if you file 2 or more cases but you only have one
cause of action. You will be wasting your time, the time of the
court and that of your opponent.
Rationale:
1. “Litis pendentia is predicated on the principle that a party
should not be allowed to vex another more than once regarding
the same subject matter and for the same cause of action.
2. Public policy. If you file 2 cases based on the same cause of
action, there might be conflicting decisions between one branch
and another co-equal branch.
(still from the Subic case) “…in order that possible conflicting
judgments may be avoided for the sake of the stability of the
rights and status of persons, and also to avoid the costs and
expenses incident to numerous suits.
TESTS TO DETERMINE WHETHER THERE IS LITIS
PENDENTIA (Subic case)
There are a lot of tests, but these are the most used ones:
1. Whether the same evidence would support and sustain both
the first and second causes of action
2. Whether the defenses in one case may be used to substantiate
the complaint in the other
This is also related to the doctrine of Res Judicata. Although
when you say res judicata, this is already decided with finality.
In litis pendentia, both of the actions are pending.
EXAMPLE:
Compulsory counterclaim:
A filed a case against B. B filed his Answer, wherein he interposed
a counterclaim saying that the suit which A filed against him as
intended merely to harass him. That is a compulsory
counterclaim – related to the complaint.
Q: Can you institute a separate action? Can you say that you will
just file a counterclaim later on?
A: NO, you are not allowed to do that. You are barred from
instituting a separate action on the ground of litis pendentia. If
you institute another action, the evidence to be used in the first
case will also be the evidence to be used in the second case,
because you have to prove that the complaint of the plaintiff is
really intended to harass you. Where do you do that, diba in the
first case? So you cannot do that again in another case.
ELEMENTS OF LITIS PENDENTIA (Subic case)
1. Identity of parties, or at least such parties who represent
the same interests in both actions;
EXAMPLE:
A filed a case for recovery of possession against B. Later on, A
died. His heirs filed another case for recovery of possession
against B. Would that be considered as litis pendentia?
 The heirs of A were not parties to the first case. But
they represent the SAME INTEREST in both actions. So
both of the cases are actually the same. It’s not really
necessary that there be identity of parties, as long as
they represent the same interest, like transferee,
assignee, vendee…
 Possible case involving vendee: first case involves the
vendor, then he sold the thing to the vendee, so the
second case would involve the vendee. They actually
represent the same interest.
2. Identity of rights asserted and relief prayed for, the relief
being founded on the same facts
Example: if they ask for the same relief, i.e. recovery of
possession
3. Identity with respect to the 2 preceding particulars in the 2
cases is such that any judgment that may be rendered in the
pending case, regardless of which party is successful, would
amount to res judicata in the other case.
 They are really identical in the sense that if one of
them is decided, the other one would be barred,
regardless as to who is successful.
OLAYVAR v. OLAYVAR (98 Phil 52, 1955)
1st case: Husband filed an action for legal separation. The wife
filed a counterclaim for support.
2nd case: Wife filed an independent case for support.
ISSUE: WON litis pendentia exists – YES
RULING: A counterclaim partakes of the nature of a complaint
and/or a cause of action against the plaintiff in a case. To
interpose a cause of action in a counterclaim and again invoke
it in a complaint against the same person or party would be
splitting a cause of action not sanctioned by the Rules.
ANALYSIS: If the court dismisses the counterclaim in the first
case, the issue of support in the second case is also defeated.
Thus, the adjudication of the issue in the first case, whether in
favor of the plaintiff or the defendant, is enough to fully
dispose of the similar issue in the second case.
Would there be litis pendentia? Would the judgment in either
case, regardless of who wins, constitute res judicata as to the
other?
Q: if the court will dismiss the counterclaim for support in the
first case, what will be the effect in so far as the second case is
concerned? Would that be a bar?
A: YES, because they are founded on the same cause of action –
SUPPORT. So if in the first case the court said that the wife is not
entitled to support, and it becomes final, it can be used as a bar to
file a second case.
Q: What if the court said that the wife is entitled to support?
What will be the effect?
A: It will also affect the second case, because if in the first case
she is entitled to support and becomes res judicata, it now
become conclusive. There is what we call conclusiveness of
judgment, in so far as that issue is concerned.
Question asked by a student: What if the support is a provisional
remedy?
Atty. LCYE: It’s different, because when you say provisional
remedy, pendente lite, meaning it does not really consider yet the
merits of the case. One requisite of res judicata is that there must
be judgment on the merits of the case.
TAMBUNTING v. ONG (Aug. 11, 1950)
1st case: The mortgagor-debtor filed an action for annulment
of mortgage.
2nd case: The mortagee-creditor filed an action to foreclose the
mortgage. Mortagor-debtor filed a Motion to Dismiss the
second case on the ground of litis pendentia.
ISSUE: WON litis pendentia exists? – NO.
RULING: The third requisite provides that the identity in the
2 cases should be such that the judgment that may be
rendered in the pending case would, regardless of which
party is successful, amount to res judicata in the other.
ANALYSIS: If the court annuls the mortgage in the first case, it
means that the mortgagee-creditor cannot foreclose because
he would no longer have basis for the exercise of such right in
the second case.
If the debtor-mortgagor in But if the debtor-
the first case wins – if the mortgagor in the first case
court says that the does not win the case
mortgage is annulled
then it would affect the then the second case may
second case. Consequently, prosper. If the court
the creditor-mortgagee’s dismisses the annulment for
action to foreclose can no mortgage case, this means
longer prosper. that the mortgage is valid
and the second case for
foreclosure is proper
so the first case will only be res judicata if the debtor-
mortgagor wins. When you say litis pendentia, regardless of
the result in either case, there will be res judicata. So here,
54
 there is no litis pendentia. “There is no identity in all respects
because the presence of res judicata would vary according to
which party would win the case.”
CONSEQUENCES OF LITIS PENDENTIA
1. The court may take note, upon proper motion by the
defendant, or motu proprio, dismiss the action;
 So meaning, even without a motion, if it becomes
apparent to the court, based on the records and
evidence presented that there is litis pendentia, the
court can dismiss the case.
2. When there is litis pendentia, a party in effect violates the
rule on splitting a cause of action, to wit:
Rule 2, Sec. 4 Splitting a single cause of action; effect of. — If two
or more suits are instituted on the basis of the same cause of
action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others
Although in Rule 2, Sec. 4, it does not say which case will be
dismissed – is it the first case or the second case? It just says
“dismissal of the others”.
3. Under the ground of litis pendentia, at least one of the
identical cases must be dismissed pursuant to Rule 2, Sec. 4 as
well because the filing of one or a judgment upon the merits
in any one is available as a ground for the dismissal of the
others.
4. The act of filing multiple suits may constitute forum-
shopping.
 In this case, among all other sanctions previously
discussed, all such actions so filed may be summarily
dismissed.
DOTMATRIX TRADING v. LEGASPI
G.R. No. 155622, Oct. 26, 2009
The following considerations predominate in the ascending
order of importance in determining which action should
prevail:
(1) the date of filing, with preference generally given to the
first action filed to be retained (Priority in Time Rule);
(2) whether the action sought to be dismissed was filed
merely to preempt the latter action or to anticipate its filing
and lay the basis for its dismissal (Anticipatory Test);
(3) Whether the action is the appropriate vehicle for litigating
the issues between the parties (Appropriate Action Test).
PRIORITY IN TIME RULE
The rule on litis pendentia does not require that the case later in
time should yield the earlier case; what is required is that there
be another pending action, not a PRIOR pending action. Neither is
it required that the party be served with summons before lis
pendens can apply; it is the filing of the action, not the receipt
of summons, which determines priority in date.
Early on, the Supreme Court applied the principle of QUI PRIOR
EST TEMPORE, POTIOR EST JURE (literally, he who is before in
time is better in right) in dismissing a case on the ground of litis
pendentia.
This was exemplified in the relatively early case of DEL
Atty. LCYE’s discussion:, G.R. L-20340 where two complaints for
reconveyance and/or recovery of the same parcel of land were
filed by substantially the same parties, with the second case only
impleading more party-plaintiffs. The Court held that “parties
who base their contention upon the same right as the litigants in
a previous suit are bound by the judgment in the latter case”.
Without expressly saying so in litis pendentia terms, the
Court gave priority to the suit filed earlier.
PAMPANGA BUS COMPANY, INC. v. OFEMIA, G.R. No. L-
21793,
complaints for damages arising from a collision of a cargo
truck and a bus were separately filed by the owners of the
colliding vehicles. Ang nauna ug file kay ang complaint sa
owners of the cargo truck, next is the complaint of the owner
of the bus. The complaint of the owners of the cargo truck,
prevailed and the complaint of the owners of the bus had to
yield, as the cargo owners first filed their complaint. Notably,
the first and prevailing case was far advanced in the
development, with an answer with counterclaim and an
answer to the counterclaim having been already filed, thus
fully joining the issues.
So at that time na file ang second case, naka-file na ug answer
with the counter-claim sa first case and they both involve the
same parties, the same causes of action, the same subject matter,
so according to the SC, the second case should yield to the first
case.
LAMIS ENTERPRISES v. LAGAMON, GR No. L-57250
the first case was a complaint for specific performance of
obligations under a Memorandum of Agreement, while the
second case was a complaint for sums of money arising from
obligations under a promissory note and a chattel mortgage,
and damages. The cases may seem different but they are
actually the same. The court dismissed the second case
because the claims for sums of money therein arose from the
Memorandum of Agreement sued upon in the first case. The
second case should yield to the first case.
AGO TIMBER CORP v. RUIZ, GR No. L-23887
offered an insightful reason after both parties had each
pleaded the deficiency of another action between the same
parties for the same cause. The court ruled that the second
action should be dismissed, “not only as a matter of comity
with a coordinate and co-equal court, but also to prevent
confusion that might seriously hinder the administration of
justice.
In all these cases, the Supreme Court gave preference to the first
action filed to be retained.
The PRIORITY-IN-TIME RULE HOWEVER IS NOT ABSOLUTE.
MORE APPROPRIATE ACTION TEST AND THE ANTICIPATORY
TEST
TEODORO v. MIRASOL (1956)
the SC deviated from the “priority-in-time rule” and applied
the “more appropriate action test” and the “anticipatory test”.
The MORE APPROPRIATE ACTION TEST considers the real
issue raised by the pleadings and the ultimate objective of the
parties; the more appropriate action is the one where the
real issues raised can be fully and completely settled. The
first case was an action for declaratory relief to fix the period
of the lease because there was no clear declaration of the real
period of the lease. Subsequently, the lessor filed an action for
ejectment or unlawful detainer against the lessee. So he filed a
motion to dismiss the first case on the ground that he filed an
action for ejectment against the lessee.
The Supreme Court there noted that the unlawful detainer
suit was the more appropriate action to resolve the real
issue between the parties – whether or not the lessee
should be allowed to continue occupying the land under the
terms of the lease contract; this was the subject matter of the
second suit for unlawful detainer, and was also the main or
principal purpose of the suit for declaratory relief (aside from
declaration of rights, there is a remedy of ejectment if indeed
there is violation).
The two cases involve the same issues because in the first case,
the lessee wanted the court to declare what is the duration of the
lease so that he will be justified in continuing in the lease of the
premises. But in the ejectment case filed by the lessor, the latter
contended that the lease contract had already expired so the
lessee had no more right to continue the leased premises.
Actually, the issues here are the same. Definitely there is litis
pendentia, but which action should remain? The two tests were
applied here.
DECLARATORY ACTION FOR EJECTMENT
RELIEF
it merely declares the court will also look into the
what the contract is contention of the parties as to the
about and the rights duration of the lease. Because it is an
and obligations but It action for ejectment, the court can
cannot order the order the relief that the defendant
ejectment can leave the lease premises because
the contract has already expired.
So comparing the two actions, the second case is the more
complete action that will settle the issues of the parties—
duration and unlawful occupation of the lessee. The second
case is the more appropriate action because it will completely
settle the issues between the parties. The SC noted that it is clear
that the lessee only filed the case because he anticipated that the
lessor will file an action for ejectment. So the action for
declaratory relief was just to pre-empt the second action which
55
was later on filed by the lessor. So in short, the two tests were
applied here.
In the ANTICIPATORY TEST, the bona fide or GOOD FAITH of
the parties is a critical element. If the first suit is filed merely to
pre-empt the later action or to anticipate its filing and lay the
basis for its dismissal, then the first suit should be dismissed.
In Teodoro, the SC noted that the first action, declaratory relief
was filed by the lessee to anticipate the filing of the second
action, unlawful detainer, considering the lessor’s letter
informing the lessee that the lease contract had expired.
The SC also applied the “more appropriate action test” in
RAMOS v. PERALTA, GR No. 45107
In this case, the lessee filed an action for consignation of lease
rentals against the new owner of the property, but the new
owner moved to dismiss the consignation case because of the
quieting of title case he had also filed against the lessee.
Finding that the real issue between the parties involved the
right to occupy/possess the subject property, the SC ordered
the dismissal of the consignation case, noting that the quieting
of title case which raised the issue of the validity and
effectivity of the same lease contract.
In consignation, the court will just declare whether the
consignation is proper. Whether there is a debt that is due and
demandable and there was a prior tender of payment to the
creditor. It does not resolve the issue of the ownership of the
property although it was also the intention of the lessee in
cosigning the amount. But the quieting of title will really
resolve the issue of the right to possess or occupy of the leased
premises. If there is a cloud in the title of the owner that has to be
removed, then the lessee does not have the right to remain in the
premises. There is no reason for him to continue paying the
rentals. Hence, it is the most appropriate action.
UNIVERSITY PHYSICIAN SERVICES, INC. v. CA, GR No.
100424
the SC applied both the “more appropriate action test” and
“anticipatory test”. In this case, the new owner of an
apartment sent a demand letter to the lessee to vacate the
leased apartment unit. When the lessee filed an action for
damages and injunction against the new owner, the new
owner moved for the dismissal of the action for damages on
account of the action for ejectment it had also filed. The SC
noted that the ejectment suit is the more appropriate
action to resolve the issue whether the lessee had the
right to occupy the apartment unit, where the question of
possession is likewise the primary issue for resolution. The SC
noted that after her unjustified refusal to vacate the premises,
was ware than an ejectment case against her was
forthcoming; the lessee’s filing of the complaint for damages
and injunction was but a canny and preemptive maneuver
intended to block the new owner’s action for ejectment.
The first case was injunction and damages. Later on, an ejectment
suit was filed. The priority in time is not applied but the
anticipatory and appropriate action test. Clearly, the first case
anticipated the filing of the second case. It must be noted that
there was already a demand letter sent by the new owner of the
property to the lessee and when the latter learned about it, he
then filed a case for injunction and damages. It preempted, there
was bad faith in the part of the lessee. He knew that the case is
coming. The best defense is offense, mao nang para sa iyaha.
Ejectment suit is the more appropriate action because possession
is the primary issue.
The SC also applied the “more appropriate action test” in
PANGANIBAN v. PILIPINAS SHELL PETROLEUM CORP.
(2003), GR No. 131471)
where the lessee filed a petition for declaratory relief on the
issue of renewal of the lease of a gasoline service station,
while the lessor filed an unlawful detainer case against the
lessee. On the action of which action should be dismissed, the
SC noted that the interpretation of a provision in the lease
contract as to when the lease would expire is the key issue
that would determine the lessee’s right to possess the
gasoline service station. The primary issue – the physical
possession of the gasoline station – is best settled in the
ejectment suit that are directly confronted the physical
possession issue, and not in another case such as an action
for declaratory relief (Same as Teodoro v. Mirasol).
3 TESTS IN LITIS PENDENTIA:
1. Priority in Time Rule
2. Anticipatory Test
3. More Appropriate Action Test
4. Interest of Justice Test (Addtl) - Roa Magsaysay vs. Magsaysay
and the Anderson Group vs. CA
Interest of Justice Test
The Supreme Court said we have to answer or take into account
these questions
i. the nature of the controversy,
ii. the comparative accessibility of the court to the parties, having
in view their peculiar positions and capabilities, and
iii. other similar factors.
ROA-MAGSAYSAY vs MAGSAYSAY and HON. RUFINO T.
VERIDIANO II
G.R. No. L-49847 | July 17, 1980
ISSUE: Whether or not the other aspects of the controversy
between the parties should be tried and decided by the
Zambales court or that of Quezon City.
RULING: 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.
ANDERSONS GROUP INC vs. CA
G.R. No. 114928 | January 21, 1997
FACTS: Two collection suits were filed in separate venues,
one in Caloocan and one in Davao.
RULING: CRITERIA IN DETERMINING WHICH CASE SHOULD
BE ABATED.- It must be emphasized that the rule on litis
pendentia does not require that the latter case should yield to
the earlier. The criterion used in determining which case
should be abated is which is the more appropriate action or
which court would be "in a better position to serve the
interests of justice." Applying these criteria, and considering
that both cases involve a sum of money collected in and
around Davao, the Davao Court would be in a better position
to hear and try the case, as the witnesses and evidence
would be coming from said area.
OMBUDSMAN vs. ESTANDARTE
G.R. NO. 168670 | April 13, 2007
FACTS: A complaint was filed against school principal
Estandarte and the Ombudsman dismissed her from service.
Estandarte here assails the jurisdiction over the case it
involves public school teachers arguing that the OMB has no
authority. The OMB however contends that it has concurrent
jurisdiction with the DECS as the respondent is still a public
official. Estandarte here continues to assert that DECS could
not be divested of its jurisdiction.
ISSUE: Whether or not Motion to Dismiss should not be
granted due to estoppel.
RULING: In case of concurrent jurisdiction, one with
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 better position is favored. – In event of conflict between two
courts of concurrent jurisdiction, 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.
Considering the Estandarte is a public school teacher covered
by the Magna Carte for Public School Teacher, DECS is in a
better position to decide the matter. DECS already
commenced the proceeding by having an investigating
committee
DOTMATRIX TRAINING vs. LEGASPI G.R. No. 155622
respondent initiated the preparatory moves that led to the
present litigation when he sent the petitioners – in May 2002,
or about five (5) months after the end of their supply contract
– a demand letter for the payment of delivered day-old chicks.
The petitioners only reacted to this demand when they
replied that there was in fact an overpayment that should be
refunded. Under these facts, and given the law on sales that
business is keenly aware of, we can safely conclude that the
petitioners knew that a case for sum of money would be filed
against them and thus filed Civil Case No. 9354 in anticipation
of this coming case which became Civil Case No. 489-M-2002;
the purpose, under this view, is purely preemptive, i.e., to
seek the dismissal of the coming action.
The more compelling reason that strikes us, however, is that
Civil Case No. 489-M-2002 is the more appropriate action to
rule on the real issue between the parties – whether or not
the correct payment had been made on the delivered day-old
chicks; the petitioners’ claim of overpayment in Civil Case No.
9354 is more in the nature of a defense to the respondent’s
action for collection in Civil Case No. 489-M-2002. From this
perspective, the real issue is better asserted in Civil Case No.
489-M-2002 – the collection case – rather than in the action
that merely serves as a defense to the collection
case.1avvphi1
FORUM SHOPPING
When you say litis pendentia can also be considered as forum
shopping but of course there is a difference between the two. The
elements of forum shopping are the same with litis pendentia.
Definition of Forum Shopping
CHAVEZ vs. COURT OF APPEALS
G.R. NO. 174356 | January 20, 2010
By forum shopping, a party initiates two or more actions in
separate tribunals, grounded on the same cause, trusting that
one or the other tribunal would favorably dispose of the
matter. The elements of forum shopping are the same as in
litis pendentia where the final judgment in one case will
amount to res judicata in the other.
The elements of forum shopping are
(1) identity of parties, or at least such parties as would
represent the same interest in both actions;
(2) identity of rights asserted and relief prayed for, the relief
being founded on the same facts; and
(3) 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.
Here, however, the various suits Fidela initiated against
Evelina and Aida involved different causes of action and
sought different reliefs. The present civil action that she filed
with the RTC sought to recover possession of the property
based on Evelina and Aida‘s failure to account for its fruits.
The estafa cases she filed with the RTC accused the two of
misappropriating and converting her share in the harvests for
their own benefit. Her complaint for dispossession under
Republic Act 8048 with the DARAB sought to dispossess the
two for allegedly cutting coconut trees without the prior
authority of Fidela or of the Philippine Coconut Authority.
The above cases are similar only in that they involved the
same parties and Fidela sought the placing of the properties
under receivership in all of them. But receivership is not an
action. It is but an auxiliary remedy, a mere incident of
the suit to help achieve its purpose. Consequently, it cannot
be said that the grant of receivership in one case will amount
to res judicata on the merits of the other cases. The grant or
denial of this provisional remedy will still depend on the need
for it in the particular action.
Three Modes of Forum Shopping
1. by filing multiple cases based on the same cause of action and
with the same prayer, the previous case not having been resolved
yet (which makes the cases susceptible to dismissal based on litis
pendentia);
2. by filing multiple cases based on the same cause of action and
the same prayer, the previous case having been finally resolved
(which makes the subsequent case susceptible to dismissal based
on res judicata); and
3. by filing multiple cases based on the same cause of action, but
with different prayers (which amounts to splitting of causes of
action, which renders the cases susceptible to dismissal on the
ground of either litis pendentia or res judicata).
VDA. DE KARAAN vs. AGUINALDO
G.R. NO. 182151 | September 21, 2015
The identity of the parties in the instant case and Civil Case
No. 7345 are established. However, the causes of action and
reliefs sought in the two cases differ substantially.
This instant case is premised on a quasi-delict arising from
the demolition of structures in petitioner’s resort. On the
other hand, Civil Case No. 7345 involves a claim for easement
of right of way over respondent’s property in Bataan based on
Article 649 of the Civil Code.
The reliefs sought in the two cases are likewise different. The
relief sought in this instant case is that of damages (actual,
exemplary, moral) while that of Civil Case No. 7345 pertain
exclusively to the right-of-way over the property. Since the
causes of action and the reliefs sought in the two cases are
completely different, a decision in either case will not amount
to res judicata in the other.
LITIS PENDENTIA FORUM SHOPPING
A generic ground for a A special ground for a
motion to dismiss under Rule motion to dismiss under
9 Rule 7
Only one action will be All actions that were filed
Dismissed using the different can be dismissed summarily
guidelines
Does not constitute contempt Constitutes contempt
Not a ground for disciplinary Constitutes a ground for
action against the lawyer disciplinary action against
the lawyer
Not necessary that the The actions are necessarily
actions were filed by one filed by one party and one
party, it can be filed by party only
several parties
RES JUDICATA
Res judicata refers to the rule that the final judgment or decree
on the merits of the case by a court of competent jurisdiction is
conclusive of the right of the parties and all their privies on all
matters determined in the suit.
TWO PRINCIPLES why res judicata is frowned upon in filing
upon two suits when one is finally litigated and decided.
(REASONS OF RES JUDICATA)
1. Public policy and necessity because it is the interest of the
state that there be an end to litigation;
2. No person ought to be vexed for the same thing twice.
TWO CONCEPTS OF RES JUDICATA
(1) Bar by prior judgment
There is bar by prior judgment when, as between the first case
where the judgment was rendered and the second case which is
sought to be barred, there is identity of parties, subject
matter, and causes of action. But where between the first and
second cases, there is identity of parties but no identity of cause
of action, the first judgment is conclusive in the second case,
only as to those matters actually and directly controverted and
determined and not as to matters merely involved therein.
57
In Bar by Prior Judgement, everything between the first case
and the second case is identical. Identity of parties, subject
matter, causes of action or issues. So definitely if the first case
already been decided applying also the Doctrine of Immutability
of Judgement or Doctrine of Finality of Judgement that decision
should no longer be disturbed, it cannot be modified anymore.
So, if there is another case filed involving the same issue, party,
subject matter it will be barred by the first judgement.
(2) Conclusiveness of judgment
A fact or question which was in issue in a former suit and there
was judicially passed upon and determined by a court of
competent jurisdiction, is conclusively settled by the judgment
therein as far as the parties to that action and persons in privity
with them are concerned and cannot be again litigated in any
future action between such parties or their privies, in the same
court or any other court of concurrent jurisdiction on either the
same or different cause of action, while the judgment remains
unreversed by proper authority.
LZK HOLDINGS vs. PLANTERS DEVELOPMENT BANK
G.R. NO. 187973 | January 20, 2014
In the first case, the court’s final decision ruled on the right of
the mortgagee to be issued a writ of possession even though
the redemption period is still effective. In a subsequent case
for the annulment of the foreclosure sale, the same issue on
the writ of possession was raised.
But the SC says, even if this is a different case, but with
respect to the issue on writ of possession, that was already
settled in the first case. As to that issue there was already
conclusiveness of judgment even if the cases were not similar.
The doctrine of res judicata by conclusiveness of judgment
postulates that "when a right or fact has been judicially tried
and determined by a court of competent jurisdiction, or when
an opportunity for such trial has been given, the judgment of
the court, as long as it remains unreversed, should be
conclusive upon the parties and those in privity with
them.
Probate of Wills
Another example, in succession. In probate of wills, when the will
is allowed it makes that the will genuine and it is not forged that
is one of the effects if the will is admitted to probate.
Illustration
In one case, the court already allowed the will and the judgement
became final and executory. Therefore, no one appealed. Later
on there was a criminal case filed (this is a different cause of
action because it is not a civil case nor a special proceeding),
allegedly the will was forged. So the case filed was forgery of will.
Q: The issue here is can the criminal case for forgery proceed?
A: The Supreme Court said no, because the determination of the
probate court in a probate proceeding is conclusive as to the
genuiness of that last will and testament therefore that issue is
already settled in so far as that aspect is concerned. So in another
proceeding you cannot raise anymore the genuiness of the will
because again it is barred by the Doctrine of Conclusiveness of
Judgement even if it involves a different cause of action or
different parties.
[Transcriber’s Note: The case discussed by Ma’am is Atilano
Mercado vs. Santos (66 Phil 216) “the probate of the will by the
probate court having jurisdiction thereof is considered as
conclusive to its due execution and validity, and that the will is
genuine and not a forgery.”]
ELEMENTS OF RES JUDICATA
1. The former judgment must be Final;
Because if it still on Appeal or on Motion for Reconsideration it is
not yet final. There must be already an Entry of Judgment.
2. The court which rendered it had Jurisdiction over the
subject matter and the parties,
Because if the court has no jurisdiction over the subject matter, it
can be assailed anytime for such judgment is a nullity;
3. The judgment must be on the Merits;
The court has really considered the arguments of the party not
merely for technicality.
For example, plaintiff did not appear during pre-trial and the
court dismissed the case. There is no litigation there, there is no
presentation of evidence. But do we consider it as judgement on
the merits na if there is another case filed involving the same
issue as the one that was dismissed, will it bar the subsequent
case? We will learn it later on. When we say judgement on merits,
the dismissal is with prejudice.
4. There must be between the first and second action the
Identity of parties, subject matter and causes of action.
Identity of parties does not mean absolute identity as long as
they represent the same interest or there exists privity between
the parties.
Quasi-Judicial Proceedings
Q: Is the concept of Res Judicata applicable in Quasi-Judicial
Proceedings?
A: Yes! It applies to quasi-judicial acts of public, executive or
administrative acting in their jurisdiction.
Criminal Cases
EX: For example, you filed an Affidavit of Complaint at the
Prosecutors Office and then the Fiscal dismissed the case.
Q: Will this bar a re-filing of the action?
A: No! Because there is no res judicata and this does not amount
to double jeopardy. In criminal cases, there is only double
jeopardy when the accused has already been arraigned. In the
fiscal step, there is no arraignment.
No Res Judicata in Criminal Proceedings
Regardless of the decision of the public prosecutor (technicality
nor the merits), it is not barred by res judicata. There is also no
double jeopardy yet in the resolution of public prosecution as
discussed in case of Trinidad v. Ombudsman because
preliminary investigation is not part of trial.
Prescription or Statute of Limitations
We have already discussed this in Rule 8 Section 12.
Q: Now based on these grounds in Rule 9: Lack of jurisdiction
over the subject matter, prescription, litis pendentia, res judicata
can the court on its own motu proprio dismiss the case without
any motion from the defendant?
A: Yes! That is specifically mentioned in Section 1 of Rule 9.
Unlike the other affirmative defenses that the court cannot
dismiss motu proprio there has to be a motion.
Q: Why?
A: Because these other affirmative defenses can be waived.
Meaning, if the defendant did not assail the complaint based on
these affirmative defenses diba based on the Omnibus Motion
Rule all objections and defenses not pleaded in the answer or
motion to dismiss are deemed waived except this four.
Section 2.
Compulsory counterclaim, or cross-claim, not set up
barred. — A compulsory counterclaim, or a cross-claim, not
set up shall be barred.
If it is a compulsory counterclaim, the counterclaim is necessarily
related to the claim. That is why you have no option but to file
your counterclaim in the same case it is a compulsory
counterclaim. You cannot file a separate action it will be
considered as splitting because your counterclaim is interrelated
with the complaint.
Section 3.
Default; Declaration of. — If the defending party fails to
answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending
party, and proof of such failure, declare the defending party in
default. Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his or her
pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
(a) Effect of order of default. — A party in default shall be
entitled to notices of
subsequent proceedings but shall not take part in the trial.
(b) Relief from order of default. — A party declared in default
may at any time after notice thereof and before judgment, file
a motion under oath to set aside the order of default upon
proper showing that his or her failure to answer was due to
fraud, accident, mistake or excusable negligence and that he
or she has a meritorious defense. In such case, the order of
default may be set aside on such terms and conditions as the
judge may impose in the interest of justice.’
(c) Effect of partial default. — When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others fail
to do so, the court shall try the case against all upon the
58
 answers thus filed and render judgment upon the evidence
presented.
(d) Extent of relief to be awarded. — A judgment rendered
against a party in default shall neither exceed the amount or
be different in kind from that prayed for nor award
unliquidated damages.
(e) Where no defaults allowed. — If the defending party in an
action for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall order the
Solicitor General or his or her deputized public prosecutor, to
investigate whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not
fabricated. (3a)
Please take note of this Rule as this is a favourite bar question.
The defending party to which Sec. 3 pertains to both
1. the defendant; and
2. the original complainant in a permissive counterclaim. The
rule applies to both.
The defending party has two options, either
1. to file an answer or
2. to file a motion to dismiss based on the four (4) grounds in Sec.
1, Rule 9.
If you fail to file your answer or MTD within 30 days from receipt
of summons, you can be declared in default.
Q: What is the effect when one is declared in default?
A: Loses his standing in the case. He cannot participate in the
trial. He can no longer file pleadings or motions and he cannot
present evidence in his behalf. Chances are, he may lose in the
case.
Q: Can there be a motu proprio declaration of default? Can the
court on its own declare the defendant in default?
A: No. The Rules provide that in order for one to be declared in
default, such must be made upon motion of the claiming party
with notice to the defending party. There must be a motion from
the plaintiff/claimant.
Note: When we say default, we refer only the failure to file a
responsive pleading, particularly an answer.
Q: Suppose the defendant did not appear during the pre-trial or
during the hearings, can he be declared in default?
A: No. It is only upon the failure of the defendant to file a
responsive pleading can he be declared in default. This is the
only instance when a defending party may be declared in
default.
Q: What would happen if the defendant files his answer but fails
to appear during pre-trial without any justifiable reasons?
A: The defendant cannot be declared in default but the plaintiff
can present evidence ex parte. Even in the absence of the
defendant, the plaintiff can present evidence.
Q: What is the difference between the scenario where the
defendant is declared in default versus when the plaintiff is
allowed to present his evidence ex parte?
If the defendant is declared in default.
 The defendant cannot present evidences or file
motions and pleadings and is entitled only to notices
and shall not take part in the trial. The court may
proceed to render judgement or hear evidence ex
parte.
If during the defendant files an answer but fails to attend the
pre-trial without justifiable reason.
 The court will authorize the plaintiff to present
evidence ex parte and can proceed to render
judgement based from the evidence presented.
If the defendant files an answer but fails to attend the trial
without justifiable reason.
 The court cannot decide the case immediately. The
plaintiff is still required to present evidence ex parte.
Meanwhile, the defendant can still present evidences
during the trial.
The Philippine American Life & General Insurance
Company v. Joseph Anario (G.R. No. 182075, 15
September 2010)
The Supreme Court clarified, the failure to file a responsive
pleading within the reglementary period, and not failure to
appear at the hearing, is the sole ground for an order of
default, except the failure to appear at a pre-trial conference
wherein the effects of a default on the part of the defendant
are followed, that is, the plaintiff shall be allowed to present
evidence ex parte and a judgment based thereon may be
rendered against defendant.
Bar Question:
Q: If the defendant is declared in default for failure to file an
answer, is he deemed to have admitted the allegations in the
complaint to be true and correct?
A: Yes. The court shall proceed to render judgment granting the
claimant such relief as his or her pleading may warrant.
Under Sec. 3, the court has another option which is the reception
of evidence ex parte. Reception of evidence ex parte may be
delegated to the clerk of court. This is in relation to Sec. 9, Rule
30.
Section 9. Judge to receive evidence; delegation to clerk of
court. — The judge of the court where the case is pending
shall personally receive the evidence to be adduced by the
parties. However, in default or ex parte hearings, and in any
case where the parties agree in writing, the court may
delegate the reception of evidence to its clerk of court who is
a member of the bar. The clerk of court shall have no power to
rule on objections to any question or to the admission of
exhibits, which objections shall be resolved by the court upon
submission of his or her report and the transcripts within ten
(10) calendar days from termination of the hearing.
The judge may delegate the reception of evidence ex parte with
the clerk of court. In default or presentation of evidence ex parte,
the phrase “The clerk of court shall have no power to rule on
objections to any question or to the admission of exhibits...” does
not apply as there is only the plaintiff who is present. No other
person may raise any objection or opposition.
SUMMARY: Steps to follow in case defendant fails to file an
answer.
If you are the plaintiff:
1. File a motion to declare defendant in default;
2. The Judge will order that the defendant is now in default
(order of default); and
3. Judgment based on the complaint of the plaintiff (default
judgment) unless the court requires claimant to present evidence
ex parte.
If the defendant files no answer, he will not be allowed to file
any defense anymore. The plaintiff need only to prove his
allegation. The court may opt to render judgment based solely on
the complaint. The defendant is deemed to have admitted the
allegation against him for his failure to controvert the same.
Ramirez v. Court of Appeals (G.R. No. 182075, 15
September 2010)
FACTS: Defendant filed an answer but he failed to furnish the
plaintiff a copy of the answer. He was supposed to file his
answer within 15 days from the receipt of summons from the
court.
ISSUE: The 15 days lapsed. Can the defendant be declared in
default even if he filed an answer?
HELD: The Supreme Court said, failure to furnish the plaintiff
a copy can consider him in default because the Rules provide
that the defendant must furnish a copy of his answer. The
answer is defective in form and deemed as non-filed. It is
considered as a mere scrap of paper.
In relation Rule 13 Section 4
Section 4. Papers required to be filed and served. — Every
judgment, resolution, order, pleading subsequent to the
complaint, written motion, notice, appearance, demand, offer
of judgment or similar papers shall be filed with the court,
and served upon the parties affected.
Even if belatedly mentioned in the Rule, a pleading must be first
served to the other party before it is filed in court.
RECALL: Options of a defendant in filing a responsive pleading
- Answer
- Motion to Dismiss
- Motion for a Bill of Particulars
 File a Motion for a Bill of Particulars for example when
allegations in a complaint are not clear.
59
EXAMPLE: On the fifth day of the 15 day period within which you
are given time to file an answer, you filed a motion to dismiss.
You still have 10 days left. Let us say it is only after 3 months that
your motion to dismiss was resolved, and in the resolution, it was
denied. What should you do? File an ANSWER. Period is deemed
interrupted, you still have a period left within which you can file
an answer.
A defective motion does not toll the period of filling the
motion.
Del Castillo v. Aguinaldo (G.R. No. 57127, 5 August 1992)
Facts: There‘s a motion to dismiss which would ordinarily
interrupt the period for filing an answer but this motion did
not contain a notice of the time and place of hearing and the
motion is denied.
Held: The motion to dismiss and is therefore a useless piece
of paper with no legal effect. Any motion that does not
comply with the foregoing rules should not be accepted for
filing and if filed, is not entitled to judicial cognizance and
does not affect any reglementary period involved for the filing
of the requisite pleading. Thus, where the motion is directed
to the Clerk of Court, not to the parties and merely states that
the same is submitted "for the resolution of the court upon
receipt thereof" said motion is fatally defective.
MOTION FILED: PERIOD TOLLED
Golden Country Farms vs. Sanvar Development (G.R. No.
58027, 28 September 1992)
FACTS: After receiving the order of the court denying his
motion to dismiss, instead of filing his answer, on the 15th
day he filed a motion for reconsideration to the order denying
his motion to dismiss. In the meantime while the motion for
reconsideration was pending, the 15 day reglementary period
to file an answer already lapsed despite its being interrupted
by the previously filed motion to dismiss.
ISSUE: Can the party be declared in default?
HELD: Yes, because a motion for reconsideration does not
interrupt the 15 day reglementary period to file an answer.
So, last time, we discussed that the defendant has to file an
answer within 15 days from the time he receives summons
from the court. So, if you are a plaintiff and the defendant did
not file an answer within the reglementary period, what you can
do is to file a motion to declare the defendant in default.
Q: As we have also discussed, although again the defendant can
ask for extensions, but what if he filed a motion to dismiss within
15 days but the motion is still denied? A: He can still file an
answer within the balance of the reglementary period. But if he
filed a motion to dismiss but the motion to dismiss is not
properly formed, like he did not file a notice of hearing, or the
notice was not furnished to the adverse party, again that motion
will be treated as a mere scrap of paper (pro forma). So, it is
as if he did not file a motion to dismiss and if the 15 day period
would lapse, then he can still be declared in default.
Also answer noh, even if he filed an answer, if the case which we
discussed before, if the answer was not furnished to the
plaintiff, that is considered as not filed. Therefore, it’s as if
there’s no answer filed within the reglementary period, so the
defendant can be declared in default.
EFFECT OF ORDER OF DEFAULT (A)
Q: Why is it that if you are the plaintiff, nganong maningkamot
man ka na madeclare in default si defendant?
A: This is because it is advantageous for the plaintiff. As we have
discussed, a party in default shall be entitled to notice of
subsequent proceedings but not to take part in the trial.
IF DECLARED IN DEFAULT (WHAT THE COURTS DO)
As we have discussed, if the defendant will be declared in default,
the Court will order that he is already in default. What can the
Court do?
1. It can proceed to render judgement in default (Default
Judgement) based on the pleadings and the prayers of the
plaintiff and can award the prayers or the relief prayed for in the
complaint except for unliquidated damages.
2. The Court can order the presentation of evidence ex parte –
so there will still be a hearing, but it is only the plaintiff who will
submit evidence. Wala nay labot si defendant, or he will be
notified again and then the Court will render judgement based
only on the complaint or the evidence presented by the plaintiff.
In both cases, it would be very beneficial to the plaintiff. You will
not to take part in the trial – meaning you cannot cross-
examine the plaintiff for example if the plaintiff presents
evidences. All that you can avail of is to be notified of the
subsequent proceedings.
Cavite v. Florendo
The court further explained the concept of loss of standing
when it comes to a defendant who has been declared in
default. SC said Loss of standing must be understood to
mean only the forfeiture of one’s right to be the party
litigant, contestant or legal adversary.
In this case the defendant was declared in default. So, he was
not allowed to participate during trial, he cannot cross-
examine, he cannot present evidence. However there were
several defendants here, and that defendant who was
declared in default, he was presented as a witness by his co-
defendant. And it was opposed by the plaintiff because he had
already been declared in default. So meaning if you are
declared in default, you cannot anymore participate and that
will include your participation as a witness in the case.
SC said the forfeiture of one’s right as a party litigant,
contestant or legal adversary. You cannot present your
defense, you cannot control the proceedings, you cannot
examine or cross-examine the witnesses. You cannot
expect that your pleadings be acted upon by the Court.
You cannot object to or refute evidence or motions filed
against you if you are declared in default. There is nothing
in the rule however, which contemplates a disqualification to
be a witness or an opponent in a case of a person who has to
be declared in default.
You can still be a witness, because in that case, you are
not the party litigant. You are not the contestant or legal
adversary. Here, as a witness, you merely testify. A witness is
merely a spectator or onlooker, called upon to testify on what
he has seen heard or observed. He is not an active party in the
contest of rights between the party litigants. So, one who is a
witness is not considered as a party in a trial. He still remains
to be disqualified in the proceedings as a contestant. As a
party litigant. That’s clarified by the SC in this case.
RELIEF FROM ORDER OF DEFAULT (B)
Q: If you are the defendant and you are declared in default naa pa
ba kay remedy? A: You still have a remedy: relief from order of
default, actually you have several remedies.
MOTION TO LIFT THE ORDER OF DEFAULT
Anytime after notice that you have been declared in default but
before rendition of judgement, you can file a motion to lift the
default.
REQUISITES OF MOTION TO LIFT ORDER OF DEFAULT
1. Motion has to be under oath – once it is under oath, it must be
verified – it must be subscribed and sworn to;
2. You have to show that your failure to answer was due to:
(FAME)
a) Fraud
b) Accident
c) Mistake
d) Excusable Negligence
3. That you have a meritorious defense.
It’s not just that you are prevented from filing but it’s because
you have a meritorious defense, because you could also just be
wasting the time of the court if you don’t have a meritorious
defense. So, what’s the point? This is only one of the remedies.
One defendant here was declared in default. However, there are
several defendants. He was asked to testify as a witness in the
case. Of course, the plaintiff objected because according to the
plaintiff, you are already declared in default. You lose your
standing in court. If you will be allowed to testify, then you will
be indirectly supporting your supposed defenses when, in fact,
you did not file your answer. That will be circumventing the
effects of the default if you are allowed to testify as a witness in
the trial.
LOSS OF STANDING
Loss of standing in court is the consequence of an order of
default. Thus, a party declared in default is considered out of
court and cannot appear therein, adduce evidence, and be heard
60
and for that reason he is not entitled to notice. (Rule 18, Rules of
Court; Lim Toco v. Go Fay, 80 Phil. 166) However, "loss of
standing" must be understood to mean only the forfeiture of
one's rights as a party litigant, contestant or legal adversary.
A party in default loses his right to present his defense, control
the proceedings, and examine or cross-examine witnesses. He
has no right to expect that his pleadings would be acted upon by
the court nor may he object to or refute evidence or motions filed
against him. There is nothing in the rule, however, which
contemplates a disqualification to be a witness or a deponent in a
case. Default does not make him an incompetent. (Cavili vs.
Florendo, 154 SCRA 610, No. L-73039, No. L-68680, No. L-57771
October 9, 1987)
Even if you are declared in default, you do not become
disqualified to testify in the case.
As opposed to a party litigant, a witness is merely a beholder, a
spectator or onlooker, called upon to testify to what he has seen,
heard, or observed. As such, he takes no active part in the contest
of rights between the parties. Cast in the limited role of witness, a
party in default cannot be considered as "taking part in the
trial." He remains suffering the effects of an order of default.
Cavili vs. Florendo, 154 SCRA 610, No. L-73039, No. L-68680, No.
L-57771 October 9, 1987.
A party in default may be cited as a witness by his codefendants
in the case. Even if the testimony of that witness, who was also a
defaulted party would be beneficial for his cause, but still, he can
testify as a witness. He merely loses standing in court as a party
litigant.
A party in default may thus be cited as a witness by his
codefendants who have the standing and the right to present
evidence which the former may provide. The incidental benefit
giving the party in default the opportunity to present evidence
which may eventually redound to his advantage or bring about a
desired result, through his co-defendants. is of minor
consequence. Cavili vs. Florendo, 154 SCRA 610, No. L-73039,
No. L-68680, No. L-57771 October 9, 1987.
Since the other defendants are not declared in default, they can
present witnesses to support their defenses.
Q: Is there a remedy if, for example, the defendant is already
declared in default? Does it mean he loses the case already?
A: There are remedies. If there is still no judgment (before
judgment), there is still no particular days from the time that he
received the notice of default and before judgment, what can you
do? -> Section 3(b), Rule 9
In your motion of default, you must be very careful.
1. The motion to set aside the order of default must be under
oath. This is one of those pleadings that have to be verified
because it is under oath.
2. It must be supported by affidavits showing that the failure to
file to answer within the reglementary period was by reason of
fraud, accident, mistake, or excusable negligence; and
3. That you have a meritorious defense.
These are the things you need to remember because even if you
have two out of three components, if one is lacking, then the
court will not set the order of default aside. Meaning, even if you
are a victim of FAME, if you have no meritorious defense comma
the court will not lift the order of default. There is no chance for
you to in any way. But if you have a meritorious defense, there is
no guarantee that you will win but at least you have a fighting
chance if your standing will be restored.
Upon proof comma(??) the court will set aside or lift the order of
default and will give the defendant that opportunity to answer,
where he will plead his supposed meritorious defenses. in effect,
he regains his standing in court.
These are the steps that a defendant declared in default must
take in order for the order of default to be set aside.
In Rule 9, Section 3(b), we are merely discussing the remedy of a
defendant in default before judgment. Are there still other
remedies?
Republic vs. Sandiganbayan
(540 SCRA 431, G.R. No. 148154 December 17, 2007)
the Supreme Court also enumerated the different remedies of
a defendant declared in default.
The remedies against a default order are:
(1) a motion to set aside the order of default at any time
after discovery thereof and before judgment on the ground
that the defendant’s failure to file an answer was due to fraud,
accident, mistake or excusable neglect and that the defendant
has a meritorious defense;
(2) a motion for new trial within the reglementary period to
appeal (15 days) from receipt of judgment by default, if
judgment had already been rendered before the defendant
discovered the default, but before said judgment has become
final and executory.
 You cannot file this in a motion for
reconsideration because in the motion for
consideration you are agreeing to the factual
allegations within the case. It's just that you are
disagreeing with the application of the law by the
courts. If you want to controvert the factual
allegations within the case, then a motion for a new
trial is the proper remedy for you to present your
own evidence.
(3) an appeal within the reglementary period to appeal (15
days) from receipt of judgment by default;
 You can choose to appeal the case to the higher
court. But in appeal, you no longer dispute the
factual allegations within the case. You're
contending that there is a misapplication of the law
or misappreciation of the facts. But you can no
longer present your own evidence in an appeal.
(4) a petition for relief from judgment within 60 days from
notice of judgment and within 6 months from entry thereof;
and
 Here, when it is already beyond the reglementary
period for appeal, for a motion for new trial, for a
motion for reconsideration, the remedy that you
have is a petition for relief from judgment. This
presupposes that the judgment already became
final and executory. When? 60 days from the
notice of final judgment and 6 months from entry.
So, there are two limitations.
 Can you present evidence on your behalf in a
petition for relief from judgment? YES
(5) a petition for certiorari in exceptional circumstances.
 A petition for certiorari presupposes that the
judgment already became final. This must be
made within 60 days from notice. In a petition for
certiorari, your only ground is grave abuse of
discretion Amounting to lack or excess of
jurisdiction. You cannot present evidence on your
behalf. You can only say that based on the factual
allegations here, the court gravely abused its
discretion and it amounts to lack or excess of
jurisdiction.
Also, the Court also discussed the remedies in the case
Lui Enterprises, Inc. vs. Zuellig Pharma Corporation
(719 SCRA 88, G.R. No. 193494 March 12, 2014).
(1) After notice of the declaration of default but before the
court renders the default judgment, the defendant may file,
under oath, a motion to set aside order of default.
 The defendant must properly show that his or her
failure to answer was due to fraud, accident,
mistake or excusable negligence. The defendant
must also have a meritorious defense. In such case,
the order of default may be set aside on such terms
and conditions as the judge may impose in the
interest of justice.
(2) If the defendant discovers his or her default after
judgment but prior to the judgment becoming final and
executory, he or she may file a motion for new trial under
Rule 37, Section 1, paragraph (a) of the 1997 Rules of Civil
Procedure.
(3) If he or she discovers his or her default after the
judgment has become final and executory, a petition for
relief from judgment under Rule 38, Section 1 of the 1997
Rules of Civil Procedure may be filed.
(4) Appeal is also available to the defendant declared in
default. He or she may appeal the judgment for being contrary
to the evidence or to the law under Rule 41, Section 2 of the
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 1997 Rules of Civil Procedure. He or she may do so even if he
or she did not file a petition to set aside order of default.
(5) A petition for certiorari may also be filed if the trial
court declared the defendant in default with grave abuse of
discretion.
The Court also said here that:
The remedies of the motion to set aside order of default,
motion for new trial, and petition for relief from judgment are
mutually exclusive, not alternative or cumulative. This is
to compel defendants to remedy their default at the earliest
possible opportunity. Depending on when the default was
discovered and whether a default judgment was already
rendered, a defendant declared in default may avail of only
one of the three remedies. (Lui Enterprises, Inc. vs. Zuellig
Pharma Corporation, 719 SCRA 88, G.R. No. 193494 March 12,
2014)
This precludes the possibility of the scenario wherein:
You file a motion to set aside the motion for default, denied.
Then the case continued with plaintiff’s presentation of
evidence ex parte. Then a judgment is rendered. Now, you ask
for a motion for new trial, denied. Then the case attained
finality. You now ask for a petition for relief from judgment.
 He can only file one depending on the
circumstances. That was the discussion of the
Supreme Court in the case.
Also, the remedies against default become narrower and
narrower as the trial nears judgment. Upon finality of the
decision, you only have two remedies left: petition for relief for
judgment or petition for certiorari.
(1) The defendant enjoys the most liberality from this court with
a motion to set aside order of default, as he or she has no
default judgment to contend with, and he or she has the whole
period before judgment to remedy his or her default.
(2) With a motion for new trial, the defendant must file the
motion within the period for taking an appeal or within 15 days
from notice of the default judgment. Although a default judgment
has already been rendered, the filing of the motion for new trial
tolls the reglementary period of appeal, and the default
judgment cannot be executed against the defendant.
(3) A petition for relief from judgment is filed after the default
judgment has become final and executory. Thus, the filing of the
petition for relief from judgment does not stay the execution of
the default judgment unless a writ of preliminary injunction is
issued pending the petition’s resolution.
NOTE: Upon the grant of a motion to set aside order of default,
motion for new trial, or a petition for relief from judgment, the
defendant is given the chance to present his or her evidence
against that of plaintiff’s.
(4) With an appeal, however, the defendant has no right to
present evidence on his or her behalf and can only appeal the
judgment for being contrary to plaintiff’s evidence or the law.
(5) Similar to an appeal, a petition for certiorari does not allow
the defendant to present evidence on his or her behalf. The
defendant can only argue that the trial court committed grave
abuse of discretion in declaring him or her in default.
GROUNDS:
Going to the discussion on Fraud, Accident, Mistake, and
Excusable Negligence, these must be the grounds upon which the
defendant in default must not have been able to file his answer
within the reglementary period. In the same case, the Supreme
Court defined the meaning of excusable negligence:
EXCUSABLE NEGLIGENCE (Lui Enterprise Case)
is “one which ordinary diligence and prudence could not have
guarded against.” The circumstances should be properly alleged
and proved.
When you say excusable negligence, several jurisprudence
provide that the Supreme Court will not consider the negligence
excusable if the negligence is of the lawyer because the
negligence of the counsel/lawyer binds the client.
When you file a motion to set aside the order for default, You
must show that it is not based on the negligence of your
lawyer. It should be negligence on the part of the plaintiff or the
counsel of the plaintiff for the negligence to be excusable. In this
case, the Court further said:
Lui Enterprises, Inc. vs. Zuellig Pharma Corporation
In this case, we find that Lui Enterprises’ failure to answer
within the required period is inexcusable. Lui Enterprises’
counsel filed its motion to dismiss four days late. It did not
immediately take steps to remedy its default and took one
year from discovery of default to file a motion to set aside
order of default. In its motion to set aside order of default, Lui
Enterprises only “conveniently blamed its x x x counsel [for
the late filing of the answer]” without offering any excuse for
the late filing. This is not excusable negligence under Rule 9,
Section 3, paragraph (b)127 of the 1997 Rules of Civil
Procedure.
As discussed, Lui Enterprises never explained why its counsel
failed to file the motion to dismiss on time. It just argued that
courts should be liberal in setting aside orders of default.
Even assuming that it had a meritorious defense and that its
representative and counsel had to fly in from Davao to Makati
to personally appear and manifest in court its meritorious
defense, Lui Enterprises must first show that its failure to
answer was due to fraud, accident, mistake or excusable
negligence. This Lui Enterprises did not do.
There are some instances in which the Supreme Court held that
the negligence of the council did not bind the client because, in
that case, the client would already be deprived of due process
because of that kind of negligence. In those cases, the Supreme
Court allowed.
Momarco Import Company, Inc. vs. Villamena
(798 SCRA 513, G.R. No. 192477 July 27, 2016
In this case, plaintiff filed a Complaint for Nullification of Deed
of Sale. Defendant did not find an answer but its lawyer made
an entry of appearance. After four months, plaintiff filed a
motion to declare defendant in default. Defendant filed an
answer. Despite the answer of the defendant, the RTC
declared defendant in default and ordered that the answer
already received be stricken from the records. The RTC also
received the evidence of the plaintiff ex parte. The RTC also
rendered default judgment.
Defendant did not file a motion to set aside the order of
default. Only when the default judgment was rendered did the
defendant complain. The petitioner appealed the default
judgment to the Court of Appeals.
Should the appeal of the defendant be granted?
The Supreme Court said NO
Under Section 3, Rule 9 of the Rules of Court, the three
requirements to be complied with by the claiming party
before the defending party can be declared in default are:
(1) that the claiming party must file a motion praying that
the court declare the defending party in default;
(2) the defending party must be notified of the motion to
declare it in default;
(3) the claiming party must prove that the defending party
failed to answer the complaint within the period provided by
the rule.
It is plain, therefore, that the default of the defending party
cannot be declared motu proprio
PHILOSOPHY OF DOCTRINE OF DEFAULT
The underlying philosophy of the doctrine of default is that the
defendant’s failure to answer the complaint despite receiving
copy thereof together with summons, is attributable to one of
two causes: either
(a) to his realization that he has no defenses to the plaintiff’s
cause and hence resolves not to oppose the complaint, or
 It does make sense for a defendant without defenses,
and who accepts the correctness of the specific relief
prayed for in the complaint, to forego the filing of the
answer or any sort of intervention in the action at all.
For even if he did intervene, the result would be the
same: since he would be unable to establish any good
defense, having none in fact, judgment would
inevitably go against him. And this would be an
acceptable result, if not being in his power to alter or
prevent it, provided that the judgment did not go
beyond or differ from the specific relief stated in the
complaint. It would moreover spare him from the
embarrassment of openly appearing to defend the
indefensible.
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(b) having good defenses to the suit, to fraud, accident, mistake
or excusable negligence which prevented him from seasonably
filing an answer setting forth those defenses.
 On the other hand, if he did have good defenses, it
would be unnatural for him not to set them up
properly and timely, and if he did not in fact set them
up, it must be presumed that some insuperable cause
prevented him from doing so: fraud, accident, mistake,
excusable negligence. In this event, the law will grant
him relief; and the law is in truth quite liberal in the
reliefs made available to him: a motion to set aside the
order of default prior to judgment, a motion for new
trial to set aside the default judgment; an appeal from
the judgment by default even if no motion to set aside
the order of default or motion for new trial had been
previously presented; a special civil action for
certiorari impugning the court’s jurisdiction.
As a general rule, in implementation of the policy against
defaults, the courts have admitted answers filed beyond the
reglementary periods but before the declaration of default.
The policy of the law has been to have every litigated case tried
on the merits. As a consequence, the courts have generally
looked upon a default judgment with disfavor because it is in
violation of the right of a defending party to be heard.
Coombs v. Santos:
A default judgment does not pretend to be based upon the
merits of the controversy. Its existence is justified on the
ground that it is the one final expedient to induce defendant
to join issue upon the allegations tendered by the plaintiff,
and to do so without unnecessary delay. A judgment by
default may amount to a positive and considerable injustice to
the defendant; and the possibility of such serious
consequences necessitates a careful examination of the
grounds upon which the defendant asks that it be set aside.
PARTIAL DEFAULT (C)
So what do we have to remember about this rule?
1) There are two or more defendants;
2) One, or of the defendants, did not file an answer;
3) Claim states a common cause of action.
RULE:
In such case, the court shall try the case against all upon the
answers thus filed and render judgment upon the evidence
presented.
So meaning, the court will not proceed to render default
judgment against those defendants who did not file their
answer. Because, there is a common cause again the defendants.
And we presuppose also that these defendants have a common
defense or at least, the defense/defenses of those defendants
who filed their answer can also benefit/ apply to the defendants
who did not file their answer. So here the court shall proceed
with the trial, will receive evidence based on the answer of
those defendants who filed their answer. So the trial here will
be the plaintiff and the defendants who filed their answer. But
then again, the defendants who did not file their answer can also
benefit from the answers filed, from the evidence presented,
then the court will decide based on the evidence presented from
these defendants who filed an answer and will render judgment
based on that evidence. So the answer filed by the answering
defendant will automatically benefit the non-answering
defendant.
EXAMPLE FROM SLIDES:
A and B signed a promissory note, binding themselves to pay C
solidarily. Both of them were sued. A answered and alleged that
the debt was already paid. B did not answer.
Q: Can there be default judgment against B?
A: NO, there will be a trial based on the answer of A, in effect, A
will defend not only himself but also B. If the case is dismissed,
the dismissal benefits B as well.
Q: In this, for example, A answered, and his defense was the debt
was already paid. Then B did not answer. Can B be declared in
default?
A: Now remember, in solidary obligations, any of the solidary
debtors can be held liable for the entire obligation. So here,
actually, this defense of payment, what are those defense which
can be raised by the solidary debtor?
1) Those defenses inherent in the obligation itself;
 Going back to the first two defenses of the solidary
debtor. If it is a defense which is inherent in the
obligation itself, like payment or prescription, that
defense can be invoked by anyone of the solidary
debtors. And that is a complete or total defense. So
when you say “complete or total defense”, it means
once it is proved, it obliterates the entire obligation,
and applies to all of the debtors, regardless of WON it
was A who invoked that defense or B who invoked. So
that defense could be invoked by anyone of them and
it will totally extinguish the obligation.
Q: But again, assuming B did not answer, can he be declared in
default?
A: Of course no, there will be trial for the court to determine
whether there is evidence to prove the defense of A, which is full
payment. And of course a default judgment cannot be rendered
against B, because if A is able to prove the defense of payment,
then A has no obligation to pay, the entire obligation is
extinguished. If A is able to prove his defense, this will benefit B,
and extinguish the obligation for both A and B. If the case is
dismissed, then the dismissal benefits both A and B.
2) Those defenses which are personal to a solidary debtor;
Q: What if A’s defense was that he was insane at the time when
the obligation was contracted and he did not benefit at all from
the proceeds of the loan, and B did not file an answer? What kind
of defense is this?
A: Insanity, that is a defense that is personal to A. As to A, that is a
complete defense.
Q: Why?
A: Because is he says “I admit, I signed this promissory note, and
bound myself to solidarily pay B. But at the time I signed the
promissory note I was actually insane. So I am not bound to pay
whatever is mentioned in the promissory note because I had no
legal capacity to enter into that obligation and I did not benefit at
all from the proceeds of the loan. Because I was insane. Can the
plaintiff say “Ok A, you were insane at the time you contracted
the obligation, but remember this is a solidary obligation. So
anyone of the debtors can be held liable to pay the obligation,
still because it is solidary, he will still pay B’s obligation. Would
that be correct? Can we say that at the time A signed the note, he
was insane to his share, but he was not insane as to the share of
B. So as to A, insanity is a complete defense. It will obliterate his
obligation.
Q: Now how about B? If B did not file an answer, can B be
declared in default? Can there be a default judgment against B?
A: Because as we said, insanity is a defense which is personal
only, through A. Now remember, even if that defense is personal
only to the solidary debtor and as to him it is a complete
defense, as to B he can still invoke that defense. Not
completely but only partially. Not a complete but a partial
defense. Assuming that that is the only defense he could invoke,
insanity of A,
Q: what is the effect?
A: If the insanity of A is proved during trial, A would be
completely exempted from the obligation because we would
deduct his share. Now as to B, he can still avail of that defense of
A. So that share of A will be deducted from the entire obligation,
but B will still be liable for his own share in the obligation. If
B, filed an answer.
Q: How about if B did not file an answer. Would he be liable as
well, even if A is able to prove that he was insane.
A: Here of course, for me, even if B did not file his answer
because there is again a defense which can be proved during the
trial, if it obliterates the obligation of A, then a default judgement
can be rendered against B, that would be less the share of B.
LIM TANHU VS RAMOLETE (66 SCRA 425)
In sum, Lim Tanhu states that where a complaint alleges a
common cause of action against defendants who are all
indispensable parties to the case, its dismissal against any of
them by virtue of a compromise agreement with the plaintiff
necessarily results in the dismissal of the case against the
other defendants, including those in default. The ruling is
rooted on the rationale that the court's power to act in a case
involving a common cause of action against indispensable
parties "is integral and cannot be split such that it cannot
relieve any of them and at the same time render judgment
against the rest.
IMSON VS CA (239 SCRA 58)
For Lim Tanhu to apply to the case at bench, it must be
established that:
(1) petitioner has common cause of action against private
respondents and the other defendants in Civil Case No. 248-R;
and
(2) all the defendants are indispensable parties to the case.
63

In the case at bench, it is clear that petitioner has different
and separate causes of action against the defendants in the
case. The allegations in the Complaint show that petitioner
seeks to recover from the truck driver for his wrong which
caused injury to petitioner and his car. The cause of action
against him is based on quasi-delict under Article 2176 of
the New Civil Code. Quasi-delict, too, is the basis of the cause
of action against defendants beneficial and registered owners.
But in their case, it is Article 2180 of the same Code which
governs the rights of the parties.
However, with respect to defendant Western Guaranty
Corporation, petitioner's cause of action is based on
contract. He seeks to recover from the insurer on the basis of
the third party liability clause of its insurance contract with
the owners of the truck.
Defendants in Civil Case are not all indispensable parties. It is
true that all of petitioner's claims in Civil Case No. 248-R is
premised on the wrong committed by defendant truck driver.
Concededly, the truck driver is an indispensable party to the
suit. The other defendants, however, cannot be categorized as
indispensable parties. They are merely proper parties to the
case. Proper parties have been described as parties whose
presence is necessary in order to adjudicate the whole
controversy, but whose interests are so far separable that a
final decree can be made in their absence without affecting
them.
EXTENT OF RELIEF TO BE AWARDED (D)
Even if a defendant has been declared in default, please
remember these limitations on judgment.
LIMITATIONS OF DEFAULT JUDGMENT
1) The default judgment should not exceed the amount prayed
for in the complaint;
2) The default judgment should not be different from that prayed
for in the complaint;
3) The default judgment should not award unliquidated damages.
EX: In the complaint, the claim is P300,000. The defendant
defaulted. The court required the plaintiff to present his evidence
and during the trial, the latter proved P 500,000 total claim. Can
the court award P 500,000 claim as proved. Assuming the
plaintiff was able to prove that the defendant was actually liable
to him for P500,000.
Q: can the court award P500,000? Because it was the amount
proved during trial.
A: As we have mentioned, the judgment should not render an
award which exceeds the amount prayed for. It should only be
P300,000, as prayed for.
Q: So assuming during trial, the plaintiff was able to prove P
200,000. He prayed in the complaint for P300,000. What should
be the amount in the default judgment? Diba the rule says it
should not be different from the amount in the complaint?
Should the court give P300,000, even if what was only proved
was P 200,000?
A: Of course, even if you did not read the Rules, common sense
would tell you that amount should only be P 200,000. Because it
was the amount, even if a higher amount was prayed for in the
complaint. So meaning, there are actually two limitations we
have to remember regarding the amount prayed for, and the
amount proved during trial. So the default judgment cannot
exceed the amount prayed for in the complaint, but it could
be less the amount prayed for.
RATIONALE FOR THE RULE
Now what is the reason why we have this rule? That the award
should not be more than that prayed for in the complaint, or
should not be different in kind, than that prayed for in the
complaint? Let us go back. What are the presumptions, that the
defendant will not file his answer?
1) Defendant deliberately did not answer because he believed
that he had not good defense, and that the claim is fair. And if he
will make an answer, still he will not win and would just incur
expenses;
2) He had a meritorious defense and he wanted to answer but
because of FAME, he failed to file his answer.
Now going back to that first reason, suppose the defendant did
not deliberately file his answer because he thinks the complaint
advanced meritorious claims and it would be a waste of his time
to file his answer. Of course in his mind, he might say, “of course I
owe A as much as P 300,000, so even if declared in default, I
would be able to pay”. But suppose after trial, he is made to pay P
1, 000, 000. It would cause surprise, and would not be fair,
because he is faced with a P 1,000,000 award. It would be a
surprise on the part of the defendant, it would also not be fair
because again he decided not to file his answer thinking that the
amount is correct and now he is faced with a 1Million award. At
least that contingency will not happen under the rules.
LETICIA DIONA v. SONNY A. BALANGUE
The court granted 5% interest but in the complaint the
plaintiff just prayed for an interest of 12% per annum.
Definitely 5% monthly x 12 and that would be 60% per
annum. The court awarded damages which are greater than
the amount paid for in the complaint.
The SC reiterated that you cannot do that. The court cannot
grant a relief that not prayed for in the pleadings or in
excess of what is being sought by the party. They cannot
also grant a relief without first ascertaining the evidence
presented in support thereof. Due considerations require that
judgments must conform to and supported by the pleadings
and evidence presented in court. The rules are even more
strict in safeguarding the right to due process of a defendant
in default than of a defendant who participated in a trial.
Comment: because when you are declaring default you have no
right to participate in the trial, you cannot present evidence on
your behalf, you cannot cross examine witnesses of the plaintiff,
you are only limited to be notified to the proceedings in court. As
much as possible, even if the defendant is declared in default at
least he will be accorded with due process of law.
In the complaint, aside from the prayers that we make in the
prayer section of the complaint, we usually add that phrase
plaintiff prays for other relief and remedies just and equitable
under the premises. Now the question is can that award of 5% be
subsumed in this general prayer? The SC said, No. the court’s
grant of relief is limited only to what has been prayed in the
complaint or related thereto, supported by evidence and covered
by the party’s cause of action.
So even if it was prayed for other reliefs just and equitable, still
we cannot grant a relief which is more than what the
complaint specifically prays for and there must be evidence
to prove that.
In this case also, there was no evidence to prove that the plaintiff
was entitled to 5% interest per month.
1. The 5% monthly interest was not supported by both the
allegations in the pleadings and the evidence on record.
2. The real estate mortgage executed by the parties does not
include any provision on interest. Di ba you have learned before
that a stipulation to pay interest must be in writing otherwise the
interest is void. So here, how can you even award 5% interest per
month when the contract itself does not mention any provision
on interest.
In the complaint there was a mention of an interest but it says
12% per annum. So it could not be different from what was
prayed for in the complaint. The contract did not even mention
about the interest. And then the plaintiff did not allege or pray
for the 5% monthly interest and she did not present
evidence nor testify on that claim of 5% interest per month.
Even assuming for the sake of argument that there was really an
agreement on 5% interest per month in the real estate mortgage
contract and it was properly alleged in the complaint of the
plaintiff and it was proved by the evidence during the trial still,
as you have probably discussed in your credits and transactions,
5% per month interest is iniqutuous and unconscionable. Even if
that is agreed upon it could be reduced by the courts. There was
no ground to award 5% monthly interest.
MANGELIN VS COURT OF APPEALS
ex parte presentation of ex parte presentation of
evidence by virtue of evidence by failure to
default judgment appear during trial
when the defendant is The other one is during trial,
declared in default, the court assuming that the defendant
may render default judgment who already answered, he
or it may require the did not appear during trial
presentation of evidence ex and there is no justifiable
parte against the defaulted reason or explanation why he
defendant. That is in case of did not appear. The court will
default. now allow the plaintiff to
present evidence ex parte.
there is that limitation under the court can still award
64
 paragraph d, that the maybe damages or relief
judgement cannot exceed the which is different from the
amount or be different in one prayed for in the
kind from that prayed for in complaint or which is more
the complaint. Even if than the amount prayed for
during the presentation of in the complaint if that is
evidence ex parte of the proved during the trial.
plaintiff he was to prove an
amount more than what he
prayed for in the complaint
or different from the one
which he prayed for in the
complaint
After the presentation by the after the plaintiff rest his case
plaintiff of evidence it ends the defendant still has the
there, the plaintiff may right to present his own
formal offer of his or her evidence. The relief is not
exhibits of evidence and then limited to that prayed for in
the court can now render the complaint.
judgment.
Meaning ex parte presentation of evidence by a plaintiff or the
defendant was not declared in default but he just no appear
during the trial, the award may exceed the amount or be
different in kind from that what prayed for. This is because
when there is ex parte presentation of evidence due to failure
to appear in trial, one’s standing in court is not lost. He can
still present evidence later to refute the plaintiff’s evidence.
Whereas in a defendant who was declared in default he loses
his standing during the trial
After the presentation by the plaintiff of evidence it ends there,
the plaintiff may formal offer of his or her exhibits of evidence
and then the court can now render judgment. But, if it is ex parte
presentation of evidence because again, the defendant answered
but he just did not appear during the trial, after the plaintiff rest
his case the defendant still has the right to present his own
evidence. Based on that, the defendant was able to present his
evidence. The relief is not limited to that prayed for in the
complaint. The SC said: in the latter however, meaning ex parte
presentation of evidence by a plaintiff or the defendant was not
declared in default but he just no appear during the trial, the
award may exceed the amount or be different in kind from that
what prayed for. This is because when there is ex parte
presentation of evidence due to failure to appear in trial, one’s
standing in court is not lost. He can still present evidence later to
refute the plaintiff’s evidence. Whereas in a defendant who was
declared in default he loses his standing during the trial.
UNLIQUIDATED DAMAGES
The court cannot award unliquidated damages, a default
judgment cannot grant unliquidated damages.
UNLIQUIDATED DAMAGES DEFINITION
Damages that can be awarded are those Moral, exemplary,
nominal, temperate, actual, liquidated. So the end there is
liquidated damages, the rest would be unliquidated damages.
Actual damages still fall under the concept of unliquidated
damages.
Unliquidated damages are those which are still subject to
evidence before it can be properly awarded such as when you
want to claim actual or compensatory damages, you still need to
present evidence of the actual damages di ba for example
hospitalization expenses so you need to present the receipts,
how much you pay for your injuries or loss of income so you have
to present evidence that you actually earned this income and you
were not able to earn them because of the act of the defendant.
Moral damages di ba sleepless nights, besmirched reputation,
serious anxiety, this are examples of unliquidated damages
meaning you still need to prove them. They are not admitted
simply because the defendant did not file his answer and was
declared in default.
LIQUIDATED DAMAGES
When you say liquidated damages, these are the damages which
are already fixed and proof or evidence to establish the same are
not required. This is similar to the concept of penal clause.
For example you enter into a contract. You are a contractor and
then you enter with your client or the principal, you have a
construction agreement. In your agreement you agreed to
construct the house of the client and for 7 Million to be finished
within a year and in case of delay, the contractor will pay to the
principal 10,000 for every day of delay. The amount of the
damages is already mentioned in the contract. It is already
stipulated. When the construction is not finished within the
period agreed upon, then automatically as long as the aggrieved
party in our example the client proves that there was breach
because the construction was not finished within a specified
time. He can claim the amount although again it is subject to the
rules on penal clause on how can it be reduced if there is partial
or irregular performance if it is inquituous but again that is the
concept of liquidated damages.
COMMENT: In so far as this rule regarding unliquidated damages
is concerned there was this criticism of our late Dean INIGO.
Why? Because for example you are the defendant and the claim
against you is merely for unliquidated damages. Meaning he
claims for actual damages or compensatory damages, moral
damages, exemplary damages, etc. If I were the defendant and I
think na your claim is actually understated because you could be
entitle to more, I would not just file an answer. Why? Because
anyway even if I am declared in default and a default judgment is
rendered against me at least I am confident that if your claim and
you complaint is only 1million, I would not be liable for more
even if you were able to present evidence later on that I am
actually liable for 2 million but still because under the rule the
judgment cannot award more than what was prayed for from the
complaint. I am confident that I will not be made liable for more
than 1 million because if I answer and I go through the trial, there
is danger that I will be made liable for the amount that you are
really able to establish during trial. That is one criticism under
this particular rule. (SALAMAT SA TIP MAAM/SER)
WHERE NO DEFAULTS ALLOWED (E)
This rule refers to cases involving marital relations. Because the
policy of the state is to preserve marriage and not to encourage
break-ups. If default judgments are allowed it would very easy to
secure annulment of marriage or declaration of nullity just agree
with the other. Okay ayaw na mog answer and then the court will
render default judgment against you and then marriage is
annulled or declared null and void. So it would be easy to
terminate marital relation by the simple expedient of not filing
one’s answer and allowing oneself to be declared in default.
Q: Under the rules, what happens?
A: If for example the defendant did not file an answer and the
court cannot declare him in default. Then the court shall order
the solicitor general or his deputized public prosecutor to
investigate if there is collusion between the parties. Meaning
kung nag sabot ba ning duha na “okay ayaw nag tubag para dali
na lang sa akoa ang pag prove sa case para paspas atung
proceedings.
Q: What if it is found out that there is really collusion between
the parties?
A: The court will dismiss the case. The court should determine if
there is really no collusion and if the evidence presented during
the trial is not fabricated.
This is related the family code, articles 48 and 60. In cases of
annulment or declaration of nullity of marriage, the court shall
order the prosecuting attorney or fiscal assigned ….. to prevent
collusion between the parties and to take care that the evidence is
not fabricated or suppressed. It is not only a matter of procedural
but also substantive law.
(article60) No judgment shall be based upon stipulation of facts or
a confession of judgment. Even in declaration of judgment or
nullity of marriage there is a pre-trial but in that pre-trial of
course you cannot agree on certain facts which would just be
equivalent to saying na our marriage is void. But you can
stipulate facts which those facts not tantamount to a confession
of judgment.
RULE 10
AMENDED AND SEPPLEMENTAL PLEADINGS
We will discuss when do you amend a pleading and when do you
supplement it. What are the periods given under the rules within
which you can amend and file supplemental pleadings.
Section 1.
Amendments in general. — Pleadings may be amended by
adding or striking out an allegation or the name of any party,
or by correcting a mistake in the name of a party or a
mistaken or inadequate allegation or description in any other
respect, so that the actual merits of the controversy may
speedily be determined, without regard to technicalities, in
the most expeditious and inexpensive manner.
HOW ARE PLEADINGS AMENDED
According to Section 1, pleadings may be amended by:
1. Adding or striking out an allegation;
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2. Adding or striking out the name of any party;
3. By correcting a mistake in the name of a party; or
4. By correcting a mistaken or inadequate allegation or
description in any other respect.
NOTE: In short, two matters can be amended:
1. THE NAMES OF THE PARTIES and
2. ALLEGATIONS.
Thus, if you file a complaint against A, then later on you will
include another defendant, B the inclusion of an additional
defendant party is an amendment. So we mentioned that, for
example, you add a defendant in your complaint, so that is
actually an amendment.
Q: Now the question is, regarding the application of the
prescriptive periods when do we consider the complaint as
having been filed against the ADDED defendant? Will it be at the
time when the original complaint was filed? Or would it be at the
time the amended complaint was filed?
A: Based on Section 5 of Rule 1, insofar as the original
defendant is concerned, the case upon him is commenced upon
the filing of the ORIGINAL COMPLAINT. But, insofar as the
added defendant (2nd defendant) is concerned, the case against
him is commenced starting from the filing of the AMENDED
COMPLAINT, it’s not from the date of the filing of the original
complaint. So, there is no retroactive effect insofar as
amendment is concerned. The amendment does not retroact to
the date of the filing of the action.
OTHER PROVISIONS ON AMENDMENT:
Rule 3, Section 14. Unknown identity or name of defendant.
— Whenever the identity or name of a defendant is unknown,
he may be sued as the unknown owner, heir, devisee, or by
such other designation as the case may require, when his
identity or true name is discovered, the pleading must be
amended accordingly.
So here, we also amend the complaint.
POLICY OF THE LAW REGARDING AMENDMENTS
LIMBAUAN vs. ACOSTA
G.R. No. 148606, June 30, 2008
It is well-settled that amendment of pleadings is favored
and should be liberally allowed in the furtherance of justice
in order to determine every case as far as possible on its
merits without regard to technicalities. This principle is
generally recognized in order that the real controversies
between the parties are presented, their rights determined
and the case decided on the merits without unnecessary delay
to prevent circuity of action and needless expense.
COMMENT: This is so because as much as possible we have to
determine the merits of the case. We have to determine what the
real controversies between the parties are and what are the
respective rights and obligations.
Section 2.
Amendments as a matter of right. — A party may amend his
pleading once as a matter of right at any time before a
responsive pleading is served or, in the case of a reply, at any
time within ten (10) calendar days after it is served.
AMENDMENT AS A MATTER OF RIGHT
What does the law mean when it talks about “amendment as a
matter of right”?
It simply means that: The court has no discretion to deny the
amendment, as a general rule. The Court has the duty to allow
the amendment and this is actually a purely ministerial duty.
So, when you say amendment as a matter of right, you don’t
need to file a motion for leave to file an amended complaint.
You just simply file the amended pleading.
Q: For example, the court does not admit, or refuses to admit, the
amended pleading what is the remedy of the party?
A: As discussed in the case of BRESLIN vs. LUZON STEVEDORING
CO., 84 Phil. 618 (1949), the remedy of the party is to FILE a
petition for MANDAMUS because it is the remedy to compel the
performance of a ministerial act.
ALPINE LENDING INVESTORS vs. ESTRELLA CORPUZ,
G.R. No. 158960, November 24, 2006,
SC ruled that the trial court’s duty to allow and to admit the
amended complaint is purely ministerial. In fact, the party
who seeks to amend a pleading as a matter of right need not
file a motion to admit an amended complaint.
Q: What is the consequence of the characterization of the trial
court’s duty to admit an amended pleading as a matter right as
MINISTERIAL?
A: The court would be in error if it refuses to admit an amended
pleading when its exercise is a matter of right. THIS ERROR IS
CORRECTIBLE BY MANDAMUS (BRESLIN vs. LUZON
STEVEDORING CO., 84 Phil. 618 (1949)).
WHEN AMENDMENT IS A MATTER OF RIGHT
Example: You are the defendant. Then, you received the
summons requiring you to file an answer. However, you did not
yet file an answer or a responsive pleading.
On the Before an answer is served on the plaintiff,
part of the latter may amend his complaint as a matter
the of right. Meaning, he does not have to file any
plaintiff motion to allow him to file the amended
complaint. He just has to file because it is his
right.
On the The defendant may also amend his answer, also
part of as a matter of right, before a reply is served
the upon him because insofar as the defendant is
defendan concerned, the responsive pleading is the
t reply. However, do remember that we discuss
before that reply is allowed only under the
amended rules when there is NEW MATTER
ALLEGED in the actionable document attached
to the answer. Hence, it is possible that there is
no longer any reply. In that case, the answer
may be amended at any time within 10 days
after it is served (when the defendant served his
answer).
FREQUENCY
Q: When can the pleading be amended as a matter of right?
A: The rule says, it’s only ONCE.
Q: How about if you have already amended your complaint as a
matter of right, but still the defendant has not yet filed his
answer? Can you still amend?
A: Actually, you can still amend IF THE COURT ALLOWS IT, but
that amendment is no longer a matter of right. You need leave
of court.
Q: How about formal amendments?
A: Actually, you can amend your complaint, your responsive
pleading, if the amendment is merely formal. But, if the
amendment is subsequent already to a previous amendment
made as a matter of right (meaning it is not your first time to
amend), the subsequent amendment must be with leave of
court.
The right to amend a pleading as matter of right may, according
to the Rules, be exercised only once (Sec. 2, Rule 10, Rules of
Court). Hence, even if no responsive pleading has yet been served
and even if the amendment is merely formal, if the amendment is
subsequent to a previous amendment made as a matter of right,
the subsequent amendment must be with leave of court.
NOTES ON APPLICABILITY OF THE RULE
Amendment, if made as a matter of right, is allowed EVEN IF
THERE IS AN ALLEGATION OF A NEW CAUSE OF ACTION OR A
CHANGE IN THEORY (BAUTISTA vs. MAYA-MAYA COTTAGES,
INC., G.R. No. 148411, November 29, 2005); You can still amend
because, again, it is a matter of right and it does not prejudice the
defendant. This is so because when you say amendment as a
matter of right, it presupposes that the defendant HAS NOT
YET filed his answer. So, if you amended your complaint, before
he filed his answer, the defendant can easily address all your
allegations in your complaint.
RATIONALE (Purpose why amendment is no longer allowed as a
matter of right after the defendant has files his answer)
 It is because, if the defendant has already filed his
answer, naturally, he would already be incorporating
or he has already set forth his answer or his defenses.
Now for example, you alleged a new cause of action or
you change your theory, then the defendant, again, has
to address those new allegations or the new theories
that you incorporated in your amended complaint. So,
that is why, if there’s already a responsive pleading, it
requires leave of court, but not if it is a matter of right.
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AMENDMENT BEFORE THE RTC AND NOT CA
NOTE: Sec. 2 refers to an amendment made before the trial
court, not to amendments before the Court of Appeals.
Q: For example, you filed a petition before the court of appeals.
Prior to the comment, for example, or any response from the
other party (defending party) or the respondent, can you amend
your petition as a matter of right?
A: Actually, the rule that applies here is Section 6, Rule 42 on
petitions for review from the RTC in the exercise of its appellate
jurisdiction. That’s one example.
The Court of Appeals is vested with jurisdiction to admit or deny
amended petitions filed before it (NAVARRO vs. VDA. DE
TAROMA, 478 SCRA 336). For pleadings before the Court of
Appeals, what applies is Section 6, Rule 42 on petitions for
review from the RTC in the exercise of its appellate jurisdiction
which states:
Section 6. (RULE 42) Due Course. – If upon the filing of the
comment or such other pleadings as the court may allow or
require, or after the expiration of the period for the filing
thereof without such comment or pleading having been
submitted, the Court of Appeals finds prima facie that the
lower court has committed an error of fact or law that will
warrant a reversal or modification of the appealed decision, it
may accordingly give due course to the petition.
It simply means that, in the court of appeals, we don’t have that
rule that before a comment or any other responsive pleading is
filed, we can amend the petition as a matter of right, is not
applied to the court of appeals because it is ALWAYS within the
discretion of the Court of Appeals whether or not to accept
or allow your amended petition.
APPLICATION OF THE RULE
When the defendant is served with summons, he may opt either
to:
1. file an answer; or
2. a motion to dismiss.
IN SO FAR AMENDMENT IS CONCERNED:
FILE AN ANSWER FILE MTD
if I am the defendant, I If you file the motion to dismiss, for
can file an answer. In example you alleged grounds like
my answer, I should prescription, litis pendentia, res
also include all the judicata, lack of jurisdiction over
defenses available. the subject matter, (remember
Otherwise, if these these are the only grounds for a
defenses are not set motion to dismiss allowed under
forth in the answer, the amended rules) in that case, if I
except again for were the plaintiff, I could just easily
allowable grounds amend my complaint to address the
for motion to defenses which you mentioned in
dismiss, these your motion to dismiss. I can
defenses are deemed amend as a matter of right
waived. because a motion to dismiss IS
NOT a responsive pleading.
Q: So, what is the consequence if defendant filed his answer?
A: If the defendant files an answer, the plaintiff cannot amend
his pleading/complaint anymore as a matter of right. So that
plaintiff has to file a motion for leave of court to grant him leave
to file an amended complaint. Before service of the answer
upon the plaintiff, he may still amend his pleading as a matter of
right and it doesn’t matter if he subsequently receives the answer
immediately after filing.
HYPOTHETICAL EXAMPLES:
Emily sues Michelle for non-payment of a loan, she attached
therein (in the complaint) a contract of loan that became due and
demandable August 15, 2009. Upon being served with summons,
Michelle files a motion to dismiss on the ground of prescription
because more than 10 years has already elapsed from the time
that the obligation became due and demandable or the cause of
action accrued. However, Emily realized that the claim in her
complaint the August 15, 2009 debt was a clerical error. She
should have alleged instead that it became due and demandable
August 15, 2010. Now, as we said, Michelle already filed a motion
to dismiss on the ground of prescription.
Q: What should Emily, the plaintiff, do? Can she file a motion for
leave of court to amend the complaint? Does she have to refile
the case and reflect the true date?
A: Actually, Emily can still amend her answer as a matter of right
because she did not file a responsive pleading. A motion to
dismiss is NOT a responsive pleading. The rule to remember is
that amendment is matter of right before service of a responsive
pleading. A motion to dismiss is NOT a responsive pleading. In
fact, it is not even a pleading.
IRENE MARCOS-ARANETA vs. COURT OF APPEALS
G.R. No. 154096, August 22, 2008
Responsive pleadings are those which seek affirmative relief
and/or set up defenses, like an answer. A motion to dismiss is
not a responsive pleading for purposes of Sec. 2 of Rule 10.
Remember, there are only 7 responsive pleadings under
the rules of court and a motion to dismiss is not one of them.
ANOTHER EXAMPLE:
Emily sues Michelle for non-payment of a loan but she failed to
attach a certification of non-forum-shopping. Under Rule 7,
Section 5, failure to comply with the requirement shall not be
curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without
prejudice. Upon being served with summons, Michelle files a
motion to dismiss on the ground that there was no certification
against forum shopping attached.
Q: Now, again, since it is a mere motion to dismiss and is not a
responsive pleading, can Emily amend her complaint as a matter
of right? Because again Under Rule 7, Section 5, “failure to
comply with the requirement shall not be curable by mere
amendment of the complaint”
A: If the motion to dismiss has not yet been granted, it is
submitted that she can still amend the complaint as a matter of
right following the ruling of the Supreme Court in IRENE
MARCOS-ARANETA vs. COURT OF APPEALS.
This principle is also similar with the case of:
GUNTALILIB vs. DELA CRUZ
G.R. No. 200042, July 07, 2016)
On July 14, 2009, respondents Aurelio and Salome dela Cruz
filed a Complaint for "Quieting Of Titles x x x; Annulment and
Cancellation of Unnumbered OCT/Damages," against
petitioner Guntalilib and other heirs of Bernardo (or
Bernardino) Tumaliuan.
Petitioner and his co-defendants filed a Motion to Dismiss
Civil Case No. 6975, arguing that the Complaint stated no
cause of action; that the case constituted a collateral attack on
their unnumbered OCT; that respondents failed to implead all
the heirs of Bernardo Tumaliuan, who are indispensable
parties to the case; and that the Complaint's verification and
certification on non-forum shopping were defective.
Side comment: Take note class that this should not have been
through a motion because it was BEFORE a responsive
pleading was filed, it was just a motion to dismiss which is filed
by the defendant. Anyway.
Respondents filed a Motion for Admission of Amended
Complaint arguing in their Opposition (Ad Cautelam), with
attached Amended Complaint for "Quieting Of Titles x x x;
Cancellation of Unnumbered OCT/Damages." Apart from
incorporating the same allegations contained in their original
Complaint, respondents further alleged in said Amended
Complaint that their mother title, OCT 213 which was issued
on August 7, 1916, should prevail over the petitioner's
unnumbered OCT which was issued only on August 29, 1916;
that petitioner and his co-heirs had prior knowledge of the
dela Cruzes' previous and existing titles, and were never in
possession of Lot 421; and that through fraud, false
misrepresentations, and irregularities in the proceedings for
reconstitution (LRC Case No. 6544), petitioner was able to
secure a copy of his predecessor's supposed unnumbered
OCT.
Comment: They actually corrected the lapses which they
committed in the complaint and this time, the plaintiff already
complied with the rule on verification and certification on
forum shopping.
Petitioner and his co-defendants opposed the Motion for
Admission of Amended Complaint, that the motion was a
mere scrap of paper because it did not comply with Sections
4, 5 and 6 of Rule 15 of the 1997 Rules of Civil Procedure
(1997 Rules), as no date of hearing was set and the motion
was addressed to the Clerk of Court alone (Not the opposing
counsel); that the verification and certification on non-forum
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 shopping contained in the original Complaint, being defective,
could not be cured by the subsequent filing of the Amended
Complaint; and that the Amended Complaint was improper
and prohibited, as it is essentially aimed at setting aside the
Decision in LRC Case No. 6544 issued by a court of concurrent
jurisdiction.
RULING:
Petitioner's claim that the trial court should not have
admitted respondents' Amended Complaint since the original
Complaint on which it was based is void for being a mere
scrap of paper as it contained a defective verification and
certification against forum-shopping, is fundamentally
absurd. A party to a civil case is precisely given the
opportunity to amend his pleadings, under certain
conditions, in order to correct the mistakes found therein; if
one were to follow petitioner's reasoning, then the rule on
amendment of pleadings might just as well be scrapped, for
then no pleading would be susceptible of amendment.
Also, their contention that the motion to admit the amended
complaint was defective allegedly because it was not set for
hearing, that there was no notice of hearing, that it was
addressed to the clerk of court, IT DOES NOT MATTER
because again, when an amendment is a MATTER OF
RIGHT, you don’t need to file a motion to allow you to file
the amended complaint because it is a matter of right. You
just file your amended complaint.
In the present case, respondents' Complaint was amended even
before petitioner (defendant) could file any responsive pleading
thereto; under the 1997 Rules (ALSO UNDER THE AMENDED
RULES), a party may amend his pleading once as a matter of right
at any time before a responsive pleading is served. No motion to
admit the same was required; as the amendment is allowed
as a matter of right, prior leave of court was unnecessary.
Indeed, even if such a motion was filed, no hearing was required
therefor, because it is not a contentious motion.
Now, going back to our previous example, in that case filed by
Emily against Michelle:
Q: What if the judge is very prompt and proceeded to dismiss the
case after receipt of the motion filed by Michelle? What should
Emily do?
A: The Supreme Court answered that in the case of BAUTISTA vs.
MAYA-MAYA COTTAGES, INC.
BAUTISTA vs. MAYA-MAYA COTTAGES, INC.
G.R. No. 148411, November 29, 2005
The Plaintiff may file an amended complaint even after the
original complaint was ordered dismissed, PROVIDED THAT
THE ORDER OF DISMISSAL IS NOT YET FINAL.
Q: So, you can still amend. But when is a dismissal considered
final? UNDER RULE 36, SECTION 2:
Section 2. Entry of judgments and final orders. — If no appeal
or motion for new trial or reconsideration is filed within the
time provided in these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of entries of
judgments. The date of finality of the judgment or final order
shall be deemed to be the date of its entry. The record shall
contain the dispositive part of the judgment or final order and
shall be signed by the clerk, within a certificate that such
judgment or final order has become final and executory.
COMMENT: The rule says: 15 days – you have 15 days to file your
motion for new trial or reconsideration.
Q: What if the Motion to Dismiss filed by the defendant was
granted and it became final and executory? Can you still amend
your complaint? Because again, under the amended rules, you
can amend before the filing of a responsive pleading so in such
case, amendment is a matter of right. Can you still amend?
A: NO.
NATIONAL MINES AND ALLIED WORKERS UNION vs.
CALDERON
G.R. No. 157232, December 10, 2007
In the present case, however, THE MOTION TO FILE AN
AMENDED COMPLAINT WAS FILED ONE MONTH AFTER THE
ORDER OF THE TRIAL COURT DISMISSING PRIVATE
RESPONDENT’S COMPLAINT BECAME FINAL due to the
latter’s failure to perfect an appeal.
AS A RULE, THE AGGRIEVED PARTY MUST PERFECT HIS
APPEAL WITHIN THE PERIOD AS PROVIDED FOR BY LAW.
THE RULE IS MANDATORY IN CHARACTER. A party’s failure
to comply with the law will result in the decision becoming
final and executory and, as such, can no longer be
modified or reversed.
COMMENTARY: WHY? When a decision becomes final and
executory, it already becomes immutable and cannot be
modified and it is beyond the power of the court to amend the
same after the lapse of the reglementary period to file an appeal.
Thus, it is beyond the power or jurisdiction of the court which
rendered the decision or order to amend or revoke the same
after the lapse of the fifteen-day reglementary period to file
an appeal.
RIGHT TO AMEND PLEADING AS A MATTER OF RIGHT IS NOT
AFFECTED BY OTHER PROCEEDINGS SEEKING DISMISSAL OF
THE VERY SAME COMPLAINT YOU ARE SEEKING TO AMEND
REMINGTON INDUSTRIAL SALES CORP. vs. COURT OF
APPEALS, ET AL.
G.R. No. 133657, May 29, 2002
Plaintiff filed a complaint for sum of money and damages
arising from breach of contract, before the Regional Trial
Court of Manila. Defendant moved for the dismissal of the
complaint on the ground that it failed to state a cause of
action. The RTC denied the motions to dismiss, as well as the
ensuing motion for reconsideration. Defendant filed a petition
for certiorari and prohibition before the Court of Appeals,
alleging that the RTC was wrong in denying its motion to
dismiss.
The plaintiff was actually wise because while the petition for
certiorari was pending at the CA, the plaintiff sought to amend
its complaint with the RTC by incorporating therein
additional factual allegations constitutive of its cause of action
against the defendant.
COMMENT: So, all those allegations of the defendant in his
MTD, saying your complaint failed to state a cause of action,
the plaintiff addressed them by filing his amended complaint.
Pursuant to Section 2, Rule 10 of the Rules of Court, the
plaintiff maintained that it can amend the complaint as a
matter of right because respondent has not yet filed a
responsive pleading thereto. Thereafter, the Court of Appeals
rendered the assailed decision granting the writ of certiorari
and ordering the RTC judge to dismiss without prejudice the
plaintiff’s Complaint.
Issue: Can a complaint still be amended as a matter of right
before an answer has been filed, even if there was a pending
proceeding for its dismissal before the higher court?
RULING: YES. Prior to the filing of an answer, the plaintiff
has the absolute right to amend the complaint whether a
new cause of action or change in theory is introduced. The
reason for this rule is implied in the subsequent Section 3 of
Rule 10. UNDER THIS PROVISION, SUBSTANTIAL
AMENDMENT OF THE COMPLAINT IS NOT ALLOWED
WITHOUT LEAVE OF COURT AFTER AN ANSWER HAS BEEN
SERVED, because any material change in the allegations
contained in the complaint could prejudice the rights of the
defendant who has already set up his defense in the answer.
Conversely, it cannot be said that the defendant’s rights have
been violated by changes made in the complaint if he has yet
to file an answer thereto. In such an event, the defendant has
not presented any defense that can be altered or affected by
the amendment of the complaint in accordance with Section 2
of Rule 10. The defendant still retains the unqualified
opportunity to address the allegations against him by
properly setting up his defense in the answer.
Considerable leeway is thus given to the plaintiff to amend his
complaint once, as a matter of right, prior to the filing of an
answer by the defendant.
The right granted to the plaintiff under procedural law to
amend the complaint before an answer has been served is not
precluded by the filing of a motion to dismiss or any
other proceeding contesting its sufficiency. Were we to
conclude otherwise, the right to amend a pleading under
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 Section 2, Rule 10 will be rendered nugatory and ineffectual,
since all that a defendant has to do to foreclose this remedial
right is to challenge the adequacy of the complaint before he
files an answer.
COMMENT: Besides, if you think about it, the dismissal before
the CA (meaning, when the CA granted the petition for
certiorari), what was dismissed was the original complaint
but the original complaint was already superseded by the
amended complaint. So, even if there was a dismissal
subsequent to the amendment of the complaint that dismissal did
not affect the right of the plaintiff who amended his complaint
prior to the dismissal of the CA. Again, the subject of the
petition for certiorari before the CA was actually the original
complaint.
Moreover, amendment of pleadings is favored and should be
liberally allowed in the furtherance of justice in order to
determine every case as far as possible on its merits without
regard to technicalities. This principle is generally recognized to
speed up trial and save party litigants from incurring
unnecessary expense, so that a full hearing on the merits of every
case may be had and multiplicity of suits avoided.
In this case, the remedy espoused by the appellate court in its
assailed judgment will precisely result in multiple suits, involving
the same set of facts and to which the defendants would likely
raise the same or, at least, related defenses. Plainly stated, we
find no practical advantage in ordering the dismissal of the
complaint against respondent and for petitioner to re-file the
same, when the latter can still clearly amend the complaint as a
matter of right. THE AMENDMENT OF THE COMPLAINT WOULD
NOT PREJUDICE RESPONDENTS OR DELAY THE ACTION, AS
THIS WOULD, IN FACT, SIMPLIFY THE CASE AND EXPEDITE
ITS DISPOSITION.
Section 3.
Amendments by leave of court. — Except as provided in the
next preceding Section, substantial amendments may be
made only upon leave of court. But such leave shall be refused
if it appears to the court that the motion was made
with intent to delay or confer jurisdiction on the court, or the
pleading stated no cause of action from the beginning which
could be amended. Orders of the court upon the matters
provided in this Section shall be made upon motion filed in
court, and after notice to the adverse party, and an
opportunity to be heard.
AMENDMENTS BY LEAVE OF COURT
Previously, we discussed amendment as a matter of right. Now,
we go to AMENDMENT AS A MATTER OF DISCRETION. This
means that the amendment requires leave of court.
Q: Under Section 3 of Rule 10, when is leave of court required?
A: 1ST SITUATION — Leave of court is required for an
amendment made AFTER SERVICE OF A RESPONSIVE
PLEADING (Sec. 3, Rule 10, Rules of Court). This rule assumes
more force and effect especially when the amendment is
substantial.
 If the defendant has already filed his answer, it is no
longer a matter of right on the part of the plaintiff to
amend his complaint. He has to seek leave of court. He
cannot just change his cause of action or add a new
defendant or add a new cause of action without
seeking prior leave of court.
2ND SIUATION — In addition, even if a responsive pleading
has not yet been filed but the amendment is not the first
amendment, leave of court is already required.
 Again, you can amend your pleading only once. So, if
it’s not the first amendment, you need to file a motion
for leave to amend your pleading.
So in these 2 cases:
1. Amendment is not a matter of right.
2. Amendment requires leave of court.
3. Amendment is a matter of discretion.
REASON FOR THE RULE
Q: Why is it that after a responsive pleading is filed, amendment
needs leave of court?
A: Under this provision, substantial amendment of the complaint
is not allowed without leave of court after an answer has been
served, because any material change in the allegations contained
in the complaint could prejudice the rights of the defendant
who has already set up his defense in the answer.
AFTER A RESPONSIVE PLEADING IS FILED, AN AMENDMENT TO
THE COMPLAINT MAY BE SUBSTANTIAL AND WILL
CORRESPONDINGLY REQUIRE A SUBSTANTIAL ALTERATION IN
THE DEFENSES OF THE ADVERSE PARTY. The amendment of the
complaint is not only unfair to the defendant but will cause
unnecessary delay in the proceedings. Leave of court is thus,
required. On the other hand, where no responsive pleading has
yet been served, no defenses would be altered. The amendment
of the pleading will not then require leave of court (SIASOCO vs.
COURT OF APPEALS, 303 SCRA 186).
Take note also under Rule 6, Section 10 THAT IF THERE ARE
NEW MATTERS ALLEGED IN THE ANSWER AND THE PLAINTIFF
WISHES TO INTERPOSE ANY CLAIMS ARISING OUT OF THE NEW
MATTERS SO ALLEGED, SUCH CLAIMS SHALL BE SET FORTH
IN AN AMENDED OR SUPPLEMENTAL COMPLAINT.
OLD AMENDED RULE
RULE
file a set forth the claims in an amended or
reply supplemental complaint.
INSTANCES WHEN LEAVE OF COURT SHOULD BE DENIED
1.The motion was made with intent to delay; or
 For EX. from the filing of the complaint, several
incidents have already happened. Then, after 3 years
(after the defendant has filed his answer), you are now
seeking to amend your complaint and the amendment
you want to incorporate is apparent from the
beginning or few months after the court started the
trial. In that case, it is obvious that there is intent to
delay because the plaintiff could have done it sooner.
2. The amendment is intended to confer jurisdiction on the court;
or
3. The pleading stated no cause of action from the beginning
which could be amended.
 Prior to amendment, only #1 was mentioned in the
rules and nos. 2 and 3 are in jurisprudence.
4. Other reason for denial:
Rule 7, Section 5. Certification against forum shopping. — XXX
Failure to comply with the foregoing requirements shall not
be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided, upon
motion and after hearing. Xxx.
What we have discussed before are those cases where
amendment is a matter of right. So, in those cases, even if the
complaint is said to be defective because it failed to comply with
the rules on proper certification against forum shopping, the
Supreme Court said that because amendment is still a matter of
right, there being no responsive pleadings filed yet, then
amendment could be allowed. Otherwise, the rule on amendment
as a matter of right would be rendered nugatory.
But here, if there is already a responsive pleading and you are
seeking to amend your complaint, which is defective because it
failed to comply with the rules on certification against forum
shopping, it is already the discretion of the court — WON it will
allow the amendment of the complaint. The rule clearly says it
shall not be curable by mere amendment of the complaint.
SITUATION: You already filed your complaint but it is defective
because there’s no certificate against forum shopping attached to
your complaint and then the defendant already filed his answer
and one of his defenses is that there is a defect in your complaint
and you filed a motion to allow you to amend you complaint but
the court denied the motion.
REMEDY: Just refile your complaint and comply with the rules
against forum shopping but you will be made to pay docket fees
again.
THE AMENDMENT IS INTENDED TO CONFER JURISDICTION
ON THE COURT
Based on jurisprudence, there 2 instances you have to consider:
1. AMENDMENT TO CORRECT A JURISDICTIONAL DEFECT
BEFORE A RESPONSIVE PLEADING IS SERVED
 A fair reading of jurisprudence recognizes the right of
a pleader to amend his complaint before a responsive
pleading is served even if its effect is to correct a
jurisdictional defect. The argument that the court
cannot allow such type of amendment since the court
69
 must first possess jurisdiction over the subject matter
of the complaint before it can act on any amendment
has no application upon an amendment that is
made as matter of right.
GUMABAY vs. BARALIN, 77 SCRA 258
The complaint filed with the then Court of First Instance (now
Regional Trial Court), was a complaint alleging forcible entry.
The defendants did not file an answer, but instead filed a
motion to dismiss alleging that the court has no jurisdiction
over an action for forcible entry.
Without waiting for the resolution of the motion to dismiss,
the plaintiff filed an amended complaint with new allegations
which transformed the original allegations of forcible entry
into an action for quieting of title, an action which at that time
was solely cognizable by the Court of First Instance.The trial
court admitted the amended complaint, ordered the
defendants to answer it and denied the motion to dismiss.
RULING: The Supreme Court sustained the trial court as being
consistent with the purpose and spirit of the Rules
SOLEDAD vs. MAMANGUN, 8 SCRA 110
Case filed before the City Court of Manila to recover unpaid
rentals with a prayer that an order be issued for the
surrender of the premises by the defendant to the plaintiff.
Defendant filed a motion to dismiss on the ground that the
amount sought to be recovered is beyond the jurisdiction of
the court and that there are no allegations in the complaint
showing that the defendant was unlawfully withholding the
premises from the plaintiff. Before action could be taken on
the motion to dismiss, the plaintiff amended the complaint, to
include the requisite allegations.
The court denied the motion to dismiss and the opposition to
the amended complaint. The court ruled that since no
responsive pleading was served at the time of the
amendment, the plaintiff had done so as a matter of course.
Reiterating the rule that a motion to dismiss is not a
responsive pleading, the Supreme Court sustained the
trial court.
2. AMENDMENT TO CORRECT A JURISDICTIONAL DEFECT
AFTER A RESPONSIVE PLEADING IS SERVED
Cannot be validly done after a responsive pleading is served.
Q: Why not?
A: Amendment after responsive pleading requires leave of court.
The exercise of this discretion requires the performance of a
positive act by the court. If it grants the amendment, it would
be acting on a complaint over which it has no jurisdiction. Its
action would be one performed without jurisdiction.
This is different from an amendment before a responsive
pleading is served or filed. Because in that case amendment is a
matter of right and you do not the court to act on the
amendment. You simply file the amended complaint it does not
require any positive action by the court. When a responsive
pleading is already filed by the defendant you need a positive
action from the court and that the court cannot do if in the
original complaint the court does not have jurisdiction over the
subject matter. It is basic that when the court has no
jurisdiction it has no authority to act and its only power is to
dismiss the case. It cannot do any positive act such as allowing
an amended complaint to be admitted
As held by the SC. The situation is vastly different from an
amendment as a matter of right. Here, the court does not act. The
admission of the amendment is a ministerial duty of the
court. It requires no positive action from the court. Since it
would not be acting in this regard, it could not be deemed as
acting without jurisdiction.
SPOUSES TIRONA, ET AL., vs. HON. FLORO P. ALEJO, ET AL.
G.R. No. 129313, October 10, 2001
The policy in this jurisdiction is that amendments to
pleadings are favored and liberally allowed in the interests of
substantial justice. Thus, amendments of the complaint may
be allowed even if an order for its amendments of the
complaint may be allowed even if an order for its dismissal
has been issued so long as the motion to amend is filed
before the order of dismissal acquired finality. Note,
however, that it is not a hard and fast rule. An amendment is
not allowed where the court has no jurisdiction over the
original complaint and the purpose of the amendment is to
confer jurisdiction upon the court, or where the action
originally pleaded in the complaint was outside the
jurisdiction of the court.
ROSARIO AND UNTALAN vs. CARANDANG, ET AL.
G.R. No. L-7076, 96 Phil. 845, 850 (1955)
Appellants’ original complaint, as we have already
determined, is one for forcible entry and detainer, over which
the Court below has no jurisdiction. Not having acquired
jurisdiction over the case by the filing of the original
complaint, the lower court has neither the power nor the
jurisdiction to act on the motion for the admission of the
amended complaint, much less to allow such amendment,
since it is elementary that the court must first acquire
jurisdiction over the case in order to act validly therein.
Wherefore, the Court below did not err in refusing to admit
plaintiffs-appellants’ amended complaint.
The case might be different had the amendment been made
before an answer or a motion to dismiss had been filed, since
the original complaint was then amendable, and the
amendment could supersede the original pleading, as of right,
without leave of court being required, and without the Court
taking cognizance at all of the original complaint.
A complaint cannot be amended to confer jurisdiction on the
court in which it was filed, if the cause of action originally set
forth was not within the court's jurisdiction"
The principles to remember are:
1. When the court admits an amendment made by the pleader as
a matter of right, it is acting on a purely ministerial duty. No
discretion is exercised. It is not exercising its jurisdiction. Hence,
it cannot be deemed to be acting on a matter over which it has no
jurisdiction;
2. When the court is confronted with a proposed amendment
made by the pleader not as a matter of right, the court has to
exercise its discretion. If it has to exercise its discretion, the court
will have to exercise its jurisdiction. Since the complaint as filed
and before amendment is not within the court’s jurisdiction, it
has no power to act on the amendment.
THE PLEADING STATED NO CAUSE OF ACTION FROM THE
BEGINNING WHICH COULD BE AMENDED (3 rd ground to deny
motion for leave)
What do we mean by this? When we look at the previous rule.
If the complaint failed to aver the fact that certain conditions
precedent were undertaken and complied with, the failure to so
allege the same may be corrected by an amendment of the
complaint under the previous rule.
Even under the present Section 5 of Rule 10, there are situations
wherein evidence not within the issues raised in the pleadings is
presented by the parties during the trial and was not objected to.
Thus, a complaint which fails to state a cause of action may be
cured by evidence presented during the trial.
However, if during the course of the proceedings, evidence is
offered on the fact of payment without objection from the debtor,
the defect in the complaint was cured by the evidence.
(PHILIPPINE EXPORT AND FOREIGN LOAN GUARANTEE CORP.
vs. PHILIPPINE INFRASTRUCTURES, INC., 419 SCRA 6).
Thus, the principle to remember is: FAILURE TO STATE A
CAUSE OF ACTION MAY BE CURED.
But the SC emphasized that.
This is different from a complaint which merely fails to state a
cause of action that can actually be remedied.
If the complaint itself lacks a cause of action for example at
the time when the complaint was filed, there was really no
cause of action but subsequent to the filing of the complaint the
cause of action accrued. So, can you now amend your complaint
to reflect the cause of action which you now have at present? May
a complaint that lacks a cause of action at the time it was filed be
cured by the accrual of a cause of action during the pendency of
the case?
70
 SWAGMAN HOTELS AND TRAVEL, INC. vs. COURT OF
APPEALS
G.R. No. 161135, April 8, 2005, 455 SCRA 175
When the case was filed none of the promissory notes subject
of the action was due and demandable but two of the notes
became due during the pendency of the action. According to
the trial court as sustained by the Court of Appeals, Sec. 5 of
Rule 10 allows a complaint that does not state a cause of
action to be cured by evidence presented without objection
during the trial. The trial court ruled that even if the private
respondent had no cause of action when he filed the
complaint for a sum of money and damages because none of
the three promissory notes was due yet, he could
nevertheless recover on the first two promissory notes which
became due during the pendency of the case in view of the
introduction of evidence of their maturity during the trial.
Issue: Can the amendment be allowed?
Ruling: NO. Amendments of pleadings are allowed under
Rule 10 of the 1997 Rules of Civil Procedure in order that the
actual merits of a case may be determined in the most
expeditious and inexpensive manner without regard to
technicalities, and that all other matters included in the case
may be determined in a single proceeding, thereby avoiding
multiplicity of suits. Section 5 thereof applies to situations
wherein evidence not within the issues raised in the
pleadings is presented by the parties during the trial, and
to conform to such evidence the pleadings are subsequently
amended on motion of a party. Thus, a complaint which fails
to state a cause of action may be cured by evidence
presented during the trial. However, the curing effect under
Section 5 is applicable only if a cause of action in fact exists
at the time the complaint is filed, but the complaint is
defective for failure to allege the essential facts. For
example, if a complaint failed to allege the fulfillment of a
condition precedent upon which the cause of action depends,
evidence showing that such condition had already been
fulfilled when the complaint was filed may be presented
during the trial, and the complaint may accordingly be
amended thereafter.
Roces v. Jalandoni,
this Court upheld the trial court in taking cognizance of an
otherwise defective complaint which was later cured by the
testimony of the plaintiff during the trial. In that case, there
was in fact a cause of action and the only problem was the
insufficiency of the allegations in the complaint.
It thus follows that a complaint whose cause of action has
not yet accrued cannot be cured or remedied by an amended
or supplemental pleading alleging the existence or accrual of
a cause of action while the case is pending. Such an action is
prematurely brought and is, therefore, a groundless suit, which
should be dismissed by the court upon proper motion seasonably
filed by the defendant. The underlying reason for this rule is that
a person should not be summoned before the public tribunals to
answer for complaints which are immature.
NON EXISTENT IMPERFECT
(Lack of cause of action) (Failure to stat cause of
action)
In a NON-EXISTENT cause of whereas in an IMPERFECT
action, there is yet no delict cause of action, a delict or
or wrong committed by the wrong has already been
defendant (Limpangco vs. committed and alleged in the
Mercado, 10 Phil. 508) complaint, but the cause of
action is incomplete (Alto
Surety vs. Aguilar, L-5625,
March 16, 1945)
NON-EXISTENT cause of an IMPERFECT cause of
action is not curable by action is curable by
amendment (Limpangco vs. amendment (Alto Surety vs.
Mercado, 10 Phil. 508; Aguilar, L-5625, March 16,
Surigao Mine vs. Harris, 68 1945; Ramos vs. Gibbon, 67
Phil. 113) Phil. 371).
These cases of jurisprudence are now incorporated in the now
amended rules.
REPUBLIC OF THE PHILIPPINES, represented by THE
SECRETARY OF DPWH
vs. TETRO ENTERPRISES, INCORPORATED
(G.R. No. 183015, January 15, 2014)
The original case which respondent filed in 1992 was for
recovery of possession, which the RTC, with the parties'
conformity, converted into an expropriation case as recovery
of the subject lot was no longer possible. Pre-trial of the case
had long taken place in 1994. The expropriation case was
then decided by the RTC on March 29, 1996, fixing the value
of the subject lot in the total amount of ₱75,858,000.00 as just
compensation. RTC decision was modified by the CA's Former
Third Division in a Decision dated May 24, 2001, docketed as
CA-G.R. CV No. 60492, reducing the amount of just
compensation to ₱252,869.00 plus 6% interest from 1974
until full payment thereof and ordered the remand of the case
to the RTC for further determination of other damages
respondent suffered for the loss of use and enjoyment of its
property.
The CA decision was brought to the SC in a petition for review
on certiorari which, in a Resolution dated October 2, 2002,
denied the same and affirmed the CA decision. In ordering the
remand of the case to the RTC, the CA then said:
x x x In addition to the actual value of the land at the time of
the taking, plus legal interest thereon, plaintiff-appellee is
likewise entitled to damages. The subject property used to be
a sugar land earmarked for a subdivision, but no evidence
was adduced before the trial court. Any attempt on our part to
award damages in the present appeal would then be purely
speculative. Thus, there is a need to remand this case to the
court of origin to determine the amount of damages that
plaintiff-appellee suffered since 1974 as the lawful owner of
the property unduly deprived of its use and enjoyment for
twenty-seven years
Respondent's contention that amending the complaint to
include reasonable rental value for the deprivation of the use
and enjoyment of the land is the logical implication of the CA
ruling is not persuasive. It cannot be clearly inferred from the
CA decision that when it remanded the case to the RTC for
determination of damages respondent suffered that the
former referred to indemnity for rentals. Assuming that the
CA did refer to the rentals on the subject lot, it bears stressing
that when it modified the RTC's award of just compensation,
it reckoned the value of the land on the date of its actual
taking. The owner of the private property should be
compensated only for what he actually loses; it is not
intended that his compensation shall extend beyond his loss
or injury. And what he loses is only the actual value of his
property at the time it is taken. This is the only way that
compensation to be paid can be truly just; i.e., "just not only to
the individual whose property is taken," "but to the public,
which is to pay for it."
The problem here was that when the case was remanded to
the RTC and during the preliminary conference. The
respondent actually manifested his intention to amend the
complaint because he wanted to include reasonable rental
value for the deprivation of the use and enjoyment of the land
which was expropriated.
Would that amendment be proper in that stage of the
proceedings?
Was the amendment proper?
NO. Clearly, the only thing the RTC was asked to do when the
case was remanded to it by the CA was to determine the
damages respondent is entitled to for the loss of the use
and enjoyment of the property when the property was
taken from it in 1974. Thus, when the case was remanded to
the RTC for the purpose of computing the damages, the case
was not considered a new case where an amendment of the
complaint may still be allowed. Rather, it is merely a
continuation of the trial of the original complaint filed in
1992 only for the purpose of receiving the evidence of the
damages which respondent allegedly suffered as alleged in
the original complaint, since no evidence proving damages
was received and passed upon when the RTC issued its Order
dated March 29, 1996. Therefore, the above-quoted
provisions on amendments of pleading find no applicability in
this case.
Because it was not an original case. It was merely a
continuation of a trial and there was already a decision
rendered by the RTC, CA and SC. (HAA??? Ambot)
Q: When an original complaint is amended, when is the
prescriptive period for filing the action interrupted? Is it upon
71
the filing of the original complaint? Or upon the filing of the
amended complaint?
A: It depends upon the nature of the amendment.
If the amendment WHERE THE AMENDMENT HAS
introduces a NEW a. NOT ALTERED OR CHANGED the
AND DIFFERENT original cause of action; or
CAUSE OF ACTION b. no different cause of action is
introduced in the amended
complaint;
then the prescriptive Then the interruption of the
period is deemed prescriptive period retroacts on the
interrupted upon the date of the filing of the original
filing of the amended complaint. (PANTRANCO vs. PHIL.
complaint; FARMING CO., 81 Phil. 273).
(RUYMANN vs. DIR.
OF LANDS, 34 Phil.
428)
TYPE OF AMENDMENTS (SUMMARY)
As to foundation:
1. Amendment as a Matter of Right; and
2. Amendment by Leave of Court or amendment as a Matter of
judicial Discretion
As to Nature:
1. Formal Amendment; and
2. Substantial Amendment.
Section 4.
Formal amendments. — A defect in the designation of the
parties and other clearly clerical or typographical errors may
be summarily corrected by the court at any stage of the
action, at its initiative or on motion, provided no prejudice is
caused thereby to the adverse party.
Formal Amendments as a matter of right
Q: Is there any other instance when amendment is a matter of
right even if there is already an answer?
A: Yes there is a second instance, when the amendment is
FORMAL IN NATURE as found in Section 4.
When the amendment is merely a formal:
• It can be done anytime
• It can be summarily corrected by the court at any stage of the
action (upon motion or even without motion)
We discussed before that before a responsive pleading is filed by
the defending party, amendment is a matter of right. So that is
one instance when amendment is a matter of right.
Q: Is there any other instance under the rules of court when the
amendment is a matter of right?
A: Yes, that would be Formal Amendment. So take note that
formal amendment it does not even matter whether or not the
defendant has already filed a responsive pleading when it is a
formal amendment even after the responsive pleading is already
filed it is still a matter of right. It can be done anytime, as a
matter of fact it can be summarily corrected by the court at any
stage of the action upon motion or even without motion the court
will order the amendment.
NOTE: Just remember what we discussed before, you can only
amend your pleading as a matter of right so if it is the second
time that you amend then in that case you will need if with leave
of court and applies also to formal amendment.
When is an Amendment Formal?
How do we know on whether or not it is a formal amendment?
Or it is a substantial amendment? So these are the guidelines to
which the rules give us:
It is FORMAL if the defect relates to:
1. The designation of the parties; and
2. Other clearly clerical or typographical errors.
Standards to be considered in determining whether the
amendment is formal or substantial is: Whether or not
prejudice is caused to the adverse party by the amendment.
Q: When is there considered to be prejudice to the adverse
party?
A: Remington Industrial Sales Corporation Vs Court of
Appeals, et al., Gr no. 133657, May 29, 2002. The standard here
given by the Supreme Court is if the amendment will alter the
defense it is not simply a formal amendment.
Example: In the complaint the amount alleged is P40,000
however, the plaintiff would like to modify or amend his
complaint to change to amount because according to him this is
just a typographical error. Do we consider this a formal
amendment because it is just a typographical error?
General Rule: A change of amount of damages claim is only
formal because there is no change in the cause of action.
Example: Your cause of action is for breach of contract, quasi
delict, you don’t change your cause of action, you just change the
amount stated in your complaint.
However the same principle stated applies squarely to damages
where no proof of actual loss is required (i.e., moral damages,
exemplary damages). How is that possible? For example you are
claiming moral damages or exemplary damages, actually when
you claim for moral damages you merely state that you suffered
sleepless nights, moral shock, mental anguish, serious anxiety
and others. You do not actually present evidence on how did you
incur these damages.
The defense of the defendant would remain the same. He will
not be able to change it. So in that case he will not be prejudiced
if he will be allowed to change the amount from 40,000 to
400,000.
Q: However does this principle apply to actual damages, if we
consider the rule that one is entitled to such compensation as he
has duly proved?
Suppose that A is claiming actual damages in the amount of P40,
000 but later amends it to be P400, 000 because he found more
receipts. If the defendant already answered, can this still be
considered formal defect?
A: If the defense of the defendant will be substantially altered
(from a defense of payment for the P10, 000 to a defense of
denial for the additional amount claimed), it is no longer a formal
defect.
If the basis of the plaintiff in claiming for this amount would be
actual or compensatory damages so in the complaint he
alleged 40,000 but in the complaint he wanted to amend the
complaint because he actually suffered actual damages of
400,000 it was just a clerical error the 40,000. Will that principle
apply? Would these circumstances will prejudice that defendant
if the amount claimed is based on actual damages?
For example the reason why the plaintiff really wanted to change
the amount from 40,000 to 400,000 is because he found
additional receipts and then when he computed he actually
suffered not only 40,000 but 400,000 and in the complaint the
receipts he attached are only 40,000, now he would like to
include additional receipts for 400,000. So in this particular
example, do we still consider the amendment as formal?
Changing from 40,000 to 400,000? Now what if by changing the
amount the defense of the defendant will also be altered because
for example going back to the 40,000 the defendant says in his
defense granting that owe that plaintiff that amount but I already
paid. So I can present evidence that there is an acknowledgement
receipt for the P40, 000 when the defendant paid the plaintiff.
But now if the plaintiff would claim 400,000, so the defendant
who already answered and would like to defend himself from the
additional claim of the plaintiff over and above the 40,000 the
defendant would need to set forth new possible defenses like,
maybe he also paid already the excess from the 40,000 or in so
far as that excess is concerned he was just forced to signed the
promissory note or his consent was vitiated, he was not of sound
mind at the time or the amount had already been prescribed.
So here, if the defense of the defendant will be substantially
altered, by reason of the amendment, it is no longer
considered as a formal defect.
Q: So what is the consequence if it would not be considered as a
formal defect? Do we mean to say that that plaintiff can no longer
amend his complaint?
A: No. He can still amend provided that he is allowed by the
court and for this purpose the plaintiff should file a motion for
leave to allow him to file an amended pleading. If the court finds
that the amendments sought shall serve the higher interest of
substantial justice probably the court will grant also the with
leave the file an amended complaint.
72
However, take note that recovery of actual damages would hinge
on two requisites
1. You have to properly plead it
2. You have to be able to prove it.
So, going back to the first requirement that is why if you actually
have a higher claim than the amount set forth in your complaint,
for you to be able to recover that higher amount, generally you
have to plead it in your complaint and if the amount stated in the
complaint is not correct, you have to amend your complaint.
So again it would matter as to what effect that amendment to
the defendant has. So it would determine whether or not that
amendment is merely formal or substantial.
Q: However, what if the amount proven is different from the one
pleaded?
A: It depends. If the amount proven is less than the amount
pleaded, the amount proven will be the measure of actual
damages.
Q: What if the amount proved is greater the amount pleaded?
Can you recover the higher amount which is proved even if in
your complaint you merely pleaded the amount if 300,000 as the
actual damages suffered but during the trial it was actually
proved by the plaintiff that he suffered actual damages
amounting to 500,000?
A: If the amount proven is greater than the amount pleaded, the
law is clear that one is entitled to such compensation as he has
duly proved. How do we reconcile this variance? This is
answered in Section 5.
Section 5.
No amendment necessary to conform to or authorize
presentation of evidence. — When issues not raised by the
pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been
raised in the pleadings. No amendment of such pleadings
deemed amended is necessary to cause them to conform to
the evidence.
OLD RULE:
Sec. 5. Amendment to conform to or authorize presentation of
evidence.
When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may
be made upon motion of any party at any time, even after
judgment; but failure to amend does not affect the result of
the trial of these issues. If evidence is objected to at the trial
on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended
and shall do so with liberality if the presentation of the merits
of the action and the ends of substantial justice will be
subserved thereby. The court may grant a continuance to
enable the amendment to be made.
Now let us compare the amended Section 5 of Rule 10 with the
Old rule of Section 5 of Rule 10. Just simply read it and the ones
that are in bold in the old provision are no longer present in the
amended provision. So take note ha.
Amendment necessary to conform to or authorize
presentation of evidence
General Rule: Objections and defenses not raised are deemed
waived
In relation to Section 5 of this Rule, we first go back to Section 1
of Rule 9.
 Basically it states that objections and defenses not
pleaded are deemed waived. So for example if you are
the defendant, you should already include in your
motion to dismiss or in your answer all possible
defenses and objections that you may already have at
the time you already filed your answer. So, those
additional defenses which are later on discovered but
were already present at the time when the answer I
filed or was just later on realized by the party. You can
no longer raise them because they are already deemed
barred. Of course there are exceptions when your
defenses would lack of jurisdiction over the
subject matter, prescription, res judicata, litis
pendencia
DEFENSES NOT RAISED IN THE PLEADINGS
General Rule: A defendant during the trial is not allowed to
prove a defense that it not raised in the pleadings based on Rule
9, Section 1. This is so because the court has no jurisdiction over
the issue
Exception: Section 5 is an exception to Rule 9, Section 1. It is a
relaxation of the rule specifically the first sentence: “when issues
not raised in the pleadings are tried with the express or implied
consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings.”
EXPRESS CONSENT IMPLIED CONSENT
is when the parties manifest the best example is when the
their consent in court as to defendant attempts to prove
taking up the unpleaded an unpleaded defense and
issue. the plaintiff FAILED TO
OBJECT (E.g. Payment,
Fraud)
So as a general rule because of rule 9 section 1, you cannot
anymore raise during the trial those objections or defenses to
which you did not raise in your answer or in your motion to
dismiss. Why? Because by failure to raise these issues the court
did not acquire jurisdiction over the issue.
Q: We learned before how does the court acquire jurisdiction
over the issue?
A: When these issues are raised in the pleadings of the parties.
Q: Are there instances when even if that parties failed to raise the
issue either as a defense in the motion to dismiss or as an
objection? Can this issue be tried and can afford take cognizance
of these issues? Can the court decide the case taking into account
with these issues even if the issues were not raised in the
pleadings?
A: Yes! That would be Section 5 of Rule 10. However, take note
that it should be with the express or implied consent of the
parties. Even if these issues were not raised in the pleadings, but
during the trial they were raised without objection or with
express consent of the parties. How can there be an express
consent or implied consent of the parties?
EXPRESS CONSENT
Example: During the pre-trial you are asked there to stipulate on
the admitted facts, what are the issues? So during pre-trial even if
this issue was not raised in the complaint or in the answer but
both parties agree during pre-trial that this is an issue which
shall be submitted to the resolution or determination of the court
then it will be considered as part of the issues even if this issue is
not pleaded in the pleadings of the parties.
IMPLIED CONSENT
Example: The plaintiff filed a case for collection, and then the
answer the defendant interposed several defenses like fraud,
prescription but the defendant failed to interpose the defense of
payment. Now under the rules, the defense is already deemed
waived. However, during the trial the defendant presented
evidence, so he presented a witness to testify and that witness
also presented as part of the documentary evidence an
acknowledgement receipt seeking to prove that indeed that debt
is already fully or partially paid and it was not objected by the
lawyer of the plaintiff. Thus, that failure to object is
considered as an implied consent regarding that presentation
of the defense of payment which in the first place was not raised
in the pleading.
Based on the principle of estoppel
Rule 10 Section 5 is based on the principle of estoppel. The
parties are in estoppel because they expressly or impliedly
agreed to try an issue which is not raised in the pleadings.
Note that the decision will not jibe with the pleadings. The
pleadings are not in harmony with the decision.
 So in case of Section 5 it is as if that the pleaded causes
of action or defense was raised in the pleadings. This is
actually based on the principle of estoppel because the
parties already expressly or impliedly agreed to try
and issue which is not raised in the pleadings. Now,
when this happens you will notice that the decision
will not jibe with the allegations in the pleadings, if
you read the complaint and the answer. For example
there is no mention of payment but in the decision it
mentions payment and in fact maybe there is a reason
why the case if dismissed because there was already
73
 payment. So if we analyzed it in this situation, the
pleadings are not in harmony with the decision.
IMPLIED AMENDMENT
In a situation where issues not raised in the pleadings are tried
with the express or implied consent of the parties, Section 5 of
Rule 10 the issues tried shall be treated in all aspects as if they
had been raised in the pleadings even if not actually previously
raised in the pleadings. There is no need to amend the
pleadings. Under the previous rule, if the parties fail to amend
the pleadings, such failure will not affect the trial of these issues
because such issues are deemed to have been raised in the
pleadings of the parties. This provision under the old rules
virtually authorizes an implied amendment of the pleadings.
Under the present rule, again, there is no need to amend the
pleadings because anyway even under the old rules, even if the
pleadings were not amended but for as long as these issues were
raised with the express or implied consent of the parties during
the trial and even if the issues were not raised in the pleadings,
the can court can still make judgment based on this issues which
is tried with the express or implied consent of the parties.
Actually amendment is not really that significant or relevant so
maybe that is the reason why under the present rule the
Supreme said there is no need to amend the pleadings as long as
these issues were tried with express or implies consent of the
parties thus the court already acquires jurisdiction over those
issues.
EFFECTS OF AMENDMENT
Section 8.
Effect of amended pleadings. – An amended pleading
supersedes the pleading that it amends. However, admissions
in the superseded pleadings may be offered in evidence
against the pleader, and claims or defenses alleged therein
not incorporated in the amended pleading shall be deemed
waived.
On the original pleading
An amended pleading supersedes the original one which it
amends
 The original complaint is deemed superseded and
abandoned by the amendatory complaint only if the
latter introduces a new or different cause of action
(Verzosa vs Court of Appeals, 299 SCRA 100);
 Eg Culpa Aquiliana to Culpa Contractual)
On admissions made in the original pleading
 Admissions made in the original pleadings cease to be
judicial admissions (Ching vs Court of Appeals, 331
SCRA 16).
 They are to be considered as extrajudicial admissions
(Bastida vs Menzi & Co., Inc., 58 Phil. 188; Torres vs
Court of Appeals, 131 SCRA 224).
 They must in order to have such effect, be formally
offered in evidence (Ching vs Court of Appeals, 331
SCRA 16).
EFFECT TO ORIGINAL PLEADING
Q: What is the effect of Amendment?
A: In so far as the original pleading is concerned under Section 8
of Rule 10, it says that the amended pleading supersedes the
original one which it amends.
However please take note that of the ruling of the Supreme Court
of the ruling of Verzosa vs Court of Appeals where it clarified
that the original complaint is deemed superseded and abandoned
by the amendatory complaint only if the latter introduces a
new or different cause of action. So meaning if there is a
different or new cause of action it is just not merely an addition
of a new complainant a new defendant but it is really a new
cause of action like the original complaint was Culpa Aquiliana
and the amended one is Culpa Contractual.
ADMISSIONS TO ORIGINAL PLEADING
Q: How about the admissions in the original pleading? If by
reason of the amendment, the original pleading is now deemed
superseded. What happens to the admissions made in the
original pleading which are favorable to the defendant?
A: In the case of Ching vs Court of Appeals the Supreme Court
said that the Admissions made in the original pleadings cease to
be judicial admissions.
Q: So if they cease to be judicial admissions, what is now the
status of these admissions?
A: They are now considered extrajudicial admissions. As held in
the case of Bastida vs Menzi and Torres vs Court of Appeals.
Q: So when you say they are to be considered extrajudicial
admissions, what is the consequence? Can they still be used?
A: Yes, they can still be used. What is the effect? How can you use
it? How do we distinguish from judicial admissions?
Judicial Admissions Extrajudicial Admissions
You don’t have to prove In order the court will take
them. The court can take cognizance, you will to offer
cognizance of these first as evidence
admissions.
That is why in the present amended rules, it is very clear they
must be offered for the court to take cognizance of these
admissions.
EFFECT ON SERVICE OF SUMMONS
Now, what is the effect of amendment insofar as service of
summons is concern. For example, under the original complaint
that you filed there was already service of summons upon the
defendants or maybe there was yet no service of summons, what
is the rule?
ON NECESSITY OF SUMMONS. Although the original pleading is
deemed superseded by the pleading that amends it, it does not
ipso facto follow that service of new summons is required.
 Where the defendants have already appeared before
the trial court by virtue of a summons in the original
complaint, the amended complaint may be served
upon them without need of another summons, even if
new causes of action are alleged.
Reason: the court already acquired jurisdiction by
reason of the summons. Because a court’s jurisdiction
continues until the case is finally terminated once is it
acquired.
 When the defendants have not yet appeared in court,
new summons on the amended complaint must be
served on them.
Reason: It is not the change of a cause of action that
gives rise to the need to serve another summons for
the amendment complaint but rather the acquisition of
jurisdiction over the persons of the defendants. So, if
the trial court has not yet acquired jurisdiction over
them because, even if there was summons issued for
the original complaint but not yet served, a new
summons for the amended complaint is required
(Vlason Enterprises vs. Court of Appeals, 310 SCRA
26).
 Where a new defendant is impleaded, summons
must be served upon him so that the court may
acquire jurisdiction over his person. The new
defendant cannot be deemed to have already appeared
by virtue of summons under the original complaint in
which he was not yet a party (Arcenas vs. Court of
Appeals, 299 SCRA 733).
Note: It is not the change of a cause of action that gives rise to the
need to serve another summons for the amended complaint but
rather the acquisition of jurisdiction over the persons of the
defendants.
MERCADO, ET. AL. vs. ESPINA and LOURDES ESPINA
(G.R. No. 173987, February 25, 2012)
FACTS:
On May 8, 2000, herein petitioners filed with the Regional
Trial Court (RTC) a Complaint for Recovery of Property and
Declaration of Nullity of Deed of Sale, Certificate of Title and
Damages. The case was docketed as Civil Case No. R-3147. On
June 29, 2000, respondents filed a Motion to Dismiss on
grounds that the RTC has no jurisdiction over the case due to
the failure of the complainant to state the assessed value of
the property, that petitioners' cause of action is barred by
prescription, laches and indefeasibility of title, and that the
complaint does not state sufficient cause of action against
respondents who are buyers in good faith.
The RTC denied respondents' Motion to Dismiss. Respondents
then filed a motion for reconsideration, but the same was
denied by the RTC. Respondents then filed a special civil
action for certiorari with the CA assailing the above orders of
the RTC. In its Resolution dated March 13, 2001, the CA
denied due course and dismissed respondents' petition for
certiorari. Respondents filed a motion for reconsideration,
but the same was denied by the CA in its Resolution dated
October 21, 2003.
Meanwhile, on August 17, 2000, petitioners, by leave of court,
filed an Amended Complaint to include the assessed value of
74
 the subject property. On November 21, 2003, respondents
filed a Motion to Dismiss Amended Complaint on grounds of
prescription, laches, indefeasibility of title and lack of cause of
action.
On February 18, 2004, the RTC issued an Order denying
respondents' Motion to Dismiss Amended Complaint.
Respondents filed a motion for reconsideration, but the RTC
denied it in its Order dated April 19, 2004. Respondents filed
a special civil action for certiorari with the CA praying that the
February 18, 2004 and April 19, 2004 Orders of the RTC be
set aside and petitioners' complaint dismissed.
On April 27, 2005, the CA granted the Petition. The CA ruled
that respondents' title has become indefeasible and
incontrovertible by lapse of time and that petitioners' action
is already barred by prescription. The CA also held that since
petitioners did not allege that respondents were not buyers in
good faith, the latter are presumed to be purchasers in good
faith and for value.
ISSUE:
Whether or not the Court of Appeals erred in giving due
course to respondents’ second motion to dismiss filed on
November 21, 2003 on the amended complaint filed on
August 16, 2000.
RULING:
Respondent's filing of their Motion to Dismiss Amended
Complaint may not be considered as a circumvention of the
rules of procedure. Under Section 8, Rule 10 of the Rules of
Court, an amended complaint supersedes an original one. As
a consequence, the original complaint is deemed
withdrawn and no longer considered part of the record.
In the present case, the Amended Complaint is, thus, treated
as an entirely new complaint. As such, respondents had
every right to move for the dismissal of the said Amended
Complaint.
Now, how do we file an amendment complaint or answer or
pleading. That is answered by Section 7:
Section 7.
Filing of amended pleadings. — When any pleading is
amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks,
shall be filed.
Section 6.
Supplemental pleadings. — Upon motion of a party, the
court may, upon reasonable notice and upon such terms as
are just, permit him or her to serve a
supplemental pleading setting forth transactions, occurrences
or events which have happened since the date of the pleading
sought to be supplemented. The adverse party may plead
thereto within ten (10) calendar days from notice of the order
admitting the supplemental pleading.
AMENDMENT AS MATTER OF RIGHT
Now, if this is amendment as a matter right you just file your
amendment complaint. For example, amended complaint: so, you
just file your amendment complaint, the title is "Amended
Complaint" and then all the amendments there incorporated, just
reproduce, actually, the allegations, everything, in your original
complaint and if there are amendments, like you add the name of
a particular defendant, you UNDERLINE that portion which is the
amendment. Every portion which is amendment must be
underlined, indicated by appropriate marks.
AMENDMENT AS MATTER OF DISCRETION
Now, if it is amendment as a matter of discretion. So, you need to
file a motion - Motion for Leave to File the Attached Amendment
Complaint. Attached because you have to attach already the copy
of your amended complaint. Still the same, you have to underline
or indicate by appropriate marks all the changes, modifications,
amendment which are embodied in your amended complaint.
SUPPLEMENTAL PLEADINGS
• only serves to bolster or add something to the primary
pleading;
• exists side by side with the original;
• does not replace that which it supplements;
• is but a continuation of the complaint.
So, based on the Rules, when you say Supplemental Pleadings
you're just actually setting forth transactions, occurrences, or
events which had have happened after you file your original
pleading. Meaning, at the time when you filed your original
pleading, these transactions, occurrences, or events were not yet
present but because of the passage of time, after you filed your
original pleading, then these transactions, occurrences, or events
happened. So, based on the Rules a Supplemental Pleading
actually serves only to bolster or add something to the primary
pleading, and because of that, a supplemental pleading exists side
by side with the original complaint. It's not like an amended
pleading where the amendment supersedes the original
complaint or original pleading. Here, the supplemental
pleading merely exists side by side. It does not replace that which
it supplements, and it is just but a continuation of the complaint.
So, when you say supplemental pleading you are not actually
changing your original cause of action, still the same, the
transactions, occurrences, or events that you set forth in your
supplemental pleading must relate to the cause of action which
you alleged in your original pleading.
CAUSE OF ACTION IN SUPPLEMENTAL PLEADINGS
ASSET PRIVATIZATION TRUST vs. COURT OF APPEALS
(324 SCRA 533)
the cause of action in the supplemental complaint is different
from the cause of action mentioned in the original complaint,
the court should not admit the supplemental complaint.
Again, the supplemental complaint should be related to your
original cause of action. It should not be different from it.
Young vs. Spouses Sy
When the cause of action stated in the supplemental
complaint is different from the causes of action mentioned in
the original complaint, the court should not admit the
supplemental complaint; the parties may file supplemental
pleadings only to supply deficiencies in aid of an original
pleading, but not to introduce new and independent causes of
action
Q: Now, if there is a supplemental complaint, for example, should
the defendant file an answer to the supplemental complaint?
A: That was discussed in the case of CHAN vs. CHAN. The same
question should an answer to a supplemental compliant be filed.
In relation to this question we have Section 6 of Rule 10. Again,
let's read, 'The adverse party may plead thereto within ten (10)
calendar days from notice of the order admitting the
supplemental pleading.'
ANSWER TO A SUPPLEMENTAL PLEADING NOT MANDATORY
CHAN vs. CHAN
G.R. No. 150746, October 15, 2008
Should an answer to a supplemental complaint be filed?
Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court
are relevant, thus:
Section 6. Supplemental pleadings. — Upon motion of a party,
the court may, upon reasonable notice and upon such terms as
are just, permit him or her to serve a supplemental pleading
setting forth transactions, occurrences or events which have
happened since the date of the pleading sought to be
supplemented. The adverse party may plead thereto within ten
(10) calendar days from notice of the order admitting the
supplemental pleading. (6a)
Rule 11, Sec. 7. Answer to supplemental complaint. _ A
supplemental complaint may be answered within twenty (20)
calendar days from notice of the order admitting the same,
unless a different period is fixed by the court. The answer to
the complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed.
Hence: NOT MANDATORY because of the use of the word "may."
Thus, the Court cannot declare the respondents in default simply
because the latter opted not to file their answer to the
supplemental petition.
Well, as we have already discussed, when you say supplemental
complaint or pleading, it does not supersede the original one, you
cannot even set forth in your supplemental pleading causes of
75
action which are different from the original one. So, if you
already filed your answer to the original complaint, for example,
that answer would be sufficient insofar as addressing the issues
mentioned in the original complaint. If you fail to file your
answer to the supplemental complaint, your original answer
to the original complaint shall serve as the answer to the
supplemental complaint, if no new or supplemental answer
is filed.
Now, if you notice, under Rule 10, Section 6 says 10 calendar
days. But if we go to Rule 11 Section 7, please take note of the one
which is cited above, it's says 20 calendar days.
Q: How do we reconcile?
A: When you say answer to a supplemental complaint, if you
want to file an answer to the supplemental complaint you can do
that within 20 calendar days from the time that you received the
order of the court saying that the supplemental complaint is
admitted. Of course, the time - 20 calendar days, will not start
from the time when you received a copy of the supplemental
complaint of the filing party.
Q: Why?
A: Because, again, when you file a supplemental
complaint/pleading it requires leave of court. So, meaning the
court has to say, whether or not it admits the supplemental
complaint/pleading. So, premature for you to immediately file
your answer to the supplemental complaint, for example, once
you received a copy of the supplemental complaint because for
all you know the court will not allow that supplemental
complaint. So, you are just wasting your time. So, from the time
that you received notice from the court that the supplemental
compliant is admitted.
Q: Now, how about the 10 days which Section 6, Rule 10 says.
A: This should refer to other pleadings. There are several
pleadings which we already discussed. Aside from the complaint,
if you wish to file a response to the supplemental pleading you
have 10 calendar days but if the pleading which is supplemented
is a complaint, and if you want to file your answer you have 20
calendar days.
How we distinguished between amended pleadings and
supplemental pleadings:
AMENDED SUPPLEMENTAL
AS TO ALLEGATIONS:
An AMENDED pleading Whereas, a SUPPLEMENTAL
contains transactions, pleading contains
occurrences or events which transactions, occurrences or
already happened at the time events which were not in
the original pleading was existence at the time the
filed and could have been original pleading was filed
raised at the original but which only happened
pleading, but which the after the filing of the original
pleader failed to raise in the pleading and therefore, could
original pleading because, not have been raised in the
oversight or inadvertence or original pleading.
inexcusable negligence. If he
wants to raise it, he must
amend the pleading.
AS TO EFFECT:
In an AMENDED pleading, When a SUPPLEMENTAL
the amended pleading pleading is filed, it does not
supersedes the original supersede the original
pleading. The original pleading. In effect, there are
pleading is deemed erased. now two (2) pleadings which
The amended substitutes the stand side by side in the case
original. So, from the – the original and the
viewpoint of the law, the supplemental pleadings.
original pleading no longer
exists.
AS TO EXTENT OF COURT
DISCRETION whereas the filing of a
The filing of an AMENDED SUPPLEMENTAL pleading is
pleading could be a matter of always a matter of judicial
right or of judicial discretion discretion under Section 6.
under Sections 2 and 3 There is always leave of
court.
So, of course, for example, the plaintiff could have not raised
these transactions, occurrences, or events at the time when he
filed the complaint or the original pleading because, precisely,
these were not yet present at that time.
Now, if you notice this is the very same distinction emphasized in
Rule 11, Sections 9 and 10, although we are not yet there but we
will just cite
That is the distinction emphasized in the New Rule – Rule 11,
Sections 9 and 10:
Rule 11, Section 9. Counterclaim or cross-claim arising after
answer. – A counterclaim or cross-claim which either matured
or was acquired by a party after serving his or her pleading
may, with the permission of the court, be presented as a
counterclaim or cross-claim by supplemental pleading before
judgment.
 So, meaning we are referring to those which are
acquired or matured after you serve your original
pleading.
Rule 11, Section 10. Omitted counterclaim or cross-claim. –
When a pleader fails to set up a counterclaim or a cross-claim
through oversight, inadvertence, or excusable neglect, or when
justice requires, he or she may, by leave of court, set up the
counterclaim or cross-claim by amendment before judgment.
 So, we are referring here to those counterclaim or
cross-claim which were already present at the time
when you filed counterclaim or cross-claim but you
just failed to set them up because of oversight,
inadvertence, or excusable neglect. So, you have to
file an amended counterclaim or cross-claim.
Now, in this case of LEOBRERA vs. COURT OF APPEALS, this is a
case involving collection of the sum of money. And then, the
plaintiff and the defendant are actually are the same persons. But
the plaintiff, wanted to file a supplemental complaint because he
wanted to set forth the other contract of loan. So, can he do that
in his supplemental complaint? The Supreme Court said, NO.
LEOBRERA vs. COURT OF APPEALS
170 SCRA 711
Although the plaintiff and the defendant are the same, there
are two separate loans independent of each other as a matter
of fact the stipulations are not identical. It cannot be the
subject matter of a supplemental complaint. In this case,
there are many types of loans secured in different terms
and conditions.
“A supplemental complaint must be based on matters arising
subsequent to the original complaint RELATED to the claim
presented therein and founded on the same cause of action.”
It cannot be used to try another matter or a new cause of
action.
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS
258 SCRA 165 [1996]
FACTS: Superclean Service Corp. is a company engaged in
janitorial services. A government corporation, the Home
Development and Mutual Fund (HDMF) sought a public
bidding on who will be the company who shall provide
janitorial services to the offices of the HDMF for the year
1990. Superclean won as it was the lowest bidder. It was
supposed to start providing the service for the year 1990.
However, the HDMF refused to honor the award. So, on
November 8, 1989, Superclean filed in the RTC of Manila a
complaint for mandamus and certiorari against HDMF
alleging that at public bidding for janitorial services for the
year 1990, it won as the lowest bidder but HDMF refused
without just cause, to award the contract to them. The
problem was that 1990 already ended and the case was still
on-going. So it was already rendered moot and academic.
What Superclean did was to file a supplemental complaint in
1991 alleging that because the contract of service was the
furnishing of janitorial services for the year 1990, the delay in
the decision of the case has rendered the case moot and
academic without Superclean obtaining complete relief to
redress the wrong committed against it by HDMF which
relied now consists of unrealized profits, exemplary damages
and attorney’s fees.
ISSUE: Is the filing of supplemental complaint proper in order
to seek a different relief in view of developments rendering
the original complaint impossible of attainment? NO.
HELD: “The transaction, occurrence or event happening since
the filing of the pleading, which is sought to be supplemented,
must be pleaded in aid of a party's right of defense as the
case may be. [That’s the purpose of the supplemental
pleading – in aid of the party’s cause of action or defense] But
in the case at bar, the supervening event is not invoked
for that purpose but to justify the new relief sought.”
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 “To begin with, what was alleged as a supervening event was “worse than the original re-assignment” by Merto, as it
causing damage to Superclean was the fact that the year for constituted her “banishment” from her office in Dumaguete
which the contract should have been made had passed City;
without resolution of the case. The supervening event was 4. that the re-assignment had violated Book V, Section 12(2)
cited not to reinforce or aid the original demand, which was and (3) of the Administrative Code of 1987 prohibiting re-
for the execution of a contract in petitioner’s favor, but to say assignments that were indiscriminately and whimsically
that precisely because of it, petitioner’s demand could no done;
longer be enforced, thus justifying petitioner in changing 5. that although the appointing and disciplining authority was
the relief sought to one for recovery of damages. This the Provincial Governor, who had approved Office Order No.
being the case, petitioner’s remedy was not to supplement, 005, Paltinca should be impleaded because it was he who had
but rather to amend its complaint.” thereby violated the Administrative Code of 1987; and
6. that she had refused to obey the two office orders for
“Be that as it may, the so called Supplemental Complaint filed justifiable reasons because both were null and void ab initio
by petitioner should simply be treated as embodying as far as she was concerned.
amendments to the original complaint or petitioner may be
required to file an amended complaint.” Paltinca moved to dismiss the complaint on the ground that:
1. the admission of the petitioner that the Provincial
So in this case, the supervening event which was cited by Governor, not he, was her appointing and disciplining
Superclean was not to reinforce or aid the original demand. But authority exposed her lack of cause of action;
precisely because the original demand could no longer be 2. that the non-inclusion of the Provincial Governor as the real
enforced, Superclean instead wants to change the relief party in interest was a fatal error; and
sought to one for recovery of damages. So this being the case, 3. that the failure of the petitioner to exhaust administrative
clearly, Superclean’s remedy was not to supplement, but rather remedies before going to court was also a ground for the
to amend the complaint. It is actually changing the relief, so the dismissal of the case.
correct remedy here is not a supplemental relief, but an amended
complaint. ISSUE: CAN THE COURT RESOLVE THE MOTION TO DISMISS
THE ORIGINAL COMPLAINT EVEN BEFORE THE ADMISSION
OF THE SUPPLEMENTAL COMPLAINT?
So does it mean na sorry ka nalang Superclean, because you
should have filed instead an amended complaint? Well the SC
HELD: YES. Paltinca’s motion to dismiss (on the ground of
said, “Be that as it may, the so called Supplemental Complaint
non-exhaustion of administrative remedies) could be
filed by petitioner should simply be treated as embodying
resolved before the admission of the supplemental complaint.
amendments to the original complaint or petitioner may be
required to file an amended complaint.” So meaning, you call it
The insistence is not correct. The petitioner filed her
a supplemental complaint, but the court will call it as an
supplemental complaint to assail Office Order No. 005, and
amended complaint, or the other alternative- you can require
thereby raised issues identical to those raised in her original
a party to file an amended complaint, so it doesn’t actually
complaint involving Office Order No. 008. Hence, the RTC
prejudice also Superclean. The Supplemental complaint can
could already resolve Paltinca’s motion to dismiss even
just be treated as an amended complaint or require
without first admitting the supplemental complaint.
Superclean to file an amended complaint.
Unlike an amended complaint, her supplemental complaint
could “exist side-by-side” with the original complaint, because
EJERA vs. MERTO AND VERGARA
the supplemental complaint averred facts supervening from
GR No. 163109 January 22, 2014
the filing of the complaint.
Now in this case, the case filed was for final injunction with TRO
On April 16, 2001, the petitioner filed in the RTC her
and/or preliminary injunction. The subject of this petition was
complaint for “final injunction with temporary restraining
Office Order No. 008 because it reassigned petitioner to another
order and/or preliminary injunction, and damages” averring
office or location. Now there was another order. It was Office
that:
Order No. 005, Series of 2001, which amended the original order
1. Merto had issued Office Order No. 008 because he had so
which was the subject of the petition. And here, it was issued by
bitterly resented her attacks against him before the CSC
one Gregorio Paltinca, the Officer-in-Charge of the Office of
Regional Office;
Provincial Agriculturist. So in this subsequent memorandum, the
2. that her reassignment was a virtual “banishment” because
petitioner-complainant was transferred to another station, which
her position required her to stay in Dumaguete City;
according to her, was more prejudicial than the original one. So
3. that the re-assignment was a “gross and blatant violation of
the petitioner moved for the admission of a Supplemental
the Omnibus Rules on Appointments and other Personal
Complaint. The purpose was to implead Gregorio Platinca in the
Actions” prohibiting whimsical and indiscriminate
complaint.
reassignments;
4. that on account of her refusal to obey Office Order No. 008,
So basically in the supplemental complaint among others, the
Merto had charged her administratively;
petitioner alleged that the subsequent order was worse than the
5. that Merto had no power to investigate, because the
original assignment, as it:
Provincial Governor was the proper disciplining authority;
1. Constituted her banishment from her office;
6. that the letter of Merto requiring her to explain violated
2. and that it violated the Administrative Code of 1987.
Rule II, Section B of CSC Memorandum Circ. No. 19, Series of
1999, requiring complaints to be under oath;
So the issue here is, can the court resolve the motion to dismiss
7. that Merto connived with Vergara, who had issued a
the original complaint even before the admission of the
“Notice of Conference” on March 30, 2001 setting the
Supplemental Complaint? Because again, there was an original
preliminary conference on April 5 2001;
complaint, and there was a Supplemental Complaint. But before
8. and that the conference could not be terminated when she
that Supplemental Complaint was admitted, we have here the
and her counsel walked out due to the refusal of Vergara to
defendant moving to dismiss the original complaint itself.
allow the recording of the objections of her counsel.
The SC said yes. The motion to dismiss on the ground of non-
exhaustion of administrative remedies could be resolved
Subsequently, the petitioner moved for the admission of a
before the admission of the supplemental complaint. The
supplemental complaint in order to implead Gregorio P.
Supplemental Complaint was actually filed, and it raised issues
Platinca, the Officer-in-charge of the Office of the Provincial
identical to those raised in the original complaint. So the SC said
Agriculturist for issuing on June 29, 2001 Office Order No.
the RTC could already resolve the Motion to Dismiss even
005, Series of 2001, to amend Office Order No. 008. Office
without first admitting the Supplemental Complaint, because
Order No. 005 re-assigning her to Barangays Balanan,
unlike an Amended Complaint, the Supplemental Complaint
Sandulot, and Jumalon in the Municipality of Siaton as her
could exist side by side with the original complaint. The
official duty stations.
Supplemental Complaint here averred facts supervening from
the filing of the complaint.
The supplemental complaint stated that:
1. Office Order No. 005, to take effect on July 2, 2001 had not
CENTRAL BANK BOARD OF LIQUIDATORS vs. BANCO
been posted in the bulletin board of the Office of the
FILIPINO SAVINGS AND MORTGAGE BANK
Provincial Agriculturist;
GR No. 173399 February 21, 2017
2. that she had not been furnished a copy of the order;
3. that OIC Paltinca had acted with malice and evident bad
Our ruling in this case is confined to the resolution of
faith by his failure to notify her of the re-assignment, which

77
procedural issues pertaining to the propriety of the admission
of a Second Amended/Supplemental Complaint. The latter
sought to hold the Bangko Sentral ng Pilipinas (BSP) and its
Monetary Board (MB) liable for causes of action that arose
almost 10 years after the original Complaint was filed against
the now defunct Central Bank of the Philppines (CB).
HELD: The second amendment of the complaint was
improper.
The original complaint was based on the alleged illegal
closure of Banco Filipino effected in 1985 by the defunct CB
and its MB.
Oh the other hand, the Second Amended/Supplemental
complaint stemmed from the alleged oppressive and arbitrary
acts committed by the BSP and its MB against Banco Filipino
after respondent bank was reopened in 1994. Since the acts
or omissions allegedly committed in violation of respondent’s
rights are different, they constitute separate causes of action.
A closer examination of the Second Amended/Supplemental
Complaint shows that Banco Filipino asks the Court to order
the defendants to pay, among others, actual damages of
atleast P18.8 billion “as consequence of the acts herein
complained of.”
The “acts complained of” cover not just the conservatorship,
receivership, closure, and liquidation of Banco Filipino in
1984 and 1985, but also the alleged acts of harassment
committed by the BSP and its MB after respondent bank was
reopened in 1994. These acts constituted a whole new
cause of action. In effect, respondent raised new causes of
action and asserted a new relief in the Second
Amended/Supplemental Complaint. If it is admitted, the RTC
would need to look into the propriety of two entirely different
causes of action. This is not countenanced by law.
Banco Filipino contends that the Second
Amended/Supplemental Complaint does not:
 alter the substance of the original demand, or
 change the cause of action against the original
defendants, or
 seek additional or new reliefs. Rather, respondent
contends that the only change sought is the
addition of the BSP and its MB as parties-
defendants.
Respondent further argues that what petitioner erroneously
views as new causes of action are merely demonstrations to
show that the BSP has come to adopt the same repressive and
oppressive attitude of the latter’s alleged predecessor-in-
interest.
Cannot be an Amended Pleading:
The prevailing rule on the amendment of pleadings is one of
liberality, with the end of obtaining substantial justice for the
parties. However, the option of a party-litigant to amend a
pleading is not without limitation. If the purpose is to set up
a cause of action not existing at the time of the filing of
the complaint, amendment is not allowed. If no right
existed at the time the action was commenced, the suit cannot
be maintained, even if the right of action may have accrued
thereafter.
Cannot be a Supplemental Pleading:
The option of a party-litigant to supplement a pleading is not
without limitation. A supplemental pleading only serves to
bolster or add something to the primary pleading. Its usual
function is to set up new facts that justify, enlarge, or change
the kind of relief sought with respect to the same subject
matter as that of the original complaint. A supplemental
complaint must be founded on the same cause of action as
that raised in the original complaint. Although in Planters
Development Bank vs. LZK Holdings & Development
Corporation, the Court clarified that the fact that a
supplemental pleading technically states a new cause of
action should not be a bar to its allowance, still, the matter
stated in the supplemental complaint must have a
relation to the cause of action set forth in the original
pleading. That is, the matter must be germane and
intertwined with the cause of action stated in the original
complaint so that the principal and core issues raised by the
parties in their original pleadings remain the same.
In the instant case, Banco Filipino, through the Second
Amended/Supplemental Complaint, attempted to raise new
and different causes of action that arose only in 1994. These
causes of action had no relation whatsoever to the causes
of action in the original complaint, as they involved
different acts or omissions, transactions, and parties. If
the Court admits the Second Amended/Supplemental
Complaint under these circumstances, there will be no end to
the process of amending the Complaint. What indeed would
prevent respondent from seeking further amendments by
alleging acts that may be committed in the future?
For these reasons, whether viewed as an amendment or a
supplement to the original complaint, the Second
Amended/Supplemental Complaint should not have been
admitted.
The admission of the Second Amended/Supplemental
Complaint is inappropriate because it violates the rule on
joinder of parties and causes of action. If its admission is
upheld, the causes of action set forth therein would be joined
with those in the original complaint. The joinder of causes of
action is indeed allowed under Section 5, Rule 2 of the 1997
Rules of Court; but if there are multiple parties, the joinder is
made subject to the rules on joinder of parties under Section
6, Rule 3. Specifically, before causes of action and parties can
be joined in a complaint involving multiple parties:
1. The right relief must arise out of the same transaction or
series of transactions; and
2. There must be a question of law or fact common to all the
parties.
In the instant case, Banco Filipino is seeking to join the BSP
and its MB as parties to the complaint. However, they have
different legal personalities from those of the defunct CB and
its MB: firstly, because the CB was abolished by RA 7653, and
the BSP created in its stead; and secondly, because the
members of each MB are natural persons. These factors make
the BSP and its MB different from the CB and its MB. Since
there are multiple parties involved, the two requirements
mentioned in the previous paragraph must be present before
the causes of action and parties can be joined. Neither of the
two requirements for the joinder of causes of action and
parties were met.
Second, there is no common question of fact or law between
the parties involved. The acts attributed by Banco Filipino to
the BSP and its MB pertain to events that transpired after this
Court ordered the respondent bank’s reopening in 1994.
These acts bear no relation to those alleged in the original
Complaint, which related to the propriety of the closure and
liquidation of respondent as a banking institution way back in
1985. The only common factor in all these allegations is
respondent bank itself as the alleged aggrieved party. Since
the BSP and its MB cannot be joined as parties, then neither
can the causes of action against them be joined.
Now this case of Central Bank Board of Liquidators vs. Banco
Filipino Savings and Mortgage bank, we actually discussed
already in relation to joinder of parties, joinder of causes of
actions, amendments- so we discuss this again in relation to
Supplemental pleadings. Here, Banco Filipino Savings and
Mortgage Bank sought to hold the Bangko Sentral ng Pilipinas
(BSP) and its Monetary Board (MB) liable for causes of action
that arose almost 10 years after the original Complaint was filed
against Central Bank of the Philippines.
What Banco Filipino filed here was a Second
Amendment/Supplemental Complaint. First we resolve this from
the point of view of an amended complaint.
ISSUE: Can it be allowed as an amended complaint?
 The SC evaluated, and ruled that the second
amendment of the complaint was improper (as
ratiocinated above).
So the SC said, ruling on the case, that this cannot be the subject
of an amended pleading. In this particular case, the acts of BSP
and its alleged MB which are the subject of the amended
pleading, were not yet present, committed, or existent at the
time when the original complaint was filed. They only
happened after.
We have already discussed before that you cannot make an
amendment to include causes of action which were not present
at the time the original pleading was filed. That was even clearly
stated in the Amended Rules already. So we’re saying now that
the acts of the BSP and its MB happened after the filing of the
original complaint.
78
How about a Supplemental Complaint? Because a Supplemental
Complaint as we said sets for transactions, events, or occurences
that happen after the filing of the original complaint. Can this be
now admitted as a Supplemental Pleading?
 The SC said No. The option of a party-litigant to
supplement a pleading is not without limitation. Now
even if we are saying that in a Supplemental Pleading
we interpose transactions, events or occurrences that
happened after the original pleading was filed, but the
purpose of a Supplemental Pleading is to justify,
enlarge, or change the kind of relief sought with
respect to the same subject matter with that of the
original complaint. So a Supplemental Complaint
must be founded on the same cause of action as
that raised in the original complaint. So the
matters stated in the Supplemental Complaint
must have a relation to the cause of action set forth
in the original complaint. It must be germane and
intertwined with the cause of action stated in the
original complaint so that the principal and core issues
raised by the parties in the original pleading remain
the same.
In this particular case, although those facts happened after the
complaint was filed, the SC said that these additional matters
represent causes of action which have no relation whatsoever
to the causes of action in the original complaint (the subject
matter) as they involve different acts or omissions, transactions,
and parties. So this cannot also be admitted as a Supplemental
Complaint. Otherwise what would prevent respondent from
seeking further amendments by alleging facts that may be
committed in the future.
But can we not consider this under the rule on joinder of causes
of actions? Diba when you say joinder of causes of action, you
may actually join as many causes of actions that you may have
against a party.
 Well the SC said this still cannot be considered under
the rule of joinder of causes of actions. Because when
you say joinder of causes of actions, if there are several
parties, you must also comply with the rule on joinder
of parties. And when there is joinder of parties, your
cause of action for the other parties must be related to
the cause of action which is the subject matter of the
original complaint.
Example: In the original complaint of Banco Filipino, if BF would
like to include or join its cause of action against BSP, BSP is a
different party. It is not the same as the Central Bank. And the
acts alleged against BSP here were not committed by the now
defunct Central Bank. These acts were committed by the
successor BSP. So they really constituted different causes of
action and the personalities here are different. So for you to join
your cause of action against Central Bank (which was the original
defendant) and your cause of action against BSP and its MB
which you now wish to be included in the case, you must comply
with the rules on joinder of causes of action and joinder of
parties.
Here this cannot qualify under the concept of joinder of parties
because your cause of action against BSP has no relation. They
do not involve the same facts, the same question of law vis-à -vis
your complaint against Central Bank. So you have to observe the
rule on joinder parties under Section 6, Rule 3. Where:
1. The right relief must arise out of the same transaction or series
of transactions;
2. There must be a question of law or fact common to all the
parties.
So the SC clarified that Central Bank and its MB are different from
the BSP and its MB. They are created by different laws, the
members of each are natural persons who are different from
each other. And because there are multiple parties involved, the
two requirements of joinder of parties must be present- which
aren’t met in this particular case.
The only common factor in all these allegations is respondent
bank itself as the alleged aggrieved party. So its only the
personality of Banco Filipino which is common. So there can be
no joinder of causes of action because there cannot be a joinder
of parties.
RULE 11
When to File Responsive Pleadings
When do you file:
 Answer
 Cross claim
 Counter claim, etc
 Reply
SECTION 1.
Answer to the complaint.—The defendant shall file his or her
answer to the complaint within THIRTY (30) CALENDAR
DAYS after service of summons, unless a different period is
fixed by the court. (1a)
Q: Now the defendant already received the summons against
him. What are his options?
A: 1. File an answer;
2. File a motion to dismiss;
3. File a motion for a bill of particulars in the meantime.
DEFENDANT FILES AN ANSWER
Defendant has a period of 30 DAYS AFTER SERVICE OF
SUMMONS within which to file his answer. The court is allowed
to fixed a different period, by way of exception.
The rule says the court is allowed to fix a different period.
What are these instances when the court may fix a different
period? They are those mentioned in Rule 14, Sections 16, 17,
and 18 where there is service of summons by publication.
HOW TO COMPUTE PERIOD WITHIN WHICH TO FILE AN
ANSWER
First, we apply the Civil Code:
Art. 13. XXX In computing a period, the FIRST DAY SHALL BE
EXCLUDED, AND THE LAST DAY INCLUDED.
Such rule is also found in Section 1 of Rule 22 on Computation of
Time:
Rule 22, Sec. 1. How to compute time. - In computing any period of
time prescribed or allowed by these Rules, or by order of the court,
or by any applicable statute, THE DAY OF THE ACT OR EVENT
FROM WHICH THE DESIGNATED PERIOD OF TIME BEGINS TO
RUN IS TO BE EXCLUDED AND THE DATE OF PERFORMANCE
INCLUDED. If the last day of the period, as thus computed, falls on
a Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day.
Example: The defendant received summons on August 1 2019.
A: so we exclude august 1. We start from August 2. So the 30th
day would be august 31 2019. But if you look at the calendar,
that’s a Saturday. And the next day is a Sunday. So the deadline
would be the next working day which is September 2.
OTHER OPTIONS:
1. MOTIONS TO DISMISS AND
2. FOR BILL OF PARTICULARS
GR: Motion to dismiss is no longer allowed under the amended
rules but you can still file if the grounds are:
A. Lack of jurisdiction over the subject matter
B. Prescription
C. Litis Pendentia
D. Res Judicata
Of course, the defendant has other options:
1. he may opt to file either an MTD if he thinks there is a ground
therefor; or
2. if he feels that the complaint is not of sufficient definiteness or
particularity or the allegations therein are vague that he cannot
file an intelligent answer, he may choose to file a MOTION FOR A
BILL OF PARTICULARS in the meantime.
Q: when to file the Motion to Dismiss or Motion for a BIll of
Particulars?
A: File them within the period to file the answer.
Q: what happens if the defendant files a motion to dismiss?
A: the filing of either motion interrupts the period for filing the
answer.
Q: WHAT HAPPENS WHEN THE DEFENDANT FILES A MOTION
TO DISMISS?
A: There will be a hearing on the motion. After hearing, the
motion to dismiss will be resolved by the court.
A motion to dismiss, as in any other motion, only has two
ultimate destinies:
1. either the motion is granted or
 IF GRANTED, the defendant wins the case. He does not
have to file any responsive pleading. So he does not
have to file his answer.
2. denied.
 IF DENIED, he is still allowed by the Rules to file his
answer.
79
Q: IF THE MOTION TO DISMISS IS DENIED, WITHIN WHAT
PERIOD CAN THE DEFENDANT FILE HIS ANSWER?
A: As said,the defendant can file MTD within the period to file his
answer. If denied, he has the balance of the period within which
to file the answer to file the motion to dismiss.
Take note that, under Sec 4, Rule 16 (OLD RULES) it says if the
motion is denied the movant shall file his answer within the
balance of the period to which he is entitled at the time of his
motion but not less than 5 days in any event computed form the
receipt of the notice of his denial.
Example; The defendant has 30 days to file his answer. On the
26th day, he filed a motion to dismiss and such interrupted the
running of the period to file an answer. SO even if it took the
court months to resolve the motion to dismiss, we are
interrupted on the 26th day.
The court denied the motion to dismiss. How many days does the
defendant have to file his answer under the old rule?
A: he has five days even if supposedly, 4 days na lang.
Q: How about under the amended rules?
A: There is no similar provision under the amended rules but I
found a similar rule under Rule 12, Sec 5 referring to a bill of
particulars.
Q: Why is there no similar provision for a motion to dismiss?
A: (I think ha) because, under the present rule a motion to
dismiss as a general rule is no longer allowed but once redrafted
they forgot that there are still ground within to file a motion to
dismiss.
But by analogy if a motion for a bill of particulars can interrupt
and the defendant still has 5 days if denied, so it should also
apply to a motion to dismiss.
SEC. 2.
Answer of a defendant foreign private juridical entity.—
Where the defendant is a FOREIGN PRIVATE JURIDICAL
ENTITY and service of summons is made on the government
official designated by law to receive the same, the answer
shall be filed within sixty (60) calendar days after receipt of
summons by such entity.
FOREIGN PRIVATE JURIDICAL ENTITY
The defendant here is a foreign private juridical entity or simply
a foreign corporation doing business in the Philippines.
FOREIGN CORPORATIONS AS PLAINTIFFS - they can sue in
Philippine Courts if
(a) they have a license to operate here (doing business in the
Philippines); or
(b) where the foreign corporation is without license but is suing
for an isolated transaction.
FOREIGN CORPORATIONS AS DEFENDANTS – can be sued if
(a) licensed to operate (doing business in the Philippines);
(b) without license but who transact business in the Philippines.
One CANNOT SUE A FOREIGN PRIVATE CORPORATION which is:
1. not doing business in the Philippines or
2. which did not transact business in the Philippines
REASON: because there is no way that the court can acquire
jurisdiction over the person of such corporation.
WHAT IS THE PERIOD TO ANSWER WHEN THE DEFENDANT
IS A FOREIGN PRIVATE CORPORATION DOING BUSINESS IN
THE PHILIPPINES?
A. If the FOREIGN CORPORATION HAS A DESIGNATED
RESIDENT AGENT, the summons shall be served to the
resident agent.
In this case, the resident agent has 30 DAYS TO ANSWER, just
like any defendant in Section 1. This can be found under Section
144 of the Revised Corporation Code.
Section 144. Who May be a Resident Agent. - A resident agent
may be either an individual residing in the Philippines or a
domestic corporation lawfully transacting business in the
Philippines: Provided, That an individual resident agent must
be of good moral character and of sound financial standing:
Provided, further, That in case of a domestic corporation who
will act as a resident agent, it must be likewise be of sound
financial standing and must show proof that it is in good
standing as certified by the Commission.
in order for a Philippine corporation to do business in the
Philippines, it is required that he must nominate a resident
agent upon whom legal processes will be served.
So we are referring to a foreign private corporation licensed to
transact business in the Philippines.
if there Is a resident agent who received summons on behalf of
the corporation, the foreign corporation has 30 days within
which to file the answer. The same period of 30 days applies
WHEN SUMMONS IS SERVED UPON ANY OF ITS OFFICERS OR
AGENTS WITHIN THE PHILIPPINES.
B. If the FOREIGN CORPORATION DOES NOT HAVE ANY
DESIGNATED RESIDENT AGENT in the Philippines (generally,
it cannot be issued a license and it can be sued) , it is not doing
business in the Philippines but it transacted business in the
Philippines, if it is sued, on whom should summons be served?
A: the summons shall be served to the government official
designated by law to receive the same who now has the duty to
transmit it to the head office abroad.
PROPER GOVERNMENT OFFICIAL
Q: Who is this government official?
A: It must be noted that under Section 145 of the Revised
Corporation Code, IT IS THE SECURITIES AND EXCHANGE
COMMISSION (in general) which is the proper government
official upon whom summons may be served in the case of
corporations in general.
There are special types of foreign corporations where the law
designated specific officials to receive summons. Example:
SPECIAL TYPES OF FOREIGN CORPORATIONS:
FOREIGN BANKS UNDER RA 8179
Under Republic Act No. 8179, otherwise known as the General
Banking Law of 2000:
SECTION 76. Summons and Legal Process. — Summons and
legal process served upon the Philippine agent or head of any
foreign bank designated to accept service thereof shall give
jurisdiction to the courts over such bank, and service of
notices on such agent or head shall be as binding upon the
bank which he represents as if made upon the bank itself.
Should the authority of such agent or head to accept service of
summons and legal processes for the bank or notice to it be
revoked, or should such agent or head become mentally
incompetent or otherwise unable to accept service while
exercising such authority, it shall be the duty of the bank to
name and designate promptly another agent or head upon
whom service of summons and processes in legal proceedings
against the bank and of notices affecting the bank may be
made, and to file with the Securities and Exchange
Commission a duly authenticated nomination of such agent.
In the absence of the agent or head or should there be no
person authorized by the bank upon whom service of
summons, processes and all legal notices may be made,
service of summons, processes and legal notices may be made
upon the Bangko Sentral Deputy Governor In-Charge of the
supervising and examining departments and such service
shall be as effective as if made upon the bank or its duly
authorized agent or head.
INSURANCE COMPANIES
Then we also have for insurance companies. So who is authorize
to receive summons for insurance companies?
ACT NO. 2427
INSURANCE CODE OF THE PHILIPPINES
SECTION 177. The Insurance Commissioner must require as a
condition precedent to the transaction of insurance business
in the Philippine Islands by any foreign insurance company,
that such company file in his office a written power of
attorney designating some person who shall be a resident
of the Philippine Islands, on whom any notice provided
by law or by any insurance policy, proof of loss,
summons, and other process may be served in all actions
or other legal proceedings against such company, and
consenting that service upon such agent shall be
admitted and held as valid as if served upon the foreign
company at its home office. Any such foreign company shall,
80
 as a further condition precedent to the transaction of
insurance business in the Philippine Islands, make and file
with the Insurance Commissioner an agreement or
stipulation, executed by the proper authorities of said
company in form and substance as follow:
"The (name of company) does hereby stipulate and agree in
consideration of the permission granted by the Insurance
Commissioner to it to transact business in the Philippine
Islands, that if at any time said company shall leave the
Philippine Islands, or cease to transact business therein, or
shall be without an agent in the Philippine Islands on whom
any notice, proof of loss, summons, or other legal process may
be served, then in any action or proceeding arising out of any
business or transactions which occurred in the Philippine
Islands, service of any notice provided by law, or
insurance policy, proof of loss, summons, or other legal
process may be made upon the Insurance Commissioner,
and that such service upon the Commissioner shall have
the same force and effect as if made upon the company."
Whenever such service of notice, proof of loss, summons, or
other legal process shall be made upon the Insurance
Commissioner, he must, within ten days thereafter, transmit
by mail, postage paid, a copy of such notice, proofs of loss,
summons, or either legal process to the company at its home
or principal office. The sending of such copy by the
commissioner shall be a necessary part of the service of the
notice, proof of loss, or other legal process.
TIME TO PLEAD WHEN SUMMONS IS SERVED ON
GOVERNMENT OFFICIAL
Please remember when the summon is received or served upon
government official authorized by law to receive the same, the
answer shall be filed within 60 days.
Q: Now, from what period do we count the 60 days?
A: it said after receipt of summons.
Q: Receipt of summons by who?
A: The Rule is very clear, “by such entity”. Meaning, the
government official authorized by law to receive the summons
will have to transmit the summons to the foreign private
corporation. So the 60 days will be counted from the time of the
receipt of the foreign private corporation and not by the
government official authorized to receive summons.
Q: Why?
A: Because we know government officials are very busy they
have a lot of things to do so most probably the drafters
anticipated that there will be a delay of transmission of the
summons to foreign private corporation. So if that happens, there
is delay, there is danger that the foreign private corporation be
declared in default just because of a delay over which the foreign
private corporation did not cause.
FOREIGN ENTITY WITH LICENSE BUT NO MORE AGENT IN
THE MEANTIME
Q: Now what if the foreign entity has a license but no more
resident agent in the meantime or no agent in the meantime?
What is the rule regarding the service of the summons?
A: Under the Rules, the corporation has to nominate another
agent but before the nomination is approved and there is no
case(?) against the corporation?
o As a general rule, it should be with the SEC which can
received summons.
o Section 3.
o Answer to amended complaint. — When the
plaintiff files an amended complaint as a matter of
right, the defendant shall answer the same within
thirty (30) calendar days after being served with a
copy thereof.
o A: Well because in a third (fourth, etc.) party-complaint, you are
o Where its filing is not a matter of right, the
defendant shall answer the amended complaint
within fifteen (15) calendar days from notice of the
order admitting the same. An answer earlier filed
may serve as the answer to the amended complaint
if no new answer is filed.
o involved that is why he has the same time within which to
o This Rule shall apply to the answer to an amended
counterclaim, amended crossclaim, amended third
(fourth, etc.)-party complaint, and amended
complaint-in-intervention.
PERIOD TO ANSER AMENDED COMPLAINT
The period to which to file an answer would depend on whether
the amendment is matter of right or discretion.
Amended as a matter or right
You need to answer it for 30 days from the receipt of the
amended pleading.
Q: Why?
A: Because here the amended pleading supersedes the
original complaint therefore the amended pleading is now the
new complaint and the defendant is entitled to a fresh period
within which to answer that.
Amendment as matter of discretion (there is leave of
court)
Here the defendant has already filed his responsive pleading,
the answer and now the plaintiff would want to amend then
the defendant if he would like to file his answer hi is given a
period of 15 days from the receipt of the order admitting
the amended pleading.
Q:Why?
1. Under Rule 15 Section 15 when you file a motion for leave
to file a pleading. That motion for leave is already
accompanied by pleading sought to be amended. So for
example if you file a motion for leave to file an amended
complaint, that motion should be accompanied by the
amended complaint. So the amended complaint is already
attached to the motion for leave. So as soon as the plaintiff
files the motion for leave to file the attached amended
complaint, the defendant could already read the contents of
the amended complaint he can already study the amended
complaint but he is not yet required to answer the amended
complaint.
Q: Why? Because it needs leave of court, the court may or may
not grant the leave. So if the defendant will already answer
the amended complaint, for all we know the court might not
allow the filing of the amended complaint. So that is one of the
reasons but still the defendant can prepare in advance.
2. The defendant should not anticipate the filing of the new
answer since the court may or may not grant the leave. So
what if the court will deny the leave to file the amended
complaint.
3. The defendant does not even have to file a new answer
even if there is an amended complaint since under the Rules
an answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
Section 4.
Answer to counterclaim or cross-claim. — A counterclaim
or cross-claim must be answered within twenty (20) calendar
days from service.
So just read the provision. So this is shorter than the period
within which to answer the original complaint.
Section 5.
Answer to third (fourth, etc.)-party complaint. — The time
to answer a third (fourth, etc.)-party complaint shall be
governed by the same rule as the answer to the complaint.
Section 6.
Reply. — A reply, if allowed under Section 10, Rule 6 hereof,
may be filed within fifteen (15) calendar days from service of
the pleading responded to.
Section 5, it shall be governed by the same rule as the answer to
the complaint. Meaning, you have 30 days within which to
answer to third, fourth etc. party complaint.
Q: Why is it 30 days? Why is it that in case of a counter claim or a
cross claim you only have 20 days.
dragging a person who is not a party to the original case.
Meaning he was not a defendant, he was not a complainant. He is
entirely unaware of the case and now by filing a third (fourth,
etc.) party complaint against him then he is now made aware that
there is case against him. So he needs time to study the case. He
is not familiar at all with the facts and the issues then the laws
answer just like the original complaint.
When you say counter claim or cross claim, actually the parties
here will answer the counter or cross claim are already parties to
the original case so more or less familiar already with the facts,
the issue, and the law and will not take too much time to prepare
an answer that is why they only need 20 days.
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Section 6, so we already discussed this under Section 10 of Rule 6
that as a general rule reply is not allowed. But if it is allowed,
then the complainant may file it within 15 days from service of
the of the pleading to the respondent which is the answer.
Section 7.
Answer to supplemental complaint. — A supplemental
complaint may be answered within twenty (20) calendar days
from notice of the order admitting the same, unless a different
period is fixed by the court. The answer to the complaint shall
serve as the answer to the supplemental complaint if no new
or supplemental answer is filed.
Q: Why is it counted from receipt of the order and not of the
supplemental pleading itself and why is it that the period is
shorter?
1. The filing of a supplemental pleading is always a
matter of judicial discretion under Rule 10 of Section 6
so there is always leave of court you must file a
motion. And because of that Rule 15 Section 10 also
applies wherein we already mentioned that the
motion should be accompanied by the pleadings. So
the motion for leave to admit the supplemental
pleadings must already have that supplemental
pleading attached to the motion. So again, even before
the motion for leave is granted, that adverse party
already knows what that supplemental pleading
already contains. Again, he can prepare in advance.
2. The defendant does not have to refute all the
allegations in the supplemental complaint all over
again. He simply has to answer regarding the new
transaction or occurrence that took placed after the
filing of the complaint. He doesn’t have to answer
everything.
3. The answer to the complaint shall also serve as the
answer to the supplemental complaint if no new or
supplemental answer is filed. So if you don’t have the
time, you can choose not to file an answer.
Section 8.
Existing counterclaim or cross-claim. — A compulsory
counterclaim or a cross-claim that a defending party has at
the time he or she files his or her answer shall be contained
therein.
I think we mentioned this already before when we discussed
amended or supplemental pleading.
For example, you are the defendant and you want to file a
counterclaim against the defendant (?) or a cross claim against a
co plaintiff. How do you file it?
o For a compulsory counterclaim that has already
matured at the time the defendant is supposed to file
his answer MUST BE CONTAINED IN THE SAID
ANSWER. So you have answer with counterclaim or
answer with cross claim basta, you must file an
answer.
IF you already have your grounds for cross claim or counterclaim
at the time of filing the answer, you should already embody your
counterclaim or cross claim in your answer.
THERE ARE 2 KINDS:
1. Compulsory and
2. Permissive.
1. IF COMPULSORY, if the grounds are already there at the time
when you file the answer, you must already allege them and
plead them in your answer. What happens if you fail?
GR: your counterclaim is already deemed barred. You cannot
file that separately.
2. If the counterclaim is PERMISSIVE and the defendant elects to
file it in the same case, he also sets it up in his answer. This is
true if the permissive counterclaim has already matured at that
time.
a) If you fail, you are not barred from setting them up. You can
file a separate case.
RELATION OF COUNTERCLAIM WITH ANSWER
Remember that a counterclaim is not technically part of an
answer even if it is set up by then.
An answer is a pleading where you set forth your defenses. So a
counterclaim is a separate pleading. Take note, however, that
even if included in the answer, a counterclaim is considered a
separate pleading. Under the Rules, an answer per se only sets
forth defenses (Rule 6, Section 4).
It is not uncommon for lawyers to denominate these two
pleadings as: "ANSWER WITH A COUNTERCLAIM." We would
learn, however, that THERE ARE FORMAL REQUISITES
RELATING TO PLEADINGS THAT APPLY TO ANSWERS. They are
all found in Rule 7, of the Rules of Court.
What are those requirements under rule 7?
1. Caption
o Set forth name of court, title of action, docket number,
names of parties in the title, indicate who are the
plaintiffs and defendant.
2. Body of the pleading
3. Paragraphs
4. Headings
5. Relief
Q: For example you merge counterclaim in the answer. Do you
have a separate caption for the answer and counterclaim?
A: NO
Q: Should all of the requirements under Rule 7 be separately
followed for the answer and for the counterclaim?
A: No. After all the allegations in the answer itself have been
stated, begin the integrated counterclaim by stating: “The
defendant hereby repleads all the allegations contained in the
Answer and, by way of counterclaim, further allege that…” This
statement is sufficient to comply with the applicable
requirements under Rule 7.
Comment: So you just have one title, caption
When you go to the portion where you interpose your
counterclaim, you just put the title - allegations in support of the
counterclaim. Then, “The defendant hereby repleads all the
allegations contained in the Answer and, by way of counterclaim,
further allege that…” Then you enumerate what are those facts
related only to your counterclaim.
SEC. 9.
Counterclaim or cross-claim arising after answer.— A
counterclaim or a cross-claim which either matured or was
acquired by a party after serving his or her pleading may,
with the permission of the court, be presented as a
counterclaim or cross-claim by supplemental pleading before
judgment.
Q: Here, at the time when you filed an answer, you still have no
ground for a counterclaim or cross claim. But after you filed your
pleading, the cause of action for the counter claim matured. Can
you still interpose?
A: Yes with permission of the court.
A supplemental pleading (see Rule 10, Section 6) is required. In
this case, there are physically two separate pleadings filed by the
defendant: his answer and the supplemental pleading setting up
his counterclaim.
THERE ARE TWO REQUISITES that must be complied with to
avail of Rule 11, Section 9, to wit:
1. There must be prior leave of court allowing the filing of the
counterclaim, upon motion by the defendant; and
2. The counterclaim to be set up by supplemental pleading must
have matured and be filed after serving answer but before
judgment.
There is not period of time within which to supplement this
pleading because we don’t know when exactly, after you filed an
answer when these additional grounds would arise. So it’s just,
before judgment.
NOTE that, as worded, the provision seems to refer generally to
permissive counterclaims because, normally, a compulsory
counterclaim must arise out of or is connected with the same
transaction or occurrence which gave rise to the filing of the
complaint. In compulsory, you get the grounds on the basis of the
complaint which is filed by the plaintiff.
COMMENT: and the grounds for the counterclaim arose after the
answer with counterclaim is filed, you have two options:
1. If the counterclaim is permissive - you can just file a
separate case or you can include that in the original action by
filing a supplemental pleading wherein you already interpose the
grounds for your permissive counterclaim
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2. If compulsory , you cannot file a separate case, you have to
interpose the ground for your counterclaim in your answer
otherwise, the counterclaim is deemed barred.
a) As a GR, if compulsory, the grounds would already occur at the
time when the defendant files his answer because it is
necessarily related to the original claim but there are certain
situations where the grounds arises after the filing of the original
pleading.
b) Example: atty’s fees incurred after the filing of the answer.
If the counterclaim is permissive the defendant who had already
filed and served his answer is given another option which is to
prosecute his claim in a separate action. In cases where the
counterclaim is compulsory, the defendant who had already
filed and served his answer may set up his counterclaim under
Rule 11, Section 9. (Eg. Attorney’s Fees incurred after the filing of
the answer).
MATURE COUNTERCLAIM OMITTED FROM DEFENDANT’S
ANSWER
What rule governs a situation where the defendant failed to set
up a mature counterclaim in his answer (when at the time he
filed his answer with counterclaim, he already had these
ground) ? Is he already barred?
The answer can be found in Rule 11, Section 10.
SEC. 10.
Omitted counterclaim or cross-claim.—When a pleader fails
to set up a counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice requires,
he or she may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgment. (10a)
So there is still a remedy whether it is compulsory, permissive or
cross claim as long as the reason of failure was because of
oversight, inadvertence, excusable neglect or when justice
requires. How?
A: BY FILING AN AMENDED PLEADING. NOTE: there should be
leave of court.
Q: When do you file?
A: BEFORE JUDGEMENT.
Q: CAN YOU FILE A MOTION TO DISMISS WITH
COUNTERCLAIM?
A: As Riano observes, a "Motion To Dismiss With A
Counterclaim" is not an accepted way of pleading a counterclaim.
It is sanctioned neither by the Rules nor by common usage (Bar
1992; Bar 2008)
A compulsory counterclaim and a motion to dismiss are
inherently incompatible. A party who desires to plead a
compulsory counterclaim should not file a motion to dismiss. IF
HE FILES A MOTION TO DISMISS AND THE COMPLAINT IS
DISMISSED THERE WILL BE NO CHANCE TO INVOKE THE
COUNTERCLAIM.
o when you have a counterclaim, the grounds must be in
relation to the grounds pleaded by the complainant in
his complaint. So if the basis for your counterclaim is
dismissed, there is no reason for you to be given relief
by way of counterclaim.
FINANCIAL BUILDING CORPORATION vs. FORBES PARK
ASSOCIATION
G.R. No. 133119, August 17, 2000
A compulsory counterclaim is auxiliary to the proceeding in
the original suit and derives its jurisdictional support
therefrom. A counterclaim presupposes the existence of a
claim against the party filing the counterclaim. Hence, where
there is no claim against the counterclaimant, the
counterclaim is improper and it must dismissed, more so
where the complaint is dismissed at the instance of the
counterclaimant.
o conditioned upon such motion's timeliness, the passing of
Just take note of the term counterclaim. So it is something in
opposition to the claim. IF you don’t have a claim in the first place
because it is dismissed, there is no basis for the existence of a
counterclaim.
In other words, if the dismissal of the main action results in the
dismissal of the counterclaim already filed, it stands to reason
that the filing of a motion to dismiss the complaint is an implied
waiver of the compulsory counterclaim because the grant of
the motion ultimately results in the dismissal of the counter-
claim.
Thus, the filing of a motion to dismiss and the setting up of a
compulsory counterclaim are incompatible remedies. In the
event that a defending party has a ground for dismissal and a
compulsory counterclaim at the same time, he must choose only
one remedy. If he decides to file a motion to dismiss, he will lose
his compulsory counterclaim. But if he opts to set up his
compulsory counterclaim, he may still plead his ground for
dismissal as an affirmative defense in his answer.
Q: What if you really like to interpose your counterclaim and
dismiss the case? What would you do?
A: Remember, there are only 4 grounds for a motion to dismiss
under the new rules and the others can be interposed as
affirmative defenses in the answer. So when you file an answer,
you can set up your counterclaim and it has the same effect.
Depending on the kind of affirmative defense, the court will
conduct a hearing and if there is really a ground, the court will
also dismiss the case but you will still have your counterclaim. So
you file an answer with counterclaim.
SEC. 11.
Extension of time to file an answer .—A defendant may, for
meritorious reasons, be granted an additional period of not
more than thirty (30) calendar days to file an answer. A
defendant is only allowed to file one (1) motion for extension
of time to file an answer.
A motion for extension to file any pleading, other than an
answer, is prohibited and considered a mere scrap of paper.
The court, however, may allow any other pleading to be filed
after the time fixed by these Rules. (11a)
Examples:
1. Case if very complicated
2. There are several witnesses required and you have to include
judicial affidavits
3. Several evidence required
Note: the rule says, if you are a defendant you are only allowed to
file one motion for extension so all in all, 2 months to file your
answer.
Q: How about other pleadings?
A: The rule only mentions answer. Refer to the 2nd paragraph. It
is prohibited.
So example, you want to file a reply, you cannot file a motion for
extension. But take note of the last paragraph. “The court,
however, may allow any other pleading to be filed after the time
fixed by these Rules. “
Q: So what if you really would like to file a reply but you don’t
have the luxury of time but you are not allowed a motion for
extension. What do you do?
A: File a motion to admit the attached reply - after the time when
the reply is supposed to be filed and cite the meritorious grounds
why the court should allow that pleading even after it is filed
after the deadline.
In cases where a motion for extension for time is allowed, when
do we file?
PHILIPPINE NATIONAL BANK vs. DEANG MARKETING
CORPORATION
G.R. No. 177931, December 8, 2008
It is a basic rule of remedial law that a motion for extension of
time to file a pleading must be filed BEFORE THE
EXPIRATION OF THE PERIOD SOUGHT TO BE EXTENDED.
The court's discretion to grant a motion for extension is
which renders the court powerless to entertain or grant it.
Since the motion for extension was filed after the lapse of the
prescribed period, there was no more period to extend.
Q: you file your motion to extend on the 35th day, what is the
consequence?
A: It will not be allowed. - The court's discretion to grant a
motion for extension is conditioned upon such motion's
timeliness.
Q: what if 60 days is not enough to file?
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PROPER REMEDY TO ADMIT ANSWER AFTER LAPSE OF
PERIOD
o It depends. If there is still no declaration of default, the
party-pleader may file a motion to admit late answer
to which, again according to Rule 15, Section 9, the
belated answer should be attached.
As a general rule, if there is an answer, the chances are, even if
there is a subsequent motion to declare in default, the rules on
liberality can apply as long as your case is meritorious.
But there are also cases where the defendant filed and answer
and the plaintiff filed to declare the defendant in default and to
expunge the answer because it was field beyond the
reglementary period, the court denied the admission of the
belated answer and declared the defendant in default.
But even so, there are still remedies. He can still file a motion to
set aside the declaration of default. He can also file later on a
motion for new trial, petition for relief, motion to annul judgment
or petition for certiorari. If there is a declaration of default, the
party-pleader has no choice but to file a motion to lift order of
default and attach his affidavit of merits. If the motion is granted,
the defaulted party may be allowed to file his answer as a
consequence of setting aside the declaration of default.
RULE 12
BILL OF PARTICULARS
Section 1.
When applied for; purpose. — Before responding to a
pleading, a party may move for a definite statement or for a
bill of particulars of any matter which is not averted with
sufficient definiteness or particularity to enable him or her
properly to prepare his or her responsive pleading. If the
pleading is a reply, the motion must be filed within ten (10)
calendar days from service thereof. Such motion shall point
out the defects complained of, the paragraphs wherein they
are contained, and the details desired.
What is the purpose of a Bill of Particulars?
Republic v. Sandiganbayan
G.R. No. 115748, Aug. 7, 1996
A party’s right to move for a bill of particulars in accordance
with Sec. 1 of Rule 12 when the allegations of the complaint
are vague and uncertain is intended to afford a party not
only a chance to properly prepare a responsive pleading
but also an opportunity to prepare an intelligent answer.
This is to avert the danger where the opposing party will find
difficulty in squarely meeting the issues raised against him
and plead the corresponding defenses which if not timely
raised in the answer will be deemed waived.
 For example, a complaint is vague. Because of the
vagueness or uncertainty in the allegations, the
defendant missed certain facts which, had the
defendant understood or had facts in the complaint
been clearer, the defendant would be able to
properly interpose the affirmative defenses (e.g.
statute of frauds, prescription, etc.)
Thus, it was pronounced in Virata v. Sandiganbayan that:
The proper preparation of an intelligent answer requires
information as to the precise nature, character, scope and
extent of the cause of action in order that the pleader may be
able to squarely meet the issues raised, thereby
circumscribing them within determined confines and
preventing surprises during the trial, and in order that he
may set forth his defenses which may not be so readily
availed of if the allegations controverted are vague,
indefinite, uncertain or are mere general conclusions. The
latter task assumes added significance because defenses not
pleaded (save those excepted in Sec. 2, Rule 9 of the Revised
Rules of Court and, whenever appropriate, the defense of
prescription) in a motion to dismiss or in the answer are
deemed waived…
What is the effect when the Motion for Bill of Particulars is
filed?
Just like in a Motion to Dismiss, the immediate effect of the
proper filing of a Motion for Bill of Particulars is to interrupt the
running of the period within which to file a responsive pleading.
What is the reason why the period to file answer is
interrupted when you file a Motion for a Bill of Particulars?
Lucio Tan v. Sandiganbayan
G.R. No. 84195, Dec. 11, 1989
Pending the resolution of these questions, the issues of the
case can not be said to have been joined, and a party’s failure
to attend subsequent hearings does not amount to failure to
prosecute.
For example, a complaint is filed, and it is so vague and uncertain.
Obviously, you cannot file an intelligent answer. You should not
be prejudiced by the very act of the plaintiff. You should be given
ample time to ask the plaintiff, to clarify, what he really means in
his complaint. Precisely, the period in which to file an answer is
interrupted. You cannot file an answer yet without resolving the
vagueness, the uncertainty, of the complaint.
When do you file a Motion for a Bill of Particulars?
The party-pleader can no longer file a Motion for a Bill of
Particulars after he has already filed his responsive pleading
(Jose Baritua, et al., v. Nimfa Divina Mercader, et al., G.R. No.
136048, Jan. 23, 2001).
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A Motion for a Bill of Particulars is to be filed before, not after,
responding to a pleading. For example, you already filed your
answer. And then now, you are filing for a Motion of a Bill of
Particulars. You cannot do that anymore.
Q: Why?
A: In the first place, when you filed your answer, it means you
understood the allegations in the complaint. There was no
uncertainty, no vagueness. That means it is clear, and there is no
need for you to file a Motions for a Bill of Particulars.
The period to file the Motion for a Bill of Particulars refers to the
period for filing the responsive pleading in Rule 11.
Q: For example, if a Motion for a Bill of Particulars is directed to a
complaint, when do you file the motion?
A: The motion should be filed within 30 days after service of
summons, because that is also the same period within which to
file your answer.
Q: If the motion is directed to a counterclaim?
A: The motion should be filed within 20 days from service of
the counterclaim.
Q: For example, it is a reply. The reply itself is vague.
A: In case of a reply, the Motion for a Bill of Particulars must be
filed within ten (10) calendar days of the service of said reply
(Sec. 1, Rule 12, Rules of Court).
Scenario: Suppose, in the Motion for a Bill of Particulars, the
defendant, for example, would like the plaintiff to clarify, to
specify, what are those facts that constitute malice, intent,
knowledge, or condition of the mind.
Q: Is it proper to do this under a Motion for a Bill of Particulars?
A: NO
GENERAL VERSUS PARTICULAR AVERMENTS
It would likewise not be proper for a Motion for a Bill of
Particulars to call for the production of the particulars
constituting malice, intent, knowledge or condition of the mind
which, under the Rules (Sec. 5, Rule 8, Rules of Court) may be
averred generally. Basically, it is enough that you aver these
generally.
Q: Why?
A: Because you cannot really tell what goes on in the mind of the
other person. It is not required that these be particularized. It is
not a proper ground to move in a Bill of Particulars.
Q: What if the allegations in the complaint are composed merely
of conclusions of law? What is the proper remedy on the part of
the defendant?
 Is it a Motion to Dismiss? Because as what we have
discussed, as an affirmative defense in the answer, that
if the allegations do not make out a cause of action, it is
failure to cause of action, OR
 Is it a Motion for a Bill of Particulars?
APPLICABILITY: ALLEGATIONS IN THE FORM OF
CONCLUSIONS
Francisco S. Tantuico, Jr. v. Republic of the Philippines
G.R. No. 89114, Dec. 2, 1991
Where the complaint states ultimate facts that constitute the
three (3) essential elements of a cause of action, namely:
(1) The legal right of the plaintiff,
(2) The correlative obligation of the defendant, and
(3) The act or omission of the defendant in violation of
said legal right,
the complainant states a cause of action, otherwise, the
complaint must succumb to a motion to dismiss on that
ground of failure to state a cause of action. However, where
the allegations of the complaint are vague, indefinite, or
in the form of conclusions, the proper recourse would be,
not a motion to dismiss, but a Motion for a Bill of
Particulars.
Take note also that under the amended rules, you cannot make
this as a ground for a Motion to Dismiss. Failure to state a cause
of action is no longer a ground for a Motion to Dismiss. If you
want to allege that, allege that as an affirmative defense in the
answer.
In this case of Tantuico, the Court here gave us some examples of
allegations that are merely conclusions of law, inferences from
facts not alleged, or just opinions of the pleader.
Example:
(a) the allegations that defendants-appellees were
“actuated by ulterior motives, contrary to law and
morals, with abuse of their advantageous position as
employers, in gross and evident bad faith and without
giving plaintiff. . . his due, wilfully, maliciously,
unlawfully, and in summary and arbitrary manner”;
(b) an allegation of duty in terms unaccompanied by a
statement of facts showing the existence of the duty;
(c) an averment . . . that an act was “unlawful” or
“wrongful” is a mere legal conclusion or opinion of the
pleader;
(d) the allegation that there was a violation of trust was
plainly a conclusion of law;
 You should specify what are these facts where
you can say that there is a violation of trust.
Otherwise, it would be a conclusion of law.
(e) an allegation that a contract is valid or void, is a mere
conclusion of law:
 You have to lay down the facts wherein we can
see what makes that contract valid or void.
(f) the averment in the complaint that “defendant
usurped the office of Senator of the Philippines” is a
conclusion of law—not a statement of fact;
 How did he usurp? If that is your mere allegation,
then that is a mere conclusion of law.
(g) inasmuch as the particular facts on which the alleged
usurpation is predicated are not set forth therein; and
(h) the averment that “with intent of circumventing the
constitutional prohibition that no officer or employee
in the civil service shall be removed or suspended
except for cause as provided by law’, respondents
maliciously and illegally for the purpose of political
persecution and political vengeance, reverted the fund
of the salary item x x x and furthermore eliminated or
abolished the said position effective 1 July 1960" is a
mere conclusion of law.
APPLICABILITY: GENERAL ALLEGATION OF FRAUD
Santos v. Liwag
G.R. No. L-24238, Nov. 28, 1980
It was alleged in the complaint that documents subject of the
complaint should be annulled because they have been
allegedly executed by reason of deceit, machination, false
pretenses, misrepresentation, threats, and other fraudulent
means.
According to the Court, when you say deceit, machination,
false pretenses, misrepresentation, and threats, they are
largely conclusions of law, and mere allegations thereof
without a statement of the facts to which such terms have
reference are not sufficient.
The allegations must state the facts and circumstances
from which fraud, deceit, machination, false pretenses,
misrepresentation, and threats may be inferred as
conclusions.
 This is because, remember before, we discussed
allegations of facts in relation to fraud, you must
specify the particular facts which constitute the
alleged fraud, deceit, machination, or
misrepresentation.
In his complaint, the appellant merely averred that all the
documents sought to be annulled were all executed through
the use of deceits, machination, false pretenses,
misrepresentations, threats, and other fraudulent means
without the particular facts on which alleged fraud, deceit,
machination, or misrepresentations are predicated.
Hence the Supreme Court said that it was proper for the trial
court to grant the defendant’s motion for a bill of particulars,
and when the plaintiff failed to comply with the order, the
trial court correctly dismissed the complaint.
How about the Capacity to Sue? What do we recall in this
particular allegation? Even under the new Rules:
Section 4. Capacity. - Facts showing the capacity of a
party to sue or be sued or the authority of a party to
sue or be sued in a representative capacity or the legal
existence of an organized association of persons that is
made a party, must be averred.
Rosita Zafra Bantillo v. Intermediate Appellate Court
G.R. No. 75311, Oct. 18, 1988
Here, the Supreme Court held that it is not enough for you
to say that you are the authorized representative. You
should allege facts showing that, indeed, you are the
authorized representative of the plaintiff.
85
 The complainant actually failed to allege in her Complaint a
factual matter which, under the Rules, must be alleged or
pleaded. Knowledge of the identity or identities of the alleged
co-heirs and co-plaintiffs and, more importantly, of the basis
of the complaint’s claimed authority to represent the
complainant, would obviously be useful to the defendant in
the preparation of a responsive pleading.
So, if you are alleging that you are instituting the action on
behalf of the principal, you have to allege the facts from where
you derive your basis in saying that you are the authorized
representative.
For example: you should attach your special power of
attorney or, if you are representing a corporation, a
board resolution or a secretary’s certificate. You have to
allege those facts because one of the possible grounds for the
defendant to contest the complaint would be the lack of legal
capacity to sue. How can he allege that if the complaint is not
clear on the capacity to sue?
The defendant should also be given sufficient opportunity
intelligently to contest these matters and possibly to raise the
same as issues in the Answer.
The Court, hence, believes that the “Motion for Bill of
Particulars” was proper. You want the plaintiff to allege with
more particularity the facts which are the basis in saying that
the complainant is being represented by a person who is
authorized to do so.
TREATING A MOTION TO DISMISS AS A MOTION FOR BILL
For the amended Rules, the possible ground which, under the
Rules, could be a similar ground between a motion to dismiss
and a motion for a bill of particulars would be, in a motion to
dismiss, failure to state a cause of action. (AS IN??)
As we have already discussed in the Complaint, you have to lay
down the facts which constitute your cause of action. Otherwise,
the complaint would be deficient, and it would be susceptible to
dismissal on that ground. In a motion for a bill of particulars, it
would also be possible that there are certain facts which are not
alleged or averred with particularity that the defendant would
like the plaintiff to clarify and he would do that by filing a motion
for a bill of particulars.
Now, under the present Rules, a motion to dismiss could no
longer be based on the ground that the complaint failed to state a
cause of action. Rather, the failure to state a cause of action could
be interposed as an affirmative defense in your answer.
It is also possible that the case of Salvador vs. Frio could happen.
Jose Maria Salvador, et al. v. Rosendo, Frio, et al.
G.R. No. L-25352, May 29, 1970
In this case, the allegation in the motion to dismiss was that
the complaint did not state with particularity the
circumstances constituting the fraud. A motion to dismiss on
the ground that the complaint failed to state a cause of action
was raised because the fraud was not averred with
particularity.
However, the Supreme Court said:
Assuming that these allegations were not sufficiently
particular to satisfy the lower court, its proper course
was not to dismiss the complaint but to treat the motion
as one for a bill of particulars and require plaintiffs to
submit a more definite statement or bill of particulars in
accordance with Rule 12, section 1 of the Rules of Court.
I believe this ruling is still applicable under the amended
Rules.
ACTION OF THE COURT: ALLOW BILL RATHER THAN
DISMISS
Just remember the established principle under jurisprudence
that:
As long as the allegations of a complaint make out a cause of
action, the ambiguity in some allegations of the complaint or the
failure to allege facts with sufficient particularity does not
justify the filing of a motion to dismiss. The proper remedy is
to file a motion for bill of particulars.
Where the allegations of the complaint are vague, indefinite, or in
the form of conclusions, the proper recourse would be, not a
motion to dismiss, but a motion for a bill of particulars.
And this also is more applicable under the amended Rules
because, again, a motion to dismiss on the ground that the
complaint failed to state a cause of action is no longer allowed.
Section 2. Action by the court. — Upon the filing of the
motion, the clerk of court must immediately bring it to the
attention to the court, which may either deny or grant it
outright, or allow the parties the opportunity to be heard.
Just take note what is the action of the court when a motion for a
bill of particulars is filed.
Section 3. Compliance with order. — If the motion is granted,
either in whole or in part, the compliance therewith must be
effected within ten (10) calendar days from notice of the
order, unless a different period is fixed by the court. The bill
of particulars or a more definite statement ordered by the
court may be filed either in a separate or in an amended
pleading, serving a copy thereof on the adverse party.
If the motion is granted, either in whole or in part, It could be in
whole or in part because there might be some other relief that
you pray in your motion which will not be granted but some are
granted.
o the compliance therewith must be affected within
ten (10) calendar days from notice of the order, We
are referring here to the movant: within 10 days from
the time he receives the order granting the motion for
a bill of particulars. He has 10 days to comply unless a
different period is fixed by the court.
Q: How do you file a bill of particulars or a more definite
statement?
A: The bill of particulars or a more definite statement ordered by
the court may be filed either in a separate or in an amended
pleading, serving a copy thereof on the adverse party.
 Meaning, you can file a separate pleading. You just
clarify there what are those matters which, for
example, the defendant would like to be clarified on.
For example, the motion for a bill of particulars filed
by the defendant refers more to your allegations of
fraud which are not so detailed and there are other
allegations in the complaint that are already clear and
detailed. So, you just clarify what are those facts from
where we can conclude that there is really fraud, in
which case, there is no need to file an amended
complaint.
 Or, maybe you want to file an amended complaint. In
the amended complaint, you already clarify the
allegations of fraud and all those other allegations.
This is how you comply with the order of the court.
Section 4.
Effect of non-compliance. — If the order is not obeyed, or in
case of insufficient compliance therewith, the court may order
the striking out of the pleading or the portions thereof to
which the order was directed, or make such other order as it
deems just.
Q: What is the effect of non-compliance?
A: Please take note if the order is not obeyed.
For example, the court already granted the motion for a bill of
particulars. It ordered the plaintiff to clarify what are those
matters which constitute fraud, what are the factual allegations
which would make out a case of fraud. If the order is not obeyed,
or insufficiently complied, the court may order the striking out
of the pleading or the portions thereof to which the order was
directed, or make such other order as it deems just.
Q: Can the Court dismiss the plaintiff’s claim for non-compliance
under section 4?
A: General Rule: If the Court should be careful in dismissing the
case where the allegations are vague but instead allow the filing
of a motion for bill of particulars. Di ba we said na in a motion to
dismiss and a motion for bill of particulars, if there is a way from
which the court can treat a motion as a motion for bill of
particulars it will treat the motion as a motion for bill of
particulars.
Q: Are there instances where non-compliance by the plaintiff can
lead to the dismissal of his claim?
A: If you read section 4, it only provides for the striking out of the
pleading and to make such other order as it deems just.
In the case of Lirag vs Galano, the court actually said Yes, failure
to comply under section 4 can lead to dismissal
Q: On what basis? (referring to the cited case)
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A: it falls under the term “such other order as it deems just.”
Q: In the case of Bautista vs Teodoro the SC said na with
reference to rule 17 section 3, the same question of whether or
not the complaint may be dismissed? (On the ground of non-
compliance under section 4)
Ans: Rule 17 Section 3 which is similar actually to the amended
rules. (The case was based from the old rule but the case
discussed can be applied to this amended rule) Section 3-
Dismissal due to fault of plaintiff- if, for no justifiable cause, the
plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute his action for
an unreasonable length of time, or to comply with these Rules
or any order of the court, the complaint may be dismissed
upon motion of the defendant or upon the court’s own
motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action.
Take note: Dismissal due to the fault of the plaintiff, one of the
grounds is that for any justifiable cause, the plaintiff fails to
comply with any order of the court. If that order, would be to tell
the plaintiff na, you provide for a clearer version of your
complaint, comply with the motion for bill of particulars, you
provide the particulars of the complaint and if he does not
comply with that, that is a ground for dismissal.
SEC.5
Stay of period to file responsive pleading- After service of the
bill of particulars or of a more definite pleading, or after notice of
denial of his or her motion, the moving party may file his or her
responsive pleading within the period to which he or she was
entitled at the time of filing his or her motion, which shall not be
less than 5 calendar days in any event
The filing of a motion to dismiss or the filing of a motion for bill
of particulars interrupts the running of the period within
which to file an answer.
Example: If defendant file a motion on the 25th day he has still a
balance to file an answer or if he file a motion on the 26 th day.
What is the remaining period? The law says not less than 5 days
but technically 4 days na lang unta pero the rule says he has at
least 5 calendar days to file the responsive pleading.
Q: Are there instances na even if you file a motion for bill of
particulars the period within which to file an answer is not
deemed uninterrupted?
Ans: Yes,
1. as discussed in the case National Waterworks et al vs NWSA
Consolidated et al. Where the filing of the motion for bill of
particulars was done for delay and was done without entirely
merit.
Klaro na jud kayo ang complaint, ikaw na lang ang wala ka klaro
pero sa tanan klaro sya and then you file this motion. The court
will interpret it as manifestly for delay and it will not interrupt
the running of the period within which to file the answer.
2. Another example would be the case of Filipinas Fabricators
vs Magsino, here the motion for bill of particulars was not in
compliance with the rules on motion. In this case the Supreme
Court said na a motion to be given merit must be sufficient in
form and substance. It should comply with the general
requirements on motions under Section 4 and 5. (this case is
based on the previous rules)
What are these requirements?
When you file a motion it shall be accompanied by a notice for
hearing. A litigious motion shall be set for hearing. It should be
furnished to the adverse party at least 3 days before the hearing
and state in the notice of hearing the exact time and place of
hearing. The court said; The petitioner’s motion for bill of
particulars did not contain the notice of hearing and proof of
service required by the rules. This kind of motion is nothing
but a mere scrap of paper. It presents no question which merits
the attention and consideration of the court. In fact, it is not even
considered a motion. A defective motion of this kind does not
interrupt the running of the period within which to file
answer.
SEC 6. Bill a part of pleading- A bill of particulars become part of
the pleading for which it is intended
Q: How does the plaintiff comply with the order granting the
motion for bill of particulars of the defendant?
1. He could file a separate bill
2. He could file an amended pleading (if a plaintiff)
Q: What if he files separate bills?
The bill of particulars becomes part of the complaint for which it
is intended.
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND
OTHER PAPERS
So we are referring here to the papers coming from the parties
and from the Court.
Section 1.
Coverage. – This Rule shall govern the filing of all pleadings,
motions, and other court submissions, as well as their service,
except those for which a different mode of service is prescribed.
GENERAL RULE:
Service of all pleadings is governed by Rule 13.
EXCEPTION:
So, this rule governs pleadings “except those for which a different
mode of service is prescribed.” What are those cases in which a
different mode of service is prescribed, na dili mag-govern ang
Rule 13?
An example of the exception is the service of complaint which is
governed by Rule 14. Aside from that Rule 13 applies to all
pleadings except a complaint, because it’s a different mode
when the complaint is served.
Section 2.
Filing and Service, defined. — Filing is the act of submitting the
pleading or other paper to the court.
Service is the act of providing a party with a copy of the pleading
or any other court submission. If a party has appeared by
counsel, service upon such party shall be made upon his or her
counsel, unless service upon the party and the party’s counsel is
ordered by the court. Where one counsel appears for several
parties, such counsel shall only be entitled to one copy of any
paper served by the opposite side.
Where several counsels appear for one party, such party shall be
entitled to only one copy of any pleading or paper to be served
upon the lead counsel if one is designated, or upon any one of
them if there is no designation of a lead counsel.
What is important here is the definition of filing and the
definition of service. And then to whom service shall be made
when a party is represented by counsel and when not
represented by counsel.
FILING AND SERVICE
 Filing is the act of submitting the pleading or other papers to the
clerk of court (Sec. 2, Rule 13, Rules of Court).
o So when you say Filing, that is you are submitting that
to the Court.
Service is the act of providing a party with a copy of the pleading
or paper concerned (Sec. 2, Rule 13, Rules of Court).
o When you say Service, you are giving a copy of that to
the other party.
o We go to Service, as we said when it is Service
meaning we are furnishing a copy of that to the other
party.
UPON WHOM SERVICE IS MADE:
Party without counsel
 If a party has not appeared by counsel, then common reason
suggests that service must be made upon him (the party).
Party with counsel
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The rule is that when a party is represented by counsel in an
action in court, notices of all kinds, including motions, pleadings,
and orders must be served on said counsel and notice to him is
notice to the client (PEOPLE vs. GABRIEL, G.R. No. 147482,
December 6, 2006).
Actually this has been the standing rule even before the
amendment. Jurisprudence also has been consistent in saying
that the service should be made to the counsel.
Section 2, Rule 13 of the Rules of Court provides that:
If a party has appeared by counsel, service upon such party shall be
made upon his or her counsel, unless service upon the party and
the party’s counsel is ordered by the court.
Q: What if the party was actually notified even if you did not
serve the pleading to the counsel, but we cannot deny that the
party himself received a copy of the pleading?
A: Even if a party, represented by counsel, has been actually
notified, the notice to the party is not considered notice in law.
Q: Why is it that when a party is represented by counsel, the
notice should be served to the counsel and notice to the party is
not equivalent to notice?
A: There are several cases which give us the reason where the
Supreme Court explained what is the reason one of which is
BRIBONERIA vs. COURT OF APPEALS (216 SCRA 616). And then
we have this case of  FORTUNATA N. DUQUE vs. COURT OF
APPEALS, ET AL. (G.R. No. 125383, July 2, 2002)
The general rule as provided for under Section 2 of Rule 27 (now
Section 2, Rule 13) of the Rules of Court is that all notices must be
served upon counsel and not upon the party. This is so
because the attorney of a party is the agent of the party and is the
one responsible for the conduct of the case in all its procedural
aspects; hence, notice to counsel is notice to party. The
purpose of the rule is obviously to maintain a uniform procedure
calculated to place in competent hands the orderly prosecution
of a party’s case (Chainani vs. Judge Tancinco, G.R. No. L-4782,
Feb. 29, 1952; Capili v. Badelles, G.R. No. L-17786, Sept. 29,
1962). However, the general rule cannot apply where the law
expressly provides that notice must be served upon a definite
person. In such cases, service must be made directly upon the
person mentioned in the law and upon no other in order that the
notice be valid.
Ofcourse, the client does not know the Rule on reglementary
periods so if he receives something from the Court or the other
party, that client would not know what to do with the pleading,
so siguro taguan lang na niya or kalimtan sa because he does not
know about the reglementary period.
(HEIRS OF BENJAMIN MENDOZA vs. COURT OF APPEALS, G.R.
No. 170247, September 17, 2008).
It has been held that notice or service made upon a party who, is
represented by counsel is a nullity. As a rule, notice to the "client
and not to his counsel of record is not notice in law unless for
instance when the court or tribunal orders service upon the
party or when the technical defect in the manner of notice is
waived
 
(DE LOS SANTOS vs. ELIZALDE, G.R. Nos. 141810 & 141812,
February 2, 2007).
Service upon the parties' counsels of record is tantamount to
service upon the parties themselves, but service upon the parties
themselves is not considered service upon their lawyers. The
reason is simple - the parties, generally, have no formal
education or knowledge of the rules of procedure, specifically,
the mechanics of an appeal or availment of legal remedies; thus,
they may also be unaware of the rights and duties of a litigant
relative to the receipt of a decision. More importantly, it is best
for the courts to deal only with one person in the interest of
orderly procedure - either the lawyer retained by the party or the
party himself if he does not intend to hire a lawyer
Note: Remember ha, notice to the client is not notice at all if the
party is represented by counsel. But notice to counsel is notice to
the party.
IMPORTANCE OF THE RULE
 
MIGUEL SORIANO, JR., ET AL. vs. ANTERO SORIANO, ET AL.
(G.R. No. 130348, September 3, 2007)
As mentioned above, the general rule is, where a party appears
by attorney in an action or proceeding in a court of record, all
notices required to be given therein must be given to the
attorney of record; and service of the court's order upon any
person other than the counsel of record is not legally
effective and binding upon the party, nor may it start the
corresponding reglementary period for the subsequent
procedural steps that may be taken by the attorney. Notice
should be made upon the counsel of record at his exact given
address, to which notice of all kinds emanating from the court
should be sent in the absence of a proper and adequate notice to
the court of a change of address.
Said differently, when a party is represented by counsel of
record, service of orders and notices must be made upon said
attorney; and notice to the client and to any other lawyer, not the
counsel of record, is not notice in law
Meaning, if the party is represented by counsel, the notices must
be served upon the lawyer himself. So what if the notice is not
served upon the lawyer but another person, not necessarily the
client or the party, but upon another person.
Q: For example, the lawyer holds office in a compound and
instead of going directly to the office of the lawyer, the pleading
was just served with the security guard, will it be a proper
service?
A: Again it must be made to the counsel, we will discuss several
cases in relation to that.
Q: What if a party is represented by several counsels?
A: The rule says that you should give one copy to the lead
counsel or if there is no lead counsel, upon any one counsel.
You do not have the obligation to provide all of the lawyers
separate copies.
PHIL. PORTS AUTHORITY vs. SARGASSO CONSTRUCTION &
DEV’T CORP., ET AL.
G.R. No. 146478, July 30, 2004
 
With regard to their first assignment of error, petitioners are on
extremely shaky grounds when they argue that counsel on
record are entitled to separate notices of the court’s decision.
This argument is obviously inconsistent with Sec. 2, Rule 13 of
the Rules of Court which explicitly provides that if a party has
appeared by counsel, "service upon him shall be made upon his
counsel or one of them" (italics supplied). Clearly, notice to any
one of the several counsel on record is equivalent to notice
to all and such notice starts the time running for appeal
notwithstanding that the other counsel on record has not
received a copy of the decision.
Swerte lang ka kung ang counsel nakareceive kanang abtik, na he
would already file the necessary pleading, kanang uban diha,
makalimot. Malas nimo. But again notice to any one of the
counsel is notice to the party.
Q: How about if these lawyers belong to different law firms or
offices, would the rule still apply? This was answered in the case
of:
NATIONAL POWER CORPORATION vs. SPOUSES LAOHOO
G.R. No. 151973, July 23, 2009
 
The rules provide that if a party is appearing by counsel, service
upon him shall be made upon his counsel or one of them unless
service upon the party himself is ordered by the court. In Ortega
v. Pacho, this Court ruled that service to one of plaintiff’s several
counsels is sufficient. It was further held that when the rule
employs the words "his attorneys or one of them," it can only
refer to those employed regardless of whether they belong
to the same law firm or office, otherwise that meaning would
have been expressed therein. The reason for the rule
undoubtedly is that, when more than one attorney appears for a
party, notice to one would suffice upon the theory that he would
notify or relay the notice to his colleagues in the case. This is a
rational and logical interpretation, and we find no plausible
reason to rule otherwise. Accordingly, service of a copy of the
decision or orders of the court on Atty. Cinco is deemed service
upon the petitioner. The failure of Atty. Cinco to file the
necessary notice of appeal on time binds the petitioner.
RULE: The rule also provides an exception na even if a party is
represented by counsel, but notice or service must be made upon
the party himself.
EXCEPTION
 The exception to this rule is when the court directs service upon
the party himself.
88
In the case of Retoni vs CA the Supreme Court gave us 3
instances wherein even if the party is represented by counsel, the
service to the party himself is required and it is enough.
RETONI, JR. vs. COURT OF APPEALS
218 SCRA 468 [1993]
 Usually, service is ordered upon the party himself, instead of
upon his attorney,
1) when it is doubtful who the attorney for such party
is, or
2) when he(the counsel) cannot be located or
3) when the party is directed to do something
personally, as when he is ordered to show cause
Now again,
 If the party is represented by counsel, service must be
made to the counsel not to the party.
 Service to the counsel is legally service to the party.
 But if you serve the pleading upon the party, that
service is a nullity, it is not proper because the party is
represented by counsel.
One unfortunate and sad consequence of this is what if service
was made upon counsel and then the counsel through negligence
or mistake failed to act appropriately. Like he failed to file a
timely appeal, can the party claim na, I am not bound by the
negligence or recklessness of my counsel.
RULE: You know the rule that the client is bound by the acts,
even mistakes, of his counsel in the realm of procedural
technique.
EXCEPTION: But there is an exception to this rule, when the
negligence of counsel is so gross, reckless and inexcusable that
the client is deprived of his day in court. For example, you receive
summons, so you hired a lawyer immediately to represent you in
the case. But the lawyer through his gross negligence, failed to
file the necessary pleading like the answer, and you were really
deprived of your day in court, that could be a ground na the
gross recklessness and inexcusable neglect of the lawyer
would excuse the client.
But in general, failure of a party’s counsel to notify him on time
of the adverse judgment to enable him to appeal therefrom is
negligence, which is not excusable. Notice sent to counsel of
record is binding upon the client, and the neglect or failure of
counsel to inform him of an adverse judgment resulting in the
loss of his right to appeal is not a ground for setting aside a
judgment valid and regular on its face. As discussed in the case
of:
NATIONAL POWER CORPORATION vs. SPOUSES LAOHOO
(G.R. No. 151973, July 23, 2009)
 
The general rule is that a client is bound by the acts, even
mistakes, of his counsel in the realm of procedural technique. The
exception to this rule is when the negligence of counsel is so
gross, reckless and inexcusable that the client is deprived of
his day in court. The failure of a party’s counsel to notify him on
time of the adverse judgment to enable him to appeal therefrom
is negligence, which is not excusable. Notice sent to counsel of
record is binding upon the client, and the neglect or failure of
counsel to inform him of an adverse judgment resulting in the
loss of his right to appeal is not a ground for setting aside a
judgment valid and regular on its face.
 
The essence of due process is to be found in the reasonable
opportunity to be heard and submit any evidence one may have
in support of ones defense. To be heard does not mean only
verbal argument in court; one may be heard also through
pleadings. Where opportunity to be heard, either through
oral arguments or pleadings, is accorded, there is no denial
of due process (Producers Bank of the Philippines vs. CA (G.R.
No. 126620, April 17, 2002).
You have to remember that in this kind of case, it is only the right
to appeal which is being questioned here, because according to
the party his lawyer committed negligence which deprived him
of his day in court, specifically to file the appeal. But you know
when that is the case the Supreme Court also in this case of
(Producers Bank of the Philippines vs. CA (G.R. No. 126620,
April 17, 2002). [Refer above]
So for example you were already given the chance to present
you arguments in court, you filed your pleadings but it was only
the appeal which was lost because of the negligence of your
counsel, so general rule, the court says na the negligence of the
counsel binds the client.
Situation: The original counsel resigned but he did not file a
notice of withdrawal in court. (Supposedly if you're the counsel
and you have resigned, you file a notice of withdrawal and then,
that's the time when the new lawyer will enter his appearance.)
However, for example, wala nagfile ug notice of withdrawal ang
old lawyer who already resigned, it’s also possible that the new
lawyer mag-enter gihapon ug appearance. So based on the court
records, there are now two lawyers. The one who previously
entered his appearance and the new lawyer. Now because the old
lawyer did not file a notice of withdrawal, when the court gives
out notices, didto nila ginahatag sa old lawyer. Wala nila tagai ug
new lawyer.
Q: What if the original counsel resigned but he did not file a
notice of withdrawal in court? Then a new lawyer entered his
appearance. Then the court issued judgment furnishing copy only
to the old counsel. Is the notice binding upon the client?
A: Yes. The notice sent to the old lawyer is still binding because
he did not file a withdrawal. It is not up to the courts to ask the
parties whether the counsel have withdrawn. It is up to the
party to notify.
For example, wala nagnotify si old lawyer na wala niya
giwithdraw iyang entry of appearance, it is incumbent upon the
client to notify the court.
Service must be made at the exact given address.
Philippine Long Distance Telephone Co. vs. NLRC
G.R. NO. L-60050, March 26, 1984
Facts: The bailiff, instead of serving the notice of the decision at
the lawyer on the ninth floor as is clearly indicated in the notice
of decision, left the notice at the ground floor of the Prudential
Bank's main building.
Issue: Is the bailiff's service of the notice on the ground floor
considered a valid service?
Ruling: We have held time and against that notices to counsel
should properly be sent to the address of record in the
absence of due notice to the court of change of address.
Hence, practical considerations and the realities of the situation
dictate that the service made by the bailiff on March 23, 1981 at
the ground floor of the Prudential Bank's building, and not at the
address of record of Prudential Bank's counsel on record at the
9th floor of the PLDT building cannot be considered a valid
service. It was only when the Legal Services Division actually
received a copy of the decision on March 26, 1981 that a
proper and valid service may be deemed to have been made.
In modern multi-storied buildings, there may be several hundred
rooms with hundreds of different employees discharging
different functions. A receiving clerk in a given mailing section
may not know the difference between a notice to a lawyer and
the thousands of other communications received by her either by
mail or through personal or commercial messengers and may not
act accordingly. Service upon a lawyer must be effected at the
exact given address of the lawyer and not in the vicinity or at a
general receiving section for an entire multi-storied building
with many offices.
Paz Reyes Aguam vs. Court of Appeals, et. al
Notice was sent by registered mail. It was received by an
employee of the realty firm with which the counsel was sharing
an office. She was not an employee of the counsel because the
lawyer here is a solo practitioner.
Q: Is that valid?
A: The SC said no. The mail matter must be received by the
addressee or his duly authorized representative. Service of
papers which includes every written notice on a person who was
a clerk, employee or one in charge of the attorney's office, is
invalid. Here, the notice was received by an employee of a realty
firm with which counsel was sharing office. She was not an
employee of petitioner's counsel. He was a solo practitioner.
Here, the SC said, in the higher interest of justice, considering
that the delay in filing a motion for extension to file appellant's
brief was only for nine (9) days and normally, the Court of
Appeals would routinely grant such extension, and the
appellant's brief was actually filed within the period sought, the
better course of action for the Court of Appeals was to admit
appellant's brief.
89

Take note of this case of Philippine Commercial and Industrial
Bank vs. Ortiz.
Philippine Commercial and Industrial Bank vs. Ortiz
Here the lawyer had a different address. He indicated a different
address in his pleadings. But in practice, he agreed that all
services to him either by the court or by the adverse party may
be made three floors down from his address.
The Court here said that counsel is entirely at liberty to change
his address, for purposes of service, or expressly or
impliedly adopt one different from that initially entered in
the record. When he does this, he cannot afterwards complain
that the person who received the notice, pleading, motion or
paper at such new address did not promptly deliver the same to
him or bring it to his attention. This is what happened in this
case.
PCIB's attorneys’ had acquiesced to and impliedly adopted a
different address for service of notices to them. They had
accepted service at this place, three floors down from the address
originally given by them, without objection of any sort. They
cannot now disown this adopted address to relieve them from
the effects of their negligence, complacency, or inattention.
Service, therefore, on July 15, 1978 of the notice of judgment at
the Ground Floor, LRT Building, should be deemed as effective
service on PCIB's attorneys. The failure of the receiving clerk to
deliver the notice to them on the same day, and what is worse,
the lawyers omission to inquire of said receiving clerk exactly
when the notice was received, and their blithe assumption that
service was effected on July 17, 1978 since this was the day that
the notice was handed over to them, warrant imprudence and
cannot in any sense be deemed to constitute excusable
negligence as would warrant reconsideration under Section 1(a),
Rule 37 of the Rules of Court.
Section 3.
Manner of filing.- The filing of pleadings and other court
submissions shall be made by:
a. Submitting personally the original thereof, plainly
indicated as such, to the court;
b. Sending them by registered mail;
c. Sending them by accredited courier; or
d. Transmitting them by electronic mail or other
electronic means as may be authorized by the Court
in places where the court is electronically
equipped.
In the first case, the clerk of court shall endorse on the
pleading the date and hour of filing. In the second and third
cases, the date of the mailing of motions, pleadings, and other
court submissions, and payments or deposits, as shown by the
post office stamp on the envelope or the registry receipt, shall
be considered as the date of their filing, payment, or deposit
in court. The envelope shall be attached to the record of the
case. In the fourth case, the date of electronic transmission
shall be considered as the date of filing.
If you examine, under the amended rules, there are now four
manners of filing. Prior to the amendment, there are only two
modes of filing:
o personal and
o registered mail.
Q: What is important here is the date, the effective dates of filing.
Why?’
A: To know kung within the period pa ba ang imong pag-file.
Situation: For example, if you're the defendant, you have thirty
days within which you can file your answer. You file by
registered mail on the 30th day itself but it was received 7 days
after you filed it.
Q: Was it filed on time?
A: Yes. It is still on time because the date of mailing will be
considered as the date of filing.
Effective Dates of Filing
1.Personal Filing- Upon date of receipt as stamped.
So adto ka sa court, gidala nimo didto ang Answer. I-stamped na
siya sa didto sa tig-stamp ang date. So that is the date of filing.
o All pleadings before you file it, you have to serve it
first to the adverse party. The court will not receive
your pleading if makita nila didto sa "copy furnished
to" na portion na wala diay nimo gi-serve ang adverse
party. So serve first then you file with proof of service.
2.Registered mail and accredited courier- the date of the
mailing as shown by the post office stamp on the envelope
or the registry receipt.
So, sa example ganiha na you filed it on the 30th day and na-
receive siya after 7 days, it is still on time because the date of
mailing will be considered as the date of filing.
o Under the amended rules, apil na ang accredited
courier. Before wala pa nay labot. Pero under the
amended rules, apil na sila. Sa una, kung nag-LBC ka,
the date of filing is the date when the court received
your document.
3.Electronic mail or other electronic means- the date of
electronic transmission
Q: What is the rule if instead of the registered service of the Post
Office, you availed the private messengerial service or by
ordinary mail?
Industrial Timber Corp. vs. NLRC
Where a pleading is filed by ordinary mail or by private
messengerial service, it is deemed filed on the day it is actually
received by the court, not on the day it was mailed or delivered
to the messengerial service.
This case is still applicable because under the amended rules
wala pa man na apil ang ordinary mail or private messengerial
service sa kadtong mga 'manner.' Actually, ma-consider ni siya
na personal service kay didto siya ma-consider filed upon the
date na na-receive sila. It's not the date of the mailing.
How about filing by fax (facsimile), is it allowed? It is not
mentioned under section
GARVIDA VS SALES, JR.
April 18, 1997
Filing a pleading by facsimile transmission is NOT
sanctioned by the Rules of Court. It is not a genuine and
authentic pleading. It is, at its best, an exact copy preserving
all the marks of an original. Without the original, there is no
way of determining on its face whether the facsimile pleading
is genuine and authentic and was originally signed by the
party and his counsel. It may, in fact, be a sham pleading.
Take note of this case of :
CUEVAS VS. MUNOZ.
It was also a facsimile transmission of a warrant of arrest.
And the copy was the basis of the issuance of an order of
arrest that led to the respondent’s apprehension. So it was
questioned (by the respondent) because the facsimile copy
was not authenticated. According to the respondent, it was
insufficient to form a basis for an issuance of the order of
arrest citing the case of Garvida vs Sales, Jr.
The Supreme Court said here that the reliance on the case of
Garvida vs Sales, Jr. was misplaced. The prescription
against the admission of a pleading that has been transmitted
by a facsimile machine has no application in this case. Why?
1.This case does not involve a pleading. It is a warrant of
arrest.
2.Unlike the COMELEC Rules of Procedure which do not
sanction the filing of a pleading by means of facsimile
machine (also in the Rules of Court), P.D. No. 1069 and the
RP-HK Extradition Agreement do not prohibit the
transmission of a request for provisional arrest by means
of a fax machine.
Also, for the purpose of expediency, because the Supreme
Court said in the advent of modern technology, the telegraph
or cable have been conveniently replaced by the facsimile
machine. The transmission by the Hong Kong DOJ of the
request for the respondent’s provisional arrest and the
accompanying documents which were the warrant of arrest,
summary of the facts of the case, the particulars of his birth
and address, the statement of his intention to request his
provisional arrest and the reason therefor, by fax machine,
more than serve the purpose of expediency.
Section 4.
Papers required to be filed and served. — Every judgment,
resolution, order, pleading subsequent to the complaint,
written motion, notice, appearance, demand, offer of
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 judgment or similar papers shall be filed with the court, and
served upon the parties affected.
Let us go to Section 4. It mentions about papers required to be
filed and served. Take note that Section 4 talks of “filed and
served”. We already know that there is a difference between
filing and service.
FILE SERVE
you file to the court you serve upon the other
party/parties.
Actually, when it comes to the
o parties (note that all pleadings are after the
complaint) what you do is you serve first a copy of
your pleading, motion, and other paper upon the
adverse party before you file them with the court.
o Regarding the court, of course the court should first
file their own judgment, resolution, and then serve a
copy of these judgments, resolutions, notices to the
parties. That is the order.
Based on Section 4, what are the papers to be filed and served?
We have:
1. Judgments;
2. Resolutions;
3. Orders;
4. Pleadings subsequent to the complaint;
5. Written motions;
6. Notices;
7. Appearances;
8. Demands;
9. Offers of judgment; or
10. Similar papers (Sec. 4, Rule 13, Rules of Court)
ON PLEADINGS SUBSEQUENT TO THE COMPLAINT
Now again, take note of pleadings subsequent to the complaint.
All of these must be served upon the adverse party and then
filed to the court.
As to the complaint, you do not need to serve a copy of your
complaint to the adverse party. You just file the complaint in
court and then it is now the court through the process server
which will notify the defendant of the existence of a case against
him. So the court will actually issue summons and the copy of the
complaint will be attached to the summons. So the summons will
tell the defendant to serve and file his answer within 30 days,
and it will inform the defendant about the existence of the
complaint. So you do not serve a copy of your complaint to
the adverse party.
Although there are some like for example in my practice, naay
uban na “Atty., pwede tagaan pud nato’g copy si defendant sa
akong complaint?” Why? Kay gusto lang gyud niya na dili magka-
peace of mind si defendant kay dugay daw muabot ang copy sa
complaint. Dugay ma-summon. So in the meantime, gusto niya
makabalo si defendant na naa na’y kaso. That is the reason. Pero
legally, we (lawyers) are not required to serve a copy of your
complaint to the defendant.
ON JUDGMENTS
Now, regarding judgments, judgments must be filed and served.
Who files the judgment? It is the judge who will file his
judgment before the court. So this will show us that there is
really a distinction between a court and a judge. Rule 36 is
instructive here. What does it provide?
Rule 36, Section 1. Rendition of judgments and final orders.
— A judgment or final order determining the merits of the
case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law
on which it is based, signed by him, and filed with the clerk of
the court. (1a)
So filed with the clerk of court. The judge has to file his own
decision to make it official.
PLEADINGS SUBSEQUENT TO THE COMPLAINT
Note that when the plaintiff files his complaint, he does not serve
a copy to the defendant. It is the duty of the court sheriff to serve
summons to the defendant together with a copy of the complaint.
We also discussed noh na pleadings subsequent to the complaint,
these are the pleadings which need to be served upon the
adverse party and filed with the court.
Q: Note that when the plaintiff files his complaint it has not
served copy to the defendant. Why?
A: Because the courts still has no jurisdiction over the person of
the defendant.
Q: When is jurisdiction acquired?
A: The jurisdiction over the person of the defendant is acquired
by proper service of summons or by his voluntary appearance.
So, prior to that, if you are the plaintiff you don’t have to serve a
copy of complaint to the defendant. It is the duty of the court
sheriff or the process server to serve summons to the defendant
together with the copy of the complaint.
Section 5.
Modes of Service – Pleadings, motions, notices, orders,
judgments, and other court submissions shall be served
personally or by registered mail, accredited courier, electric
mail, facsimile transmission, other electronic means as may
be authorized by the Court, or as provided for in international
conventions to which the Philippines is a party. (5a)
Let us now go to Section 5. Modes of Service. We discussed before
filing, so karun service na pud. Please read Section 5.
MODES OF SERVICE
There are now six modes of service of pleadings, motions,
notices, orders, judgments and other papers.
Before there were only two modes: (a) personally (Sec. 6, Rule
13) or by (b) mail (Sec. 7, Rule 13).
Section 6.
Personal Service. — Court submissions may be served by
personal delivery of a copy to the party or to the party’s
counsel, or to their authorized representative named in the
appropriate pleading or motion, or by leaving it in his or her
office with his or her clerk, or with a person having charge
thereof. If no person is found in his or her office, or his or her
office is not known, or he or she has no office, then by leaving
the copy, between the hours of eight in the morning and six in
the evening, at the party's or counsel's residence, if known,
with a person of sufficient age and discretion residing therein.
(6a)
The first is Personal Service which is defined in Section 6. Take
note under Personal Service to whom service shall be made and
where shall service be made.
To whom:
1. Party;
2. Party’s counsel; or
3. Authorized representative named in the appropriate
pleading or motion; or
4. To the clerk; or
5. With a person having charge thereof
If no person is found in his or her office, or his or her office is not
known, or he or she has no office, then by leaving the copy at the
party's or counsel's residence, if known, with a person of
sufficient age and discretion residing therein.
Q: For example nagkita mo sa koret, can you also give a copy of
the pleading or motion to the adverse party or to the counsel?
A: There is no prohibition. You can also serve there as long as he
is the proper person. Again if the party is represented by counsel,
service must be made to the counsel.
PERSONAL SERVICE
Under the previous rule, personal service under Sec. 6 of Rule 13
is the preferred mode of service (Sec. 11, Rule 13, Rules of Court,
UY vs MEDINA, 342 SCRA 393). If another mode of service is used
other than personal service, the service must be accompanied by
a written explanation why the service of filing was not done
personally. It was provided under the previous rule that:
Section 11. Priorities in modes of service and filing.
— Whenever practicable, the service and filing of
pleadings and other papers shall be done
personally. Except with respect to papers
emanating from the court, a resort to other modes
must be accompanied by a written explanation
why the service or filing was not done personally.
A violation of this Rule may be cause to consider
the paper as not filed. (n)
Note: The afore-cited rule is no longer found under the
amended rules.
Take not that under the previous rule personal service under Sec.
6 of Rule 13 is the preferred mode of service. If another mode of
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service is used like registered mail, the service must be
accompanied by a written explanation why the service of filing
was not done personally. There has to be an additional phrase in
your pleading for explanation that due to time and distance
constrains service of this motion upon the adverse party or upon
Atty. ABC were made under registered mail. That is also provided
in Section 11 although this is no longer found in the amended
rules saying that as much as possible you have to serve the
pleading or other paper personally and there must be a written
explanation why the service was not done and a violation of this
rule may consider the paper not filed. Take note this rule is no
longer found in the amended rule.
Q: What is the consequence?
A: I believe there is no longer need to explain why you resort to
registered mail. You don’t have to explain why you resorted to
registered mail because there is no longer that requirement in
the amended rules.
There are now six modes of service of pleadings, motions,
notices, orders, judgments and other papers under section 5.
1. Personal
2. Registered mail
3. Accredited courier
4. Electronic mail
5. Facsimile transmission
6. Other electronic means as may be authorized by the court,
or as provided for in international conventions to which
the Philippines is a party.
Take note that we are talking here of service not filing. We
discussed before manner of filing under Section 3, there are 4.
Take note also that when it comes to service, facsimile
transmission is allowed as a mode of service, but it is not
allowed as a mode of filing under Section 3.
Before the amendment, there were also 2 modes of service.
1. Personal
2. Mail
That would be Section 6 of Rule 13 and Section 7 of Rule 13.
Section 7.
Service by Mail – Service by registers mail shall be made by
depositing the copy in the post office, in a sealed envelope,
plainly addressed to the party or to the party’s counsel at his
or her office, if known, otherwise at his or her residence, if
known, with postage fully pre-paid, and with instructions to
the postmaster to return the mail to the sender after 10
calendar days if undelivered. If no registry service is available
in the locality of either the sender or the addressee, service
may be done by ordinary mail. (7a)
This both applies to registered mail and service by accredited
courier. Take note of the manner by which the service must be
done.
You know how to mail, diba, registered mail. Take note also, that
there is a requirement na, there should be an instruction to the
postmaster to return the mail to the sender after 10 calendar
days if undelivered. Meaning, dapat naay return card because it is
in return card wherein you make that instruction. If no registry
service is available, either in locality of the sender or addressee,
service may be done by ordinary mail.
But again, if it is by ordinary mail, the date of filing is the date
when the pleading, paper or other motion, is actually received
by the adverse party.
Section 8.
Substituted service. – if service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of
residence of the party or his or her counsel being unknown,
service may be made by delivering the copy to the clerk of
court with proof of failure of both personal service and
service by mail. The service is complete at the time of such
delivery. (8a)
Q: What is substituted service?
A: it is under Section 8. Take note that, this is only resorted to if
personal service or service by mail cannot be done under the
reasons given.
Q: Why?
A: Because the office and place of residence of the party or his or
her counsel is unknown. So, you don’t know asa i’serve, whether
personally or by mail.
Q: How do make the substituted service?
A: the rule says, you deliver a copy to the clerk of court. Didto na
ka diretso sa court.
But you have to prove why you failed to effect personal service
and service my mail. So, the service is complete at the time of
such delivery to the clerk of court.
Section 9.
Service by electronic means and facsimile. – Service by
electronic means and facsimile shall be made if the party
concerned consents to such modes of service.
Service by electronic means shall be made by sending an e-
mail to the party’s or counsel’s electronic mail address, or
through other electronic means of transmission as the parties
may agree on, or upon direction of the court.
Service by facsimile shall be made by sending a facsimile copy
to the party’s or counsel’s given facsimile number. (n)
Section 9 talks about service by electronic means and facsimile.
Pwede lang na siya if the party concerned consents to such
mode of service. So, dili pwede na ikaw mag buot-buot, na okay
i’email na lang nako, i’fax. There has to be consent by the other
party.
Q: How do you effect service by electronic means?
A: By sending an email to the party or counsel’s electronic mail
address.
Again, take note of the rule that if a party is represented by
counsel, service shall be made to the counsel. Service to the party
who is represented by a counsel is a nullity, it will not bind the
party. So, this is how you effect service.
Or through other electronic means of transmission as the parties
may agree on, or upon direction of the court.
Q: Unsa pa man ang other possible ways?
A: Email, pwede pud siguro, viber, messenger, as long as the
other party consents to such mode of service.
Q: How about by fax?
A: The rule says, it shall be made by sending a facsimile copy to
the party’s or counsel’s given facsimile number. So, kung unsa
iyang number, didto nimo i’send.
Section 10.
Presumptive service. – There shall be presumptive notice to
a party of a court setting if such notice appears on the records
to have been mailed at least twenty (20) calendar days prior
to the scheduled date of hearing and if the addressee is from
within the same judicial region of the court where the case is
pending, or at least thirty (30) calendar days if the addressee
is from outside the judicial region. (n)
This is a new rule, which says na, There shall be presumptive
notice to a party of a court setting if such notice appears on the
records to have been mailed at least twenty (20) calendar days
prior to the scheduled date of hearing and if the addressee is
from within the same judicial region.
For example, kita, we are within the eleventh judicial region. So,
within Davao city, Digos, I think Tagum also. So, same judicial
region: 20 days gikan sa, for example naay notice ang court based
didto sa ilang record.
Let us say, January 4 siya g’mail. 20 days from that, 24. Ang
hearing ninyo for example is January 25, so makita didto na 20
days na. so, presumed na nadawat and wala ka ni appear. Or if
the addressee is from outside of judicial region. For example,
Davao, unya sa Gensan different judicial region, so 30 calendar
days.
Q: What kind of presumption is this?
I personally experienced this, Digos lang gani to na court and
then nakadawat ko ug notice of hearing “on the day” na siya. So,
when mi nag open ug office, 8 am. Then ang time sa hearing is
8:30. Nadawat sa secretary sa akong office ang notice na naay
“today,” 8 am. Unsaon man? Dili ko pwede mulupad from Davao
to Digos para maka arrive on time. Then, worse pa ana is ma
receive nako ang notice the next day na or pila pa ka days after.
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So, this presumption is actually disputable, kay dili man pud na
sala sa lawyer kung ang post office dugay kaayo gpa’dala sa
lawyer ang notice. Although, for example, hearing noh pretrial. So
ang defendant wala didto, ang presumptive notice na nag apply
kay 20 days after na pagka mail nahitabo ang hearing, so wala
naa appear si defendant.
Q: Unsa ang rule ana?
A: It is possible na the defendant would be deprived the right to
present evidence, si plaintiff karun can present evidence ex parte.
But defendant can actually file motion for reconsideration,
explaining na wala siya naka receive ug notice na there is a
pretrial on this particular date. So, that’s just a disputable or
rebuttable presumption.
Section 11.
Change of electronic mail address or facsimile number. – A
party who changes his or her electronic mail or facsimile
number while the action is pending must promptly file, within
five (5) calendar days from such change, a notice of change of
e-mail address or facsimile number with the court and serve
the notice on all other parties.
Service through the electronic mail address or facsimile
number of a party shall be presumed valid unless such party
notifies the court of any change, as aforementioned. (n)
For example, the lawyer changes his email address or facsimile
number, that would be governed by Section 11. Actually, for
example you change your office address – you are required under
the rules to notify the court (notice of change of address). Kay
kung wala ka nag notify sa court about your change of address,
and then nagpa dayon ang court ug padala ug notices to you in
that particular address, and then naay nag receive didto. So, you
cannot fault the court for sending those notices. You cannot
also use that as an excuse for not filing the proper pleading
within the reglementary period.
Kana siya, dili man pud mag change every day or every month
ang office, but kaning email dali lang man gud siya i’change. This
is the rule, you should notify the court of the change of your
electronic mail address or facsimile number within 5 calendar
days from such change.
Q: How do you do that?
A: File a notice, “notice of change of electronic mail address.”
i’butang didto sa paper imong new email address. You serve that
to the party and then you file that to the court.
Service through the electronic mail address or facsimile number
of a party shall be presumed valid unless such party notifies the
court of any change, as aforementioned… I already explained
that.
Section 12.
Electronic mail and facsimile subject and title of pleadings
and other documents. – The subject of the electronic mail
and facsimile must follow the prescribed format: case
number, case title and the pleading, order or document title.
The title of each electronically-filed or served pleading or
other document, and each submission served by facsimile
shall contain sufficient information to enable the court to
ascertain from the title: (a) the party or parties filing or
serving the paper, (b) nature of the paper, (c) the party or
parties against whom relief, if any, is sought, and (d) the
nature of the relief sought. (n)
Q: For example, mag file ka by way of electronic mail or facsimile.
How do you do that?
A: You should know unsa iyang email address. Then, didto sa
iyang subject naay format under this section. You should
indicate:
1. Case number
2. Case title
3. What kind of pleading (i.e. Answer), order or
document title
Then, didto sa body niya, you would also indicate kung unsa to na
mga pleadings na imong gpang serve, the title of each pleading or
submission. So, this is how you file by electronic mail.
This is an example on how you file by means of electronic mail
under Section 12: Sa “To:” the addressee. Then sa “Subject” the
contents of your email. (PIKAS COLUMN)
Section 13.
Service of Judgments, Final Orders or Resolutions. —
Judgments, final orders, or resolutions shall be served either
personally or by registered mail. Upon ex parte motion of any
party in the case, a copy of the judgment, final order, or
resolution may be delivered by accredited courier at the
expense of such party. When a party summoned by
publication has failed to appear in the action, judgments, final
orders or resolutions against him or her shall be served upon
him or her also by means of publication at the expense of the
prevailing party. (9a)
Now in Sec. 13, we are referring here to judgments, orders, or
resolutions. Those which dispose of the case already.
Q: So how are they served?
A: So example the court wanted to serve them, there are only two
modes. Either by 1. personal service, or
2. by registered mail.
Q: Now, how about accredited courier? Pwede ba? Now the rule
says ex parte motion by any party. Now what do you mean by
that?
A: You submit a motion, and you don’t need to serve a copy to the
other party. Just file it to the court. Captioned lang “ex parte
motion to send by accredited courier or service”.
Q: Who shoulders the expense?
A: The expense of the party, who made the motion or request.
Q: Now what if the defendant was summoned by publication in
the case. There was already a judgment on the case? How shall
the judgment be served?
A: The rule says “The judgment, final orders or resolutions
against him or her shall be served upon him or her also by means
of publication at the expense of the prevailing party”. Because
you cannot expect the other party to be served personally with
the judgment. Mao gani served by publication sa summons diba?
So by publication gihapon ang service of the judgment, final
order, or resolution against him or her at the expense of the
party who won the case.
Section 14.
Conventional service or filing of orders, pleadings and
other documents. – Notwithstanding the foregoing, the
following orders, pleadings, and other documents must be
served or filed personally or by registered mail when allowed,
and shall not be served or filed electronically, unless express
permission is granted by the Court:
(a) Initiatory pleadings and initial responsive
pleadings, such as an answer;
(b) Subpoenae, protection orders, and writs;
(c) Appendices and exhibits to motions, or other
documents that are not readily amenable to
electronic scanning may, at the option of the party
filing such, be filed and served conventionally; and
(d) Sealed and confidential documents or records. (n)
Section 14. Now we mentioned before the service of motions,
pleadings, and other documents, but there are certain order
pleadings and documents which can only be served or filed
personally or when allowed and dili pwede ang email, unless
there is permission before the court. So you first file a motion
for filing or service order or documents.
So what are these?
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a) initatory pleadings and initial responsive pleadings, such as an
answer;
o What are initiatory pleadings? Complaint, and
counterclaim. Actually, under the Rules, ang only
responsive pleadings kay reply. However, when it is
an answer, it must be served personally.
b) subpoenae, protection orders, and writs;
c) Appendices and exhibits to motions, or other documents that are
not readily amenable to electronic scanning may, at the option of
the party filing such, be filed and served conventionally; and
o Kapoy bya mag scan. Minsan it’s better to serve it
personally, at the option of the party filing, and serve
it conventionally.
d) Sealed and confidential documents or records.
So dapat by personal service (cris: or registered mail?), or when
allowed, email. So this is a new rule. Before kay sa prior rule kay
ang mode of service kay priority jud na personal service. And if
you cannot do it by personal service, dapat by registered mail,
pero with explanation why mail was resorted to.
Section 15.
Completeness of service. — Personal service is complete
upon actual delivery. Service by ordinary mail is complete
upon the expiration of ten (10) calendar days after mailing,
unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after
five (5) calendar days from the date he or she received the
first notice of the postmaster, whichever date is earlier.
Service by accredited courier is complete upon actual receipt
by the addressee, or after at least two (2) attempts to deliver
by the courier service, or upon the expiration of five (5)
calendar days after the first attempt to deliver, whichever is
earlier.
Electronic service is complete at the time of the electronic
transmission of the document, or when available, at the time
that the electronic notification of service of the document is
sent. Electronic service is not effective or complete if the
party serving the document learns that it did not reach the
addressee or person to be served.
Service by facsimile transmission is complete upon receipt by
the other party, as indicated in the facsimile transmission
printout. (10a)
When is their complete service? It depends on the mode of
service employed.
1. When it comes to personal service,
o the Rule it is upon delivery.
2. When it is by ordinary mail it is
o upon expiration of 10 calendar days after filing, unless
court orders otherwise.
3. Registered mail
o upon actual receipt by the addressee, or after five (5)
calendar days from the date he or she received the
first notice of the postmaster, whichever date is
earlier.
4. How about service by accredited courier?
o It is complete upon actual receipt by the addressee, or
after at least two (2) attempts to deliver by the
courier service, or upon the expiration of five (5)
calendar days after the first attempt to deliver,
whichever is earlier.
5. How about electronic service?
o It is complete at the time of the electronic
transmission of the document, or when available, at
the time that the electronic notification of service of
the document is sent. Electronic service is not
effective or complete if the party serving the
document learns that it did not reach the addressee or
person to be served. Diba naa man usahay na it will
notify if nasend na ba. Naa gani uban it will register if
nabasa na ba sa pikas.
Q: Now what taga bukid ang defendant. What if wala internet
connection, or worse walay kuryente sa ila?
A: The rule says “Electronic service is not effective or complete if
the party serving the document learns that it did not reach the
addressee or person to be served.
6. How about service by facsimile transmission?
o It is complete upon receipt by the other party, as
indicated in the facsimile transmission printout.
Now please do not confuse this with the effective date of filing.
For example, again deadline nimo is 30 days. You served by
registered mail on the 28 th day. And the rule says it is served
upon receipt or after five (5) calendar days from the date he or
she received the first notice of the postmaster, whichever date is
earlier. 28th pa man nimo giserve, then 2 days na lang gani expire
na ka. So when is the service? It is different from the date you
mailed it.
JOHNSON AND JOHNSON PHILS. Vs. CA
201 SCRA 768 [1991]
FACTS: The Court of Appeals sent Johnson and Johnson
Philippines a decision in an envelope by registered mail. After
a while, the same envelope was returned to the CA. On the
face of the envelope, it was written, “Return to Sender,
Unclaimed.”. On the back of the envelope, there is annotation
“Return to CA”. With that, the CA applied the rule on
constructive service- considered the decision as already
served. Johnson and Johnson Philippines questioned it. It
never received any notice from the post office. But according
to the CA, it is very obvious. It is there in the envelope still
sealed.
ISSUE: Is there a proper application of the rules on
constructive service?
HELD: There is NO. constructive service because there is no
certification by the postmaster that is claimed. This is
what the law requires not just a one sentence statement. One
cannot even ascertain who wrote the statement. Certification
should include the details of every and not just state the
notice was issued. A certification from the postmaster would
be the best evidence to prove that the notice has been validly
sent. The mailman may also testify that the notice was
actually delivered. The postmaster should certify not only
that the notice was issued or sent but also as to how, when
and to whom the delivery thereof was made.
There is nothing in the records of the present case showing
how, when and to whom the delivery of the registry notices of
the subject registered mail of petitioner was made and
whether said notices were received by the petitioner. The
envelope containing the unclaimed mail merely bore the
notation "RETURN TO SENDER: UNCLAIMED" on the face
thereof and "Return to: Court of Appeals" at the back. The
respondent court should not have relied on these notations to
support the presumption of constructive service.
In this case of Johnson vs Court of Appeals. They sent here a
decision to Johnson by registered mail. The envelope was
returned to the CA and it was unopened. Written on the envelope
were the words “RETURN TO SENDER, UNCLAIMED”. So with
that, the CA applied the rule on constructive notice. It is
considered served. Meaning, the reglementary period of the
party served, dira na mag start ang reglementary period on
when it was served. So Johnson and Johnson questioned.
According to them, they never received. But CA says “klaro kaayo
diri oh, nakasulat. And the envelope was sealed.
So is there application on constructive notice? NO, because there
was no certification by the postmaster that it was claimed.
This is what the law requires not just a sentence statement. One
cannot even ascertain who wrote the statement. Certification
should include the details of delivery and not just state that
notice was issued.
A certification from the postmaster would be the best evidence
to prove that the notice has been validly sent. The mailman
may also testify that the notice was actually delivered. The
postmaster should certifiy not only that the notice was issued or
sent but also as to how, when and to whom the delivery thereof
was made. There is nothing in the records of the present case
showing how, when and to whom the delivery of the registry
notices of the subject registered mail of petitioner was made and
whether said notices were received by the Johnson. So it is not
enough na naka-stamp “RETURN TO SENDER, UNCLAIMED”.
SANTOS vs CA
293 SCRA 147, September 3, 1998
FACTS: Jesus Santos was sued for damages on by Omar
Yapchiongco before the CFI. CFI dismissed the complaint for
lack of merit. CA reversed and declared Santos liable for
damages. On June 15 1995, the decision of the CA was sent by
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 registered mail to Santos' counsel, Atty. Magno. On the same
day, the corresponding notice of registered mail was sent to
him. The mail remained unclaimed and consequently
returned to the sender. After 3 notices, the decision was
returned to the sender for the same reason.
On September 25, 1995, a notice of change of name and
address of law firm was sent by Atty. Magno to CA. On 28
March 1996, the same decision of CA was sent anew by
registered mail to Att. Magno at his present address which he
finally received on 3 April 1996. On 17 April 1996, Magno
withdrew his appearance as counsel for Santos.
On 18 April 1996, Santos' new counsel, Atty. Lemuel Santos,
entered his appearance and moved for reconsideration of
CA's decision of 6 June 1995. Yapchiongco opposed the
motion on the ground that period for its filing has already
expired.
HELD: The rule on service by registered mail contemplates
two (2) situations: first, actual service the completeness of
which is determined upon receipt by the addressee of the
registered mail and, second, constructive service the
completeness of which is determined upon the expiration of
five (5) days from the date of first notice of the postmaster
without the addressee having claimed the registered mail.
For completeness of constructive service there must be
conclusive proof that petitioner's former counsel or
somebody acting on his behalf was duly notified or had
actually received the notice, referring to the postmaster's
certification to that effect.
Consequently, it cannot be too much to expect that when the
post office makes a certification regarding delivery of
registered mail, such certification should include the data not
only as to whether or not the corresponding notices were
issued or sent but also as to how, when and to whom the
delivery thereof was made. Accordingly, the certification in
the case at bar that the first and second notices addressed to
Atty. Magno had been "issued" can hardly suffice the
requirements of equity and justice. It was incumbent upon the
post office to further certify that said notices were reportedly
received.
When do we consider the decision being served to Santos? If we
are to count from April 3 1996, the date when Atty Magno
already received the order of the CA, that would still be timely
because the 15 days would be on April 18, 1996. But if we
consider the other notices sent to Atty. Magno, diba 1995 pa jud
to? Would it be considered served? If we count from that course
nagplapse na ang period to file a motion for reconsideration.
So in this case, the court ruled that the motion was still timely
filed.
The rule on service by registered mail contemplates 2
situations:
(1) Actual service - the completeness of which is determined
upon receipt by the addressee of the registered mail, or,
(2) Constructive service , kanang maski wala natatakan, the
completeness of which is determined upon the expiration of 5
days from the date of first notice of the postmaster without the
addressee having claimed the registered mail.
In this case, there was no service on the former services to Atty.
Magno. Kaya gani, gipang-uli sila. Can we apply there the rules on
service? But the SC ruled there must be proof that Atty. Magno
was duly notified or had actually received the notice of the
postmaster or the decision. Meaning, maski wala nila nareceive
tong copy sa decision, but they were notified by the post
office “naay mail diri, kuhaa ninyo”. And it’s not too much to
expect that the post office will make a certification regarding
delivery of mail,
For completeness of constructive service, there must be
conclusive proof that Santos’ former counsel or somebody
acting on his behalf was duly notified or had actually
received the notice, referring to the postmaster's certification
to that effect.
Consequently, it cannot be too much to expect that when the post
office makes a certification regarding delivery of registered mail,
such certification should include the data not only as to whether
or not the corresponding notices were issued or sent but also as
to how, when and to whom the delivery thereof was made.
Accordingly, the certification in the case at bar that the first and
second notices addressed to Atty. Magno had been "issued" can
hardly suffice the requirements of equity and justice. It was
incumbent upon the post office to further certify that said notices
were reportedly received.
Section 16.
Proof of filing. — The filing of a pleading or any other court
submission shall be proved by its existence in the record of
the case.
(a) If the pleading or any other court submission is not in the
record, but is claimed to have been filed personally, the
filing shall be proven by the written or stamped
acknowledgment of its filing by the clerk of court on a
copy of the pleading or court submission;
(b) If the pleading or any other court submission was filed by
registered mail, the filing shall be proven by the registry
receipt and by the affidavit of the person who mailed it,
containing a full statement of the date and place of
deposit of the mail in the post office in a sealed envelope
addressed to the court, with postage fully prepaid, and
with instructions to the postmaster to return the mail to
the sender after ten (10) calendar days if not delivered.
(c) If the pleading or any other court submission was filed
through an accredited courier service, the filing shall be
proven by an affidavit of service of the person who
brought the pleading or other document to the service
provider, together with the courier’s official receipt and
document tracking number.
(d) If the pleading or any other court submission was filed by
electronic mail, the same shall be proven by an affidavit
of electronic filing of the filing party accompanied by a
paper copy of the pleading or other document
transmitted or a written or stamped acknowledgment of
its filing by the clerk of court. If the paper copy sent by
electronic mail was filed by registered mail, paragraph
(b) of this Section applies.
(e) If the pleading or any other court submission was filed
through other authorized electronic means, the same
shall be proven by an affidavit of electronic filing of the
filing party accompanied by a copy of the electronic
acknowledgment of its filing by the court. (12a)
The filing of a pleading or any other court submission shall be
proved by its existence in the record of the case.
a) if the pleading or any other court submission is not …
o when you file it, you need two copies to be submitted
to the court. Actually 4, if naa kay kalaban. One copy
for your opponent, and two for court, one for you.
When you file to the court you will show the three
copies, because one has already been given to the
opposing party. The court will stamp the date and
hour received on its copy. One copy will be taken by
the court as its copy and one will be for your own file.
o So for example, nawala ang copy sa court. Bring your
own copy, which has the stamp that it was received.
So that’s how you prove.
Usually after you file by electronic submission, diba mureply ang
pikas ug acknowledgment receipt of your pleading.
Section 17.
Proof of service. –— Proof of personal service shall consist of
a written admission of the party served, or the official return
of the server, or the affidavit of the party serving, containing a
statement of the date, place, and manner of service.
If the service is made by:
(a) Ordinary mail. – Proof shall consist of an affidavit of the
person mailing stating the facts showing compliance with
Section 7 of this Rule.
(b) Registered mail. – Proof shall be made by the affidavit
mentioned above and the registry receipt issued by the
mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu
thereof, the unclaimed letter together with the certified
or sworn copy of the notice given by the postmaster to
the addressee.
(c) Accredited courier service. – Proof shall be made by an
affidavit of service executed by the person who brought
the pleading or paper to the service provider, together
with the courier’s official receipt or document tracking
number.
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 (d) Electronic mail, facsimile, or other authorized electronic
means of transmission. – Proof shall be made by an
affidavit of service executed by the person who sent the
e-mail, facsimile, or other electronic transmission,
together with a printed proof of transmittal. (13a)
So just read section 17,now it will also depend on the kind of
service ang proof but usually, in all these cases, there’s an
affidavit of service. If you notice the affidavit that I’ve shown to
you before, it’s entitled “Affidavit of Service” but actually it’s also
a compliance of Section 16 because it explains how you serve and
how you filed so murag in-ana ang ginabuhat nga affidavit. It’s
not only of service but the fact that you filed so that’s the format
that we used.
So if it’s an ordinary mail
o affidavit of the person mailing.
Registered mail
o affidavit of the person mailing and then you will also
indicate the registry receipt.
And then if it is an accredited courier service,
o the same affidavit of service together with the official
receipt and tracking number.
If it is by e-mail, facsimile or other authorized electronic means,
o affidavit of service gihapon together with a printed
proof of transmittal.
Section 18.
Court-issued orders and other documents. — The court may
electronically serve orders and other documents to all the
parties in the case which shall have the same effect and
validity as provided herein. A paper copy of the order or
other document electronically served shall be retained and
attached to the record of the case. (n)
The court can also serve electronically orders and other
documents. And then it shall have the same effect and validity as
the other modes of service.
Section 19.
Notice of lis pendens. –— In an action affecting the title or the
right of possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his or her
answer, may record in the office of the registry of deeds of the
province in which the property is situated a notice of the
pendency of the action. Said notice shall contain the names of
the parties and the object of the action or defense, and a
description of the property in that province affected thereby.
Only from the time of filing such notice for record shall a
purchaser, or encumbrancer of the property affected thereby,
be deemed to have constructive notice of the pendency of the
action, and only of its pendency against the parties designated
by their real names.
The notice of lis pendens hereinabove mentioned may be
cancelled only upon order of the court, after proper showing
that the notice is for the purpose of molesting the adverse
party, or that it is not necessary to protect the rights of the
party who caused it to be recorded. (14a)
Actually, ang amended Rules more or less the same lang gihapon
ni siya sa prior rule. Ang nadugang ra diri tong his or her answer
and other. Please read Section 19.
WHAT IS A NOTICE OF LIS PENDENS?
NOTICE OF LIS PENDENS means notice of pending action or
litigation. A notice of lis pendens is simply a notice that a suit has
been filed which has an interest in the land on which the notice
has been filed.
This is part of the Property Registration Law. The essence of
notice of lis pendens is a notice against the whole world
against the sale or mortgage of the property under litigation.
And whoever deals with it is accepting the risk. Anybody who
buys it is gambling at the outcome of the case. He cannot claim he
is the mortgagee or the buyer in good faith because there is a
notice.
What is a notice of lis pendens?
o Well it simply means that it is a notice of pending
action or litigation. Lis pendens, pending action or
litigation.
Q: Now if you remember your land registration, what is the
essence of a notice of lis pendens?
A: Di ba you have here the mirror doctrine in land registration na
anyone who deals with registered land is only charged with
notice of those encumbrances or liens which appear on the title.
So, kung wala naka annotate diha na nay mortgage for example,
anyone who deals with that is not bound by the fact nan aka
mortgage diay ang land. So, for example, you’re the buyer of the
land no and then you go to the Register of Deeds and checked
kung naa bay encumbrances, liens na naka attached or naka
annotate. Pag tan aw nimo didto wala man but in fact naa diay
kaso ni nga case so later on you bought the land no. And then
later on nahibal an nimo na napildi diay tong tag iya, katong
seller and now the seller is charged or ordered by the court to
deliver the land to the plaintiff. Unya ikaw nan aka bought sa
land, you did not know about the case.
Q: So bound ba ka sa decision of the court? Do you have to
deliver the land to the plaintiff to return the land?
A: No, because you are an innocent purchaser for value. You’re
not aware that there is any problem relating to the land. Ok
again, pagtan aw nimo sa titulo wala may nakabutang, walay lis
pendens.
Q: Ok so what if nay notice of lis pendens, what is the
consequence of that.
A: So the essence of the notice of lis pendens is a notice to the
whole world against sale or mortgage of the property under
litigation. So meaning if there’s a notice of lis pendens and your
still proceeded to buy the land, that is a warning to you na in case
the plaintiff in the particular case wins, then you’re bound by the
decision of the court. You are accepting the risk involved.
Anybody who buys the land is gambling on the outcome of the
case. You cannot claim that you’re a mortgagee or buyer in good
faith because of a notice of lis pendens.
LIS PENDENS BY BOTH PLAINTIFF AND DEFENDANT
As a general rule , the one who registers a notice of lis pendens
is the plaintiff.
Q: Under Section 14, can the defendant may register a notice of
lis pendens?
A; YES. The law states that “ The plaintiff and the defendant may
register when the affirmative relief is claimed in this answer.”. In
such case, a defendant may register and normally it is done when
there is counterclaim.
PLAINTIFF
Now who can register a notice of lis pendens, usually it is the
plaintiff. For example, the plaintiff files a case against the
defendant for recovery of possession or maybe an action
reinvidicatoria, recovery of ownership. So, in that case, usually si
plaintiff mag pa annotate na sya og notice of lis pendens.
Q: Why?
A: Kay malay mo during the pendency of the case si defendant
kay naa man sa iyang name ang title over the land, he can always
sell that to a third party. So kung walay notice of lis pendens,
again as we said, any third party who deals with that land and
who is not aware of any pending litigation because there’s no
notice of lis pendens can be considered as an innocent purchaser
for value. So kung walay notice of lis pendens og gibaligya na niya
and then na ikaw plaintiff nakadaug og kaso but then later on it is
discovered na nabaligya na, you cannot recover the land
anymore from the innocent purchaser for value. Although you
can recover for damages ok against the defendant. So usually
plaintiff annotates a notice of lis pendens.
DEFENDANT
How about the defendant? Well in that kind of case I mentioned it
would be foolish for the defendant to annotate a notice of lis
pendens kay ngano man kay naa na diay sa iyaha ang pangalan sa
titulo butangan pa jud niya og notice of lis pendens kung ibaligya
niya katong gibaligyaan niya magback out kay naa man diay ni
kaso ngano paliton man nako ni. So ordinarily, if you’re the
defendant, you would not register a notice of lis pendens.
But there are certain cases when a defendant can also and should
also register a notice of lis pendens.
o That would be when the defendant has a
counterclaim.
Like for example the case is for annulment of mortgage filed by
the plaintiff against the defendant. Now the defendant filed his
answer with counterclaim. Now what is the counterclaim of the
defendant, counterclaim for reformation and delivery of
possession.
Q: Why?
A: Kay according to the defendant, the contract was not really
even a mortgage. There was a contract, it was a sale with pacto
de retro and then the plaintiff failed to redeem within a period
agreed upon in the pacto de retro so ownership is now and
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should now be consolidated to the part of the defendant. And
diba pag mortgage, usually, number one dili man jud required na
the mortgagor has to deliver the land to the mortgagee, so in that
case, the defendant in his counterclaim also claims for the
delivery of possession from the plaintiff to the defendant and
another possible remedy of the defendant is to register a notice
of lis pendens.
Q: Why would the defendant do it?
A: Because if ang stance sa defendant is siya na diay ang tag iya
ato na property because it was a pacto de retro sale. So the
defendant would want to be protected kay iyaha na gud tong
property. Because even if it was the contention of the plaintiff na
na mortgage lang niya and then mortgage is null and void, that is
why he is claiming to annul the mortgage. But you know, even if
you mortgage your property assuming na gi mortgage jud nimo,
you can still sell that property.
Do you remember the concept of pactum denan alienando, did
you discuss that, did you learn that in your obligations and
contract? It means na, that is actuall a void or a prohibited
stipulation na you are in the contract of mortgage. The mortgagor
is prohibited from alienating or disposing of the property
mortgaged. That is void because even if you mortgaged, you do
not lose ownership over the property. You still retain ownership
over the property. So going back to our discussion, if you’re the
defendant it is to your interest to register a notice of lis pendens
because if the plaintiff wants to sell the property, because again it
is still in his name. Anyone who deals with that property would
know na it is a subject of of a pending litigation. So that is an
example when a defendant registers a notice of lis pendens.
HOW IS NOTICE OF LIS PENDENS CANCELLED?
As as GENERAL RULE:
The notice of lis pendens under the rules cannot be removed
without the order from the court and generally the court cannot
issue the order until the case is finished or until the final issue of
the case is determined.
BY WAY OF EXCEPTION,
A trial court has the inherent power to cancel a notice of lis
pendens, under the express provisions of the law. As provided for
by Sec. 19, Rule 13 of the 1997 Rules of Civil Procedure, a notice
of lis pendens may be cancelled on two grounds:
1. If the annotation is for the purpose of molesting the title of
the adverse party; or
2. When the annotation is not necessary to protect the title of
the party who caused it to be recorded ( ST. MARY OF THE
WOODS SCHOOL, INC. and MARCIAL P. SORIANO vs.
OFFICE OF THE REGISTRY OF DEEDS OF MAKATI CITY GR.
174290.)
So the notice of lis pendens under the rules cannot be removed
without the order from the court and generally the court cannot
issue the order until the case is finished or until the final issue of
the case is determined. So usually ana you will required,okay for
example you want to cancel a notice of lis pendens annotated in
the ROD, the ROD will require you to present a Certificate of
Finality, to certify that the judgement is final and executory.
Now, by way of exception, even if the case is still ongoing or not
yet finally decided, the trial court had inherent power to cancel
the notice of lis pendens. As provided in the Section 19 of the
rules there are two specific grounds:
 If the annotation is for the purpose of molesting the title of
the adverse party; or
 When the annotation is not necessary to protect the title of
the party who caused it to be recorded.
In relation to that please read the case of ST. MARY OF THE
WOODS SCHOOL, INC. and MARCIAL P. SORIANO vs. OFFICE OF
THE REGISTRY OF DEEDS OF MAKATI CITY GR. 174290.)
REPUBLIC V. HEIRS OF SPOUSES MOLINYAWE
FACTS: A decision was rendered by the CFI- Pasig City on
September 22, 1979 in the forfeiture case (Civil Case No.
6379) declaring null and void the sale of the subject
properties to the Spouses Miranda , Spouses Padilla and Leus
at the same time ordering said properties forfeited in favor to
the Republic.
The decision of the CFI-Pasig , in Civil Case No. 6379 became
final and executory on August 23, 1974.
In February 1975, the CFI-Pasig issued a writ of execution in
Civil Case No. 6379.
In July 2010 respondents filed Civil Case No. 10-658 for the
cancellation of the lis pendens annotated on the back of the
TCT Nos. 75239, 76129, and 77577 and for quieting of said
titles before the RTC- Branch 57.
ISSUE: Would that be proper to file a case for the cancellation
of the notice of lis pendens in another court, even if the notice
of lis pendens was annotated or registered in a prior that is
final and executory?
Consequence of registering a notice of lis pendens: A
necessary incident of registering a notice of lis pendens is that
the property covered thereby is effectively placed, until the
litigation attains finality, under the power and control of
the court having jurisdiction over the case to which the
notice relates. In this sense, parties stealing with the given
property are charged with the knowledge of the existence of
the action and are deemed to take the property subject to the
outcome of the litigation. It is also in this sense that the power
possessed by a trial court to cancel the notice of lis pendens
is said to be inherent.
Thus in the case of Vda. De Kilayko vs Judge Tengco, the
cancellation of such a precautionary notice, being a mere
incident in an action, may be ordered by the court having
jurisdiction over it at any given time. Under Sec. 24, Rule
14 of the Rules of Court, a notice of lis pendens may be
cancelled "after proper showing that the notice is for the
purpose of molesting the adverse party, or that it is not
necessary to protect the rights of the party who caused it to
be recorded".
Considering that a judgement in Civil Case No. 6379 had been
rendered in favor of the Republic and said judgment already
attained finality, the RTC- Branch 57could no longer claim
and exercise jurisdiction over the respondents, original
complaint/petition for the cancellation of lis pendens and
quieting of title in Civil Case No. 10-658
When the respondents filed their motion to admit their
amended and supplemental petition before RTC- Br. 57, the
decision in LRC Case No. M-5469 rendered by the RTC Br 138
had likewise attained finality. The RTC- Branch 57 cannot
definitely after final and executory decision of a co-equal
court by such a move. To do so would certainly defeat the
clear purpose of amendments provided by the rules and
amount to a grave abuse of discretion.
But even so, the petition could no longer be expected to
pursue before the proper forum in as much as the decision
rendered in the annulment case has already attained finality
before both the Court of Appeals and the Supreme Court on
the appellate level , unless of course there exists substantial
and genuine claims against the parties relative to the main
case subject to the notice of lis pendens. There is none in this
case. It is thus well to note that the precautionary notice that
has been registered relative to the annulment case then
pending before the RTC of Makati City Branch 62 has served
its purpose. With the finality of the decision therein on
appeal, the notice has already been rendered functus
officio. The rights of the parties, as well as of their successors
in interest, petitioner included in relation to the subject
property are hence to be decided according to the said final
judgement.
RULE 14
SUMMONS
Section 1.
Clerk to issue summons. — Unless the complaint is on its face
dismissible under Section 1, Rule 9, the court shall, within five (5)
calendar days from receipt of the initiatory pleading and proof of
payment of the requisite legal fees, direct the clerk of court to issue
the corresponding summons to the defendants. (1a)
What do we mean by summons?
So first, it is the singular; the plural is summonses.
Summons is a document or writ notifying the defendant that a
civil action has begun and that defendant is required to appear
and answer the complaint.
Summons is a writ or process issued and served upon a
defendant in a civil action for the purpose of securing his
appearance therein. (Ballentine’s Law Dict.)
Summons is the writ by which the defendant is notified of the
action brought against him (CANO-GUTIERREZ vs. GUTIERREZ,
341 SCRA 670; GUANZON vs. ARRADAZA, 510 SCRA 309).
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NATURE OF SUMMONS
A writ of right
Francisco Garcia vs. John Sweeney (G.R. No. 1693)
A writ of right is a writ to which the parties are entitled upon filing aAnd with respect to the second purpose, because it would be odd
petition in proper form, which then issues as a matter of course uponthat if you are made the defendant of the case and you don’t
the mere application (oral or written) therefor. An ordinary summonsknow that there is an ongoing case against you. The court does
is a writ of right. In other words, by filing the petition in an ordinarynot take steps to notify you of the case so you are not able to
civil action in the Courts of First Instance of these Islands, the partypresent evidence on your behalf… that would violate your right
filing the same is entitled to a summons directing the other party toto due process.
appear and demur or answer within a definite period. Any person
filing the ordinary petition is entitled to this writ as of right.
But we will discuss that it is somehow modified by Section 1
Rule 14.
Because based on Section 1 it appears that summons is NOT
actually mandatory unlike before when the complaint is filed
and upon payment of the requisite legal fees, the court shall issue
summons. So, the term “shall” leaves no doubt that it is
mandatory.
But under the present amended rule, unless the complaint is
dismissible upon its face under Section 1 Rule 9. Meaning the
grounds provided for under Section 1 of Rule 9 are present…
What are those grounds? The 4 grounds by which we can still file
a motion to dismiss:
1. Lack of jurisdiction over the subject matter
2. Res judicata
3. Litis pendencia
4. And prescription
So when those grounds are present the court can choose not to
issue summons. It would just dismiss the complaint
immediately. But of course when the complaint is not dismissible
on its face, so those grounds are not present… then the issuance
of summons becomes ministerial.
Issuance and Service of Summons are Ministerial Duties
What are the ministerial act?
o A ministerial act has been defined as one that a public
officer is required to perform under a given state of
facts, in a prescribed manner, in obedience to the
mandate of legal authority. Basically, if all
discretionary precursors to an official act have been
completed, and all that remains to be done is the act
itself, courts may compel a public official to perform
such action.
It can actually compel by a writ of mandamus.
So for example, despite the fact that the complaint is not
dismissible on its face and the court refuses to issue a summon to
the defendant and you are the plaintiff… What are your
remedies?
REMEDIES:
If the court refuses to issue and serve summons upon the
defendant even if the plaintiff has paid the proper fees, what are
the remedies of the plaintiff?
1. Mandamus under Rule 65;
2. Administrative action against the judge and the officer
at fault (Office of the Court Administrator vs. Jesus M.
Barroso, Jr., et.al. A.M. No. RTJ-04-1874, October 18,
2004);
3. Invoke the court’s power of administrative control
over its officers under Rule 135, Section 5 of the Rules
of Court;
(note: we have already mentioned that before I think
under inherent powers of courts where it says that
every court shall have the power under letter d to
control in furtherance of justice the conduct of its
ministerial officers and of all other persons in any
manner connec
ted with a case before it in every manner appertaining
thereto)
Purpose of Summons:
Arnel Sagana vs. Richard A. Francisco (G.R. No. 161952)
RULING:
The purpose of summons is two-fold: to acquire jurisdiction over the
person of the defendant and to notify the defendant that an action has Ernesto received the summons but for uknown reasons, he failed to
been commenced so that he may be given an opportunity to be heard file an answer. Hence, the spouses Biaco were declared in default upon
on the claim against him.
With respect to the first we have already discussed how do we
acquire jurisdiction over the person of the defendant:
1. Issuance of summons
2. Voluntary appearance
In Actions in Personam:
The purpose of summons is not only to notify the defendant of
the action against him but also to acquire jurisdiction over his
person (UMANDAP vs. SABIO, Jr., 339 SCRA 243).
Now in other actions, we discussed before for example in actions
in rem and the defendant is outside of the Philippines… do you
still need summons? Can we not acquire jurisdiction merely on
the res?
Actually there is still a need to serve summons in that case but of
course it is not to acquire jurisdiction because in the first place
you cannot acquire jurisdiction over a person who is outside of
the Philippines. He is beyond the court processes. But still
summons would be acquired for the purpose of due process.
When we discussed jurisdiction we also discussed its elements
and how it is acquired. As you know it would matter what kind of
jurisdiction: plaintiff, defendant, subject matter, res, and issues.
Effect of Lack of Summons:
B.d. Long Span Builders, Inc. vs. R.S. Ampeloquio Realty
Development, Inc. (G.R. No. 169919)
RULING:
Courts acquire jurisdiction over the plaintiffs upon the filing of the
complaint. On the other hand, jurisdiction over the defendants in a
civil case is acquired either through the service of summons upon
them or through voluntary appearance in court and their submission
to its authority. The service of summons is a vital and indispensable
ingredient of due process.
Service of summons is a requirement because it is the means by
which a court acquires jurisdiction over the person of the
defendant.
Q: Now what happens if the court proceeds with the case without
first having acquired jurisdiction over the person of the
defendant?
A: We have already learned that the proceedings in that case
would be null and void. And any judgment rendered against
that defendant over whose person jurisdiction was not acquired
is also a nullity.
Q: How about if the defendant knew that there was a pending
case against him but was not served summons. Would it cure the
defect?
A: Service of summons is required even if the defendant is
aware of the filing of the action against him. His knowledge of
the existence of a case is not one of the modes by which a court
acquires jurisdiction over the person of the defendant (Habana
vs. Vamenta, 33 SCRA 569).
Biaco vs. Philippine Countryside Rural Bank (G.R. No. 161417)
FACTS:
Ernesto Biaco is the husband of petitioner Ma. Teresa Chaves Biaco.
While employed in the Philippine Countryside Rural Bank (PCRB) as
branch manager, Ernesto obtained several loans from the respondent
bank.
As a security for the payment of the said loans, Ernesto executed a real
estate mortgage in favor of the bank covering the parcel of land
described in OCT No. P-14423. The real estate mortgages bore the
signatures of the spouses Biaco.
On February 22, 2000, respondent bank filed a complaint for
foreclosure of mortgage against the spouses Ernesto and Teresa Biaco
before the RTC of Misamis Oriental. Summons was served to the
spouses through Ernesto at his office (Export and Industry Bank)
located at Jofelmor Bldg., Mortola Street, Cagayan de Oro City.
motion of the respondent bank. The respondent bank was allowed to
present its evidence ex parte before the Brank Clerk of Court who was
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then appointed by the court as Commissioner. Judgment was rendered fulfillment of a personal liability on the part of the defendant. In this
authorizing the foreclosure. A deficiency judgment was also rendered case, requiring the defendant to pay the balance. So for that you have
by the court. to acquire jurisdiction over the person of the defendant.
(note: by the way what do we mean by a deficiency judgment? It is
when after the foreclosure proceedings and then the proceeds thereof So although again the court by the institution of the foreclosure
are not sufficient to pay the entire loan. So there is a deficiency. So proceedings acquired jurisdiction over the res, and so foreclosure can
here the mortgagor-debtors will be directed to pay the deficiency.) be had as a consequence, but in so far as judgment enforcing personal
liability that cannot be enforced if there is no proper service of
Now one of the issues here is the validity of the service of summons. summons upon the defendant.
According to the wife she was not issued summons because the
summons was coursed through the husband. Section 2.
Contents. — The summons shall be directed to the defendant, signed
Here, the CA ruled that judicial foreclosure proceedings are actions by the clerk of court under seal, and contain:
quasi in rem. As such, jurisdiction over the person of the defendant is (a) The name of the court and the names of the parties to the
not essential as long as the court acquires jurisdiction over the res. action;
Noting that the spouses Biaco were not opposing parties in the case, (b) When authorized by the court upon ex parte motion, an
the CA further ruled that the fraud committed by one against the other authorization for the plaintiff to serve summons to the
cannot be considered extrinsic fraud. defendant;
(c) A direction that the defendant answer within the time fixed
RULING: by these Rules; and
Whether the trial court has jurisdiction depends on the nature of the (d) A notice that unless the defendant so answers, plaintiff will
action, i.e., whether the action is in personam, in rem, or quasi in rem. take judgment by default and may be granted the relief
The rules on service of summons under Rule 14 of the Rules of Court applied for.
likewise apply according to the nature of the action.
A copy of the complaint and order for appointment of guardian ad
An action in personam is an action against a person on the basis of his litem, if any, shall be attached to the original and each copy of the
personal liability. An action in rem is an action against the thing itself summons. (2a)
instead of against the person. An action quasi in rem is one wherein an
individual is named as defendant and the purpose of the proceeding isQ: Take note of to whom shall the contents be directed?
to subject his interest therein to the obligation or lien burdening theA: It is directed to the defendant.
property. Q: How does a summon look like?
A: If you remember our discussion before on caption sa cases, it
In an action in personam, jurisdiction over the person of theis similar.
defendant is necessary for the court to validly try and decide the case.1. It should state the name of the court and
In a proceeding in rem or quasi in rem, jurisdiction over the person2. the names of the parties to the action and
of the defendant is not a prerequisite to confer jurisdiction on the3. then it should state if it is authorized by the court upon ex
court provided that the court acquires jurisdiction over the res.parte motion so there is authorization to the plaintiff to serve
Jurisdiction over the res is acquired either summons to the defendant.
(1) by the seizure of the property under legal process, whereby it is4. Then there is a directive to the defendant that he should
brought into actual custody of the law; or answer within the time fixed by these rules. It could be 30 days,
(2) as a result of the institution of legal proceedings, in which the60 days. Depending on what we discussed before.
power of the court is recognized and made effective. 5. Then there should be notice in the summons telling the
defendant that unless he answers, the plaintiff will take
Nonetheless, summons must be served upon the defendant not for thejudgement by default and may be granted the relief applied for.
purpose of vesting the court with jurisdiction but merely for satisfying
the due process requirements. SERVICE OF SUMMONS WITHOUT COPY OF THE COMPLAINT
Q: Is the defendant bound to comply with the summons where
Was there proper service of summons here? service was made without attaching a copy of the complaint?
A resident defendant who does not voluntarily appear in court, such
as petitioner in this case, must be personally served with summons asNow take note of the last paragraph of Section 2 Rule 14 which
provided under Section 6, Rule 14 of the Rules of Court. If she cannotstates that “A copy of the complaint and order for appointment of
be personally served with summons within a reasonable time,guardian ad litem, if any, shall be attached to the original and each
substituted service may be effected: copy of the summons.”
1. By leaving copies of the summons at the defendant’s
residence with some person of suitable age and discretionNow what if summon has been served to the defendant but it is
then residing therein, or without an attached copy of the complaint, so what will the
2. By leaving the copies at the defendants office or regulardefendant do? How do you answer the complaint if you don’t
place of business with some competent person in chargehave a copy of the complaint? As a defendant, are you bound by
thereof in accordance with Sec. 7, Rule 14 of the Rules ofthe summons where the service was made without attaching a
Court. copy of the complaint? This same situation happened in the case
of PAGALARAN vs BAL-LATAN
So the SC said here that in this case, the judicial foreclosure
proceeding instituted by respondent PCRB undoubtedly vested the PAGALARAN vs BAL-LATAN
trial court with jurisdiction over the res. A judicial foreclosure G.R. No. 4119 March 11, 1909, 13 Phil. 135
proceeding is an action quasi in rem. As such, jurisdiction over the FACTS: The defendant, a certain Maria Bidayanes, was
person of petitioner is not required, it being sufficient that the trial personally served with summons. She was notified of the
court is vested with jurisdiction over the subject matter. order to appear before the court and to file her answer and
was given a duplicate copy of the order, the receipt of which
HOWEVER TAKE NOTE of this particular pronouncement of the SC, she acknowledged. The summons however, was not
while the trial court acquired jurisdiction over the res, its jurisdiction accompanied by a copy of the complaint. The defendant did
is limited to a rendition of judgment on the res. It cannot extend not appear and file her answer as ordered. The trial court
its jurisdiction beyond the res and issue a judgment enforcing then issued an order declaring her in default.
petitioner’s personal liability. In doing so, without first having
acquired jurisdiction over the person of petitioner, as it did, the trial ISSUE: Whether or not the proceedings in the trial court
court violated her constitutional right to due process, warranting the should be annulled on the ground that the defendant had
annulment of the judgment rendered in the case. never been summoned pursuant to the Rules because she was
not served a copy of the complaint.
The summons issued by the court which was served upon the
defendant’s husband was binding only against the husband and RULING: Even if there had been no complaint or formal
not the wife. However, in so far as foreclosure proceeding was summons, no law or reason whatever justifies the
concerned, there was jurisdiction acquired over the res. The plaintiff nonappearance of the defendant after having been
actually could validly foreclose on the mortgage properties. summoned, inasmuch as even if it were for the purpose of
challenging the jurisdiction of the court, or of alleging the
But in so far as the deficiency judgement is concerned can that be nullity of the summons, she ought to have appeared and
enforced against the wife who was not served with summons? not have abandoned the action, filing then the motion
NO. Because that is already a judgement in personam. It requires the which she did not make until after judgment in default had

99
 been rendered.
And in the third place, after judgment in default had been
entered, the remedy open to the appellant was that
authorized by section 55 of the Code of Civil Procedure, to wit,
to ask that the judgment be vacated and that she be heard.
She should have appeared and stated that her
nonappearance in the action, which gave rise to the
judgment in default, was due to fraud, accident, or
mistake. This the appellant did not do. She merely claimed
that the said judgment should be annulled on the ground of
lack of summons, which is without foundation, and because of
the absence of a new complaint, which she might have
pleaded upon appearing in answer to the summons alleged to
have been defective because it was not accompanied by a
copy of the new complaint.
So here Bidayanes was served a copy of the summons. She was
given summons but then the summons was not accompanied
with a copy of the complaint so she did not answer. She did not
appear in court and consequently the trial court issued an order
declaring her on default. Now she wants to annul the proceedings
in the trial court because according to her she had never been
summoned because she was not served with a copy of the
complaint along with the summons. So meaning even if
summons were served upon her but it did not come with an
attached complaint so she was not validly served summons.
That was her contention.
The Supreme Court said even if there had been no complaint or
formal summons, no law or reason whatever justifies the
nonappearance of the defendant after having been summoned,
inasmuch as even if it were for the purpose of challenging the
jurisdiction of the court, or of alleging the nullity of the summons,
she ought to have appeared and not have abandoned the action.
So even if the summons did not come with a copy of the
complaint, she should not have ignored it. She should have
filed, at that time, a motion to dismiss on the ground that
there was improper service of summons so there was no
jurisdiction acquired by her person or she could question
the nullity of the summons. She has to do something. Even
here, she was served summons so she should be aware that there
is a case filed against her and she is directed to file an answer.
She could maybe ask for the photocopy of the complaint from the
court. Or when then was an order declaring her on default, she
could file a motion to set aside the order of default. And when
there is a judgement against her, she could file a petition for
relief or motion for a new trial. She had several remedies. So she
cannot just ignore the summons.
Take note of the amendment “When authorized by the court
upon ex parte motion, an authorization for the plaintiff to serve
summons to the defendant”
Here we now have a case where it is the plaintiff who will serve
summons to the defendant. Before this was not allowed. Before
you can be authorized to do that, there is a a need to file an ex
parte motion.
What is an ex-parte motion?
o It is one filed directly to the court without notifying or
serving first a copy to the adverse party.
Relate this to Section 3.
Section 3.
By whom served. — The summons may be served by the
sheriff, his or her deputy, or other proper court officer, and in
case of failure of service of summons by them, the court may
authorize the plaintiff - to serve the summons - together with
the sheriff.
In cases where summons is to be served outside the judicial
region of the court where the case is pending, the plaintiff
shall be authorized to cause the service of summons.
If the plaintiff is a juridical entity, it shall notify the court, in
writing, and name its authorized representative therein,
attaching a board resolution or secretary’s certificate thereto,
as the case may be, stating that such representative is duly
authorized to serve the summons on behalf of the plaintiff.
If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was served,
the case shall be dismissed with prejudice, the proceedings
shall be nullified, and the plaintiff shall be meted appropriate
sanctions.
If summons is returned without being served on any or all the
defendants, the court shall order the plaintiff to cause the
service of summons by other means available under the
Rules.
Failure to comply with the order shall cause the dismissal of
the initiatory pleading without prejudice. (3a)
WHO SERVES SUMMONS
The summons may be served:
a. By the sheriff;
b. His or her deputy;
c. Or other proper court officer; and
d. In case of failure of service of summons by them, the
Court may authorize the plaintiff- to serve the
summons. [in relation to Section 2]
So under the present rules, clearly, the plaintiff is now authorized
to serve summons. There are two instances.
AUTHORITY OF PLAINTIFF TO SERVE SUMMONS:
1. Discretionary- summons served within the judicial
region, and in case of failure of service of summons by
court personnel, the court may authorize the plaintiff – to
serve the summons – together with the sheriff.
o Here, in general, the priority is the service of the
summons by the sheriff, his or her deputy or any
other court personnel. Now in case of failure of
service by these persons, here the court may
authorize the plaintiff to serve summons. Take not
that, here, this applies to that case where the
defendant to be served summons is just located in
the same judicial region as to the court which
issues summons. Under this situation, it is not the
plaintiff alone who serves summons, he serves it
together with the sheriff.
2. Mandatory- In cases where summons is to be served
outside the judicial region of the court where the case is
pending, the plaintiff shall be authorized to cause the
service of summons.
o So not the same judicial region as to the court which
issues summons. So for example, the defendant is in
General Santos City. It is located in the 12 th judicial
region. Davao is in the 11 th judicial region. So ang
imong kalaban sa case taga GenSan, here you shall be
authorized by the court to cause the service of the
summons unlike sa katong isa na “may” authorize the
plaintiff to serve the summons kung within the
judicial region lang.
o In this particular situation, aside from the use of the
word “shall” be authorized there is no mention here
that the summons to that defendant located outside
the judicial region of the court which issues summons
na he should serve it together with the sheriff. There’s
no provision here.
Q: Why?
A: Because the sheriff’s authority to serve summons,
for example taga Davao City, is only within the 11 th
judicial region. So even now sa present procedure for
example in Cebu, so summons issued to the defendant
who is a resident of Cebu, and the case is filed and
pending here in Davao City ang sheriff diri sa Davao
City dili na siy muadot sa Cebu para i-serve ang
summons to that defendant in Cebu. What they do is
mag issue sila ug authority or order sa RTC in Cebu,
example Lapu-Lapus City, and then ang sheriff ang
mag serve ug summons. So in this particular case the
plaintiff here if he will serve the summons outside of
the judicial region of the court which issues the
summons, he can also ask assistance from the sheriff
of that judicial region where the defendant is located.
So that will be the difference.
WHEN SHOULD SUMMONS BE SERVED?
SPOUSES LAUS vs COURT OF APPEALS
GR. No. 101256, March 8, 1993
Service of summons may be made at night as well as during the
day or even on a Sunday or holiday because of its ministerial
character.
This is one of the distinctions between personal service of
pleadings and personal service of summons. In Section 6 Rule
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 13, there is a time limitation, to wit: by leaving the copy, How about an Alias Summon? When can the court issue Alias
between the hours of eight in the morning and six in the Summons? There are 2 situations mentioned in Section 4.
evening, at the party’s or counsel’s residence.
TWO SITUATIONS ALLOWING ISSUANCE OF ALIAS
Q: Is there a particular time of the day? SUMMONS:
A: For example under Section 6 of Rule 13 na there is a time 1. The summons is destroyed; and
limitation between the hours of eight in the morning and six in 2. The summons has been lost.
the evening.
Q: How about summons? Dapat ba mag observe ta ug the same OLD AMENDED
time limitation? Under the old rules, alias but now it doesn’t seem to
A: In this case of SPOUSES LAUS vs COURT OF APPEALS, the summons can also be issued appear in the amended rules.
Supreme Court clarified that service of summons may be made at in case of failure of service In case of failure of service,
night as well as during the day or even on a Sunday or holiday resort to other modes shall
because of its ministerial character. be made by the plaintiff.

MISREPRESENTATION BY THE PLAINTIFF: Section 5.

Q: Now what if the defendant misrepresented that he already Service in person on defendant. — Whenever practicable,
served the summons in those instances when the court the summons shall be served by handing a copy thereof to the
authorized the plaintiff to serve summons? What is the defendant in person and informing the defendant that he or
consequence of that? she is being served, or, if he or she refuses to receive and sign
A: It is very clear that the case shall be dismissed with for it, by leaving the summons within the view and in the
prejudice, the proceedings shall be nullified, and the plaintiff presence of the defendant. (6a)
shall be meted appropriate sanctions. So take note that
dismissal here is with prejudice so you cannot refile the same IN GENERAL, HOW IS SUMMONS SERVED?
case. There are three (3) modes of service of summons on an
ordinary defendant:
DUTY OF PLAINTIFF WHEN SUMMONS CANNOT BE SERVED 1. Section 5 - Service in person on defendant;
o Now the provision which is very important. For 2. Section 6 – Substituted service; and
example, the summons is being returned without 3. Section 16, 17, 18 – Service by publication
being served on any or all of the defendants. So wala
na serve by personal service or by substituted service. WHAT MODE SHOULD BE EMPLOYED BY THE SERVER?
The rule says the court shall order the plaintiff to It would depend on the circumstances of the defendant and the
cause the service of summons by other means nature of the of action.
available under the Rules. So ikaw na plaintiff ang EX:
mangitag paagi to serve the summons. NATURE SITUS OF ADDRESS MODE OF
OF THE THE SERVICE
Q: What are the other available means? ACTION DEFENDANT
A: By publication for example. Action In In the Address or Either
Q: How about despite the fact that the court ordered the plaintiff Personam Philippines whereabouts service in
to cause the service of summons, let’s say by publication, and is known person or
then the plaintiff did not comply with the order. What is the substituted
consequence? service
A: The rule says it shall cause the dismissal of the initiatory
pleading without prejudice. So here the case can be refiled even if PASCUAL vs PASCUAL
it is dismissed by the court. That’s the difference. GR. No. 171916, December 4, 2009

misrepresentation na plaintiff did not comply to In a case where the action is in personam and the defendant is
naserve ang summons the order of the court to in the Philippines, the service of summons may be done by
serve the summons, personal or substituted service as laid out in Sections 6 and 7
dismissal is with prejudice dismissed but without of Rule 14 of the Revised Rules of Court. The provisions state:
prejudice
Section 6. Service in person on defendant. - Whenever
Section 4. practicable, the summons shall be served by handing a copy
Validity of summons and issuance of alias summons — thereof to the defendant in person, or, if he refuses to receive
Summons shall remain valid until duly served, unless it is and sign for it, by tendering it to him.
recalled by the court. In case of loss or destruction of Section 7. Substituted service. - If, for justifiable causes, the
summons, the court may, upon motion, issue an alias defendant cannot be served within a reasonable time as
summons. provided in the preceding section, service may be effected (a)
by leaving copies of the summons at the defendant's
There is failure of service after unsuccessful attempts to residence with some person of suitable age and discretion
personally serve the summons on the defendant in his or her then residing therein, or (b) by leaving the copies at
address indicated in the complaint. Substituted service should defendant's office or regular place of business with some
be in the manner provided under Section 6 of this Rule. (5a) competent person in charge thereof.

A plain and simple reading of the above provisions indicates

SOME DEFINITIONS:
ALIAS WRIT. A writ issued to take the place of a similar writ
which has been lost or returned or for some other reason has
not taken effect or has become functus officio.
ALIAS SUMMONS. A new summons issued in the same form
and to serve the same purpose as one previously issued, and
usually issued where the original summons has been
returned, and hence has become functus officio, without
having been served on any or all of the defendants. (This is
the one mentioned in Section 4)
that personal service of summons should and always be
the first option, and it is only when the said summons cannot
be served within a reasonable time can the process server
resort to substituted service.
So take note of this principle which has been reiterated in many
jurisprudence and one of which is PASCUAL vs PASCUAL. It tells
us that personal service of summons should and always be
the first option and it only when the said summons cannot
be served within a reasonable time can the process server
resort to substituted service of summons. So personal service
or service in person ang priority. That is the requirement.

So when we say ALIAS (writ, summons), it is a new one issued to
take place of one which was lost or destroyed but it still has the
same features, the same effect. It continues the old one.
Now take note that under Section 4, the summons remain valid
until duly served so it has an indefinite life unless it is recalled
by the court.
So how do you effect personal service or service in person?
SERVICE IN PERSON ON THE DEFENDANT
In an action strictly in personam, service in person on the
defendant is the preferred mode of service (Hamilton vs Leuy,
344 SCRA 821). This is done by handing a copy thereof to the
defendant in person

101
 o Under Section 5 it says you hand a copy to the
defendant in person. So meaning tagaan nimo siya’g
copy sa summons with the attached complaint and
this is a new one added by the rules: informing the
defendant that he or she is being served. So dili ng
iatag lang nimo na wala kabalo si defendant. Wala siya
kabalo kung love letter ba na siya or demand letter.
You should clarify that it is summons.
TENDER OF SUMMONS
Q: If he refuses to receive and sign, what do you do? What is our
remedy in that case?
A: By leaving the summons within the view and in the presence of
the defendant. So dapat makita niya. This is what we call in the
previous rule TENDER OF SUMMONS. You tender to him. If he
refuses to receive the copy, you leave the copy within the view
and in the presence of the defendant. This is also called service
in person.
SANSIO PHILIPPINES, INC. vs SPOUSES MOGOL, JR.
GR. No. 177007, July 14, 2009
The instruction of the counsel for respondent spouses not to
obtain a copy of the summons and the copy of the complaint,
under the lame excuse that the same must be served only in
the address stated therein, was a gross mistake. Section 6,
Rule 14 of the Rules of Court does not require that the
service of summons on the defendant in person must be
effected only at the latter’s residence as stated in the
summons. On the contrary, said provision is crystal clear
that, whenever practicable, summons shall be served by
handing a copy thereof to the defendant; or if he refuses to
receive and sign for it, by tendering it to him. Nothing more is
required. As correctly held by the RTC of Manila, Branch 50,
the service of the copy of the summons and the complaint
inside the courtroom of the MeTC of Manila, Branch 24 was
the most practicable act under the circumstances, and the
process server need not wait for respondent spouses
Mogol to reach their given address, i.e., at 1218 Daisy St.,
Employee Village, Lucena City, before he could serve on the
latter the summons and the copy of the complaint. Due to the
distance of the said address, service therein would have been
more costly and would have entailed a longer delay on the
part of the process server in effecting the service of the
summons.
In the summons, the court will indicate the address where the
defendant should be served summons. Now here there were two
cases involving the same defendants. In one case, the summons
were served to the spouses. In that case during the hearing, didto
gi-serve sa sheriff sa mga defendants ang summons. The
defendants were instructed by their lawyer in that case that they
should not receive the summons kay lahi ang address na
nakabutang sa summons so they should only be served summons
in that address indicated by the court. So the spouses refused to
receive the summons and then the sheriff left the summons
within the view of the defendant.
Q: Was there proper service of summons?
A: The Supreme court said YES. First, even if the summons
indicates where the defendant shall be served summons, it does
not mean they can only be served summons in that particular
address. If they are found in the court or any place na nakitan na
sila sa sheriff, they can be served anywhere. Here the spouses
refused to receive the summons so the sheriff left within their
view a copy of the summons. That’s what we call tender of
summons and again it is also equivalent to service in person. It
was a valid service of summons.
WHEN PERSONAL SERVICE FAILS
If the defendant cannot be served in person within a reasonable
time, only then may substituted service under Section 6 of Rule
14 be availed of. The sheriff or server must first exert all
efforts to serve the defendant in person. If this effort fails then
substituted service can be made. This effort must be stated in
the proof of service. This is required because substituted
service is in derogation of the usual mode of service (Laus vs.
Court of Appeals, 219 SCRA 688; Umandap vs. Sabio, Jr., 339
SCRA 243; Samartino vs Raon, 383 SCRA 66; Hamilton vs Leuy,
344 SCRA 821).
Q: Now what if personal service fails or is not possible?
A: Then that’s the time when substituted service may be resorted
to and there are several requirements on that particular service
which we will discuss in section 6. There are several cases here
which discuss the priority in personal service and when you
resort to substituted service you must comply with specific
requirements. We have a clearer guidelines in the amended rules.
Section 6.
Substituted service. — If, for justifiable causes, the defendant
cannot be served personally after at least three (3) attempts
on two (2) different dates, service may be effected:
(a) By leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of age and
of sufficient discretion residing therein;
(b) By leaving copies of the summons at the defendant's office
or regular place of business with some competent person in
charge thereof. A competent person includes, but is not
limited to, one who customarily receives correspondences for
the defendant;
(c) By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any of
the officers of the homeowners’ association or condominium
corporation, or its chief security officer in charge of the
community or the building where the defendant may be
found; and
(d) By sending an electronic mail to the defendant’s electronic
mail address, if allowed by the court. (7a)
What if personal service fails or not possible,
o then that’s the time substituted service can be
resorted to and there are several requirements on
that or there are particular modes of service. This will
be discussed in Section 6
There are several cases here which discusses the priority of
personal service and when you resort to substituted service, you
must comply with the requirements.
SUBSTITUTED SERVICE OF SUMMONS
MIRANDA VS CA
326 SCRA 278
Only if service in person cannot be made promptly can the
process server resort to substituted service. Moreover, the proof
of service of summons must:
a) INDICATE the impossibility of service of summons
within a reasonable time;
b) SPECIFY the efforts exerted to locate the
defendant; and
c) STATE that the summons was served upon a
person of sufficient age and discretion who is
residing in the address, or who is in charge of the
office or regular place of business of the defendant.
It is likewise required that the pertinent facts
proving these circumstances be stated in the proof
of service or in the officer’s return.
The failure to comply faithfully, strictly and fully with all the
foregoing requirements of substituted service renders the
service of summons ineffective.
Take note that these requirements are now incorporated in
Section 20, Rule 14 of the amended rules.
Q: The rule is very clear, what are the conditions for substituted
service?
A: “if, for justifiable causes, the defendant cannot be served
personally after at least 3 attempts on 2 different dates.”
This is actually the application of the SC in one of its cases
Manotoc vs CA as reiterated in several cases. Because before
what is written in the rules is “several attempts” so the SC
interpreted that in the case of manotoc and Has now
incorporated that under the rules.
MANOTOC VS CA 499 SCRA 21
“Since the defendant is expected to try to avoid and evade
service of summons, the sheriff must be resourceful,
persevering, canny and diligent in serving the process on the
defendant.” For substituted service to be available, there must
be several attempts by the sheriff to personally serve the
summons within a reasonable period of one month which
eventually resulted in failure to prove impossibility of prompt
service. “Several attempts” means at least 3 tries, preferably
on at least 2 different dates. In addition, the sheriff must cite
why such efforts where unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.”
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A) By leaving copies of the summons at the defendant’s
residence to a person at least 18 years of age and of sufficient
discretion residing therein.
CARSON REALTY & MANGEMENT CORPORATION VS RED
ROBIN SECURITY
GR NO 225035
A person of suitable age and discretion is one who has
attained the age of full legal capacity or 18 years old and is
considered to have enough discernment to understand the
impostance of a summon. “Discretion”is defined as the ability
to make decisions which represent a responsible choice and
for which an understanding of what is lawful, right or wise
may be presupposed.” Thus, to be of sufficient discretion such
person must know how to read and understand English to
comprehend the import of the summons, and fully realize the
need to deliver the summons and complaint to the defendant
at the earliest possible time for the person to take appropriate
action.
Q: Why?
A: Because the reglementary period for the filing of the
answers starts from the time the substituted service was
effected so even if it was not the defendant himself but
another person who received the summons, that should be
counted as a receipt by him and therefore, the reglementary
period will start.
Thus, the person must have the relation of confidence to the
defendant, ensuring that the latter would receive or at least
be notified of the receipt of the summons. The sheriff must
therefore determine if the person found in the alleged
dwelling or residence of defendant is of legal age, what the
recipient’s relationship with the defendant is, and
whether said person comprehends the significance of the
receipt of the summons and his duty to immediately
deliver it to the defendant or at least notify the defendant
of said receipt of summons.
This is one of the rulings incorporated by the SC which was cited
in the case of manotoc and this case of carson realty.
So here, it was clearly defined what is a person of suitable age
and discretion.4
Suitable age-one who has attained the age pf full legal capacity
(18 years old) because that age, you are considered and
presumed to have enough discernment
Discretion- it is the ability to make decisions which represent a
responsible choice and for which to have an understanding of
what is lawful right or wise may be presupposed.
Competent Person - the person on whom the substituted
service will be made must be the one managing the officer or
business of defendant, such as the president or manager; and
such individual must have sufficient knowledge to understand
the obligation of the defendant in the summons
B) By leaving copies of the summons at the defendant’s office
or regular place of business with some competent person in
charge thereof. A competent person includes, but is not
limited to, one who customarily receives correspondences for
the defendant;
A Competent Person.
CARSON REALTY & MANGEMENT CORPORATION VS RED
ROBIN SECURITY
If the substituted service will be done at defendant’s office or
regular place of business, then it should be served on a
competent person in charge of the place. Thus, the person on
whom the substituted service will be made must be the one
managing the officer or business of defendant, such as the
president or manager; and such individual must have
sufficient knowledge to understand the obligation of the
defendant in the summons. Again, these details must be
contained in the Return
GUANZON VS ARRADAZA 510 SCRA 309
It is not necessary that the person in charge of the
defendant’s regular place of business be specifically
authorized to receive the summons. It is enough that he
appears to be in charge.
Now what happens if the defendant lives in a condominium or
subdivision? And strict kaayo ang security so dili pasudluon si
sheriff, now how shall summons be served?
C) By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any of
the officers of the homeowner’s association or condominium
corporation, or its chief security officer in charge of the
community or the building where the defendant may be
found; and
So, if wala sya gisugtan, he shall leave a copy of the summons sa
any officer or chief security basta he should make his authority
and purpose known.
Actually, this is incorporated in the rules. And as ruled in the case
ROBINSON VS MILLARES
GR No. 163584
Complaint for a sum of money against the defendant.
Summons was served on the defendant at her given address
but per return of service of the sheriff it was learned that the
defendant no longer resided at such address. Later, the trial
court issued an alias summons to be served at the defendant’s
new address. Again, the summons could not be served on the
defendant.
The sheriff explained:
“The Security Guard assigned at the gate of Alabang Hills
refused to let me go inside the subdivision so that I could
effect the service of the summons to the defendant in this
case. The security guard alleged that the defendant had given
them instructions not to let anybody proceed to her house if
she is not around. I explained to the Security Guard that I am a
sheriff serving summons to the defendant, and if the
defendant is not around, summons can be received by any
person of suitable age and discretion living in the same house.
Despite of all the explanation, the security guard by the name
of A.H. Geroche still refused to let me go inside the
subdivision and served (sic) the summons to the defendant.
The same thing happened when I attempted to serve the
summons previously.”
“Therefore, the summonses served by leaving a copy thereof
together with the copy of the complaint to the security guard
by the name of A.H. Geroche, who refused to affix his
signature on the original copy thereof, so he will be the one to
give the same to the defendant"
ISSUE: Whether or not there was proper substituted service
of summons.
RULING: We have ruled that the statutory requirements of
the substituted service must be followed strictly, faithfully,
and fully and any substituted service other than that
authorised by the Rules is considered ineffective (Paluwagan
ng Bayan Savings Bank vs King, G.R. No. 78252, April
12,1989, 172 SCRA 60). However, we frown upon an overly
strict application of the Rules. It is the spirit, rather than the
letter of the procedural rules that governs.
In his return, the sheriff declared that he was refused entry by
the security guard in the subdivision. The latter informed him
that the petitioner prohibits him from allowing anybody to
proceed to his residence whenever she is out. Obviously, it
was impossible for the sheriff to effect personal or substituted
service of summons upon petitioner. We note that she failed
to controvert the sheriff's declaration. Nor did she deny
having received the summons through the security guard.
Considering her strict instruction to the security guard,
she must bear its consequences. Thus, we agree with the
trial court that summons has been properly served upon
petitioner and that it has acquired jurisdiction over her.
The summons was therefore, properly served.
Can you serve summons by electronic mail as a substituted
service? Yes.
D) By sending an electronic mail to the defendnat’s electronic
mail address, id allowed by the court.
Again, remember that this is only when personal service cannot
be done. So, by substituted service, you can do so by sending an
electronic mail to the email address of the defendant.
Under this mode also, you need to file a motion in court for
leave of court to allow you to serve by substituted service
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through electronic mail. And you have to prove that this is
actually the email of the defendant and it was actually received
by the defendant.
SANDOVAL VS HRET
GR No. 149380
Substituted service derogates the regular method of personal
service. It is an extraordinary method since it seeks to bind
the respondent or the defendant to the consequences of a suit
even though notice of such action is served not upon him but
upon another to whom the law could only presume would
notify him of the pending proceedings. As safeguard
measured for this drastic manner of bringing in a person to
answer for a claim, it is required that statutory restrictions for
substituted service must be strictly, faithfully and fully
observed.
Q: What if in the service of summons by substituted service, the
defendant did not actually receive the summons? What it the
effect?
MONTALBAN VS MAXIMO
22 SCRA 1070
Where the substituted service has been validly served, its
validity is not affected by the defendant’s failure to
actually receive the summons from the person with
whom the summons has been left. It is immaterial that the
defendant does not in fact receive actual notice. The rule does
not require the sheriff or any authorized server to verify that
the summons left in the defendant’s residence or office was
actually delivered to the defendant.
What is important here is that the sheriff strictly complied with
the conditions for substituted service.
Section 7.
Service upon entity without juridical personality. – When
the persons associated in an entity without juridical
personality are sued under the name by which they are
generally or commonly known, service may be effected upon
all the defendants by serving upon any one of them, or upon
the person in charge of the office or place of business
maintained in such name. But such service shall not bind
individually any person whose connection with the entity has,
upon due notice, been severed before the action was filed.
Do you remember Section 15 of Rule 3? When 2 or more persons
not organized as an entity with juridical personality enter into a
transaction. Diba they may be sued under the name to which they
are generally or commonly known.
For example: A, B and C entered into transaction under the
name ABC corporation an entity which has actually no juridical
personality. A, B and C may be sued under the name of ABC
corporation.
Q: Now regarding the summons, how will the summons be
served in a non-existing corporation or upon those who compose
the corporation?
A: Under Section 7 of Rule 14, service may be effected upon all
the defendants by serving summons upon
(a) anyone of them, or
(b) upon the person in charge of the office or of the place of
business maintained in such name. This service shall not bind the
individual, whose connection with the entity, upon due notice,
has been severed before the action was filed.
So, bisag kinsa kay A, B or C or bisag kinsa and in-charge sa
ilahang office or business.
But again, remember that any person ceased to be connected
with the entity and it was known, the last paragraph of section 7
applies.
For example: B already resigned in the corporation, he is no
longer part of such entity. As such, when there is a case against
ABC corporation, wala nay labot si B but he was served with
summons, it would not be binding to him.
Section 8.
Service upon prisoners. – When the defendant is a prisoner
confined in a jail or institution, service shall be effected upon
him or her. The jail warden shall file a return within five (5)
calendar days from service of summons to the defendant.
To whom: prisoner confined in a jail or institution
By whom: by the officer having the management of such jail or
institution who deemed as a special sheriff for said purpose
So lahi and procedure ha? Siya ang mag serve and because it’s
not the sheriff himself, so the jail warden shall file a return.
Section 9.
Service consistent with international conventions. – Service
may be made through methods which are consistent with
established international conventions to which Philippines is
a party.
This is a new rule. So according to this section, we are not limited
to the methods under our rules such as personal service of
summons, substituted service and publication. If there are other
methods consistent with the international convention, that can
also be followed.
This is an application of doctrine of incorporation under article
II section 2 of the constitution wherein the philippines adopts the
generally accepted principles of international law or
international jurisprudence as part of the land.
Si here, they are also part of the ROC. Just remember that the
Philippines must be a signatory of that convention.
Section 10.
Service upon minors and incompetents. – When the
defendant is a minor, insane or otherwise an incompetent
person, service of summons shall be made upon him or her
personally and on his or her legal guardian if he or she has
one, or if none, upon his or her guardian ad litem whose
appointment shall be applied for by the plaintiff. In the case of
a minor, service shall be made on his or her parent or
guardian.
What is guardian ad litem?
For example, there is a minor who does not have a guardian, and
you want to sue such minor. So, in your complaint, you made
there an application for the appointment of guardian ad litem,
when it is granted and guardian ad litem has been appointed, the
summons will be served upon the latter.
o Guardian pending the litigation. So, when the
litigation is done, the authority of such guardian ad
litem also ceases.
Section 11.
Service upon spouses. - When the spouses are sued jointly,
service of summons should be made to each spouse
individually.
Do we need to serve summons to each spouse? Yes. The rule is
clear.
Section 12.
Service upon domestic private juridical entity. — When the
defendant is a corporation, partnership or association organized
under the laws of the Philippines with a juridical personality,
service may be made on the president, managing partner, general
manager, corporate secretary, treasurer, or in-house counsel of
the corporation wherever they may be found, or in their absence
or unavailability, on their secretaries.
If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily
receives the correspondence for the defendant at its principal
office.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the receiver or
liquidator, as the case may be.
Should there be a refusal on the part of the persons above-
mentioned to receive summons despite at least three (3)
attempts on two (2) different dates, service may be made
electronically, if allowed by the court, as provided under Section
6 of this Rule. (11a)
Under Section 12, please remember that the defendant here is a
private domestic juridical entity, meaning a domestic
corporation, one which is organized and registered under the
laws of the Philippines.
Corporations do not have a physical existence. To whom shall
service be made?
Service may be made on:
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1. President
2. Managing Partner
3. General Partner
4. Corporate Secretary
5. Treasurer or
6. In-house counsel
Wherever they may be found, meaning, not necessarily on its
principal place of business. Or, in their absence or unavailability,
on their secretaries. Take note, this is not present under the
previous rule, before, it’s just the corporate secretaries.
If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily
receives the correspondence for the defendant at its principal
office.
In case the domestic juridical entity is under receivership, service
of summons shall be made on the receiver or liquidator.
Remember, dili na pwede sa president, managing partner, etc.
Q: Why?
A: Because when a corporation is under receivership or
liquidation mawala na ang authority to manage on the part of the
officers of the corporation. The Corporate affairs shall be under
the administration of the receiver.
Even in obligations and contracts if there is a debt and then you
are going to pay to the corporation that is under receivership.
You don’t pay to the officers of the corporation; you pay to the
receiver or the liquidator. Because the authority of the officers of
the corporation already ceases. Payment made to the officers of
the corporation under receivership is not valid payment.
Should there be refusal on these persons mentioned to
receive summons despite at least 3 attempts on 2 different
dates, it can then be served electronically but you have to ask
permission from the Court.
o You have to file a Motion for Leave in order to file it
electronically --- this is how you do it.
Q: Is the enumeration exclusive?
A: YES
EB Villarosa vs Benito GR No. 134602
Facts:
Petitioner EB Villarosa with principal office address at 102 Juan
Luna St.., Davao City and with branches at 2492 Bay View Drive,
Tambo, Paranaue, Metro Manila and Kolambog, Lapasan,
Cagayan de Oro City, entered into a sale with development
agreement with private respondent Imperial Development
Corporation. As Villarosa failed to comply with its contractual
obligation, private respondent initiated a suit for breach of
contract and damages at the Regional Trial Court of Makati.
Summons, together with the complaint, was served upon
Villarosa through its baranch manager at Kolambog, Lapasan,
Cagayan de Oro City.
Villarosa filed a Special Appearance with Motion to Dismiss on
the ground of improper service of summons and lack of
jurisdiction. The trial court denied the motion and ruled that
there was substantial compliance with the rule, thus, it acquired
jurisdiction over Villarosa. The latter questioned the denial
before the Supreme Court it its petition for certiorari.
RULING: The enumeration of persons to whom summons may be
served is “restricted, limited, and exclusive” following the rule
on statutory construction expression unius est exclusion alterius
and that if the Rules of Court Revision Committee intended to
liberalize the rule on service of summons, it could have easily
done so by clear and concise language. It further ruled that
“Notably, under the new Rules, service of summons upon an
agent of the corporation is no longer authorized.”
The designation of persons or officers who are authorized to
accept summons for a domestic corporation or partnership is
now limited and more clearly specified in Section 11, Rule 14 of
the 1997 Rules of Civil Procedure.
Q: Can substituted service of summons be employed under
Section 12?
A: No.
Q: Why?
A: Because the provision imply service in person upon any of the
officers enumerated.
You know it’s different if it is a natural person and a juridical
person.
o natural person of course you can only serve in
person upon him, so, kung lisud jud mag serve sa
iyaha then substituted service is allowed.
o If domestic corporation under the rules, daghan sila,
so if dili pwede kay president pwede kay general
manager, etc.
Actually, wala sya sa rules but it is implied na dili pwede ang
substituted service sa domestic corporation. If the sheriff cannot
serve summons sa President pwede na sa others, pwede na gani
sa secretary etc. at the principal address of the corporation.
GV Florida Transport vs Tiara Commercial Corporation (GR
NO. 201378)
The bus company Victory Liner, Inc. (VLI) filed an action for
damages against GV Florida and its bus driver Arnold Vizquera
before the RTC. This action arose out of a vehicle collision
between the buses of VLI and GV Florida along Cordon, Isabela.
In its complaint, VLI claimed that Vizquera’s negligence was the
proximate cause of the collision and GV Florida failed to exercise
due diligence in supervising its employee. In its Answer, GV
Florida alleged that the Michelin tires of its bus had factory and
mechanical defects which caused a tire blow-out. This, it claimed,
was the proximate cause of the vehicle collision.
The RTC ordered the service of summons on TCC. In the return of
summons, it appears that the sheriff served the summons to a
certain Gino-gino who represented herself as an accounting
manager authorized by TCC to receive summons on its behalf.
TCC filed a Special Entry of Appearance with an Ex-Parte Motion
for Extension of Time to File Responsive Pleading and/or Motion
to Dismiss. Therein, it stated that the summons was received by
Gino-gino, its financial supervisor.
TCC eventually filed a motion to dismiss GV Florida’s third-party
complaint. First it argued that the RTC never acquired
jurisdiction over it due to improper service of summons. Under
Section 11, Rule 14, there is an exclusive list of the persons upon
whom service of summons on domestic juridical entities may be
made. As the summons in this case was not served on any of the
persons listed in Section 11, Rule 14, there was no proper service
of summons on TCC that would vest the RTC with jurisdiction
over it.
GV Florida argues that the RTC acquired jurisdiction over TCC.
While it agrees tha the enumeration in Section 11 of Rule 14 of
the Rules of Court is exclusive, GV Florida argues that service of
summons is not the only means through which a court acquires
jurisdiction over a party. Under Section 20 of Rule 14, voluntary
appearance of a defendant is equivalent to service of summons,
which then gives a court jurisdiction over such defendant. In this
case, GV Florida claims that TCC Voluntarily appeared and
submitted to the jurisdiction of the RTC when it filed motions
and pleadings seeking affirmative relief from said court. It adds
that Section 11 of Rule 14 is only a general rule which allows for
substantial compliance when there is clear proof that the
domestic juridical entity in fact received the summons. Moreover,
GV Florida argues that improper service of summons is not a
ground for dismissal of the third-party complaint since the RTC
has the authority to issue alias summons.
RULING: We agree that there was improper service of summons
on TCC. We, however, apply jurisprudence and rule that in cases
of improper service of summons, courts should not
automatically dismiss the complaint by reason of lack of
jurisdiction over the person of the defendant. The remedy is
to issue alias summons and ensure that it is properly served.
Service of summons is the main mode through which a court
acquires jurisdiction over the person of the defendant in a civil
case. Through it, the defendant is informed of the action against
him or her and he or she is able to adequately prepare his or her
cause of action. Rules governing the proper service of summons
are not mere matters of procedure. They go into a defendant’s
right to due process. Thus, strict compliance with the rules on
service of summons is mandatory.
CCC Insurance Corporation vs Kawasaki, Manacop
Construction and Florante Manacop (GR No. June 22, 2015)
Kawasaki filed with the RTC a complaint against CCCIC to collect
on Surety Bond No. B-88/11191 and Performance Bond No. B-
88/11193. Service of Summons on FFMCCI at its principal
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address in Quezon City failed because FFMCCI already vacated
said premises without notifying anyone as to where it
transferred. For this reason, the RTC upon the motion of CCCIC,
issued an order directing the issuance and service of Alias
Summons to the individual directors of FFMCCI. Eventually, the
Alias Summons was personally served upon FFMCCI director
Vicente Concepcion on September 25, 1991.
Issue: Was there a valid service of summons if it was done upon
one of the officers mentioned but not at the principal address of
the corporation?
RULING: “The regular mode, in other words, of serving summons
upon a private Philippine Corporation is by personal service
upon one of the officers of such corporation identified in Section
13. Ordinarily, such personal service may be expected to be made
at the principal office of corporation. Section 13 does not,
however, impose such requirement, and so personal service
upon the corporation may be effected through service upon, for
instance, the president of the corporation at his office or
residential address.
Section 13.
Duty of counsel of record. — Where the summons is improperly
served and a lawyer makes a special appearance on behalf of the
defendant to, among others, question the validity of service of
summons, the counsel shall be deputized by the court to serve
summons on his or her client. (n)
Because of this rule, if you are the lawyer for the defendant, it
would be difficult for you to set forth as an affirmative defense
improper service of summons for lack of jurisdiction over the
person of the defendant. Because:
1. Di na ni sya ground for a motion to dismiss
2. The court will not dismiss the case but it would deputize you to
serve the summons to your client.
Section 14.
Service upon foreign private juridical entities. — When the
defendant is a foreign private juridical entity which has
transacted or is doing business in the Philippines, as defined by
law, service may be made on its resident agent designated in
accordance with law for that purpose, or, if there be no such
agent, on the government official designated by law to that effect,
or on any of its officers, agents, directors or trustees within the
Philippines.
If the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or is
doing business in it, as defined by law, such service may, with
leave of court, be effected outside of the Philippines through any
of the following means:
(a) By personal service coursed through the appropriate court in
the foreign country with the assistance of the department of
foreign affairs;
(b) By publication once in a newspaper of general circulation in
the country where the defendant may be found and by serving a
copy of the summons and the court order by registered mail at
the last known address of the defendant;
(c) By facsimile;
(d) By electronic means with the prescribed proof of service; or
(e) By such other means as the court, in its discretion, may
direct. (12a)
We are talking here of foreign private corporations.
first paragraph
o a foreign private corporation which is licensed to do
business in the Philippines,
Q: Kung katong licensed to conduct business ang defendants, as
aman nimu i-serve ang summons?
A: Sa resident agent or if there is no such agent, on the
government official designated by law to that effect, or on any of
its officers, agents, directors or trustees within the Philippines.
Q: for example, if a service of summons is served to the resident
agent, pila gani ka days to file an answer?
A: 30 days, same sa ordinary defendant. Pero if didto sa
designated government official --- 60 days but the 60 day period
will not start from the receipt of the summons by the
government official but from the time the government official
turned over the summons with the copy of the complaint to the
corporation.
2nd paragraph
o If it is foreign private corporation who is not licensed
to do business in the Philippines but has transacted in
the Philippines
Q: how would you serve summons?
a. By personal service coursed through the appropriate
court in the foreign country with the assistance of the
DFA
b. By publication once in a newspaper of general
circulation in the country where the defendant may be
found and by serving a copy of the summons and the
court order by registered mail at the last known
address of the defendant.
c. By facsimile
d. By electronic means with the prescribed proof of
service
o Gi-discuss na nato before no unsaon pag prove na
nagsend ka through electronic means, you take a
picture of, for example, in the sent items.’
e. By such other means, as the court in its discretion may
direct.
Take note ha nga kaning mode of service in Section 14 adopted
AM 11-3-6-SC.
FOREIGN PRIVATE JURIDICAL ENTITY
The defendant here is a foreign private juridical entity or simply
a foreign corporation doing business in the Philippines.
Foreign corporations as plaintiffs – they can sue in the
Philippine courts if:
a. they have a license to operate here (doing business in
the Philippines);
b. where the foreign corporation is without license but is
suing for an isolated transaction.
Foreign corporations as defendants – can be sued if:
a. licensed to operate (doing business in the Philippines)
b. without license but who transact business in the
Philippines.
One cannot sue a foreign private corporation which is not doing
business in the Philippines or which did not transact business in
the Philippines because there is no way that the court can
acquire jurisdiction over the person of such corporation.
SERVICE UPON A FOREIGN PRIVATE JURIDICAL ENTITY
Q: If may designated person to receive summons ang FPC, naa
bay option na i-serve sa designated government official instead?
A: NO.
It has been held that when a foreign corporation has designated a
person to receive summons on its behalf pursuant to the
corporation code, that designation is exclusive and service of
summons on any other is inefficacious (HB Zachry Co. Intl vs
CA, 231 SCRA 329)
Northwest Orient Airlines Inc vs CA (GR No. 112573)
Section 14, Rule 14 of the Rules of Court provides that if the
defendant is a foreign corporation doing business in the
Philippines, service may be made:
1. On its resident agent designated in accordance with the law for
that purpose, or
2. If there is no such resident agent, on the government official
designated by law to that effect, or
3. on any of its officers or agents within the Philippines
If the foreign corporation has designated an agent to receive
summons, the designation is EXCLUSIVE, and service of
summons is without force and gives the court no jurisdiction
unless made upon him.
In other words, the designation of three parties on whom
summons may be served is not alternative because the resident
agent excludes the others.
Luzon Iron Development Group Corporation and
Consolidated Iron Sands, Ltd vs Bridestone Mining and Dev
Corp and Anaconda Mining and Dev Corp
GR No. 220546 December 7, 2016
106
Facts: Bridestone and Anaconda Mining filed separate
complaints before the RTC for rescission of contract and damages
against Luzon Iron and Consolidated Iron.
Thereafter, Luzon Iron and Consolidated Iron filed their Special
Appearance with MTD separately against Bridestone’s complaint
and Anaconda’s complaint. Both motion contended that the RTC
could not acquire jurisdiction over Consolidated Iron because it
was a foreign corporation that has never transacted business in
the Philippines, among others.
They argue that there could be no means by which the trial court
could acquire jurisdiction over the person of Consolidated Iron
under the mode of service of summons. The petitioners claim that
the service of summons to Consolidated Iron was defective because
the mere fact that Luzon Iron was a wholly-owned subsidiary of
Consolidated Iron did not establish that Luzon Iron was the agent
of Consolidated Iron and Luzon Iron are two distinct and separate
entities.
RTC, in its order denied the motions to dismiss, as well as the
supplemental motion to dismiss, finding that Consolidated Iron
was doing business in the Philippines,with Luzon Irorn as its
resident agent.
ISSUE: Was there a valid service of summons which was coursed
through Luzon Iron?
HELD: There was NO valid service of summons.
Consolidated Iron transacted business in the Philippines as a
signatory in the TPAA that was executed in Makati. Hence, it may
be served with the summons in accordance with the modes
provided under Section 12, Rule 14.
It is undisputed that Luzon Iron was never registered before
the SEC as Consolidated Iron’s resident agent. Thus, the
service of summons to Consolidated Iron through Luzon Iron
cannot be deemed a service to a resident agent under the first
mode of service.
(So, Consolidated Iron was a corporation not licensed to do
business in the Philippines but transacted business in the
Philippines. what governs here is the second paragraph)
(Plaintiff invoked the doctrine of piercing the veil of corporate
fiction. Because according to the Plaintiff even if Luzon Iron was
not registered these two are just actually one and the same entity-
that Luzon Iron is a mere conduit of Consolidated Iron. So, service
upon Luzon Iron would be binding against Consolidated Iron
under this premise.)
Supreme Court said:
The allegation in the complaint must clearly show a connection
between the principal foreign corporation and its alleged agent
corporation with respect to the transaction in question as a
general allegations of the complaint taken as whole should be
able to convey that the subsidiary is but a business conduit of the
principal or that by reason of fraud, their separate and distinct
personality should be disregarded. A wholly-owned subsidiary is
a distinct and separate entity from its mother corporation and
the aftc that the latter exercises control over the former does not
justify disregarding their separate personality. It is true that
under the TPAA, Consolidated Iron wielded great control over
the actions of Luzon Iron under the said agreement. This,
nonetheless, does not warrant the conclusion that Luzon Iron
was a mere conduit of Consolidated Iron.
Albeit the RTC bore emphasis on the alleged control exercised by
Export Bank upon its subsidiary E-Securities, “control, by itself,
does not mean that the controlled corporation is a mere
instrumentality or a business conduit of the mother company.
Even control over the financial and operational concerns of a
subsidiary company does not by itself call for disregarding
its corporate fiction. There must be a perpetuation of fraud
behind the control in order to justify piercing the veil of
corporate fiction. Such fraudulent intent is lacking in this case.
In the case at bench, the complaint merely contained a general
statement that Luzon Iron was the resident agent of Consolidated
Iron, and that it was a wholly-owned subsidiary of the latter.
There was no allegation showing that Luzon Iron was merely
a business conduit of Consolidated Iron, or that the latter
exercised control over the former to the extent that their
separate and distinct personalities should be set aside. Thus,
Luzon Iron cannot be deemed as an agent of Consolidated Iron in
connection with the third mode of service of summons.
Section 15.
Service upon public corporations.- When the defendant is the
Republic of the Philippines, service may be effected on the
Solicitor General; in case of a province, city or municipality, or
like public corporations, service may be effected on its executive
head, or on such other officer or officers as the law or the court
may direct. (13a)
SERVICE UPON A PUBLIC CORPORATION
1. When the defendant is the Republic of the Philippines-
Solicitor General
2. When the defendant is a province- Governor
3. City- Mayor
4. Municipality- Mayor
5. Barangay- Mayor
Q: Can substituted service of summons be employed under
Section 15?
A: the corporations mentioned under section 15 are
instrumentalities of the government that operate under a system
of bureaucracy. So, when the law, for example, talks about the
Solicitor General, does not refer to him in his personal capacity.
Rather, it refers to the office of the Solicitor General. Service of
Summons not to the SolGen himself but to his office.
Section 16.
Service upon defendant whose identity or whereabouts are
unknown.- in any action where the defendant is designated as an
unknown owner, or the like, or whenever his or her whereabouts
are unknown and cannot be ascertained by diligent inquiry,
within ninety (90) calendar days from the commencement of the
action, service may, by leave of court, be effected upon him or her
by publication in a newspaper of general circulation and in such
places and for such time as the court may order.
Any order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) calendar days after notice,
within which the defendant must answer. (14a)
Q: To what kind of actions will Section 16 apply?
A: It is very clear under the rule “in any action” it could be an
action in personam, in rem, or quasi in rem. But the conditions
here must be complied with for you to effect service by
publication under Section 16
“If the defendant is an unknown owner, or the like or whenever
his or her whereabouts are unknown and cannot be ascertained
by diligent inquiry, within 90 calendar days from the
commencement of the action”- take note of the time element
For example, 10 days pa lang, you should still look for that
defendant
Take note again “with leave of court”
o meaning you have to file a motion in court to allow
you to effect service of summons by publication
Q: Where should the service of summons be published?
A: The rule says “in a newspaper of general circulation and in
such places and for such time as the court may order.” Wala
giingon asa specifically, basta depende sa court. In the order the
court shall also specify as to within what period the defendant
shall answer but the rule says “which shall not be less than 60
calendar days after notice” so, it could be more than 60 days.
SERVICE UPON A DEFENDANT WHOSE IDENTITY OR
WHEREABOUTS ARE UNKNOWN
General Rule: service of summons upon an individual
defendant must be made either by personal or substituted
service, especially where the action against him is an action in
personam. Thus, summons by publication cannot be effected
upon the defendant in such action
EXPN: Section 16
Under previous rulings: Jurisdiction over the defendant in an
action in personam cannot be acquired by summons by publication
Santos vs PNOC GR No 170943, September 23, 2008
Facts: Respondent PNOC filed a complaint for a sum of money
against Petitioner Santos Jr. in the RTC of Pasig branch 167.
Personal service of summons to petitioner failed because he
could not be located in his last known address despite earnest
efforts to do so. Subsequently, on respondent’s motion, the trial
107
court allowed service of summons by publication. (an action in
personam.)
So, petitioner was served with summons by publication.
ISSUE: WON defendant can be served with summons by
publication where the action is in personam
RULING: Petitioner invokes the distinction between an action in
rem and action in personam and claims that substituted service
may be availed of only in an action in rem.
PETITIONER IS WRONG.
The in rem/ in personam distinction was significant under the
old rule (1969 rules) because it was silent as to the kind of action
to which the rule was applicable. Because of this silence, the
Court limited the application of the old rule to in rem actions
only.
This has been changed. The present rule expressly states that it
applies “in any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry.” Thus, it
now applies to any action, whether in personam, in rem or
quasi in rem.
Section 17.
Extraterritorial service.- When the defendant does not reside
and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent, or in which
the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service may,
by leave of court, be effected out of the Philippines by personal
service as under Section 6; or as provided for in international
conventions to which the Philippines is a party; or by publication
in a newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail
to the last known address of the defendant, or in any other
manner the court may deem sufficient. Any order granting such
leave shall specify a reasonable time, which shall not be less than
sixty (60) calendar days after notice, within which the defendant
must answer.
Defendant under Section 17: A NON RESIDENT DEFENDANT
defendant under Section 16: who is a resident of the Philippines
whose identity is unknown or his whereabouts are unknown
EXTRATERRITORIAL SERVICE OF SUMMONS
The following requisites must be present:
a. The defendant is a non-resident
b. He is not found in the Philippines
c. The action against him is either in rem or quasi in rem
(Jose vs Boyon)
Extraterritorial Service of Summons
 does not apply to a defendant who is a resident of the
Philippines
 does not apply to an action in personam
EXPN: Section 18, Rule 14 (Residents temporarily out of the
Philippines)
o where service may, by leave of court, be effected out
of the Philippines as under the preceding section.”
Section 17 of Rule 14.
o Note also that Section 18 of Rule 14 refers to “any
action”, hence, either in rem or personam or quasi in
rem
I have to reiterate ha, extra territorial service under section 17 of
rule 14 does not apply in action in personam. It only applies in
action in rem or action quasi in rem, and provided again that the
defendant is a non-resident.
Q: So here what are the specific actions na pwede ang extra
territorial service?
A: These are actually specified under section 17.
The specific actions that will justify the application of
extraterritorial service of summons in actions involving a
nonresident are:
1. Actions that affect the personal status of the plaintiff;
Ex: Action for declaration of nullity of marriage, action
for adoption.
2. Actions which relate to, or the subject matter of which is
property within the Philippines, in which the defendant
claims a lien or interest, actual or contingent;
Example: Foreclosure of mortgage
3.Actions in which the relief demanded consists, wholly or in
part, in excluding the defendant from an interest in property
located in the Philippines; and
o Again here, we are talking of the property itself.
4. When the defendant's property has been attached in the
Philippines.
What is attachment?
Attachment it’s a provisional remedy
Example: You are a creditor and then you have a debtor and he
is already absconding from the Philippines. He is a non-resident,
a resident abroad. Although wala sya diri sa Philippines but he
has several properties in the Philippines na pwede nimo
iattached. So what is the purpose of attachment. So that when
you eventually win in the litigation you can use those properties
in payment of the debt. Ireserve sila para sa imo so that in the
case that favorable ang decision sa imo sa court, dito nlang ka
mokuha. Because if the defendant is a non resident, you
cannot compel him to pay the debt. Compelling him to pay
the debt is an action in personam. Na you’re seeking to enforce
personal liability against him, so dili na sya pwede. Pero kung
nay properties in the Philippines na naattach pwede na sya
because the judgment should be limited to the res.
Q: So what is common among these actions?
A: you don’t need to seek or enforce personal liability upon the
defendant because again the action is not an action in
personam. The actions mention here are action in rem and
action quasi in rem. We discuss before that in these kinds of
actions it is enough that the court obtain jurisdiction over the res.
Q: Why is there a need to effect extra territorial service?
A: Actually the purpose of extra territorial service is not for the
purpose of obtaining jurisdiction over the person of the
defendant because again our court processes are limited only
within the jurisdiction of the Philippines. You cannot acquire
jurisdiction over him even though padalhan na sya ng summons,
even if my publication etc. dili gud na sya maka acquire
jurisdiction but that is a requirement for the purpose of
complying with DUE PROCESS.
Q: How does the court acquire jurisdiction over the res?
A: By the fact of filing of the complaint and when the property
itself is placed under the custody of the court or under the legal
process of the court, the court already acquires jurisdiction over
the res. So here any decision will be limited to the res.
Q: So can you file an action in personam against a non-resident
defendant?
A: Of course not. Maybe you can file but eventually it will be
dismissed because you cannot validly acquire jurisdiction over
the person of that non-resident defendant. This was clarified
already by the supreme court in these cases.
KAWASAKI PORT SERVICE CORPORATION vs. AMORES,
199 SCRA 230
If the action is in personam, this mode of service will not be
available. There is no extraterritorial service of summons in
an action in personam. Hence, extraterritorial service upon a
nonresident in an action for injunction which is in personam is
not proper
BANCO DO BRASIL vs. COURT OF APPEALS
333 SCRA 545 (2000)
Where the action is in personam, one brought against a person
on the basis of his personal liability, jurisdiction over the person
of the defendant is necessary for the court to validly try and
decide a case. However, when the defendant is a nonresident,
personal service of summons in the state is essential to the
acquisition of jurisdiction over him.
*So sorry nlang ka if collection imong ifile then wla syang
properties in the Philippines and in the first place he is not a
resident but resident abroad you cannot effect extra territorial
service of summon upon him.
EXCEPTION:
108
 ASIAVEST LIMITED vs. COURT OF APPEALS
G.R. No. 128803, September 25, 1998
However, in an action in personam wherein the defendant is a
non-resident who does not voluntarily submit himself to the
authority of the court, personal service of summons within the
state is essential to the acquisition of jurisdiction over her
person. This method of service is possible if such defendant
is physically present in the country. If he is not found therein,
the court cannot acquire jurisdiction over his person and
therefore cannot validly try and decide the case against him. An
exception was laid down in Gemperle v. Schenker 19 SCRA 45
[1967]. wherein a non-resident was served with summons
through his wife, who was a resident of the Philippines and who
was his representatives and attorney-in-fact in a prior civil case
filed by him; moreover, the second case was a mere offshoot of
the first case.
Now there is the second case filed in the Philippines. For the
enforcement of foreign judgment. Meaning we’re referring to the
judgment in HK.
We note that the residence of HERAS insofar as the action for the
enforcement of the Hong Kong court judgment is concerned, was
never in issue. He never challenged the service of summons on
him through a security guard in his Quezon City residence and
through a lawyer in his office in that city. In his Motion to
Dismiss, he did not question the jurisdiction of the Philippine
court over his person on the ground of invalid service of
summons. What was in issue was his residence as far as the Hong
Kong suit was concerned. We therefore conclude that the
stipulated fact that HERAS is a resident of New Manila, Quezon
City, Philippines refers to his residence at the time jurisdiction
over his person was being sought by the Hong Kong court. With
that stipulation of fact, ASIAVEST cannot now claim that HERAS
was a resident of Hong Kong at the time.
Accordingly, since HERAS was not a resident of Hong Kong and
the action against him was, indisputably, one in personam,
summons should have been personally served on him in Hong
Kong. The extraterritorial service in the Philippines was
therefore invalid and did not confer on the Hong Kong court
jurisdiction over his person. It follows that the Hong Kong court
judgment cannot be given force and effect here in the Philippines
for having been rendered without jurisdiction.
Even assuming that HERAS was formerly a resident of Hong
Kong, he was no longer so in November 1984 when the
extraterritorial service of summons was attempted to be made
on him. As declared by his secretary, which statement was not
disputed by ASIAVEST, HERAS left Hong Kong in October 1984
for good. His absence in Hong Kong must have been the reason
why summons was not served on him therein; thus, ASIAVEST
was constrained to apply for leave to effect service in the
Philippines, and upon obtaining a favorable action on the matter,
it commissioned the Sycip Salazar Hernandez & Gatmaitan law
firm to serve the summons here in the Philippines.
In Brown v. Brown, the defendant was previously a resident of
the Philippines. Several days after a criminal action for
concubinage was filed against him, he abandoned the Philippines.
Later, a proceeding quasi in rem was instituted against him.
Summons in the latter case was served on the defendants
attorney-in-fact at the latters address. The Court held that under
the facts of the case, it could not be said that the defendant was
still a resident of the Philippines because he ha[d] escaped to his
country and [was] therefore an absentee in the Philippines. As
such, he should have been summoned in the same manner as one
who does not reside and is not found in the Philippines.
Similarly, HERAS, who was also an absentee, should have
been served with summons in the same manner as a non-
resident not found in Hong Kong. Section 17, Rule 14 of the
Rules of Court providing for extraterritorial service will not
apply because the suit against him was in personam. Neither
can we apply Section 18, which allows extraterritorial service on
a resident defendant who is temporarily absent from the country,
because even if HERAS be considered as a resident of Hong Kong,
the undisputed fact remains that he left Hong Kong not only
temporarily but for good.
This involves an action in personam. A non-resident was served
with summon through his wife. The wife here is a resident of the
Philippines. The wife here was a representative of the defendant
or his attorney-in-fact in a prior civil case filed in the court and
the second case were the service of summon was made was
merely an offshoot of the 1st case. In this case, the SC allowed
the extra territorial service even if It was an action in
personam. The service was made upon the wife.
To simplify this particular case. There were two cases here. First
case was an action for collection filed in Hongkong against Heras.
(Action in personam) It that particular case in Hong Kong how
was summon served to the defendant Heras? It was served to
him following the rules in extra territorial service under section
17. So it was served to him in the Philippines at his QC residence
in the Philippines. Pursuant to that service of summon, the Hong
Kong Court considered that it acquired jurisdiction over the
person of Heras. It proceeded with the case, tried and a
judgement was rendered against Heras. Of course si Heras naa
nman sya sa Philippines at the time. So how can you enforce that
judgment in Hong Kong?
now diri sa case that was filed in the Philippines for the
enforcement of that foreign judgment, diri na gi raise ang validity
ng HK judgment. WHY? Because here it was contended by Heras
that the judgment of the HK court is not valid, there was no
jurisdiction over his person because there was no valid
service of summon. So being a void judgment it cannot enforce
here in the Philippines. That was his contention.
Now ngano wla man jurisdiction over his person despite na HK
court followed the rules on extra territorial service of summon.
Q: Pursuant to that service in person was made upon Heras in his
QC residence. Dili ba to sya valid?
A: Well according to the SC, number 1 we have to consider that
the action filed in HK court was in personam. So being an action
in personam even if assuming that Heras was a non-resident of
HK for that purpose. That extra territorial service will be valid
only if the action is in rem or quasi in rem. So it could not be
applied in an action in personam.
Q: Now can we not also apply that rule under section 18 when
the resident is temporarily outside the Philippines? Di ba pwede
na si Heras was considered as a resident of HK who was
temporarily absent from HK because at that time he was in the
Philippines. So service upon him can also be made under the
modes of extra territorial service . So possible ba?
A: The SC said, NO! because at that time also, Heras could no
longer be considered as a resident of HK who was temporarily
absent from HK. Why? Because at that time, although he was
previously a resident of HK but he had already establish his
resident in the Ph. So he was no longer considered a resident of
HK who was temporarily outside of HK. So you cannot effect
upon him service of summon provided under section 18 and
under section 17. So dili valid ang summon.
SUMMARY:
Pwede unta si Heras under section 17 rule 14 if he is to be
considered a non-resident who is out of HK but under this
section ang allowed lang is action in rem and quasi in rem but
katong gifile against Heras was in personam. So dili gihapon
magamit ang extra territorial service. Now sa section 18
considered gihapon ang mode ng extra territorial service, pwede
sya if you are resident of HK but you are temprorily outside like
in this case sa Philippines sya. However in this case, there is this
undisputed fact na Heras left HK not only temporarily but for
good. Thus section 18 cannot be applied here.
MODES OF EXTRATERRITORIAL SERVICE
When the conditions for the applicability of extra-territorial
service of summons are complied with, the following are the
alternative modes of extraterritorial service, all of which require
a prior leave of court:
1. By personal service as provided for in Sec. 5 of Rule 14
governing service in person on defendant;
2. As provided for in international conventions to which
the Philippines is a party;
3. By publication in a newspaper of general circulation in
such places and for such time as the court may order,
in which case a copy of the summons and the order of
the court shall be sent by registered mail to the last
known address of the defendant; or
4. In any manner the court may deem sufficient.
A. PERSONAL SERVICE
*As we said it is done abroad. Like for example nasa US ang
defendant, iserve sya personally abroad. So usually it is the
sheriff, deputy sheriff, officer of the court or other persons
authorize by the court who has a valid order who will serve the
summon.
109

Upon motion and with leave of court, the court may allow
summons to be served outside the Philippines by personal
service by sending the sheriff to America. But it will be
impractical and expensive.
As we already discuss na even if summons was effected by
service in person abroad, still this will not have the effect of
acquiring jurisdiction over the person of the defendant.
Again, our court processes are only effective within the territorial
jurisdiction of the Philippines. But that is a requirement in order
comply with the requirements of due process,
However, some decided cases state that the personal service will
not have the effect of acquiring jurisdiction over the nonresident
defendant even if the summons and the copy of the complaint
are personally received by him in the country where he may
be found. This is because of the rule that a nonresident
defendant who refuses to come to the country voluntarily
remains beyond the personal processes of the court which
therefore, cannot acquire jurisdiction over him (Banco
Espanol-Filipino vs. Palanca, 37 Phil. 921; Perkins vs. Dizon, 69
Phil. 186).
Besides, in a proceeding in rem or quasi in rem, jurisdiction over
the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires
jurisdiction over the res. Nevertheless, summons is served upon
the defendant not for the purpose of vesting the court with
jurisdiction over the person of the defendant but merely for
satisfying the due process requirement (Asiavest Limited vs.
Court of Appeals, 296 SCRA 539).
*Actually just remember that, in all modes of extra territorial
service of summon. The purpose is not to acquire jurisdiction
over the person of the defendant but for compliance of due
process.
B. AS PROVIDED FOR IN INTERNATIONAL CONVENTIONS TO
WHICH THE PHILIPPINES IS A PARTY *This is a new provision.
C. BY PUBLICATION
(Requires: publication+registered mail)
The second manner is by publication which is similar to Section
16. The court will order the summons and complaint to be
published in a newspaper of general circulation in such places
and for such time as the court may order. In which case a copy of
the summons and order of the court shall be sent by registered
mail to the last known address of the defendant. So, aside from
publication, another copy will be sent by registered mail to his
last known address.
SAHAGUN vs. COURT OF APPEALS (198 SCRA 44)
FACTS: Defendant is residing permanently in LA, this is an action
in rem. By leave of court, summons was served through
publication by ordering to be published for 3 weeks in the
Philippine Daily Inquirer. Another copy will be sent to his last
address. Here defendant questioned the publication. According to
him, publication should be in a newspaper in LA, not the
Philippines.
ISSUE: Is the contention of the defendant correct?
HELD: NO, he is wrong because nothing in the law requires the
publication to be in a foreign newspaper. What is says is a
newspaper of general circulation in such places and for such time
as the court may order.
In fine, while there is no prohibition against availing of a
foreign newspaper in extraterritorial service of summons,
neither should such publication in a local newspaper of
general circulation be altogether interdicted since, after all,
the rule specifically authorizes the same to be made in such
places and for such time as the court concerned may order. If
the trial court should be required to resort to publication in a
foreign newspaper it must have at hand not only the name and
availability of such newspaper or periodical. we can very well
anticipate the plethora of problems that would arise if the same
question on nonresident defendants is replicated in the other
countries of the world.
Service of summons on a nonresident defendant who is not found
in the country is required, not for purposes of physically
acquiring jurisdiction over his person but simply in pursuance
of the requirements of fair play, so that he may be informed of
the pendency of the action against him and the possibility that
property in the Philippines belonging to him or in which he has
an interest may be subjected to a judgment in favor of a resident,
and that he may thereby be accorded an opportunity to defend in
the action, if he be so minded. The only relief that may be granted
in such an action against such a nonresident defendant, who does
not choose to submit himself to the jurisdiction of the Phil court,
is limited to the res
YU vs. LIM YU
(G.R. NO. 200072, June 20, 2016)
FACTS:
*This is the case involving declaration of nullity of marriage. The
defendant here was a non-resident, she was a resident of US,
although she was formerly in the Philippines but already
transferred to the US. If you notice in the action for nullity of
marriage, it involves the personal status of the plaintiff. So
possible diri ang extra territorial service. So here there was a
publication. Philip, he plaintiff comply with the requirement of
publication. Ang question nlang diri was, diba in publication, there
should be an accompanying registered mail addressed to the last
known address of the defendant. However, according to the
defendant, there is no proper service of summon because ang place
were the order and copy of the summon were not her last known
address. It was sent to their conjugal home which is not her last
known address.
Claiming to be completely unaware of the proceedings before the
RTC of Balayan, Batangas, nullifying her marriage with Philip on
the ground of her psychological incapacity, Viveca filed a Petition
for Annulment of Judgment before the CA seeking to annul the
Decision dated August 20, 2008 of said court. According to
Viveca, jurisdiction over her person did not properly vest since
she was not duly served with Summons. She alleged that she was
deprived of her right to due process when Philip fraudulently
declared that her address upon which she may be duly
summoned was still at their conjugal home, when he clearly
knew that she had long left said address for the United States of
America. Viveca likewise maintained that had Philip complied
with the legal requirements for an effective service of summons
by publication, she would have been able to rightly participate in
the proceedings before the Batangas court.
According to Philip, as far as he was concerned, Viveca's last
known address was their conjugal home. This is because the
addresses supplied in the proceedings of the Legal Separation
case before the RTC of Pasig City were merely temporary in
nature. Philip recalled that when Viveca left their conjugal abode
on August 24, 1993, she temporarily stayed at her parents' house
in Greenhills, Mandaluyong, for less than two months then,
thereafter, stayed at her temporary residence at Domingo Street,
Cubao, Quezon City, in October 1993. Considering that said
addresses were merely temporary, Philip claims that he should
not be faulted for using their conjugal abode as Viveca's "last
known address." According to him, what is mandated by the
rules as the defendant's "last known address" is his or her last
known permanent address, and certainly not one of temporary
nature.
Philip fervently asserts the propriety of their conjugal home
address as Viveca's "last known address," well within the true
meaning and intent of the rules.
HELD:
But as borne by the records of the instant case, not only is he
mistaken, factual considerations herein belie his claims of good
faith. First and foremost, it is undisputed that the parties herein
are also parties in a Legal Separation case, previously filed by
Viveca way back in 1994. There was, in said case, a disclosure of
their basic personal information, which customarily includes
their respective local addresses, wherein they may be served
with court papers. In fact, as pointed out by the appellate
court, Philip knew that Viveca had already left their conjugal
home and moved to a different local address for purposes of
the pendency of the Legal Separation case, as shown by his
stipulation in his Amended Answer with Counterclaim that "after
abandoning the conjugal abode on 24 August 1993, petitioner
resided at her parent's house in Richbelt Condominium,
Annapolis Street, Greenhills, Mandaluyong, Metro Manila, until
she moved to her present address in October 1993."
Thus, Philip cannot be allowed to feign ignorance to the fact that
Viveca had already intentionally abandoned their conjugal abode
and that of all the addresses that Viveca resided at, their conjugal
home in Horizon Condominium is her least recent address. In
fact, it may very well be considered as the address she is
least likely to be found considering the circumstances in
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which she left the same. Note that from the very beginning of
the Legal Separation case in 1994, all the way up until the
promulgation by the Pasig RTC of its decision thereon in 2009,
there is no showing that Viveca had ever received any document
in relation to said case, nor is there any proof that Philip had ever
sent any pertinent file to Viveca, at the conjugal address. There is,
therefore, no reason for Philip to assume, in good faith, that said
address is in truth and in fact Viveca's "last known address" at
which she may receive summons. His contention that the rules
require the defendant's "last known address" to be of a
permanent, and not of a temporary nature, has no basis in
law or jurisprudence.
So, the SC said that Philip cannot be allowed to feign ignorance to
the fact that Viveca had already intentionally abandoned their
conjugal abode and it is, in fact, very unlikely that Viveca would
still be residing in that place. It’s the last place on earth where
she would be residing. So, naturally, di gyud to niya ma-receive
ang notices, ang order of the court, the summons sent by
registered mail to that address where the conjugal abode was
located. She actually did not receive any pertinent file in relation
to this case for declaration of nullity. So, there is no reason for
Philip to assume in GF that said address is in truth and in fact
Viveca’s last known address.
His contention that the rules require the defendant's "last known
address" to be of a permanent, and not of a temporary nature,
has no basis in law or jurisprudence.
D. 3RD MODE - ANY OTHER MANNER THE COURT MAY DEEM
SUFFICIENT
ROMUALDEZ-LICAROS v. LICAROS
G.R. No. 150656. April 29, 2003.
Margarita insists that the trial court never acquired
jurisdiction over her person in the petition for declaration of
nullity of marriage since she was never validly served with
summons. Neither did she appear in court to submit
voluntarily to its jurisdiction.
COMMENT: Here, the defendant was concededly a non-
resident of the Philippines. So, extraterritorial service was
resorted but what mode?
On the other hand, Abelardo argues that jurisdiction over the
person of a non-resident defendant in an action in rem or
quasi in rem is not necessary. The trial and appellate courts
made a clear factual finding that there was proper summons
by publication effected through the Department of Foreign
Affairs as directed by the trial court. Thus, the trial court
acquired jurisdiction to render the decision declaring the
marriage a nullity.
The Supreme Court reiterated that at the time Abelardo filed
the PETITION FOR NULLITY OF THE MARRIAGE in 1991,
Margarita was residing in the United States. She left the
Philippines in 1982 together with her two children. The trial
court considered Margarita a non-resident defendant who is
not found in the Philippines. Since the petition affects the
personal status of the plaintiff, the trial court authorized
extraterritorial service of summons under Section 15, Rule 14
of the Rules of Court. The term "personal status" includes
family relations, particularly the relations between husband
and wife.
COMMENT: So, extraterritorial service of summons would be
allowed in here. But again, the question here is was there
proper service of summons? Katong mode of service ba was one
of the allowed modes for an extraterritorial service?
RULING: Yes.
In these instances, extraterritorial service of summons may
be effected under any of three modes:
(1) by personal service out of the country, with leave of court;
(2) by publication and sending a copy of the summons and
order of the court by registered mail to the defendant’s last
known address, also with leave of court; or
(3) by any other means the judge may consider sufficient.
The Process Server’s Return of 15 July 1991 shows that the
summons addressed to Margarita together with the complaint
and its annexes were sent by mail to the Department of
Foreign Affairs with acknowledgment of receipt. The Process
Server’s certificate of service of summons is prima facie
evidence of the facts as set out in the certificate. Before
proceeding to declare the marriage between Margarita and
Abelardo null and void, the trial court stated in its Decision
dated 8 November 1991 that "compliance with the
jurisdictional requirements have been duly established." We
hold that delivery to the Department of Foreign Affairs
was sufficient compliance with the rule. After all, this is
exactly what the trial court required and considered as
sufficient to effect service of summons under the third mode
of extraterritorial service pursuant to Section 15 of Rule 14.
COMMENT: So, what is important here is you just follow
exactly what was the manner mentioned in the order of the
court as to how service of summons should be served.
CARIAGA v. MALAYA
G.R. No. L-48375. August 13, 1986.
FACTS: Ana Almonte Cariaga Soon filed in her behalf and in
behalf of her minor daughter Carolina, an action for (1)
Annulment of a Deed of Extra-Judicial Partition of Real
Property, (2) Cancellation of Transfer Certificate of Title
(TCT), (3) Recovery of Real Property with damages. All
defendants in said action filed their answer with counterclaim
with the exception of defendants (petitioners herein) Jose C.
Cariaga Jr. and Marieta Cariaga-Celis who were both residing
abroad and were not served with summons. The lower court
upon motion of plaintiffs granted them leave to effect extra-
territorial service of summons upon said defendants pursuant
to Secs. 7, 17 and 18 of Rule 14 of the New Rules of Court.
Accordingly, summonses with copies of the complaint were
served to the defendants by registered mail abroad (Guam
and U.S.A.) by the Clerk of Court at the instance of plaintiffs.
On August 30, 1977, defendants, who are residents of the
Philippines filed a motion to set aside the said summons and
to declare the service of summons abroad by registered mail
as null and void, it being allegedly irregular and unauthorized
under the provisions of Rule 14 of the Rules of Court (Annex
D ") to which motion plaintiffs filed their opposition. On
March 31, 1978, defendants (petitioner herein), residing
abroad, by special appearance and thru counsel filed their
motion to consider the service of summons upon, them by
registered mail as null and void.
ISSUE: Whether the service of summons by registered mail
upon defendants in the case at bar is one which is
contemplated within the principles laid down in the
provisions of the Rules of Court.
RULING: In any of such four cases, the service of summons
may, with leave of court, be effected out of the Philippines in
three ways: (1) by personal service; (2) by publication in a
newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the
summons and order of the court should be sent by registered
mail to the last known address of the defendant; and (3) in
any other manner which the court may deem sufficient. The
third mode of extraterritorial service of summons was
substantially complied with in this case. (De Midgely v.
Fernandos).
There is no question that the requirement of due process has
been met as shown by the fact that defendants actually
received the summonses and copies of the complaint and as
evidenced by the Registry Return Cards marked as Annex A-1
(page 56-Record) and Annex B-1. Whatever defect there may
have been in the service of summons was aptly corrected by
the court a quo in its assailed order dated January 16, 1978,
which gave said defendants ninety (90) days from receipt
of order within which to file their responsive pleadings.
Defendants have no reason to complain that they were
unaware of the action filed against them or claim that they
were denied due process.
Even if it was by registered mail, it falls under the mode “in any
other manner which the court may deem sufficient.”
Section 18.
Residents temporarily out of the Philippines. — When
any action is commenced against a defendant who ordinarily
resides within the Philippines, but who is temporarily out of
it, service may, by leave of court, be also effected out of the
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 Philippines, as under the preceding Section.
Under Section 18, we have here a defendant who is a resident of
the Philippines. However, he is temporarily out of the
Philippines, but he has not abandoned his residence in the
Philippines.
Q: So, how is service of summons effective upon these
defendants?
A: Under Section 18, it says “in the same manner as under the
preceding section (Sec. 17).”
Take note, under Section 18, it says “when any action.” So, it
could be an action in rem, action in personam, or action quasi in
rem.
MODES
This means that the service of summons may be any of the
following modes:
a) By personal service as provided for in Sec. 5 of Rule 14
governing service in person on defendant;
b) As provided for in international conventions to which
the Philippines is a party;
c) By publication in a newspaper of general circulation in
such places and for such time as the court may order,
in which case a copy of the summons and order of the
court shall be sent by registered mail to the last known
address of the defendant; or
d) In any other manner the court may deem sufficient.
Take note that under Sec. 18, we are talking of a resident
defendant. So, he is a resident of the Philippines but temporarily,
for example, nag vacation lang siya abroad. So, he is temporarily
out of the Philippines. Again, Section 18 says na extraterritorial
service – the 4 modes of service under Sec. 17 can also be used.
We discussed before in Sec. 5 na as a priority, it should be service
in person. But substituted service may also be done.
Q: For example, on 3 different occasions or attempts, wala. Wala
na-serve maybe because he went abroad. Nagvacation, so
substituted service. Can we do that in case of a resident defendant
who is temporarily out of the Philippines?
A: Yes, it does not preclude substituted service.
SUBSTITUTED SERVICE
A resident defendant temporarily outside of the Philippines may
still be served through the substituted service under Sec. 7 (now
Sec. 6) of Rule 14. This is because even if he is abroad, he has a
residence in the Philippines or a place of business and because
certainly, he cannot be served within a reasonable time because
of his absence in the Philippines, this absence would now trigger
the application of the rule on substituted service of summons
(Montalban vs. Maximo, 22 SCRA 1070).
In a suit in personam, against a resident of the Philippines
temporarily absent from the country, the defendant may be
served by substituted service because a man temporarily out
of the country leaves a definite place of residence or a
dwelling where he is bound to return. He also leaves his affairs
to someone who protects his interests and communicates with
him on matters affecting his affairs or business (Montalban vs.
Maximo, 22 SCRA 1070; Valmonte vs. Court of Appeals, 252 SCRA
92).
If the defendant is out of the country, he cannot be expectedly
served within a reasonable time. The fact that "for justifiable
causes, the defendant cannot be served within a reasonable
time," constitutes the operative fact that triggers the application
of substituted service.
COMMENT: So, the SC also clarified that substituted service, in
case of a resident temporarily absent from the country, it is in
addition to the service of summons authorized by Sec. 17 of Rule
14.
PAVLOW vs. MENDENILLA
G.R. No. 181489, April 19, 2017
Section 1 of A.M. No. 04-10-11-SC expressly states that while
it governs petitions for the issuance of protection orders
under the Anti-VAWC Law, "[t]he Rules of Court shall apply
suppletorily." In the silence of A.M. No. 04-10-11-SC, service
of summons - the means established by the 1997 Rules of
Civil Procedure for informing defendants and/or respondents
of the filing of adverse actions, and for the acquisition of
jurisdiction over their persons - remains efficacious.
Petitioner, though an American citizen, was admittedly a
resident of the Philippines as of September 7, 2005, the date
when Deputy Sheriff Velasco attempted to personally serve
summons on him. On September 7, 2005, however, he was not
in the Philippines. It was this circumstance which, according
to the Sheriff's Report, impelled substituted service of
summons through Tolentino.
COMMENT: So, the defendant here was an American citizen
but he was a resident of the Philippines at the time when
summons was served to him. Here, as of the time when the
sheriff tried or attempted to personally serve summons upon
the defendant, the defendant was not in the Philippines. So, it
was this circumstance which compelled the sheriff to serve by
substituted service through a person named Tolentino.
Rule 14, Section 6 (now section 5) of the 1997 Rules of Civil
Procedure clearly articulates a preference for personal
service of summons.
Rule 14, Section 6 recognizes two (2) alternative ways
through which personal service may be effected: first, by
actually handing summons to the defendant, which
presupposes the defendant’s willingness to accept the
summons; and second, by mere tender, if the defendant
refuses to accept.
If personal service is impracticable within a reasonable time,
substituted service may be resorted to in lieu of personal
service. Rule 14, Section 7 states:
Section 7. Substituted service. – If, for justifiable causes, the
defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a)
by leaving copies of the summons at the defendant’s residence
with some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendant’s office or
regular place of business with some competent person in
charge thereof.
In the case of residents who are temporarily not in the
Philippines, another alternative means for serving summons
is through extraterritorial service.
Under the amended rules, this would be under Section 18 of Rule
14 in reference to Section 17 of Rule 14.
Jurisprudence has long settled that, with respect to residents
temporarily out of the Philippines, the availability of
extraterritorial services does not preclude substituted
service. Resort to substituted service has long been held to be
fair, reasonable and just. This Court has noted that a contrary,
restrictive view is that which defeats the ends of justice. It has
been emphasized that residents who temporarily leave their
residence are responsible for ensuring that their affairs are in
order, and that, upon their return, they shall attend to exigencies
that may have arisen.
So, in addition to extraterritorial service, you can actually
effect also substituted service. Of course, service in person
would be impossible in this case because we’re talking of a
defendant who is out of the Philippines in the meantime.
Q: When you file a case, are you required to know kung asa gyud
exactly ang defendant at the time when you are filing the suit?
A: The burden on a plaintiff is not to be enlarged with a
restrictive construction as desired by defendant here. Under the
rules, a plaintiff, in the initial stage of suit, is merely required to
know the defendant's "dwelling house or residence" or his "office
or regular place of business" — and no more. He is not asked to
investigate where a resident defendant actually is, at the
precise moment of filing suit. Once defendant's dwelling house
or residence or office or regular place of business is known, he
can expect valid service of summons to be made on "some person
of suitable age and discretion then residing" in defendant's
dwelling house or residence, or on "some competent person in
charge" of his office or regular place of business. By the terms of
the law, plaintiff is not even duty-bound to see to it that the
person upon whom service was actually made delivers the
summons to defendant or informs him about it. The law
presumes that for him.
It is immaterial then that defendant does not in fact receive
actual notice.
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 o This will not affect the validity of the service.
Accordingly, the defendant may be charged by a
judgment in personam as a result of legal proceedings
upon a method of service which is not personal,
"which in fact may not become actual notice to him,"
and which may be accomplished in his lawful absence
from the country. For, the rules do not require
1. that papers be served on defendant personally or
2. a showing that the papers were delivered to
defendant by the person with whom they were left.
COMMENT: As long as the conditions for substituted service
were complied with, di na nato na problema kung katong
gibilinan didto, wala diay niya gihatag sa defendant. Reasons for
the views just expressed are not wanting. A man temporarily
absent from this country leaves a definite place of residence, a
dwelling where he lives, a local base, so to speak, to which any
inquiry about him may be directed and where he is bound to
return. Where one temporarily absents himself, he leaves his
affairs in the hands of one who may be reasonably expected to
act in his place and stead; to do all that is necessary to protect his
interests; and to communicate with him from time to time any
incident of importance that may affect him or his business or his
affairs. It is usual for such a man to leave at his home or with his
business associates information as to where he may be contacted
in the event a question that affects him crops up. If he does not
do what is expected of him, and a case comes up in court against
him, he cannot in justice raise his voice and say that he is not
subject to the processes of our courts. He cannot stop a suit from,
being file against him upon a claim that he cannot be summoned
at his dwelling house or residence or his office or regular place of
business.
The law presumes that when you temporarily absent yourself
from your residence, you will leave your affairs to someone who
is expected to act in your place and who will protect your
interest. You cannot stop a suit from being filed for the
reason that you did not leave someone who is responsible
enough to receive communications on your behalf.
Section 19.
Leave of court. — Any application to the court under this Rule
for leave to effect service in any manner for which leave of court
is necessary shall be made by motion in writing, supported by
affidavit of the plaintiff or some person on his behalf, setting
forth the grounds for the application. (17a)
The motion should be in writing not oral, and supported by an
affidavit.
Section 20.
Return. — Within thirty (30) calendar days from issuance of
summons by the clerk of court and receipt thereof, the sheriff or
process server, or person authorized by the court, shall complete
its service. Within five (5) calendar days from service of
summons, the server shall file with the court and serve a copy of
the return to the plaintiff’s counsel, personally, by registered
mail, or by electronic means authorized by the Rules. Should
substituted service have been effected, the return shall state the
following:
(1)The impossibility of prompt personal service within a period
of thirty (30) calendar days from issue and receipt of summons;
(2)The date and time of the three (3) attempts on at least (2) two
different dates to cause personal service and the details of the
inquiries made to locate the defendant residing thereat; and
(3)The name of the person at least eighteen (18) years of age and
of sufficient discretion residing thereat, name of competent
person in charge of the defendant’s office or regular place of
business, or name of the officer of the homeowners’ association
or condominium corporation or its chief security officer in
charge of the community or building where the defendant may be
found. (4a)
Please remember within what period should the sheriff, process
server or person authorized by the court shall complete its
service. Once the summons has been served, the server shall file
with the court and serve a copy of the return to the counsel.
Q: Why do you need to serve a copy of return to the plaintiff’s
counsel?
A: So that the plaintiff’s counsel would actually know when the
defendant actually received the summons, and from that time
the plaintiff’s counsel would know if the defendant filed the
answer within the reglementary period.
Examples: If the sheriff was able to serve a copy of the
summons, he may state in the return:
“Respectfully returned to the court with the information that
defendant was personally served with summons on this date and
on this time as shown by his signature on the face of this original
copy”
If the sheriff was not able to serve a copy of the summons, he
may state in the return:
“Respectfully returned to the court with the information that
defendant cannot be served with the summons because the
defendant had already moved from the address indicated in the
complaint and therefore he cannot be located.”
After this, you will still give a copy to the court and the plaintiff’s
counsel. So that the plaintiff’s counsel can make the necessary
remedy like motion for leave to instead effect service by
publication because we now have a case where the whereabout
of the defendant is now unknown.
PURPOSE OF RETURN
There must be a return because that will determine when the
period to file an answer will start to run.
MANOTOC vs. COURT OF APPEALS, 499 SCRA 21
A mere general claim or statement in the Sheriff’s Return that
the server had made “several attempts” to serve the
summons, without making reference to the details of facts and
circumstances surrounding such attempts, does not comply
with the rules on substituted service
JOSE vs. BOYON, 414 SCRA 216
A return which merely states the alleged whereabouts of the
defendants without indicating that such information was
verified and without specifying the efforts exerted to serve
the summons is not enough for compliance. So is a mere
general statement that such efforts were made
Section 20 of Rule 14 now incorporate the rulings of some
Landmark cases like the case of Manotoc v CA. You should specify
that you made at least 3 attempts.
Carson Realty vs. Red Robin Security
G.R. No. 225035, February 8, 2017
Monina C. Santos filed a complaint for Sum of Money and
Damages against Carson. As per the Officer’s Return dated April
12, 2007 of Process Server Jechonias F. Pajila, Jr. a Copy of the
summons dated April 11, 2007, together with the complaint and
its annexes, was served upon Carson at its business address at
Unit 601 Prestige Tower Condominium, Emerald Avenue, Ortigas
Center, Pasig City, through its “corporate secretary,” Precilla S.
Serrano.
The SC said that based on Return which detailed the
circumstances surrounding the service of summons, it showed
that the requirements for a valid substituted service of summons
were substantially complied with.
The pertinent portion of the Return states:
Substituted service of summons was resorted to by leaving the copy
of the Alias Summons at the company’s office through its employee,
Ms. Lorie Fernandez, however she refused to acknowledge receipt
of the process.
Based on the facts, there was a deliberate plan of Carson’s for its
officers not to receive the Summons. It is a legal maneuver that is
in derogation of the Rules on Summons. We cannot Tolerate that.
This is now incorporated in Section 20 (3)
The sheriff must describe in the Return of Summons the facts
and circumstances surrounding the attempted personal
service.
o The efforts made to find the defendant and
o the reasons behind the failure must be clearly
narrated in detail in the Return.
o The date and time of the attempts on personal service,
o the inquiries made to locate the defendant,
o the name/s of the occupants of the alleged residence
or house of defendant and
o all other acts done, though futile, to serve the
summons must be specified in the Return to justify
substituted service.
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The form on Sheriffs Return of Summons on Substituted Service
prescribed in the Handbook for Sheriffs published by the
Philippine Judicial Academy requires a narration of the efforts
made to find the defendant personally and the fact of failure.
Supreme Court Administrative Circular No.5 dated November 9,
1989 requires that “impossibility of prompt service should be
shown by stating the efforts made to find the defendant
personally and the failure of such efforts,” which should be made
in the proof of service.
Indeed, the Return established the impossibility of personal
service to Carson’s officers, as shown by the efforts made by
Pajila to serve the September 8, 2008 alias summons on Carson’s
President/General Manager. In fact several attempts were made
on October 2, October 16, October 27 and October 28, 2008, but
to no avail.
On his fourth and final attempt, Pajila served the summons on
Fernandez, Carson’s receptionist, due to the unavailability and
difficulty to locate the company’s corporate officers. The facts
now show that the responsible officers did not intend to receive
the alias Summons through the substituted service. The
summons is considered validly served.
De Pedro vs. Romasan Development Corp.
G.R. No. 194751, November 26, 2014
Regardless of the type of action – whether it is in personam, in
rem or quasi in rem – the preferred mode of service of summons
is personal service. To avail themselves of the substituted
service, courts must rely on a detailed enumeration of the
sheriff’s actions and a showing that the defendant cannot be
served despite diligent and reasonable efforts. The presumption
of regularity, and on this basis, the court may allow substituted
service. Should the sheriff’s return be wanting of these details,
substituted service will be irregular if no other evidence of
the efforts to serve summons was presented. Failure to serve
summons will mean that the court failed to acquire jurisdiction
over the person of the defendant.
This case originated from separate complaints for nullification of
free patent and original certificates of title, filed against several
defendants. One of the defendants is Aurora De Pedro. The
complaints were filed by respondent Romasan Development
Corp. before the RTC of Antipolo City on July 7, 1998.
Petitioner argued that the trial court did not acquire jurisdiction
over her person because she was not properly served with
summons. After the summons had returned unserved to
petitioner because “ there was no person in the said given
address.” The trial court allowed the publication of the summons
to petitioner.
The action involved here is an action for annulment of certificate
of title which is quasi in rem. It is not an action “against a
person on the basis of his personal liability,” but an action that
subjects a person’s interest over a property to a burden.
Petitioner is entitled to due process with respect to that interest.
The court does not have competence or authority to proceed
with an action for annulment of certificate of title without giving
the person, in whose name the certificate was issued all the
opportunities to be heard.
Hence, regardless of the nature of the action, proper service
of summons is imperative. A decision rendered without proper
service of summons suffers a defect in jurisdiction.
Respondent’s institution of a proceeding for annulment of
petitioner’s certificate of title is sufficient to vest the court with
jurisdiction over the res, but it is not sufficient for the court to
proceed with the case with authority and competence.
Other modes of serving summons may be done when justified.
Service of Summons through other modes will not be
effective without showing serious attempts to serve summons
through personal service. Thus, the rules allow summons to be
served by substituted service only for justifiable causes and if
the defendant or respondent cannot be served within reasonable.
Substituted service is effected “ (a) by leaving copies of the
summons at the defendant’s residence with some person of
suitable age and discretion then residing therein, or (b) by
leaving the copies at the defendant’s office or regular place of
business with some competent person in charge thereof.
Service of summons by publication in a newspaper of general
circulation is allowed when the defendant or respondent is
allowed when the defendant or respondent is designated as an
unknown owner or if his or her whereabouts are “unknown and
cannot be ascertained by diligent inquiry.” It may only be
effected after unsuccessful attempts to serve the summons
personally, and after diligent inquiry as to the defendant’s or
respondent’s whereabouts.
Service of summons by extra territorial service is allowed after
leave of court when the defendant or respondent does not reside
or is not found in the country or is temporarily out of the
country. In this case, summons was served by publication. A look
into the content of the sheriff’s return will determine if the
circumstances warranted the deviation from the rule preferring
personal service of summons over other modes of service. The
sheriff’s return must contain a narration of the circumstances
showing efforts to personally serve summons to the
defendants or respondents and the impossibility of personal
service of summons.
Officer’s Return
I HEREBY CERTIFY that on the 15th and 18th day of February,
1999, I have served a copy of the summons with complaint and
annexes dated January 29,1999 issued by the RTC, Fourth
Judicial Region, Branch 74, Antipolo City upon defendants in the
above-entitled case on the following, to wit;
1. AURORA N. DE PEDRO – Unserved for the reason that
according to the messenger of Post Office of Pasig there is no
person in the said address.
This return shows no detail of the sheriff’s effort to serve the
summons personally upon petitioner. The summons was
unserved only because the post office messenger stated that
there was no “Aurora N. De Pedro” in the service address. The
return did not show that the sheriff attempted to locate the
petitioner's whereabouts. Moreover, it cannot be concluded
based on the return that personal service was rendered
impossible under the circumstances or that service could no
longer be made within reasonable time.
The lack of any demonstration of effort on the part of the sheriff
to serve the summons personally upon petitioner is a deviation
from this court’s previous rulings that personal service is the
preferred mode of service, and that the sheriff must narrate in
his or her return the efforts made to effect personal service.
Thus, the sheriff’s return in this case was defective. No
substituted service or service by publication will be allowed
based on such defective return.
The issuance of a judgment without proper service of summons
is a violation of due process rights. The judgment, therefore,
suffers a jurisdictional defect. The case would have been
dismissible had the petitioner learned about the case while trial
was pending. At the time, a motion to dismiss would have been
proper. After the trial, the case would have been the proper
subject of an action for annulment of judgment.
Comment: So, this return according to Supreme Court was
actually defective. Hence, no substituted service or service by
publication will be allowed based on such defective return. The
issuance of a judgment without proper service of summons is
also a violation of due process rights. So, it would be proper to
annul the judgment in that case.
Section 21.
Proof of service.-The proof of service of a summons shall be
made in writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers which have
been served with the process and the name of the person who
received the same; and shall be sworn to when made by a
person other than a sheriff or his or her deputy.
If summons was served by electronic mail, a printout of said
e-mail, with a copy of the summons as served, and the
affidavit of the person mailing, shall constitute as proof of
service. (18a)
After the completion of the service, a proof of service is
required to be filed by the server of the summons. The proof of
service of summons shall
o be made in writing by the server and
o shall set forth the manner, place, and date of service;
o shall specify any papers which have been served with
the process and the name of the person who received
the same; and
o shall be sworn to when made by a person other than a
sheriff or his deputy.
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So, aside from return ha, there’s also what we call proof of
service. It is to be filed by the server of the summons.
Q: In other words, where the server is not the sheriff or the
deputy sheriff, an affidavit is required. Why?
A: Because for servers other than two mentioned, there is NO
PRESUMPTION OF REGULARITY. So, there must be a sworn
statement under the pain of perjury.
When is an affidavit required?
Section 22.
Proof of service by publication. - If the service has been
made by publication, service may be proved by the affidavit of
the publisher, editor, business or advertising manager, to
which affidavit a copy of the publication shall be attached and
by an affidavit showing the deposit of a copy of the summons
and order for publication in the post office, postage prepaid,
directed to the defendant by registered mail to his or her last
known address. (19a)
Now if the service is made by publication, so there’s still a need
for proof of service also by publication. We have section 22.
o There is a need for an affidavit of the publisher, editor,
business, or advertising manager.
o Then, a copy of the publication also shall be attached.
So katong specific newspaper for example, the entire
newspaper of course containing that page where the
summons by publication was made.
o And also an affidavit showing the deposit of a copy of
the summons and order for publication in the post
office directed to the defendant by registered mail.
So, duwa ka affidavits here:
1.) Affidavit of the publisher as to the publication; and
2.) Affidavit showing that you really deposited a copy of
the summons and the order of publication in the post
office (affidavit of mailing, affidavit of service).
Let’s go to section 23. This is very important also because this is a
HUGE departure from the previous rule. The effect of voluntary
appearance.
Section 23.
Voluntary appearance.- The defendant’s voluntary
appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss on other
grounds aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance. (20a)
Please remember that there are two ways by which the court
acquires jurisdiction over the defendant:
1.) Valid service of summons upon the defendant; and
2.) Even if the service of summons is defective, but there
was Voluntary Appearance by the defendant and
because of that the defendant is deemed to have
voluntarily subjected himself or herself to the
jurisdiction of the court.
VOLUNTARY APPEARANCE
Voluntary appearance is to appear gratis or to enter an
appearance in an action without requiring or awaiting the service
of summons or other process. Voluntary appearance is not
necessarily an answer. You don’t make a voluntary
appearance just by FILING AN ANSWER.
You can also be considered to have voluntarily appeared by filing
motions like a motion for an extension of time to file an answer,
or a motion for bill of particulars - that is asking a relief from
the court, indicative of submission to the jurisdiction of the
court.
So, by the voluntary appearance of the defendant, the defects
actually of for example the summons or the lack of jurisdiction
over the person of the defendant, is already considered
waived. Now, there are instances when, even if the defendant
appeared in court through his lawyer, he will not be considered
to have submitted to the jurisdiction of the court. That is why we
said, lack of jurisdiction over the person of the defendant because
of absence of service of summons or improper service of
summons, can be waived by voluntary appearance. That is the
second mode.
SPECIAL APPEARANCE
Now, of course, when a defendant files a motion to dismiss on the
ground that the court has not acquired any jurisdiction over his
person, that is not a voluntary appearance. That is a SPECIAL
APPEARANCE precisely to question the jurisdiction of the court
over his person. A special appearance is not indicative of the
intention to submit to the jurisdiction of the court.
Q: When will that happen?
Example: There is a case filed by the defendant. In that case,
there’s actually an application for a temporary restraining order
with prayer for issuance of writ of preliminary injunction. Of
course, in that particular case, the defendant HAS to answer the
complaint. But, for example the TRO is already issued, even
before the defendant (there are cases where the issuance of the
TRO can be done ex parte, i.e extreme urgency), the defendant
has not yet filed his answer but of course he cannot just ignore
the presence of the TRO and the hearing on the extension, for
example, of the TRO. So, he has to appear in court. Wala pa siyay
answer again ha, i have to emphasize.
Q: Now, is the appearance of the defendant in court in order to
assail the issuance of the TRO considered his voluntary
submission the jurisdiction of the court? So, waived natong any
possible defect on the service of summons which the defendant
could have raised as an affirmative defense in the answer?
A: Of course, if you are the defendant you can specify that your
appearance is a SPECIAL APPEARANCE or a CONDITIONAL
APPEARANCE na you still reserve the right to raise the question
of lack of jurisdiction over the person of the defendant in your
answer.
Please remember that before, lack of jurisdiction over the person
of the defendant, as discussed, was a ground for a motion to
dismiss. So even before you file the answer, you file a motion to
dismiss containing for example lack of jurisdiction over the
person of the defendant. But, under the amended rules, wala
naman na siya. Lack of jurisdiction over the person of the
defendant is not a ground for a motion to dismiss but it can be
raised as an affirmative defense in the answer.
Philippine Commercial International Bank vs. Spouses
Dy, G.R. No. 171137, June 5, 2009.
Insofar as voluntary appearance is concerned, the Supreme
Court said:
Preliminarily, jurisdiction over the defendant in a civil case is
acquired either by the coercive power of legal processes
exerted over his person, or his voluntary appearance in court.
As a general proposition, one who seeks an affirmative
relief is deemed to have submitted to the jurisdiction of
the court.
Q: So what are those instances when the defendant is deemed to
have sought affirmative relief and therefore have submitted to
the jurisdiction of the court?
Rapid City Realty and Development Corporation vs. Villa.
G.R. No. 184197, February 11, 2010
What constitutes voluntary appearance?
Filing of motions:
1. To admit answer,
2. For additional time to file an answer or Motion for
extension to file an answer;
3. For reconsideration of a default judgment, and
4.To lift order of default with motion for reconsideration.
Again, as we have discussed this is tempered by the concept of
conditional appearance, such that a party who makes a
special appearance to challenge, among others, the court’s
jurisdiction over his person cannot be considered to have
submitted to its authority. But again, we mentioned before,
when your lawyer goes to court and manifests that he is entering
his appearance on your behalf but says that his appearance is
conditional or special because he intends to question the
improper service of summons or lack of jurisdiction over the
person of the defendant. But again, diba under the rules, in that
case the lawyer shall be deputized to serve the summons to the
defendant. So, wala gihapon, whatever defect that you intend to
raise in your answer will already be cured by the service of
summons to be made by the counsel.
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Of course, when you file an answer that is already a shall not be deemed a
submission to the jurisdiction of the court as discussed in this voluntary appearance.
case: (23a)

People’s General Insurance Corporation vs. Edgardo Now first, lack of jurisdiction over the person of the defendant.
Guansing and Eduardo Lizaso, G.R. No. 204759, November
14, 2018 OLD AMENDED
Before, under the 1997 Under the present rules, lack
In Navale et al. v. Court of Appeals et. al.: rules, it can be raised as a of jurisdiction over the
Defects of summons are cured by voluntary appearance and ground under a motion to person of the defendant is no
by the filing of an answer to the complaint. (because) A dismiss, under rule 16 or it longer allowed as a ground
defendant [cannot] be permitted to speculate upon the can also be raised as an for a motion to dismiss.
judgment of the court by objecting to the court’s jurisdiction affirmative defense in the
over its person if the judgment is adverse to it, and acceding answer.
to jurisdiction over its person if and when the judgment
sustains its defense as set forth in the answer.
EFFECT OF THE AMENDMENT:
Any form of appearance in court by the defendant, his The defense of lack of jurisdiction over the person of the
authorized agent or attorney, is a equivalent to service defendant becomes useless.
except where such appearance is precisely to object to the Q: Why?
jurisdiction of the court over his person. Firstly, because you cannot even raise this in a motion to dismiss
(only 4 grounds)
Aside from what we have mentioned, how do you appear to Q: What will happen if you invoke this in your motion to dismiss?
object to the jurisdiction of the court to your person under the A: If invoked alone as a ground, the court will not accept it.
previous rule,
o you can file a motion to dismiss. And in your motion If invoked together with any of the 4 grounds, and if we follow
to dismiss you can set forth as a ground lack of the literal meaning of section 23, it means na you are also
jurisdiction over the person of the defendant, the waiving the defense of lack of jurisdiction because you invoked
reason is there was an improper service of summons. other grounds. So, you are waiving the defect of the example
The court will not take it as a submission to its improper service of summons because you have voluntarily
jurisdiction. submitted to the jurisdiction of the court.

Q: What if you added some other grounds?

Now, if you file instead an answer because under the amended
A: Because diba under the omnibus motion rule, which is the
rules, lack of jurisdiction over the person of the defendant is an
same rule as before, objections and defenses not pleaded in the
affirmative defense.
motion to dismiss or in the answer are deemed barred. So,
Q: What is the effect?
obviously, if you are filing a motion to dismiss you should already
A: Jurisprudence provides that if you file an answer, you have
include all your grounds. So, in addition to your lack of
submitted to the jurisdiction of the court. So it’s really the
jurisdiction over the person of the defendant, you have other
intention of the Supreme court under the present rules saying na
grounds (like prescription, res judicata, litis pendencia) those
kanang mga ing ana na grounds, dili na kaayo nato ientertain
other grounds mentioned (failure to state a cause of action or
because again, kung muadto gihapon si lawyer mag appear in
Lack of legal capacity to sue) under the previous rules even if you
court, enter a special appearance to question the improper
include it in a motion to dismiss, those other grounds are also
service of summons, but again the lawyer now deputized to serve
called affirmative defenses if they are set forth in the answer. But
the summons to the defendant. So, that is the effect of the present
again, if you include them in your motion to dismiss, you are
rules.
not deemed to have submitted to the jurisdiction of the
court.
So, it appears also that the decision in various cases such as in
******But that is now a different rule. the case of Nation Petroleum Gas, Incorporated, Et. Al. vs.
Rizal Commercial Banking Corporation (G.R. No. 183370,
Now, Respondent Guansing, who actively participated in the August 17, 2015), has been rendered modified or
proceedings, cannot impugn the court’s jurisdiction. To superseded by the rules because under these cases, the
reiterate, a long line of cases has established that the filing of an Supreme Court said that even if you include affirmative
answer, among other pleadings, is considered voluntary defenses in your motion to dismiss other than lack of
appearance and vests the court with jurisdiction over the person. jurisdiction over the person of the defendant, this shall not be
The rules are clear: the filing of an answer and other pleadings is considered voluntary appearance.
considered voluntary appearance. Respondent Guansing’s
actions lead to no other conclusion other than he voluntarily “Despite improper service of summons upon their persons,
appeared and submitted himself to the court’s jurisdiction. the individual petitioners are deemed to have submitted to
the jurisdiction of the court through their voluntary
appearance. The second sentence of Section 20, Rule 14 of the
EFFECT OF CITING GROUNDS OTHER THAN LACK OF Rules that “the inclusion in a motion to dismiss of other
JURISDICTION OVER THE PERSON OF THE DEFENDANT grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance” clearly
We already discussed this under rule 8. But let’s just discuss this refers to affirmative defenses (i.e litis pendencia,
again. As we mentioned before, there’s a significant difference prescription, fraud, failure to state cause of action), not
between voluntary appearance (the effect of it) under the 1997 affirmative reliefs.”
rules and the 2019 amended rules.
But, if you ask for affirmative reliefs, what is the effect?:

In the present case, the individual petitioners prayed, among

others, for the following:
1.) Discharge of the writ of attachment on their
1997 Rules 2019 Amended Rules properties;
Section 20. Voluntary Section 23. Voluntary 2.) Denial of the motion to declare them in default;
Appearance.-The appearance.- The defendant’s 3.) Admission of the Comment/Opposition (to the
defendant’s voluntary voluntary appearance in the motion to declare them in default) filed on
appearance in the action action shall be equivalent to December 19, 2006; and
shall be equivalent to service of summons. The 4.) Denial of respondent’s motion to strike off from the
service of summons. The inclusion in the motion to records (their opposition to the motion to declare
inclusion in a motion to dismiss of other grounds aside them in default).
dismiss of other grounds from lack of jurisdiction over
aside from lack of the person of the defendant By seeking affirmative reliefs from the trial court, the
jurisdiction over the shall be deemed a voluntary individual petitioners are deemed to have voluntarily
person of the defendant appearance. (20a) submitted to the jurisdiction of said court. A party cannot

116
 invoke the jurisdiction of a court to secure affirmative relief
against his opponent and after obtaining or failing to obtain A motion is not a pleading.
such relief, repudiate or question that same jurisdiction.
Therefore, the CA cannot be considered to have erred in PLEADING
affirming the trial court’s denial of the Special Appearance Pleadings are the written statements of the respective claims and
with Motion to Dismiss for alleged improper service of defenses of the parties submitted to the court for appropriate
summons. judgment.
o This includes complaint, answer, reply, counterclaim,
You cannot at the same time ask for relief from the court and cross-claim, third (fourth, etc.)-party complaint
at the same time repudiate the jurisdiction. You cannot have
an inconsistent position. PLEADING MOTION
both the motion and pleading pray for relief
CASES NO LONGER APPLICABLE: the relief prayed for in a A motion also prays for a
So with these amendments, it is safe to say that those cases pleading relates to a final relief but not the type of
decided by the Supreme Court before like judgment by the court relief that renders final
For example: judgment.
a complaint. It asserts a
Millenium Industrial Commercial Corporation vs. Jackson claim and that judgment is So in the middle of a case,
Tan, G.R. No. 131724, February 28, 2000 that the inclusion rendered granting the relief there are several kinds of
of other grounds in a motion to dismiss like here: prayed for in the complaint. relief, you may want to ask
from the court, not a final
“We now turn to the issue of jurisdiction by estoppel. Both the an answer, which is also a judgment on the case. That is
trial court and the Court of Appeals held that by raising the pleading, sets for the why a motion is defined as
affirmative defense of payment (Aside from the ground of defendant’s defenses and an application for relief,
lack of jurisdiction over the person of the defendant) and prays that judgment be other than by a pleading.
by praying for other reliefs in its Motion to Dismiss, petitioner rendered dismissing the Otherwise stated, a motion is
in effect waived its objection to the trial court’s jurisdiction case. an application for relief
over it. We think this is error.” (Meaning, there was no waiver. without praying for the
No voluntary submission. Based to sa old rule) rendition of judgment

The Court cited here the La Naval Doctrine (Doctrine which Q: Are there exceptions to the general rule that a motion prays
states that the inclusion of other grounds in a motion to dismiss for relief other than by a final judgment?
other than lack of jurisdiction over the person of the defendant A: Of course, this is only the general rule.
is NOT considered voluntary appearance.)
EXCEPTIONS to the Rule that pray for final judgment, to wit:
“Our decision in La Naval Drug Corporation v. Court of  1. Motion to Dismiss (Rule 16);
Appeals settled this question. The rule prior to La Naval On the grounds of lack of jurisdiction over the subject
was that if a defendant, in a motion to dismiss, alleges matter, litis pendentia, res judicata and prescription
grounds for dismissing the action other than lack of
jurisdiction, he would be deemed to have submitted himself 2. Motion to Dismiss on the ground that upon the facts and the
to the jurisdiction of the court. This rule no longer holds law the plaintiff has shown no right to relief (Demurrer under
true. Noting that the doctrine of estoppel by jurisdiction Rule 33);
must be unequivocal and intentional, we ruled in La Naval:
Demurrer to evidence is also a ground for a motion to dismiss on
Jurisdiction over the person must be seasonably raised, i.e., the ground that upon the facts of the law, the plaintiff has no
that it is pleaded in a motion to dismiss or by way of an right to relief
affirmative defense. Voluntary appearance shall be deemed
a waiver of this defense. The assertion, however, of FAILURE TO STATE LACK OF CAUSE OF ACTION
affirmative defenses shall not be construed as an CAUSE OF ACTION
estoppel or as a waiver of such defense. Failure to state cause What if there is no really cause of
of action is actually action because the plaintiff has not
Third, Finally, we turn to the effect of petitioner’s prayer an affirmative completed (like there are no
for “other reliefs” in its Motion to dismiss. In De Midgely v. defense, meaning damages suffered, there is no
Fernandos, it was held that, in a motion to dismiss, the there may be a cause obligation on the part of the
allegation of grounds other than lack of jurisdiction over of action but the defendant or there is no right on the
the person of the defendant, including a prayer “for such complaint is written part of the plaintiff), but as drafted,
other reliefs as may be deemed ‘appropriate and proper’ in such a way that the complaint is well-written. So it
amounted to voluntary appearance. This, however, must be that it does not recite does not show there is really no
deemed superseded by the ruling in La Naval that estoppel all the essential cause of action but during the trial
by jurisdiction must be unequivocal and intentional. It elements of a cause upon the presentation of evidence, it
would be absurd to hold that petitioner unequivocally and of action, so it is is proved that there is no really cause
intentionally submitted itself to the jurisdiction of the incomplete, while of action. If that is the case, if you are
court by seeking other reliefs to which it might be entitled there may be in the defendant, you don’t have to
when the only relief that it can properly as from the trial reality a cause of present your evidence. Kapuy
court is the dismissal of the complaint against it.” action. kapuy ka lang present ug evidence
when in fact based on the
Hence, with the amended rules, the LA NAVAL DOCTRINE NO presentation of evidence for the
LONGER HOLDS TRUE. So with that, we will just have to wait for complainant, there was no cause of
a ruling by the Supreme Court based on Section 23 of Rule 14 of action. So what you do is, you file,
the Rules of Court which is the total opposite of the La Naval demurrer to evidence.
Doctrine.

So you file MTD on the ground that based on the facts or the law,
the plaintiff has shown no right to relief.

3. Motion for Judgment on the Pleadings (Rule 34); and

What is a motion for judgment on a pleading and a motion for
summary judgment?
o In a motion for judgment on a pleading under Rule 34,
there is an answer filed by the defendant but the
RULE 15 answer fails to tender an issue or it otherwise admits
MOTIONS the material allegations of the complaint. So, na-admit
na man diay, there is no contested fact anymore. What
Section 1. the court can do is render a judgment based on the
Motion defined. —A motion is an application for relief other than pleadings.
by a pleading.

117
4. Motion for Summary Judgment (Rule 35). 2) As to nature, a motion can either be litigious or non-
When an answer tenders an issue but it is not a real issue or it is litigious
sham. This will be discussed in Rule 35.
Litigious motions generally require a hearing. The court will
PLEADINGS MOTION hear the motion at its discretion. Although there are motions also
States the respective claims Application for relief which mandatorily the court shall hear.
and defenses of the parties. may not at all relate to the
claim or defense. Non-litigious motions are those that the court will not hear
An example of a motion that anymore.
relate to the claim is a An example of a motion that
motion for a summary does not relate to the claim or Although whether the motion is litigious or non-litigious, if you
judgment and a motion that a defense is a motion for file a motion, you have to furnish the adverse party a copy of
relates to the defense is a extension. your motion.
motion to dismiss or a
demurrer. SEC. 3.
Prays for judgment on the May or not pray for judgment. Contents.— A motion shall state the relief sought to be obtained
merits. and the grounds upon which it is based, and if required by these
What is an example of a motion that prays for judgment? Rules or necessary to prove facts alleged therein, shall be
Example is a demurrer to evidence is an MTD because based accompanied by supporting affidavits and other papers.
on the facts and the law, the plaintiff is not entitled to relief.
[SEC. 4. Hearing of motion.— Deleted]
A motion that does not pray for judgment includes a motion
for a bill of particulars Before we discuss section 3, if you notice, section 4 has already
The relief that is sought is the relief sought is one that is been deleted because under the present rules, the rule already
one that is threshed out more immediate or mentions what are those motions which the court, in its
after trial and hearing. accelerated, although motions discretion may hear or what are those motions which the court
as a general rule require mandatorily has to hear.
hearing, if these motions are
litigious. Under the previous rule, when you file a motion, a movant is
required to set the motion for hearing. There should be a notice
Written. May be oral or written. of hearing which is addressed to the adverse party to give him an
the Rules specify what are The number of motions that opportunity to appear on that hearing. On the previous rule, the
the pleadings. There is a can be filed is virtually date of the hearing which is scheduled in your motion should be
limited number of unlimited, subject only to the within 10 days from the time that you filed your motion.
pleadings allowed by the limitations of propriety and
Rules.. judicial efficiency. Although For example, you filed your motion on April 20, the date of the
when we go over the rule, notice of your hearing will specify a date which is 10 days from
there are prohibited motions, April 20. So the latest would be April 30, or within that period.
so you cannot file these
motions. But it is also stated under the previous rules that you should
notify the adverse party of that motion, and you should serve
that adverse party with a copy of your motion, at least 3 days or
SEC. 2. not later than 3 days before the scheduled date of the hearing.
Motions must be in writing.— All motions shall be in writing
except those made in open court or in the course of a hearing or For example, if the date of hearing scheduled in your notice of
trial. hearing is April 30, he must receive at most on the 27 th the copy
of your motion. Dili ka mulampas ug 3 days before kay kung 2 or
A motion made in open court or in the course of a hearing or trial 1 day/s before, gamay na alng kayo ang window of opportunity
should immediately be resolved in open court, after the adverse for your opponent to study the motion. It would be
party is given the opportunity to argue his or her opposition disadvantageous to him. That is the 3-day Prior Notice Rule
thereto. under the old Rules.
OLD AMENDED
When a motion is based on facts not appearing on record, the when you file a motion, a movant the rule that your motion
court may hear the matter on affidavits or depositions presented is required to set the motion for should contain a notice of
by the respective parties, but the court may direct that the matter hearing. There should be a notice hearing is no longer
be heard wholly or partly on oral testimony or depositions. (2a) of hearing which is addressed to applicable, because it is
the adverse party to give him an not for the movant
Example, there is a motion, but the facts upon which a motion is opportunity to appear on that anymore to decide
based upon do not appear on the record. hearing. On the previous rule, whether or not the court
the date of the hearing which is should hear the motion.
Q: How will the movant establish that these facts exist and how scheduled in your motion should It is upon the court to
will the court be satisfied that these facts really exist? be within 10 days from the time decide and to notify the
A: The court will hear or may hear the matters on affidavits. that you filed your motion. date of the hearing

AFFIDAVITS. When you say affidavits that would be a judicial

affidavit or depositions presented by the respective parties.
DEPOSITIONS. When you say depositions, it’s also like a
testimony and it is not made before the judge.

Although we use the Judicial Affidavit, since we use the Judicial

Affidavit Rule, it is presented in court and your witness will be
presented in court but the judicial affidavit will be the direct
testimony of the witness in open court in the presence of the
judge. The witness will be asked to identify his judicial affidavit
and attest that the statements mentioned on his judicial affidavit
are true and correct.

The court may also direct that the matter be heard wholly or
partly on oral testimony. So meaning, pwede na dili judicial
affidavit, diretso na in court, the lawyer will present the witness
and ask him orally. There is no identification of judicial affidavit.
That’s what happens when you are going to hear a motion, when
you determine facts not appearing on record.

TYPES OF MOTIONS
1) As to form, a motion can either be ORAL or WRITTEN;

118
 Section 2. Contents of motion for new trial or reconsideration
and notice thereof. — The motion shall be made in writing
stating the ground or grounds therefor, a written notice of which
shall be served by the movant on the adverse party.
 
A motion for new trial shall be proved in the manner provided
for proof of motion. A motion for the cause mentioned in
paragraph (a) of the preceding section shall be supported by
affidavits of merits which may be rebutted by affidavits. A motion
for the cause mentioned in paragraph (b) shall be supported by
affidavits of the witnesses by whom such evidence is expected to
be given, or by duly authenticated documents which are
proposed to be introduced in evidence.

Under paragraph A, the merits include fraud, accident, mistake or

excusable negligence as ground for MNT which shall be rebutted
by affidavits.

Under paragraph B, this is a MNT based on a newly discovered

evidence, so supporting affidavits is still needed.

2. Another example is Rule 14, Section 19 which provides that:

Section 19. Leave of court. — Any application to the court under
this Rule for leave to effect service in any manner for which leave
of court is necessary shall be made by motion in writing,
supported by affidavit of the plaintiff or some person on his
behalf, setting forth the grounds for the application. (19)
 
The affidavit of the plaintiff will detail what are the reasons why
service in person was not resorted to. For example, explain that
you are you filing a motion for leave to serve summons by
publication because the defendant’s whereabout are unknown,
which would justify the summons by publication.

Section 4.
non-litigious motions. – Motions which the court may act
upon without prejudicing the rights of adverse parties are
non-litigious motions. These motions include:

a. Motion for the issuance of an alias summons;

b. Motion for extension to file answer;
c. Motion for postponement;
d. Motion for the issuance of a writ of execution;
e. Motion for the issuance of an alias writ of
execution;
f. Motion for the issuance of a writ of possession;
g. Motion for the issuance of an order directing the
sheriff to execute the final certificate of sale; and
h. Other similar motions.

These motions shall not be set for hearing and shall be

resolved by the court within five (5) calendar days from
receipt thereof. (n)

There is no need for the motion to be set for hearing.

Memorize what are those non-litigious motion.
a. Motion for the issuance of an alias summons;
Rule 14, section 4
b. Motion for extension to file answer;
Rule 11, section 11
c. Motion for postponement;
To reset or postpone hearing
d. Motion for the issuance of a writ of execution;
EFFECT OF FAILURE TO STATE THE RELIEF SOUGHT This is found Section 5 of Rule 15 because the
judgment has become final and executory. Execution is
MARCIAL vs. HI-CEMENT a matter of right.
G.R. No. 144900, November 18, 2005
  e. Motion for the issuance of an alias writ of execution;
However, the first motion for extension is fatally defective for Rule 39. Alias writ is issued in lieu of the original one
failure to include a prayer or relief; no period for extension was because it was lost or destroyed.
sought in the motion.  Under Section 3, Rule 15 of the Rules of f. Motion for the issuance of a writ of possession;
Court, a motion shall state the relief sought to be obtained.  As a Rule 39. When you want to be placed in possession of
result, it is pro forma or a mere scrap of paper and of no legal the property.
effect which the CA may ignore. g. Motion for the issuance of an order directing the sheriff
to execute the final certificate of sale; and
SUPPORTING AFFIDAVITS: WHEN REQUIRED h. Other similar motions.
 If required by these Rules or necessary to prove facts alleged
therein, the motion shall be accompanied by supporting SEC. 5.
affidavits and other papers. Litigious motions.— (a) Litigious motions include:

What are these specific instances when the Rules require 1. Motion for bill of particulars;
supporting affidavits? 2. Motion to dismiss;
3. Motion for new trial;
1. A good example is Rule 37, Section 2, to wit: 4. Motion for reconsideration;
5. Motion for execution pending appeal;
6. Motion to amend after a responsive pleading has

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 been filed;
7. Motion to cancel statutory lien;
8. Motion for an order to break in or for a writ of
demolition;
9. Motion for intervention;
10. Motion for judgment on the pleadings;
11. Motion for summary judgment;
12. Demurrer to evidence;
13. Motion to declare defendant in default; and
14. Other similar motions.
(b) All motions shall be served by personal service, accredited
private courier or registered mail, or electronic means so as
to ensure their receipt by the other party.
(c) The opposing party shall file his or her opposition to a
litigious motion within five (5) calendar days from receipt
thereof. No other submissions shall be considered by the
court in the resolution of the motion.
The motion shall be resolved by the court within fifteen (15)
calendar days from its receipt of the opposition thereto, or
upon expiration of the period to file such opposition. (n)
There motions require hearing, but hearing is discretionary.
1. Motion for bill of particulars; Rule 12
2. Motion to dismiss; Under Rule 15, MTD is a prohibited
pleading but under section 12, there is an exception.
You can still file an MTD on the grounds of lack of
jurisdiction over the subject matter, res judicata, litis
pendentia and prescription.
3. Motion for new trial;
4. Motion for reconsideration;
5. Motion for execution pending appeal;
Meaning the case is not final and executory that’s why
it is a litigious motion because for all we know after
you executed and implemented the decision, on appeal
the decision will be reversed. If is a motion for
execution of a final and executory decision, under the
Doctrine of Immutability of Judgment, once the
judgment has become final and executory the it can no
longer be modified.
6. Motion to amend after a responsive pleading has been
filed; Rule 10, sec. 3
7. Motion to cancel statutory lien; Statutory lien is that
lien or encumbrance which is imposed by law. For
example, you want to cancel a public right of way or
easement
8. Motion for an order to break in or for a writ of
demolition; Rule 39
9. Motion for intervention; Rule 19
10. Motion for judgment on the pleadings; Rule 34
11. Motion for summary judgment; Rule 35
12. Demurrer to evidence; Rule 33
13. Motion to declare defendant in default; Rule 9, sec. 3
14. Other similar motions.
Under B, all motions shall be served to the adverse party. If you
file a motion without proof of service, it is defective, is
considered a mere scrap of paper, and deemed to not have
been filed. You can serve it through
o a personal service,
o accredited private courier or
o registered mail or
o electronic means, to ensure they are received by the
other party.
Under C, no more submissions are considered in the resolution of
motion such as comment in the opposition or rejoinder to the
comment to the opposition. The 5 days is to expedite the
proceedings.
NO MORE REQUIREMENT OF 3-DAYS PRIOR NOTICE
Prior rules which have already been deleted/amended
SEC. 4. Hearing of motion.—Except for motions which the court
may act upon without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the
hearing thereof shall be served in such a manner as to ensure its
receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter
notice. (4a)
SEC. 5. Notice of hearing.—The notice of hearing shall be
addressed to all parties concerned, and shall specify the time and
date of the hearing which must not be later than ten (10) days
after the filing of the motion. (5a)
SEC. 6.
Notice of hearing on litigious motions; discretionary.— The
court may, in the exercise of its discretion, and if deemed
necessary for its resolution, call a hearing on the motion. The
notice of hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing. (5a)
SEC. 7.
Proof of service necessary.— No written motion shall be acted
upon by the court without proof of service thereof, pursuant to
Section 5(b) hereof. (6a)
So, when you file a motion, you need to serve a copy of your
motion to the other party. If you fail to furnish your opponent a
copy, the motion is considered a mere scrap of paper. It
deserves no consideration from the court.
Old Rules New Rules
service that should be prioritized is Explanation for
personal service. If you cannot serve failure to
personally, you have to provide personally serve
explanation is not required
VETTE INDUSTRIAL SALES CO., INC., ET AL. vs. SUI SOAN S.
CHENG
G.R. No. 170232, December 5, 2006
Petitioners’ claim that Sui failed to attach proof of service in
violation of Section 6, Rule 15 of the Rule, must fail. In Republic
of the Philippines v. Court of Appeals, we held, thus:
Nonetheless, considering the question raised in the appeal of the
government and the amount involved in this case, we think the
Court of Appeals should have considered the subsequent service
of the motion for reconsideration to be a substantial compliance
with the requirement in Rule 15, §6. In De Rapisura v. Nicolas,
the movant also failed to attach to his motion for reconsideration
proof of service of a copy thereof to the other party. Nonetheless,
this Court held the failure not fatal as the adverse party had
actually received a copy of the motion and was in fact
present in court when the motion was heard. It was held that
the demands of substantial justice were satisfied by the
actual receipt of said motion under those conditions.
WHAT ARE THE REQUISITES OF A VALID MOTION?
 1. It must be in writing except those made in open court or in the
course of hearing or trial;
2. It shall state the relief sought to be obtained and the ground
upon which it is based;
3. It must be accompanied by supporting affidavits and other
papers, if required by these Rules or necessary to prove facts
alleged therein. However, if the facts are already stated on
record, the court can check the records;
4. There must be proof of service of the motion on the adverse
party.
SEC. 8.
Motion day.— Except for motions requiring immediate action,
where the court decides to conduct hearing on a litigious motion,
the same shall be set on a Friday.
SEC. 9.
Omnibus motion.— Subject to the provisions of Section 1 of
Rule 9, a motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available, and all
objections not so included shall be deemed waived. (8a)
This is to avoid multiple or piece-meal objections. As long as
these objections are already present, these should be included in
your motion.
OMNIBUS MOTION RULE
 Omnibus is actually a Latin term which literally means: “FOR
ALL”.
 An omnibus motion is a type of legal motion in which multiple
requests are bundled.
Ex. A defendant has been default failed to file an answer. Trial
court set the presentation of ex parte presentation of evidence.
Feb 18, 2020. However, the defendant has already prepared his
answer. In fact, he claims that the party liable is a third party.
What should be the title of the motion?
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Omnibus Motion to Lift the Order of Default and To Admit
Answer, to Defer the Ex Parte Presentation of Evidence until after
the court has resolved the Motion to Lift the Order of Default and
for Leave to file a Third Party Complaint.
So that omnibus motion is for all of the possible reliefs prayed for
by the defendant. So how many motions are actually included in
this omnibus motion?
1. to lift
2. to admit
3. to defer
4. leave to file
So use only the word “omnibus” if there are several reliefs
prayed for.
Under Section 8, a motion attacking a pleading, order, judgment,
or proceeding shall include all objections then available, and all
objections not so included shall be deemed waived. This is
known as the OMNIBUS MOTION RULE
Remember that in Sec. 9 we are talking about a motion. When
you file a motion, all the grounds that are available at the time
you file the motion should already be included
 
EXAMPLE
 RULE 37 ON NEW TRIAL
 Section 5. Second motion for new trial. — A motion for new
trial shall include all grounds then available and those not so
included shall be deemed waived. A second motion for new trial,
based on a ground not existing nor available when the first motion
was made, may be filed within the time herein provided excluding
the time during which the first motion had been pending.
There are EXCEPTIONS to the OMNIBUS MOTION RULE. They
are found in Rule 9, Section1:
Rule 9, Sec. 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 prior judgment or by statute of
limitations, the court shall dismiss the claim.
For example you are filing a Motion to Dismiss. Again, under the
amended rules, there are only 4 grounds available. So if you are
filing a MTD, you should already include these grounds pursuant
to omnibus motion rule.
Q: But what if you forgot to include the other grounds, for
example you only alleged Lack of JD. Can you still raise the other
grounds?
A: YES, because as expressly stated in Rule 9, Sec. 1, they are
exceptions to the Omnibus Motion Rule. You can raise them
anytime during the proceedings.
Will the Omnibus Motion Rule Apply to Affirmative
Defenses?
We discussed before that under Sec. 12, Rule 8 there are several
affirmative defenses that can be raised. However these
affirmative defenses, except the 4. – these other affirmative
defenses are no longer available as grounds in a MTD, unlike in
the old rules. So naturally, these other affirmative defenses will
have to be raised only in the answer.
Q: What if you failed to raise some of them?
For example, in your answer, you interposed by way of
affirmative defenses that
1. Plaintiff has no legal capacity to sue
2. complaint states no cause of action
3. complaint is unenforceable because barred by statute of frauds
You forgot to raise the affirmative defenses that a condition
precedent was not complied, i.e. there was no prior barangay
conciliation or there have been no earnest efforts made towards
a compromise because suit was between members of the same
family.
Q: What is the effect?
A: These affirmative defenses are also deemed barred.
Q: But would it be an application of the OMR?
A: Technically speaking, that would NOT be an application of the
OMR.
Q: Why?
A: Because what you are filing is not a Motion to Dismiss. What
you are filing is an Answer with affirmative defenses, although
the effect is it is as if there was a Motion to Dismiss filed.
But the proper basis would be Sec. 12 b of Rule 8. Failure to raise
the affirmative def at the earliest opportunity shall constitute a
waiver thereof (except the 4 famous affirmative defenses –
LLRP).
SEC. 10.
Motion for leave.— A motion for leave to file a pleading or motion shall
be accompanied by the pleading or motion sought to be admitted. (9)
Examples:
(a) Motion for Leave to Amend the Complaint – in the Motion for
Leave, you should already attach at the back the amended
complaint itself.
(b) Rule 19 – Motion for Leave to File an Intervention, i.e. Answer
in Intervention or Complaint in Intervention – the motion should
already be attached with the Answer in Intervention or a
Complaint in Intervention
INSTANCES WHEN PRIOR LEAVE IS REQUIRED
 Rule 6, Section 11. Third, (fourth, etc.)—party complaint. — A
third (fourth, etc.);
1) Rule 10, Section 3. Amendments by leave of court;
2) Rule 11, Section 10. Omitted counterclaim or cross-
claim; (when you need to file amended pleading)
3) Rule 14, Section 16. Service upon defendant whose
identity or whereabouts are unknown; (you do it by
publication)
4) Rule 14, Section 17. Extraterritorial service of
summons;
5) Rule 14, Section 18. Residents temporarily out of the
Philippines; (service of summons)
6) Rule 19, Section 1, Intervention;
7) Rule 23, Section 1. Depositions pending action;
8) Rule 24, Section 7. Depositions pending appeal;
9) Rule 25, Section 4. Service of more than one set of
interrogatories to be answered by the same party;
10) Rule 46, Section 5. All other pleadings and papers
(except for comment as directed by the CA, may be
filed only with leave of court;
11) Rule 59, Section 6, XXX No action may be filed by or
against a receiver without leave of the court which
appointed him;
12) Rule 95, Section 1. Petition of guardian for leave to sell
or encumber estate;
13) Rule 110, Section 14. Amendment or substitution of
complaint or information;
14) Rule 119, Section 23. Demurrer to evidence;
15) Rule 120, Section 6. Promulgation of judgment. Within
15 days from promulgation of judgment, the accused
may surrender and file a motion for leave of court to
avail of the remedies against the judgment;
16) Rule 132, Section 9. Recalling witness.
Section 11
Form. – The Rules applicable to pleadings shall apply to written
motions so far as concerns caption, designation, signature, and other
matters of form. (10)
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;
(b) Motion to hear affirmative defenses;
(c) Motion for reconsideration of the court’s action on the affirmative
defenses;
(d) Motion to suspend proceedings without a temporary restraining
order or injunction issued by a higher court;
(e) Motion for extension of time to file pleadings, affidavits or any other
papers, except a motion for extension to file an answer as provided by
Section 11, Rule 11; and
(f) Motion for postponement intended for delay, except if it is based on
acts of God, force majeure or physical inability of the witness to appear
and testify. If the motion is granted based on such exceptions, the
moving party shall be warned that the presentation of its evidence
must still be terminated on the dates previously agreed upon.
A motion for postponement, whether written or oral, shall, at all times,
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 be accompanied by the original official receipt from the office of the
clerk of court evidencing payment of the postponement fee under
Section 21(b), Rule 141, to be submitted either at the time of the filing
of said motion or not later than the next hearing date. The clerk of
court shall not accept the motion unless accompanied by the original
receipt. (n)
Sec. 12(a) – the 4 grounds – LLRP
Q: If the Motion to Dismiss based on all of these grounds is
denied, can you file a Motion for Reconsideration?
A: Yes. There is no prohibition under the Rules. If denied, there is
also no prohibition on the filing of Certiorari if there is grave
abuse of discretion amounting to lack or excess of jurisdiction
(GADALEJ)
Postponement Fee
For example, you filed a motion for postponement by personal
service, so your secretary or Process Server personally went to
court to file the motion after serving the other party with a copy.
So you will be asked to pay the postponement fee first and obtain
the receipt.
But what if the hearing will be conducted in Cebu City (and you
are here in Davao) and you filed for a motion for postponement.
Q: How will you pay?
A: You can just file the motion by registered mail after having
served the other party a copy. You can pay the postponement fee
and get the receipt and present it on the next hearing date when
you go to attend such.

Sec. 12 (b) Motion to hear affirmative defenses

For example: You filed an answer with affirmative defenses. It is
equivalent to filing a Motion to Dismiss. What will the court do?
Exception to the Sec. 12(d), Rule 15
Rule 8, Sec. 12(a) Rule 6 sec. 5 (b) PRINCIPLE OF JUDICIAL COURTESY
Court will motu proprio conduct The rule says the
hearing if the affirmative defenses are court “MAY” NICART, JR. vs. TITONG AND ABRUGAR, SR.
the ones mentioned in this rule. It is conduct hearing – G.R. No. 207682, December 10, 2014
mandatory for the court to conduct it is discretionary
hearing. So in this case, you don’t need In this regard, the Court has, in several cases, held that there
to file a motion to hear the affirmative are instances where, even if there is no writ of preliminary
defenses because the rules say it is injunction or temporary restraining order issued by a higher
mandatory for the court to conduct court, it would be proper for a lower court or court of origin
hearing to suspend its proceedings on the precept of judicial
courtesy. Unfortunately, the RTC did not find the said principle
Sec. 12(c) applicable in Civil Case No. 4236 as it disregarded the fact that
Whether based on the grounds of Rule 8, Sec. 12(a), Rule 6, Sec. there is an intimate correlation between the two
5(b) or Rule 9 sec 1, if these grounds are raised as affirmative proceedings––though technically no prejudicial question exists
defenses and your affirmative defenses are denied, the rule as it properly pertains to civil and criminal cases.To Our mind,
DOES NOT allow to file a Motion for Reconsideration. considering that the mandamus petition heavily relies on the
validity or invalidity of the appointments which issue is to be
Also under Rule 8 sec 12(e) – No certiorari is allowed if your resolved by the CA, the court a quo incorrectly concluded that it
affirmative defenses are denied. may take cognizance of the petition without erroneously
disregarding the principle of judicial courtesy.
Q: So what is your remedy?
Read also:
A: Wait until the case is finally decided by the court. If you want
ETERNAL GARDENS MEMORIAL PARK CORPORATION vs. COURT
to appeal – include in your appeal your ground for the
OF APPEALS (G.R. No. L-50054 August 17, 1988)
affirmative defenses
 
Sec. 12(a) Section 13.
4 Grounds (LLRP) used in 4 grounds used as Dismissal with prejudice. – Subject to the right of appeal, an
Motion to Dismiss affirmative defenses in the order granting a motion to dismiss or an affirmative defense that
Answer 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
If denied – you can file a If denied - cannot file for MR
pleading has been paid, waived, abandoned or otherwise
Motion for Reconsideration and cert(iorari?), just like in
extinguished; or that the claim on which the action is founded is
the case of the other
unenforceable under the provisions of the statute of frauds, shall
If Motion for Reconsideration affirmative defenses as
bar the refilling of the same action or claim. (5, R16)
is denied and there is provided in:
GADALEJ – you can file a Sec. 12(c) Rule 15 and Sec. 12
petition for certiorari (e) Rule 8 Dismissal with prejudice –if the complaint is dismissed, either
because defendant filed a Motion to Dismiss or an Answer with
affirmative defenses, the complainant can no longer refile the
Sec. 12 (d) – Motion to Suspend Proceedings without same complaint
TRO/Injunction issued by a higher court
For ex. You are the defendant in a case filed before the RTC. You 2 instances which, if granted, bar the refiling of the same
filed a petition for certiorari with an application for TRO and action or claim:
preliminary injunction before the CA, because you want to enjoin 1. Affirmative defense that the cause of action is barred by a prior
the proceedings in the RTC. Your petition was not yet granted by judgment or by the statute of limitations, which can be raised in a
the higher court. Motion to Dismiss or Answer
2. The claim or demand has been paid, waived, abandoned or
Your argument before the RTC: If we do not suspend the otherwise extinguished; or that the claim on which the action is
proceedings here, the petition I filed before the CA might be founded is unenforceable under the provisions of the statute of
rendered moot and academic. frauds – can only be raised as affirmative defenses in the
Answer
Q; Can you file before the RTC a Motion to Suspend Proceedings
because you have a pending petition before the CA where you Effect of both instances when granted – dismissal with prejudice,
applied for TRO and writ of preliminary injunction? plaintiff can no longer refile
A: NO
Sec. 12 (e) – Motion for extension of time to file pleading – may So what is the remedy of the plaintiff?
only be filed once For example the trial court erred in dismissing the complaint
because there was already payment so it is not barred by the
Sec. 12(f) – Note: During the pretrial, the court will already statute of frauds or the contract was already partially executed.
specify the dates for the presentation of evidence for the plaintiff
and defendant. - The remedy is APPEAL (opening sentence of Sec.
For example plaintiff is asked how many trial dates he needs and 13)
he specifies the dates. Then on the first trial dates he asked for
postponement due to certain grounds. And it was granted by the
court because the grounds are meritorious. But the plaintiff here RULE 16
still has to complete the presentation of evidence on the dates MOTION TO DISMISS
previously agreed upon.
[Provisions either deleted or transposed]

122

RULE 17
DISMISSAL OF ACTIONS
Overview: Under this rule, we are referring to dismissal either
because of through the inititiave of the plaintiff or because of the
fault of the plaintiff but here we are not referring to that
dismissal under rule 15 by way of motion to dismiss or by rule 8
by what of affirmative defenses.
Section 1.
Dismissal upon notice by plaintiff. – A complaint may be
dismissed by the plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion for summary
judgment. Upon such notice being filed, the court shall issue
an order confirming the dismissal. Unless otherwise stated in
the notice, the dismissal is without prejudice, except that a
notice operates as adjudication upon the merits when filed by
a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
What are the things that we need to remember?
o Here in section 1, it is the plaintiff himself who
initiates the dismissal of the complaint.
Q: How will the plaintiff do this? Example, Plaintiff already filed a
case and changed his mind for a reason, he wants to dismiss.
A: Take not of the time element if it is before service of the
answer, meaning before the plaintiff receives from the defendant
the answer or before service of the answer or motion for
summary judgment, the plaintiff can effect the dismissal of his
complaint by mere notice.
Q: Unsa manang notice?
A: Mag file siya sa court of notice of dismissal telling the court
that he wishes to dismiss the case. So upon such notice being
filed, the court shall issue an order confirming the dismissal. So
the court will now confirm the dismissal.
What is the effect of the dismissal?
Is it with prejudice or without prejudice? When you say with
prejudice, the plaintiff cannot refile the same case anymore but if
it is without prejudice he can still refile.
General Rule: The dismissal is without prejudice except when
the notice operates as an adjudication upon the merits when filed
by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
Example: Plaintiff filed a case and then before service of the
answer, or motion for summary judgment he filed a motion of
dismissal. So the court confirmed it tapos na dismiss. Diba as a
general rule he can still file as a general rule. Now nag file napod
is plaintiff of the same case involving the same cause of action of
the same claim and then before the service or answer for
summary judgment, nag file napod siyag notice of dismissal so
the court again confirms the dismissal.
Q: What is now the effect of the 2nd dismissal? Is it with prejudice
or without prejudice? Silent ang court ha it just confirmed that
notice of dismissal filed by the plaintiff.
A: Under Section 1 it says here it is already with prejudice. So
you can only change your mind once so for example gpa dismiss
nimo ang 2nd case, tapos mu file napod kag 3rd case, you cannot
do that anymore because it is already with prejudice. So one
dismissal lang.
Dismissal by mere notice of Dismissal
Dismissal by MTD Dimissal by notice
when you file a motion to But in this Rule, you are just
dismiss you are asking for notifying or telling the court
approval of the court to that you are dismissing your
which they have discretion case. You don’t need approval;
whether or not they will the court will have to confirm
dismiss it. it, which means it is not
discretionary
Confirmation of Dismissal
Since the order issued by the court merely confirms the
dismissal, it follows that the court does not have to approve the
dismissal because it has not discretion on the matter Before an
answer or a motion for summary judgment has been served
upon the plaintiff, the dismissal by the plaintiff by the filing
of a notice is a matter of right.
It is not the order confirming the dismissal which operates to
dismiss the complaint at the name of the order implies, the
order merely confirms the dismissal already effected by the
filing of notice of dismissal.
So the court actually does not have to approve the dismissal
because it has no discretion on the matter before an answer or
motion for summary judgment has been served upon the
plaintiff. Again, dismissal by filing a notice is a matter of right
Q: When is the dismissal effective? Is it from the time of
confirmation by the court?
A: No, it is from the time as of the date the notice is filed by
the plaintiff not the date the court issues order confirming the
dismissal.
When dismissal ceases as a matter of right
The dismissal as matter of right ceases when an answer or a
motion for summary judgment is served on the plaintiff and
not when the answer or the motion is filed with the court.
Take note when a dismissal is a matter of right on the part of the
plaintiff. So it should be before service of the answer or motion
for summary judgement. Take note of the word used “served”.
Thus, if a notice of dismissal is filed by the plaintiff even after an
answer has been filed in court but before the responsive pleading
has been served on the plaintiff,  the notice of dismissal is still
a matter of right.
Although it is also impossible na mauna pa sa court of filing
kaysa sa service because as a rule before you can file in court,
you have to serve first a copy of the answer or any pleading or
motion to the adverse party.
Dismissal Under Section 1 is without prejudiced
There are two types of dismissals under the Rule, to wit:
1. DISMISSAL WITHOUT PREJUDICE, which means that
the case can no longer be re-filed;
2. DISMISSAL WITH PREJUDICE, which means that the
case can be re-filed.
TWO-DISMISSAL RULE REQUISITES
The two-dismissal rule applies when the plaintiff has:
a. Twice dismissed actions;
b. Based on or including the same claim; and
c. In a court of competent jurisdiction.
The second notice of dismissal will bar the refiling of the action
because it will operate as an adjudication of the claim upon the
merits. In other words the claim may only be filed twice, the
first being the claim embodied in the original complaint. Since as
a rule the dismissal is without prejudice, the same claim may be
re-filed.
If the re-filed claim or complaint is dismissed again through a
second notice of dismissal, that second notice triggers the
application of the two-dismissal rule and the dismissal is to be
deemed one with prejudice because it is considered as an
adjudication upon the merits.
Court of competent jurisdiction
For the above rule to apply, the complaints must have been
dismissed in a court of competent jurisdiction.
To illustrate: Juan files in the RTC an action to collect 200,000
from Anne. The complaint was dismissed when Juan immediately
filed a notice of dismissal. The same claim was again filed in the
Metropolitan Trial Court. Before Anne served either an answer or
a motion for summary judgment, Juan filed a notice of dismissal.
Q: Does the two-dismissal rule apply?
A: It does not. The first court, the RTC was not a court of
competent jurisdiction because the claim was below its
jurisdictional amount.
Ching vs Cheng
G.R. No. 175507, October 08, 2014
Rule 17 of the Rules of Civil Procedure governs the dismissals
of actions at the instance of the plaintiff. Hence, the “two-
dismissal rule” Rule 17, Section 1 of the Rules of Civil
Procedure will not apply if the prior dismissal was done at
the instance of the defendant.
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It is also important also to remember the ruling of the supreme
court of the case of Ching vs Cheng. That for the “two-dismissal
rule” to apply, the dismissal must be at the instance of the
plaintiff, if any of the dismissals would be because of a motion or
at the instance of the defendant, so the second case even if it is
dismissed, it will not be considered an adjudication on the merits
or it will not be with prejudice. So take note ha. It will not apply if
it is at the instance of the defendant.
How to file when dismissal is without prejudice
Tenorio vs Tenorio
G.R. No. 138490, November 24,2004
The dismissal of the case, and the lapse of the reglementary
period to reconsider or set aside the dismissal, effectively
operated to remove the case from the Court’s docket. Even
assuming the dismissal to be without prejudice, the case could
no longer be reinstate or “revived” by mere motion in the
original docketed action, but only by the filing of another
complaint accompanied of course, by the payment of the
corresponding filing fees prescribed by law. The situation is
not at all altered by the circumstance that the dismissal of the
action was effected by the plaintiff as a matter of right,
without order of the court, in accordance with Rule 17 of the
Rules of Court. There having been a dismissal or withdrawal
of the action, albeit without prejudice, and the order
considering the action withdrawn having become final,
revival of the case could not be done except through the
commencement of a new action, i.e., by the filing of another
complaint and the payment of the concomitant docketing fees.
Q: So what happens now when the case is dismissed without
prejudiced because of the notice of the dismissal filed by the
plaintiff?
A: Of course the plaintiff has to file a new case if he wants to
institute another one after the court has already confirmed the
dismissal. So in that case, the same ghpon sa procedure ni filing a
new case. Complaint, all the annexes and then you pay the docket
fees.
Ex: If you are the plaintiff and you file a notice of dismissal and
then the court confirmed the dismissal. So na dismissed, but then
you changed your mind. Na realize nimo na gusto diay nimo
ipadayn ang case, nganu gpa dismiss ko man to and diba we said
that the dismissal is without prejudice so you have to file a new
case, procedures nanaman ang paying new docket fees. What if
mu ana ka na e revive nalang nimo ang first case kay atleast kung
e revive, wala pay payment of new docket fees.
CAN REVIVE OR REINSTATE (IF W/IN REGLEMENTARY
PERIOD)
Q: Can it be reinstated or revive by filing a motion for
reconsideration na you are withdrawing your notice of
dismissal?
A: Yes, you can still reinstate or revive that case if it is in
within the reglementary period. So within 15 days you will file
a motion for reconsideration to modify the court’s ruling pero
kung lapse na ang 15 days. Wala na. Barred na. Thus, you have to
file a new case and pay another docket fees.
Section 1 of Rule 17 Provides that an action “may be dismissed
by the plaintiff without order of court by filing a notice of
dismissal at any time before service of the answer or of a motion
for summary judgment.”
o Such dismissal (or withdrawal) “is without prejudice” (i.e.,
without prejudice to its re-institution) unless “ otherwise
stated in the notice” (e.g., the notice actually declares the
dismissal to be with [prejudice [to its re-filing] or states
some fact barring subsequent re-litigation, e.g., that the
plaintiff has in truth no right of action against the defendant,
or his right of action had prescribed, etc.).
o However, even if not so stated expressly or impliedly, the
notice of dismissal would nonetheless operate “as an
adjudication upon the merits when filed by a plaintiff who
has once dismissed in a competent court an action based on
or including the same claim” (in other words, a plaintiff may
not dismiss his action as a matter of right, by mere notice,
more than once).
o To be sure, a plaintiff who has dismissed his action by notice
under this provision may later change his mind and decide to
continue with it. In that even, since theoretically every final
disposition of an action does not attain finality until after 15
days therefrom, and consequently within that time the action
still remains within the control of the Court, the plaintiff
may move to withdraw and set aside his notice of
dismissal and revive his action, before that period
lapses.
o But after the dismissal has become final through the lapse of
the 15 day reglementary period, the only way by which the
action may be resuscitate or “revived”. Is by the institution of
a subsequent action through the filing of another
complaint and the payment of fees prescribed by law.
This is because upon attainment of finality of the dismissal
through the lapse of said reglementary period, the Court
loses jurisdiction and control over it and can no longer make
any disposition in respect thereof inconsistent with such
dismissal.
Consequences if without prejudice dismissal
Res Judicata and forum-shopping will not apply (Spouses Cruz, Et
Al. Vs Spouses Caraos, Et Al., G.R. No. 138208, April, 2007). It is also
important to remember the consequences if your complaint is
dismissed without prejudiced, you can always refile it. So in the
filing of the second case, you will not be barred because the
principles of res judicata and forum shopping will not apply.
Section 2.
Dismissal upon motion of plaintiff. - Except as provided in
the preceding the section, a complaint shall not be dismissed
at the plaintiff’s instance save upon approve of the court and
upon such terms and conditions as the court deems proper. If
a counterclaim has been pleaded by a defendant prior to the
service upon him or her of the plaintiff’s motion for dismissal,
the dismissal shall be limited to the complaint. The dismissal
shall be without prejudice to the right of the defendant to
prosecute his or her counterclaim in a separate action unless
within 15 calendar days from notice of the motion he or she
manifests his or her preference to have his or her
counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall
be without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court.
So here this is no longer upon a notice of the plaintiff, this is
upon a motion. When you say motion, meaning now the court
has the discretion whether or not it will approve the motion.
Q: When will this happen?
A: Here if there is already an answer or a motion for summary
judgment, which is served to the defendant (CRIS: o plaintiff?)
So here, the rule says”a complaint shall not be dismissed at the
plaintiff’s instance save upon approve of the court and upon such
terms and conditions as the court deems proper.”
o So it is no longer a matter of right on the part of the
plaintiff to dismiss his action.
Q: What if the court approves the motion to dismiss filed by the
plaintiff and in that particular situation there’s already an answer
filed by the defendant served to the plaintiff and in the answer of
the defendant, he interposed a counter-claim. What will happen
to the counter-claim if the court approves the motion to dismiss
filed by the plaintiff? Will the counterclaim be also dismissed?
A: The rules says that the dismissal shall be without prejudice to
the right of the defendant to prosecute his or her counterclaim in
a separate action unless within 15 calendar days from notice
of the motion he or she manifests his or her preference to have
his or her counterclaim resolved in the same action.
Example: Si defendant naka file na ug answer and now the
plaintiff files a motion to dismiss, So the motion to dismiss will
also be furnished to the defendant so within 15 days from the
time that the defendant received a copy of the motion to dismiss
filed by the plaintiff, the defendant has to manifest whether or
not he desires to have his counterclaim be litigated in the same
action. Meaning kung mag manifest si defendant, na gusto niya
na ipadayun lang ghpon ang counterclaim in the same action, the
counterclaim will remain in that court.
What if wala nag file si defendant ug any manifestation within 15
calendar days then the court will dismiss everything, the
complaint plus the counterclaim but this is without prejudice to
the defendant to file the counterclaim. So in this particular case
dili ni siya counterclaim. He can file the claim in a separate
case.
What is the effect if the court approves the motion to dismiss
filed by the plaintiff
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General rule: The dismissal is without prejudice. So meaning it
can be refiled. The rule says unless otherwise specified in the
order, a dismissal under this paragraph shall be without
prejudice. So meaning pwede pod diay e ingun ni court na the
dismissal is with prejudice but kung silent lang ang order sa
court approving the motion to dismiss it means na it is without
the prejudice, so it can still be refiled.
Class suit shall not be dismissed or compromised without
the approval of the courts
Remember also that a class suit shall not be dismissed or
compromised without the approval of the courts. So dili pwede
na si plaintiff lang ang mag buot na e dismiss ang class suit or e
compromise because again, in a class suit, they are not the
entirety of the plaintiff, they are just representatives of the
numerous plaintifs. So if they will be dismissing the case or
entering into a compromise, they would be affecting not only
their own interest but of all the plaintiffs represented of that
class suit.
EFFECT OF DISMISSAL UPON A COUNTERCLAIM ALREADY
PLEADED
If a counterclaim has already been pleaded by the defendant
prior to the service upon him of the plaintiff's motion to dismiss,
and the court grants the said motion to dismiss, the dismissal
"shall be limited to the complaint" (Sec. 2, Rule 17, Rules of
Court).
o The phraseology of the provision is clear: the
counterclaim is not dismissed, whether it is a
compulsory or a permissive counterclaim because the
rule makes no distinction. The rule provides that the
dismissal shall be without prejudice to the right of the
defendant to prosecute his counterclaim (Sec. 2, Rule
17).
Now, as we have already discussed, when there is a counterclaim
already pleaded and then there is a motion to dismiss filed by the
plaintiff, it depends upon the defendant whether or not his
counterclaim will be dismissed along with the complaint.
Q: Why will it depend upon the defendant?
A: Because if the defendant manifests within that 15 days, that he
desires his counterclaim to be litigated along in the same case,
the court will not dismiss the counterclaim.
Q: Now, what counterclaim are we referring to here? Because
diba there are two (2) kinds of counterclaims: compulsory or
permissive.
A: Actually, the Rule makes no distinction. So, here it could be a
compulsory counterclaim or a permissive counterclaim.
The defendant if he so desires may prosecute his
counterclaim either in a separate action or in the same
action.
o A similar rule is adopted in Sec. 6, Rule 16 and Sec.3 of
Rule 17, wherein the dismissal of the complaint does
not carry with it the dismissal of the counterclaim. The
same provision also grants the defendant a choice in
the prosecution of his counterclaim.
o So, kung muingun si defendant na: 'I desire to have it
litigated in the same case." The court will continue with
respect to the counterclaim. If the defendant does not
manifest anything, the case will be dismissed along
with the counterclaim, but without prejudice to the
defendant to file a separate case regarding his claim in
the counterclaim.
SEC. 3.
Dismissal due to fault of plaintiff.— If, for no justifiable
cause, the plaintiff fails to appear on the date of the
presentation of his or her evidence in chief on the complaint,
or to prosecute his or her action for an unreasonable length of
time, or to comply with these Rules or any order of the court,
the complaint may be dismissed upon motion of the
defendant or upon the court’s own motion, without prejudice
to the right of the defendant to prosecute his or her
counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court. (3a)
DISMISSAL DUE TO THE FAULT OF PLAINTIFF
A complaint may be dismissed even if the plaintiff has no desire
to have the same dismissed. The dismissal in this case will be
through reasons attributed to his fault. Sec. 3 of Rule 17 provides
the following grounds for dismissal:
a) the failure of plaintiff, without justifiable reasons, to appear on
the date of the presentation of his/her evidence in chief;
b) the failure of the plaintiff to prosecute his/her action for an
unreasonable length of time;
c) the failure of the plaintiff to comply with the Rules of Court; or
d) the failure of the plaintiff to obey any order of the court.
So, under this section, Section 3, the dismissal is not by notice, it
is not by the motion of the plaintiff, but it is because of the fault
of the plaintiff. So, the plaintiff may have no desire to have his
case dismissed but these grounds may cause the dismissal of the
counterclaim.
1. PLAINTIFF FAILS TO APPEAR FOR THE PRESENTATION OF
HIS EVIDENCE-IN-CHIEF
Evidence-in-chief is the main evidence of the plaintiff to prove his
cause of action. If the plaintiff fails to appear on the date of the
presentation of his evidence-in-chief on the complaint, the case
can be dismissed.
EVIDENCE-IN-CHIEF
Evidence-in-chief is the main evidence of the plaintiff to prove his
cause of action.
So, this happens on the first date of the presentation of the
evidence. So, the court now, after the pre-trial, diba first day of
the presentation of the plaintiff - so, wala, wala ang plaintiff pati
ang iyahang lawyer, and there is no justifiable reason for their
absence. So, sa kana pa lang, the court on its own or upon motion
of the defendant may dismiss the case.
JALOVER vs. YTORIAGA
80 SCRA 100 [1977]
FACTS: Plaintiff appeared during the trial and presented his
evidence and then he rested (he formally offered his exhibits).
During the hearing of the presentation of the defendant’s
evidence, plaintiff failed to appear. Since he failed to appear
during trial, the court dismissed the case.
ISSUE: Was the dismissal proper? Because it was premised
that the plaintiff failed to appear on the date of the
presentation of his evidence-in-chief.
HELD: The dismissal is WRONG. Why dismiss the case when
he has already presented his evidence? It is tantamount to
deciding the case against the plaintiff without considering the
evidence that he has presented.
What is the remedy then?
o What the court should do is to proceed with the
presentation of the defendant’s evidence without
the plaintiff. So, the plaintiff there no longer has the
right to cross-examine the witness for the
defendant. Do not dismiss the case the plaintiff has
already presented his evidence.
That is why the language in the old rule is ‘failure to
prosecute’ or another term is ‘non-suited’. But the rules of
court now wants to avoid the word ‘nonsuited’ because it
carries a different meaning.
Example 1: If the plaintiff fails to appear on the date of
presentation of his evidence-in-chief (but he arrived a little bit
late), or he failed to appear because he failed to receive the notice
setting it.
Q: Then, will the case be dismissed because of the failure of the
plaintiff to present his evidence-in-chief, he failed to appear on
the date, for that purpose of presenting his evidence-in-chief?
A: No, because the caveat here is, his failure to appear is for
justifiable cause. So, if there is a justifiable cause then, of course,
the court should not dismiss it.
EX 2: Now, what if the plaintiff already started to present his
evidence. So, on the first date of the trial, he presented his
evidence. Now, during the pre-trial (he actually scheduled three
(3) trial dates), so: first date - naa siya'y witness; second date -
wala na siya'y witness, wala na siya nag-appear in court (ang
plaintiff),
Q: can the court or can the defendant move to dismiss the case on
the ground of failure of the plaintiff to appear on the date of the
presentation of his evidence-in-chief?
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A: In that case, because the plaintiff was already able to present
evidence on the first date of the trial, the court cannot just
dismiss the case. The proper procedure also on that particular
situation is either:
a. If I'm the defendant, and I feel that the evidence of the
plaintiff presented, so far during the first date of the trial,
is not sufficient (it did not establish his cause of action) - I
could move to dismiss, citing the rule on demurrer to
evidence. So, motion to dismiss because based on the facts
and the law, it is shown that the plaintiff has no right for
relief; or
b. If I'm the defendant, and I'm not sure also about whether
or not enough ba to'ng evidence of the plaintiff - I could
just proceed with the presentation of my own evidence.
So, again, just remember, if the plaintiff has already presented
evidence the court cannot dismiss the case on the ground of
failure of the plaintiff to appear on the date of the presentation of
his evidence-in-chief.
2. FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION FOR
UNREASONABLE LENGTH OF TIME.
o This could mean that every time his case is called to
trial, the Plaintiff appears but he is not ready and so he
postpones. The next hearing, he postpones again.
Here, ang plaintiff and his counsel, they are all present
during each time that there is a scheduled date but each
time also, the plaintiff or his lawyer is not ready. So,
mangayo ug postponement. So, for how many months
na, so for more than one (1) year, wala - sige lang ug
pa-reset si plaintiff or si lawyer because dili sila ready.
That is one reason why you can also move for the
dismissal of the case because of the failure of the
plaintiff to prosecute his action for an unreasonable
length of time.
o Another interpretation of “failure to prosecute” the
complaint is filed, answer if filed, the case has not been
set for pretrial, the plaintiff did not take the initiative
to have the case set for pre-trial. For more than one
year, the case has not been set for pre-trial and the
plaintiff is not moving. The judge cannot have the case
docketed in court forever.
Or, for example, wall gi-set ni plaintiff for pre-trial ang
case after the last pleading has been filed, because it is
actually the duty of the plaintiff to set the case for pre-
trail. So, wala niya gi-set for pre-trial then the
defendant also can move for the dismissal of the case on
the ground of failure to prosecute his (plaintiff) action
for an unreasonable length of time.
o This is the ground also referred to as on non
prosequitor.
ROASTERS PHILIPPINES, INC. vs. GAVIOLA
G.R. No. 191874, September 02, 2015
HELD: The fundamental test for non prosequitur is whether,
under the circumstances, the plaintiff is chargeable with want
of due diligence in failing to proceed with reasonable
promptitude. There must be unwillingness on the part of the
plaintiff to prosecute.
The basis for such pronouncement lies on the first of three
instances mentioned in the Rules, i.e., that plaintiffs failed to
appear at the time of trial. The excuse proffered by
respondents was not acceptable to the trial court that made
the following observation when it denied the motion for
reconsideration by respondents:
The explanations offered as regards the absence of
[respondents] and their witnesses do not merit
reconsideration. Significantly during the 19 May 2008
hearing, [respondents'] counsel Atty. John Patrick Lubaton,
manifested that he filed a motion for postponement as early
as 15 May 2008 as [Maria Leisa], the complaining
[respondent] left to attend a conference in the United States
of America from 14 May to 18 May 2008, together with her
family.
A careful scrutiny of the cancelled plane tickets attached to
the motion discloses, however, that [Maria Leisa] and her
children were issued tickets for a trip to Hong Kong on 15
May 2008 and their destination was not the United
States contrary to the claim by [respondent Maria Leisa] in
the instant motion and by counsel during the 19 May 2008
hearing. Also, co-[respondent] and the husband of [Maria
Leisa] George Gaviola was not among those issued with ticket
for travel to Hong Kong. Hence, counsel and [respondents]
were not candid with this court when they sought
postponement of the hearing on 19 May 2008 as George
Gaviola was not going to travel either to Hong Kong or United
States.
As regards the certificates presented regarding the medical
condition of [Maria Leisa], the same could not likewise be
given much credence because it was not supported by an
affidavit of the issuing officer regarding the veracity thereof.
The above facts could only lead this court to conclude that
[respondents] and counsel lack candor in their dealing with
the court. They made excuses one after another in order to
explain their failure to appear on the date of initial hearing. It
should be stressed that other [respondents] and witnesses
who were not sick or out of the country should have been
presented.
So, kung dili ka maka-present ug, for example - witness A on this
date, unya daghan pa man diay kaayo ka'g witnesses, you should
have presented the other witnesses. So, here it was considered as
a failure to prosecute on the part of the plaintiff.
3/4. FAILURE TO COMPLY WITH THE RULES OF COURT OR ANY
ORDER OF THE COURT.
EX. The court says, “Plaintiff, you are hereby directed to amend
the complaint.” Plaintiff refused to amend. The court will dismiss
the case.
Examples
o amending the pleading
o could be an order to submit a bill of particulars or
o a certification of non-forum shopping or
o to implead an indispensable party.
The dismissal due to the fault of the plaintiff may be done by
the court on its own motion (motu proprio) or upon a motion
filed by the defendant.
So, these are the ways by which the case, due to the fault of the
plaintiff, may be dismissed.
As a general rule, we learned that the court cannot on its own
dismiss the complaint. Q: Why?
A: Because the basis, or the ground for dismissal may actually be
waived by the defendant.
Example: Diba, affirmative defenses of improper venue, statute
of frauds, payment, lack of legal capacity to sue, the rule says na
the defendant has to raise this at the earliest possible
opportunity. So, under the amended rules it would be in his
answer. If he fails to do so, he is deemed to have waived the
defect. So, the court cannot dismiss the case because the
defendant has already waived the defect.
EXCEPTIONS to that rule na the court, on its own, even W/O
MOTION from the defendant, the court can DISMISS the case.
(MOTU PROPRIO)
1. Section 3, Rule 17 (Plaintiff’s fault);
When, in those four (4) cases, when there is fault on the part of
the plaintiff - the court, motu proprio on its own or upon motion
filed by the defendant, may dismiss the case.
2. When the complaint is dismissible on its face (Rule
14, Section 1);
Dismissible based on Section 1 of Rule 9, katong from the face of
the complaint it is very apparent that the court has no
jurisdiction over the subject matter or it or barred by
prescription, litis pendentia, res judicata. So, the court will
automatically dismiss the case. It will not even issue summons to
the defendant
3. Under the Summary Rules, the court is empowered
to dismiss immediately without any motion.
Just like in Rule 14, Section 1.
EFFECT OF DISMISSAL ON THE COUNTERCLAIM
The dismissal of the complaint under Sec. 3 of Rule 17, i.e.,
because of the fault of the plaintiff, is without prejudice to the
right of the defendant to prosecute his counterclaim in the same
action or in a separate action.
PINGA vs. HEIRS OF SANTIAGO
GR No. 170354 June 30, 2016
126

Under Section 3, Rule 17 of the 1997 Rules, the dismissal of
the complaint due to the fault of the plaintiff does not
necessarily carry with it the dismissal of the counterclaim.
The rule makes no distinction between a compulsory and a
permissive counterclaim and hence, covers both types. By the
very tenor of Sec. 3 of Rule 17 of the Rules of Court, the
dismissal of the complaint is without prejudice to the right of
defendants to prosecute the counterclaim.
So based on the rules also, under Sec. 3 a even if the complaint is
dismissed due to the fault of the plaintiff- what happens to the
counterclaim?
DISMISSAL WITH PREJUDICE
The dismissal under Section 3 of Rule 17 shall have the effect of
an adjudication on the merits, unless otherwise declared by the
court. Hence, as a rule, it is a dismissal with prejudice.
If the complaint is dismissed under Section 3, it cannot be re-filed
anymore. The dismissal this time shall have the effect of
adjudication upon the merits which means that res judicata
applies, as if the case has already been decided. Therefore, the
elements of res judicata should also be present. The dismissal is
with prejudice unless otherwise declared by the court.
GEN RULE: Dismissal due to the fault of the plaintiff is with
prejudice
EXCEPTION: Unless the court provides otherwise.
When the case was called for trial, plaintiff did not appear.
Defendant moved to dismiss under Section 3. The court
dismissed the case.
Q: Can the case be re-filed?
A: No, the dismissal is with prejudice. This is the general rule.
But if the court states that: “For non-appearance of the plaintiff,
the complaint is dismissed without prejudice.” Can the case be
re-filed? --- Yes, and this is the exception.
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA
166 SCRA 39 (1988)
FACTS: The RPB filed a case against the defendant for a sum
of money. Defendant cannot be summoned because his
whereabouts is now unknown. Several attempts made by the
plaintiff to look for him failed. After a while the court
dismissed the complaint for RPB’s failure to prosecute. And
the order of dismissal was silent. So, following Section 3, the
dismissal is with prejudice. Then later on, the plaintiff (RPB)
discovered the whereabouts of the defendant. RPB re-filed the
complaint. Defendants moved to dismiss because when the
first complaint was dismissed, and the order of dismissal was
silent then the dismissal has the effect of an adjudication on
the merits.
So the ISSUE here is: WOULD THE SECOND CASE FILED BY
RPB BE BARRED?
HELD: One of the elements of res judicata is:
When the case is terminated, the court has jurisdiction over the
case both as to the person and the subject matter.
In the case of RPB, the court never acquired jurisdiction
over the person of the defendant because he was never
served with summons. Such dismissal did not have the
effect of res adjudicata. Section 3 therefore presupposes
that the court acquired jurisdiction over the subject matter of
the case, and the parties in the previous case in order that the
dismissal be with prejudice.
Note: See also Rule 14, Section 3, last paragraph
As we also learned under Sec. 3, when the case is dismissed
because of the fault of the defendant (CRIS: plaintiff?), the
general rule is the dismissal is with prejudice. So the case
cannot be re-filed anymore. Kung silent ang order of dismissal, it
means that the dismissal is with prejudice. Although the court
can also specify in the order that it could be dismissed without
prejudice.
So in the case of Republic Planters Bank vs. Molina, The court
dismissed the case for RBP’s failure to prosecute. So that would
be Sec. 3- failure due to the fault of the plaintiff. And then silent
ang order of dismissal. So, general rule applies, the dismissal
is with prejudice.
Now later on RPB discovered the whereabouts of the defendant,
and re-filed the case based on the same claim. Now here the
defendant moved to dismiss the case because the tenor of the
order dismissing the first case is it is with prejudice, kasi silent
man siya.
The SC said that you have to remember, one of the elements of
res judicata is that the court trying the case must have competent
jurisdiction over the subject matter, and the person of the
defendant. So if that case is dismissed, it cannot be re-filed.
However in this particular case, in the first case, the court never
acquired jurisdiction over the person of the defendant. Diba that
was the reason why the case was dismissed because summons
was not served upon the person of the defendant. So that being
the case, the dismissal of the first case did not have the effect of
res judicata not withstanding silence insofar as the order of the
dismissal is concerned.
Now actually, this is already clarified in the present amended
rules. If you look at Sec. 3, last paragraph of Rule 14 (Service of
Summons) it says that failure of service after unsuccessful
attempts, the failure to comply with the order to serve, shall
cause the dismissal of the initiatory pleading. So ma dismiss ang
kaso, but without prejudice.
QUINTOS vs. NICOLAS, ET. AL
GR No. 210252 June 16, 2014
A, B, and C are siblings. They brought an action for partition
against their other siblings D and E. A, B, and C alleged that
they inherited a parcel of land from their father Z. A, B, and C
wanted to develop the property into a Riceland but D and E
refused. Thus, the case for partition. The trial court dismissed
the case disposing as follows:
“For failure o the parties, as well as their counsels, to appear
despite due notice, this case is dismissed.”
And then, it was not appealed. There was no Motion for
Reconsideration, so the dismissal became final.
On June 1, 2009, D and E filed a complaint for Quieting of Title
and Damages against A, B, and C. A, B, and C sought, by way of
counterclaim, the partition of the property. D and E filed a
Motion to Dismiss on the ground that the counterclaim of A, B,
and C for partition is already barred by laches or res judicata.’
Q: What is their basis?
A: Because Section 3 of Rule 17 says na when the dismissal of
the case is for failure to appear of the plaintiff on the date of
the presentation of their evidence, or maybe failure to
prosecute, the dismissal is with prejudice. So according to them,
that case for partition (which A, B, and C filed) and which was
dismissed, was already barred by res judicata because the
dismissal of that case is with prejudice.
ISSUE: WOULD THE COUNTERCLAIM FOR PARTITION BE
ALREADY BARRED BY RES JUDICATA?
HELD: The SC said No. It is understandable why petitioners
would allege res judicata to bolster their claim. However,
dismissal with prejudice under Rule 17, Sec. 3 of the Rules of
Court cannot defeat the right of a co-owner to ask for
partition at any time, provided that there is no actual
adjudication of ownership of shares yet. Pertinent hereto is
Art. 494 of the Civil Code, which reads:
Art. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share is
concerned. Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not exceeding ten years,
shall be valid. This term may be extended by a new agreement.
Between dismissal with prejudice under Rule 17, Sec. 3 and
the right granted to co-owners under Art. 494 of the CC, the
latter must prevail. To construe otherwise would diminish
the substantive right of a co-owner through the promulgation
of procedural rules. Such a construction is not sanctioned by
the principle, which is too well settled to require citation, that
a substantive law cannot be amended by a procedural rule.
This further finds support in Art. 496 of the New Civil Code,
viz:
127
 Art. 496. Partition may be made by agreement between the
parties or by judicial proceedings. Partition shall be governed
by the Rules of Court insofar as they are consistent with this
code.
Thus, for the Rules to be consistent with statutory provisions,
we hold that Art. 494, as cited, is an exception to Rule 17, Sec.
3 of the Rules of Court to the effect that even if the order of
dismissal for failure to prosecute is silent on whether or not it
is with prejudice, it shall be deemed to be without
prejudice.
But Partition can still be barred by Res Judicata
This is not to say, however, that the action for partition will
never be barred by res judicata. There can still be res judicata
in partition cases concerning the same parties and the same
subject matter once the respective shares of the co-owners
have been determined with finality by a competent court with
jurisdiction or if the court determines that partition is
improper for co-ownership does not or no longer exists.
So as long as there already is adjudication on the merits
regarding the partition, and the case is either dismissed or a
judgment rendered, it will now constitute res judicata.
Sec. 4.
Dismissal of counterclaim, cross-claim, or third-party
complaint. – The provisions of this Rule shall apply to the
dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as
in Section 1 of this Rule, shall be made before a responsive
pleading or a motion for summary judgment is served, or if
there is none, before the introduction of evidence at the trial
or hearing.
So if you are the counterclaimant, cross-claimant, or etc. You
would like to dismiss your counterclaim, cross-claim, or etc. The
same rule gihapon ang mag apply.
For example, you are the counterclaimant and you would like to
dismiss, you can do it by notice of dismissal.
Q: When?
A: For as long as you have not yet been served a responsive
pleading or motion for summary judgment, or kung wala gyud,
before the introduction of evidence at the trial or hearing.
RULE 18
PRE-TRIAL
Section 1.
When conducted. — After the last responsive pleading has
been served and filed, the branch clerk of court shall issue,
within five (5) calendar days from filing, a notice of pre-trial
which shall be set not later than sixty (60) calendar days from
the filing of the last responsive pleading. (1a)
Q: Now, what is the last responsive pleading?
A: Under the 2019 Amended Rules (answer, reply, rejoinder)
o it is an answer
o but if there is an actionable document attached to the
answer then, that is the reply that becomes the last
responsive pleading.
o For example, the reply attaches an actionable
document, then the defendant can still respond by way
of a rejoinder. In that case, the rejoinder is the last
responsive pleading.
PRE-TRIAL DEFINITION
Pre-trial, by definition, is a procedural device intended to clarify
and limit the basic issues raised by the parties and to take the
trial of cases out of the realm of surprise and maneuvering, It is
an answer to the clarion call for the speedy disposition of cases.
Hailed as the most important procedural innovation in Ang-
Saxon justice in the 19th century, it thus paves the way for less
cluttered trial and resolution of the case (Anson Trade Center, Inc.
vs Pacific Banking Corporation, GR No. 179999, March 17, 2009)
Although it was discretionary under the 1940 Rules of Court, it
was made mandatory under the 1964 Rules and the subsequent
amendments in 1997 and under the 2019 Rules.
BANK OF THE PHILIPPINES,  vs. SPOUSES GENUINO
(G.R. No. 208792: July 22, 2015)
A.M. No. 03-l-09-SC1 does not remove the plaintiff's duty
under Rule 18, Section 1 of the Rules of Court to promptly
move ex-parte to set his or her case for pre-trial after the last
pleading has been served and filed. While pre-trial promotes
efficiency in court proceedings and aids in decongesting
dockets, A.M. No. 03-1-09-SC did not give sole burden on
the courts to set cases for pre-trial.
A.M. No. 03-1-09-SC, providing that "within five (5) days from
date of filing of the reply, the plaintiff must promptly move ex
parte that the case be set for pre-trial conference [and] [i}f the
plaintiff fails to file said motion within the given period, the
Branch COC shall issue a notice of pre-trial," must be read
together with Rule 17,Section 3 of the Rules of Court on
dismissals due to plaintiff’s fault. Plaintiff should thus
sufficiently show justifiable cause for its failure to set the case
for pre-trial; otherwise, the court can dismiss the complaint
outright.
Section 1 of Rule 18 of the Rules of Court imposes upon the
plaintiff the duty to set the case for pre-trial after the last
pleading is served and filed. Under Section 3 of Rule 17,
failure to comply with the said duty makes the case
susceptible to dismissal for failure to prosecute for an
unreasonable length of time or failure to comply with the
rules.
Nevertheless, nowhere in the text of A.M. No. 03-1-09-SC does
it remove the plaintiff’s duty under Rule 18,Section 1 of the
Rules of Court to set the case for pre-trial after the last
pleading has been served and filed. Nowhere does it repeal
Rule 17, Section 3 of the Rules of Court that allows dismissals
due to plaintiff’s fault, including plaintiff’s failure to comply
with the Rules for no justifiable cause. Nowhere does it
impose a sole burden on the trial court to set the case for pre-
trial.
What is the effect of the amended 2019 Rules?
Now, let's discuss first the history of this Section 1, because it
mentions about the duty of the branch clerk of court to set the
case for pre-trial. Now, before these 2019 Amended Rules, we
also had A.M. No. 03-l-09-SC. And before that, we had the 1997
Rules of Court.
o 1997 Rules of Court, it was mentioned in Section 1 that
it is the duty of the plaintiff to move ex-parte, for the
setting of the case for pretrial.
o after that, A.M. No. 03-l-09-SC, which says that within
five days from the date of the filing of the reply, the
plaintiff must promptly move ex-parte that the case be
set for a pretrial conference and if the plaintiff fails to
file said motion within a given period, a branch Clerk
of Court shall issue a notice of pre-trial.
o Now, going back to the 1997 Rules of Court, if the
plaintiff fails to set the case for pre-trial, that could be
considered as failure to prosecute. As we discussed
under Rule 17 of Section 3, failure to prosecute for an
unreasonable length of time shall be a cause for the
dismissal of the complaint either motu proprio by
the court or upon motion of the defendant in the
dismissal would be with prejudice so you cannot refile.
Now in this case of BPI versus Spouses Genuino, according to the
defendants na change na ang Rules because, again, ang
nakabutang sa administrative matter, na if the plaintiff fails to
file the motion to set the case for pretrial within a given period,
the branch Clerk Of Court shall now issue a notice of pretrial. So
wala nay consequence on the part of the plaintiff I- set naman ni
branch clerk of court for pre - trial ang case. So dili na siya ma-
consider as fault on the part of the plaintiff. Kay kung dili again i-
set ni plaintiff for pre-trial, it is now the branch clerk of court
which will set the case for pre - trial.
The issue in this case is whether or not there is no longer any
duty on the part of the plaintiff to set the case for pre-trial. And
therefore, if the plaintiff fails to set the case for pretrial, it cannot
be considered to have failed to prosecute this case for an
unreasonable length of time or he failed to comply with the rules.
o The Supreme Court clarifies that nowhere in the text
of the A.M. No. 03-1-09-SC does it remove the
plaintiff’s duty under Rule 18, Section 1 to set the case
for pretrial after the last pleading has been served and
filed. And also that administrative matter does not
repeal Rule 17, Section 3 of the Rules Of Court that
allows dismissals due to the plaintiff’s fault, including
the plaintiffs failure to comply with the rules for no
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 justifiable cause. So nowhere does it impose a sole
burden on a trial court to set the case for pre-trial.
o Actually, in this case, the Supreme Court said we have
to read together the provisions of Section 1 of Rule 18
regarding the duty of the plaintiff to move ex-parte to
set the case for pre-trial and A.M. No. 03-1-09-SC.
Q: Now, how about under the present Amended Rules? Because
under the Rules, Section 1, it just really says na after the last
responsive pleading has been served and filed, the branch COC
shall issue within five (5) calendar days from filing a notice of
pre-trial, which shall be set not later than 60 calendar days from
the filing of the last responsive pleading. So nawala na tong
provision under the Rules of Court, na it is the duty of the
plaintiff to move ex-parte and to set the case for pre-trial.
A: Nawala na jud na siya. So even if you say let's read together,
A.M. No. 03-1-09-S and Section 1 of the Rules Of Court, nawala
na jud tong provision regarding the duty of the plaintiff to
move ex-parte, to set the case for pretrial. So I would say na
kaning ruling BPA versus Spouses Genuino, we cannot apply this
anymore. Under the Rules, again, the Rules are silent regarding
the duty of the plaintiff to move ex-parte for the setting of the
case for pre-trial.
Section. 2.
Nature and Purpose. — The pre-trial is mandatory and
should be terminated promptly. The court shall consider:
(a) The possibility of an amicable settlement or of a
submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The possibility of obtaining stipulations or admissions of
facts and of documents to avoid unnecessary proof;
(d) The limitation of the number and identification of
witnesses and the setting of trial dates;
(e) The advisability of a preliminary reference of issues to a
commissioner;
(f) The propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a valid
ground therefor be found to exist;
(g) The requirement for the parties to:
1. Mark their respective evidence if not yet marked in the
judicial affidavits of their witnesses;
2. Examine and make comparisons of the adverse parties'
evidence vis-avis the copies to be marked;
3. Manifest for the record stipulations regarding the
faithfulness of the reproductions and the genuineness
and due execution of the adverse parties' evidence;
4. Reserve evidence not available at the pre-trial, but only
in the following manner:
i. For testimonial evidence, by giving the name or
position and the nature of the testimony of the
proposed witness;
ii. For documentary evidence and other object
evidence, by giving a particular description of the
evidence.
No reservation shall be allowed if not made in the
manner described above.
(h) Such other matters as may aid in the prompt disposition
of the action.
The failure without just cause of a party and counsel to
appear during pre-trial, despite notice, shall result in a waiver
of any objections to the faithfulness of the reproductions
marked, or their genuineness and due execution.
The failure without just cause of a party and/or counsel to
bring the evidence required shall be deemed a waiver of the
presentation of such evidence.
The branch clerk of court shall prepare the minutes of the
pre-trial, which shall have the following format: (See
prescribed form) (2a
A. Possibility of an amicable settlement or submission to
alternative modes of dispute resolution
Section 2 says that pre-trial is mandatory. So you really have to
conduct pre-trial and should be terminated promptly so dapat
mahuman dayun ang pretrial and then during the pretrial, the
court will consider these items:
1. the possibility of an amicable settlement; or
2. A submission to alternative modes of dispute resolution
So pangutan-un ang parties kung naa ba possibility na magka-
settle mo because if there's a settlement, the case will no longer
proceed. And actually, the thrust here is really to go to amicable
settlement because pag amicable settlement man gud it is
considered as a win win solution. Although the plaintiff does not
get what he really wants. And also, the defendant does not really
get absolved at all. But the parties arrive at the middle. There is a
middle ground; give and take - what is acceptable to both
parties. Even if the plaintiff does not get what he wants, at least
he gets something. Also, even if the defendant is not really made
to suffer everything that the plaintiff wants, also, at least he is
made to give up something.
Or submission to alternative modes of dispute resolution –
arbitration, for example; alternative mode of dispute resolution.
Instead of with the court, the case will now be referred to an
arbitrator
B. Simplification of the issue
So during pre-trial, the court will determine what are the issues
involved in this case and kung unsa tong mga issues, then the
proceedings will be limited to the determination of those issues.
So ang issues, these are the issues raised in the pleadings and
simplified during the pretrial.
C. The possibility of obtaining stipulations or admissions of
facts and of documents to avoid unnecessary proof
So during the pretrial, both plaintiff and the defendant will be
asked for their proposed stipulations and what are the
stipulations which are admitted
example: support. So ipa-stipulate si defendants na iyaha ba
jung anak ni si person who is demanding for support. Kung mu-
admit siya, wala nay necessity of proving kung naa bay issue of
filiation, acknowledgment, etc. mawala na na siya because the
defendant already admitted na anak niya
example, on the part of the defendant, kay in a case for support,
for example, the plaintiff is demanding for an amount of, let's
say,Php.100,000 per month and then si defendant in his answer,
he alleged that the plaintiff is not entitled to that amount
because the defendant cannot afford to do so, although the
defendant in his answer also says that, he is actually giving
support in the amount of Php 20,000. So here during the pre-
trial, the defendant will also ask the plaintiff, do you admit, do
you stipulate that the defendant, starting January 1, 2000, had
been giving money to the plaintiff in the amount of Php 20,000?
So kung mu-admit si plaintiff ana, then didto nalang sila mag –
away sa excess, na Php. 70,000. if entitled to an increased
amount of support. That’s for stipulations.
example there are documents presented like birth certificate
but it is only a photocopy. There, for example, plaintiff will ask a
defendant, would you stipulate that this photocopy is a faithful
reproduction of the original. So ipakita pud ni plaintiff during
pre-trial so that they may compare. So that during trial, there
will be no need to present the original.
D. Limitation of the number and ID of witnesses and the
setting of trial date
So during the trial, it will be identified who witnesses are and
their possible testimonies. There are cases that the Court will
limit the number of witnesses.
For example, the plaintiff has ten witnesses and 6 out of 10 have
the same testimony, then the Court may order only 1 of the 6 to
testify. During the course of the trial, usually you are not allowed
to call witnesses who are not identified and named during the
pre-trial kay mangayo paka ug approval sa court and you need
to justify why you need to present those witnesses which were
not identified to prevent surprises.
During the pretrial, the setting of trial date shall be made. The
court will ask the plaintiff how many trial dates do you need. For
example, three trial dates and that will be specified. And then the
defendant also, how many trial dates do you need. The defendant
would need only two trial dates and that will also be specified.
E. Advisability of a preliminary reference of issues to a
commissioner
So during pre-trial, this will also be determined.
For example, the case is for accounting, with many financial
statements, receipts, etc that have to be presented during the
trial and that it really needs an accounting. So it will be difficult
for the court. That's why during pre-trial, the court will ask the
parties if you are amenable to refer the case to a commissioner
like accountants and others who will determine specific issues
but they will not decide because they will just make their reports
and then submit these reports to the judge. So that's one of the
things that could happen during the pre-trial.
129
 F. The propriety of rendering judgment on the pleading or
summary judgment or of dismissing the action should have
valid ground therefore exists.
So during pre-trial i-determine pud ni sa court . Okay, can we
render here judgment on the pleadings? Because all the material
allegations in the complaint there actually admitted by the
defendant. So what is the reason nga mag-trial pa ta?
o When we can render a judgment on the pleadings or
summary judgment. Like, okay nay answer but it does
not really tender a genuine issue or it's sham. So
pwede na mag-summary judgment. You don't have to
go through the rigors of a full blown trial.
G. Requirement 1: Parties will mark their respective evidence
So during pre-trial, also, actually preliminary conference, the
parties will mark their respective evidence if not yet marked in
the judicial affidavits of their witnesses.
Judicial Affidavits
We have already discussed, at the time when you file your
complaint, you have to attach already the judicial affidavits of
your witnesses and also the documents in support of the judicial
affidavit or to be identified by the witnesses in their judicial
affidavit.
The same goes for the defendant. When the defendant files his
answer. He should already attach the judicial affidavit in support
of his defense. So in that judicial affidavit, naka-mark na daan
because the documents that will be identified by the witness,
naka-attach na sa judicial affidavit. So the judicial affidavit will
have already that attachment- documents as Exhibit A, Exhibit B,
Exhibit C. Kung wala pa gi – mark, nag-submit lang ang lawyer ug
judicial affidavit together with the complaint. Wala niya na mark
na Exhibit A, Exhibit B kay nagdali-dali siya or wala lang jud na-
mark. During pretrial, you can mark your respective evidence -
marking.
Requirement 2: Examine and make comparisons of the
adverse parties’ evidence
Second, examine and make comparisons of the adverse parties
evidence vis-à -vis the copies to be marked. So check on the
evidence.
example, plaintiff will ask, Your Honor, I am requesting the
honorable court that this certificate of live birth be mark as our
Exhibit A. The defendant will also have the opportunity to look at
that document.
example, support. There are cases the same possible evidence
exist for plaintiff and defendant like birth certificate. However,
we are not sure if the copy of the plaintiff and that of the
defendant are the same. If the child is really their anak, then the
copies should be the same. They can make comparisons of your
documents and marked that after comparison.
Requirement 3: Manifest for the record, stipulations
regarding the faithfulness of the reproductions and the
genuineness and execution of the adverse parties' evidence
Like you have to present before, under the best evidence rule
(not applicable now), genuine copies.
For example, we have here a certification by the Register of
Deeds that these are the lands appearing in the records of the
registry- titles, etc. So kapoy baya mga ug copy sa mga original
documents labaw na public documents – magbayad ka, pirma ka
ug certified true copies sa mga titulo, so dili nimu gusto na i-
submit sa court ang origina. What you can do again, during pre-
trial, you bring both original and photocopy. Then during pre-
trial, you will ask your opponent to stipulate whether the
photocopy to be marked is a faithful and genuine reproduction of
the original. So if the opponent will say, I stipulate, your honor.
Then you mark the photocopy, not the original. During trial,
what will be used will be the photocopy. During formal offer, the
photocopy will also be offered and submitted to the court.
Requirement 4: Reserve evidence not available at the pre-
trial, but only in the following manner.
example, during pre-trial, nabilin nimu imong documents and
then your hearing this in Manila then taga – Davao ka. Of course,
impossible na mubalik pa ka para kuhaun ang documented or
wala pa jud nimu nakita. Nag - request ka sa Register of Deeds ug
certified true copies of the title but wala pa jud nahatag so pud ka
ka-stipulates sa other party na this is a faithful reproduction of
the certified true copy on file. Wala pud kay copy sa original, but
you know, what are these documents which you need to present.
So during pretrial. sa una dili pa ni siya gina-allow, pero karon,
allowed naka mag-reserve ug evidence.
Although even before, wala sa Rules nakabutang na pwede ka
maka-reserve, pero liberal ang courts. Gina-allow nila mag re-
serve pero karon nakabutang na jud sa Rules na you can reserve
evidence not available at the pre-trial, but provided we have to
comply with this manner.
MANNER OF RESERVATION
If it is a testimonial evidence
o then by giving the name or position and the nature of
the testimony of the proposed witness.
o So, Your Honor, I will present the Juan Dela Cruz. He
will testify that he saw when the payment was given to
the plaintiff. Or if you don't know the name, but you
know the position, he is the president of ABC
Corporation and the nature of his testimony.
Q: Now, we mention that during the submission of the complaint
or the submission of the answer, dapat naka attach na didto ang
judicial affidavits? So kana imong mga witnesses, dapat naa na
sila’y testimony as embodied in the judicial affidavit. So how
come nga naa pa tay reservation?
A: So in reality, diay pwede pa ta mag-introduce ug witnesses
aside from the ones who already have their judicial
affidavits attached in the complaint or in the answer. Well, it is
expressly allowed by the Rules because you can reserve
testimonial evidence. So you can still call these witnesses later
on. But you have to specify the name and the position or the
position and the nature of the testimony of the proposed witness
for the court to identify kung kenahanglan pa ba.
Documentary evidence
o documentary evidence and other object evidence, you
just give a particular description.
o For example, wala nimu nadala ang weapon, so you
describe it or a document so, certificate of title, wala
nimu na dala, you just described what is that
document.
Q: If you just say, your honor, we reserve the right to present
additional witnesses and documents, as may be determined
during the proceedings of the case. Will that be allowed?
A: That is not proper because you should follow what is provided
for under the Rules. You should specify who is that witness and
what is the nature of that testimony or what is that document
and describe the document and such other matters as may aid
the prompt disposition of the action. Whatever the court thinks
that will aid or facilitate the resolution of the case, to expedite the
case.
“The failure without just cause of by the party or counsel, (we are
referring to the plaintiff or defendant) to appear during pre-trial
despite notice shall result in a waiver of any objections to the
faithfulness of the reproductions marked or their genuineness and
execution. “
o So kung later on, nag-submit na siya ug photocopy, you
cannot object na this is just a photocopy. Kay nganung
wala ka nag-adto during pre-trial. Or you cannot say
fake na siya. It is not really the authentic documents.
The Rule says na you are waiving your objections to
the genuineness and execution.
“The failure without just cause of a party and/or counsel to bring
the evidence required, shall be deemed a waiver of the
presentation of such evidence.”
o Again, subject of course to the rule on reservation.
Kung wala nimu nadala, you can still reserve, but you
have to specify what is the reason why you were not
able to bring and it should be with a just cause. And
you have to describe the document or the evidence
which you are reserving.
So there should be a minutes of the pre-trial. It will summarize
what transpired during the pre-trial. There is a form prescribed.
It is attached to the rules.
NATURE OF PRETRIAL
o The pretrial is mandatory in civil cases.
o In all criminal cases cognizable by the Sandigan-
bayan, Regional Trial Court, Metropolitan Trial Court,
MunicipalTrial Court in Cities, Municipal Trial Court,
and Municipal Circuit Trial Courts, pretrial is also
mandatory (Sec. 1, Rule 118, Rules of Court).
o A pretrial conference is likewise mandatory in both
civil and criminal cases under the Rules on
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 Summary Procedure (Sec. 7, Sec. 14, 1991 Rule on
Summary Procedure).
CIVIL CASES CRIMINAL CASES
required ang pre-trial brief dili mandatory ang pre-trial
brief
PURPOSE OF PRETRIAL
DEVELOPMENT BANK vs. COURT OF APPEALS
169 SCRA 409
Everyone knows that a pre-trial in civil actions is mandatory,
and has been so since January 1, 1964 (effectivity of the
Revised Rules of Court). Yet to this day its place in the scheme
of things is not fully appreciated, and it receives but
perfunctory treatment in many courts [Meaning, it is only
complied with for the sake of compliance.] Some courts
consider it a mere technicality, serving no useful purpose save
perhaps, occasionally to furnish ground for non-suiting the
plaintiff, or declaring a defendant in default, or, wistfully, to
bring about a compromise.
The pre-trial device is not thus put to full use. Hence it has
failed in the main to accomplish the chief objective for it: the
simplification, abbreviation and expedition of the trial, if
not indeed its dispensation. This is a great pity, because the
objective is attainable, and with not much difficulty, if the
device were more intelligently and extensively handled.
IMPORTANCE OF PRETRIAL RULES
RAMOS vs. SPOUSES ALVENDIA, ET AL. G.R. No. 176706,
October 8, 2008
Pre-trial rules are not to be belittled or dismissed, because
their non-observance may result in prejudice to a party’s
substantive rights. Like all rules, they should be followed
except only for the most persuasive of reasons when they
may be relaxed to relieve a litigant of an injustice not
commensurate with the degree of his thoughtlessness in not
complying with the procedure.
THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A
SUBMISSION TO ALTERNATIVE MODES OF DISPUTE
RESOLUTION AMICABLE SETTLEMENT
Art. 2028. A compromise is a contract whereby the parties,
by making reciprocal concessions, avoid a litigation or put an
end to one already commenced. (1809a).
Art. 2035. No compromise upon the following questions shall
be valid:
1. The civil status of persons;
2. The validity of a marriage or a legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime.
We mention that during pre-trial, the parties will discuss the
possibility of an amicable settlement or submission to alternative
modes of dispute resolution.
ART 2035
-> You cannot stipulate. You cannot enter into a compromise on
these matters. Actually, even in a case for declaration of nullity of
marriage, there is still a pre-trial. But regarding the stipulation of
facts, of course, you cannot ask the other party, the counsel, for
example, you are filing a case for declaration of nullity.
Q: So if you are the plaintiff, you would ask your opponent, would
the defendant admit that the marriage between the plaintiff and
the defendant is null and void? A: No, you cannot stipulate on
that. Otherwise, the dalia lang magpa-declare as null and void
ang kasal. Mag stipulate lang mo during pre-trial and then
humana. The court would just render a decision. That is not
allowed because there is a public interest involved in these items.
ALTERNATIVE MODES OF DISPUTE RESOLUTION
(ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004 RA NO.
9285, APRIL 2, 2004)
Under Section 3(a), of the law, "Alternative Dispute Resolution
System"
 means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a
government agency in which a neutral third party
participates to assist in the resolution of issues, which
includes:
1. ARBITRATION, which is a voluntary dispute resolution
process in which one or more arbitrators, appointed in
accordance with the agreement of the parties, or rules
promulgated pursuant to the RA No. 9285, resolve a dispute by
rendering an award;
2. MEDIATION, which is a voluntary process in which a
mediator, selected by the disputing parties, facilitates
communication and negotiation, and assist the parties in
reaching a voluntary agreement regarding a dispute.
"CourtAnnexed Mediation" means any mediation process
conducted under the auspices of the court, after such court has
acquired jurisdiction of the dispute.
CourtReferred Mediation" means mediation ordered by a court
to be conducted in accordance with the Agreement of the Parties
when as action is prematurely commenced in violation of such
agreement.
3. CONCILIATION, which is similar to and included in the term
“mediation”.
4. EARLY NEUTRAL EVALUATION, which is an ADR process
wherein parties and their lawyers are brought together early in a
pretrial phase to present summaries of their cases and receive a
nonbinding assessment by an experienced, neutral person, with
expertise in the subject in the substance of the dispute;
5. MINITRIAL, which is a structured dispute resolution method
in which the merits of a case are argued before a panel
comprising senior decision makers with or without the presence
of a neutral third person after which the parties seek a
negotiated settlement
6. ANY COMBINATION THEREOF, such as "Mediation-
Arbitration" or MedArb is a step dispute resolution process
involving both mediation and arbitration.
POINTS TO REMEMBER
1. There is no need for another pretrial where an additional
defendant is impleaded, especially so if the additional
defendant merely adopts or repleads the answer of the
original defendant;
2. If the cause of action against the additional defendant is
separate from that against the original defendant, there is a
need to conduct a new pretrial and to submit pretrial
briefs;
THE POSSIBILITY OF OBTAINING STIPULATIONS OR
ADMISSIONS OF FACTS AND OF DOCUMENTS TO AVOID
UNNECESSARY PROOF
Section 4 Rule 129. Judicial admissions. - An admission, verbal
or written, made by the party in the course of the proceedings
in the same case, does not require proof. The admission may
be contradicted only by showing that it was made through
palpable mistake or that no such admission was made. (2a)
Now, regarding that one item, in Section 2: the possibility of
obtaining stipulations or admissions of facts and of documents to
avoid unnecessary proof. When there is already an admission
during pretrial, actually, so when there is already a stipulation of
facts or as to documents during pre-trial, that now becomes a
judicial admission. So you don't need to present proof anymore
because those are already admitted. So that is also in Rule 129,
Section 4of the Rules of Court.
While the law encourages stipulation of facts, courts cannot
compel the parties to do stipulate facts under the threat of
dismissal. In the 1988 case of:
FILOIL MARKETING CORP. vs. DY PAC & CO., INC.
160 SCRA 333, G.R. No. L-40307, April 15, 1988
FACTS: Because the case has been pending for 4 years, the
trial court ordered the parties to submit a stipulation of facts.
When the parties failed to submit such stipulation, the trial
court ordered the dismissal of the case for failure to comply
with an order of the court (now Rule 17, Section 3).
RULING: There is no law which compulsorily requires
litigants to stipulate at pre-trial on the facts and issues that
131
 may possibly crop up in a particular case, upon pain of
dismissal of such case. The process of securing admissions
whether of facts or evidence is essentially voluntary, since
stipulations of facts, like contracts, bind the parties thereto
who are not allowed to controvert statements made therein.
The trial court may, of course, advise and indeed urge the
parties during the pre-trial conference to try to arrive at a
stipulation of facts principally for their own convenience and
to simplify subsequent proceedings by Identifying those facts
which are not really controverted and do not need to be
proved. Courts, however, cannot compel the parties to
enter into an agreement upon the facts.
Where the parties are unable to arrive at a stipulation of
agreed facts and do not reach an amicable settlement of their
controversy, the court must close the pre-trial
proceedings and go forward with the trial of the case. The
court a quo, therefore, committed serious or reversible error
in dismissing appellant's appeal from the then City Court of
Manila solely upon the ground that the parties had failed to
comply with the court's Order to submit a stipulation of facts.
The trial court's desire speedily to dispose of the case which
had been pending for almost four (4) years in that sala is
understandable and praiseworthy; but it cannot justify the
Order of dismissal.
AUTHORITY OF COURT RELATING TO JUDGMENT ON THE
PLEADINGS OR SUMMARY JUDGMENT DURING THE PRE-
TRIAL OF THE CASE
Under the current rule (Sec 2(f), Rule 18), the court’s authority is
confined to a mere determination of the propriety of rendering a
judgment on the pleadings or a summary judgment. The requisite
motion should be filed by the parties concerned and heard by the
Court pursuant to Rule 34 (Judgment on the Pleadings) and Rule
35 (Summary Judgments).
Section. 3.
Notice of pre-trial. — The notice of pre-trial shall include the
dates respectively set for:
(a) Pre-trial;
(b) Court-Annexed Mediation; and
(c) Judicial Dispute Resolution, if necessary.
The notice of pre-trial shall be served on counsel, or on the
party if he or she has no counsel. The counsel served with
such notice is charged with the duty of notifying the party
represented by him or her.
Non-appearance at any of the foregoing settings shall be
deemed as nonappearance at the pre-trial and shall merit the
same sanctions under Section 5 hereof.
So notice of pre-trial, of course that is before the pre-trial. The
court will prepare that and the parties will be given a copy of the
notice of pre-trial.
Non-appearance at any of the foregoing settings shall be deemed
as nonappearance at the pre-trial and shall merit the same
sanctions under Section 5 hereof.
 Meaning non-appearance on the pre-trial, the court-
annexed mediation, and judicial dispute resolution
shall be deemed as non-appearance at the pre-trial
and shall merit the same sanction under Section 5.
 Notice that before the amendment, notice of pre-trial
will only include the date of pre-trial and of course
under the Rules there are sanctions provided which
we will discuss later for non-appearance during pre-
trial. And then it is during the pre-trial that the parties
are asked if they have already undergone mediation
and then during pre-trial the schedule of pre-trial, the
parties will now be referred to mediation so dili na
pud madayon ang pre-trial ana kasi again mediation
sa. Kung magfail ang mediation, then balik sa court
then the judge again will ask if there is a possibility for
settlement so they will go to judicial dispute resolution
OLD AMENDED
. Before, walay sanctions But now there are sanctions,
parehas sa last paragraph if so this is the important
dili ka mag appear sa change.
mediation or judicial dispute
resolution. Wala lang, back to
court.
Section 4.
Appearance of Parties. — It shall be the duty of the parties
and their counsel to appear at the pre-trial, court-annexed
mediation, and judicial dispute resolution, if necessary. The
non-appearance of a party and counsel may be excused only
for acts of God, force majeure, or duly substantiated physical
inability.
A representative may appear on behalf of a party, but must be
fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of
facts and documents.
“and judicial dispute resolution, if necessary”,
 dili man tanan instances naay JDR. What is important
here is katong sa prior rules, duty of the parties and
their counsel to appear at the pre-trial.
Q: How about sa court-annexed mediation or sa JDR?
A: Actually before if mediation di needed ang lawyer in fact, mas
preferred ang parties. The same for JDR. So okay lang na naa ang
party bisag wala ang lawyer.
Q: How about kung lawyer lang ang nag attend sa mediation or
JDR?
A: Actually magreklamo na ang mediator ngano lawyer na dapat
parties. So kung lawyer dapat naa syay authorization
But now both, parties and their counsel.
Q: Kung wala nag appear, excuse bana siya?
A: Only if
 Acts of God
 Force Majeure
 duly substantiated physical inability
-duly substantiated so dapat naa kay medical
certificate.
Q: So pwede ba na representative lang?
A: The 2nd paragraph says pwede pero dapat nay authorization
and then it is very specific. Dapat sa authorization, nay
nakabutang
 naay authority to enter into an amicable settlement,
 to submit to alternative modes of dispute resolution,
 to enter into stipulations or admissions of facts and
documents.
Kay ang uban man gud muadto sa mediation for example, like
corporation ang isa ka party so naay representative so fully
clothed with authority by a board resolution or a secretary’s
certificate. Ang problema pag abot sa mediation, okay naa nay
proposals and then muana ang representative sa company na
pwede ka magpareset kay akoa pa ni irefer sa akoang mga
bosses, sa BOD, so mas madugay siya. So dapat kung naa ka didto,
appearing in behalf of the corporation in a mediation or JDR,
dapat naan a kay authority makipagsettle, makipag stipulate or
admit facts, dili na need magrefer sa BOD. It should be already
included in your authorization.
WRITTEN AUTHORITY
The written authority must be in the form of a SPA. Entering into
an amicable settlement for a client who is the principal in the
attorney-client relationship involves entering into a compromise.
Substantive law (Art. 1878 of the Civil Code of the Philippines) is
explicit: “Special power(s) of attorney are necessary *** to
compromise, to submit questions to arbitration ***”. Procedural
rules (Sec. 23 Rule 138) likewise prohibit an attorney to
compromise his client’s litigation without “special authority.”
For corporate parties, the written authority required is the
appropriate board resolution empowering the representative
into an amicable settlement, to submit to alternative modes of
dispute resolution, and enter into stipulations or admissions of
facts and of documents.
Q: Can the lawyer be also authorized representative?
A: Yes. There is no prohibition
So just remember what is the form of authorization.
natural person
 dapat naa kay SPA in your favor.
corporation is being represented,
 the authorization could be a board resolution or a
secretary’s certificate
Absolute Management Corporation vs MBTC
GR 190277, July 23, 2014
With respect to third-party complaint of Absolute
132
 Management Corp, against third-party defendant MBTC
whose counsel failed to present a Secretary’s Certificate and
SPA authorizing her to represent said bank in today’s pre-
trial, said third-party plaintiff is hereby allowed to present
evidence ex parte pursuant to provisions of Sec. 5, Rule 18 of
the 1997 Rules of Civil Procedure.
RULING:
Atty. Raquel Buendia appeared on behalf of Respondent as
both its counsel and representative in the pre-trial. Atty.
Buendia’s authority to appear as counsel on behalf of
Respondent is not being questioned. In that regard, the Court
of Appeals correctly ruled that the authority of a counsel to
appear in behalf of his client is presumed. However, it should
be noted that Atty. Buendia also appeared as a representative
of Respondent in the pre-trial hearing. In this regard, Section
4, Rule 18 of the Rules of Court specifically mandates that
such representative must be armed with a written authority
from the party litigant. Unfortunately, she was not able to
present one
In this case, it as the schedule of pre-trial now again when it
comes to pre-trial both the client (the party) and the counsel
must be present. In this particular case, only the lawyer was
present and the lawyer had no authorization to appear during
the pre-trial meaning wala sya SPA or Secretary’s Certificate to
appear on behalf of the client during the pre-trial so the RTC
allowed the presentation of evidence ex parte pursuant to Sec. 5,
Rule 18 of the 1997 Rules of Civil Procedure.
Q: Is it not a fact that if you’re a lawyer you are already presumed
to be authorized by your client?
A: So actually pagmaghearing ka, mag appear ka, or mag enter
kag appearance on behalf of your client sa court dili na ka
pangayuon ug authorization ana by the court na are you really
authorized by your client or gihire ba gyud ka because again the
lawyer’s authority to appear as counsel on behalf of the client is
already presumed. However, this is different because specifically
during pre-trial, both the party and the counsel must appear.
Q: Now what if si counsel lang nag appear in behalf of the client?
A: Then the counsel should have specific authorization to
represent the party or his client during pre-trial.
Q: why?
A: Because it is during pre-trial that the court will explore the
possibility of amicable settlement, compromise agreement,
stipulation of facts, admission of facts.
So si counsel in his capacity as lawyer of the party, he has no
authorization to enter into those kind of arrangements or
agreements. There must be a specific authority. So if imoha lang
lawyer ang imohang ipaappear sa pre-trial, you should execute
an SPA authorizing the lawyer of your corporation, there should
be a board resolution or Secretary’s Certificate specifically
authorizing the lawyer to represent the party and to enter into
compromise agreements, stipulation of facts, admission of facts,
amicable settlements because those authorizations are not
subsumed under the general authority of the lawyer to
represent his client.
Section. 5.
Effect of failure to appear. — When duly notified, the failure
of the plaintiff and counsel to appear without valid cause
when so required, pursuant to the next preceding Section,
shall cause the dismissal of the action. The dismissal shall be
with prejudice, unless otherwise ordered by the court. A
similar failure on the part of the defendant and counsel shall
be cause to allow the plaintiff to present his or her evidence
ex-parte within ten (10) calendar days from termination of
the pre-trial, and the court to render judgment on the basis of
the evidence offered.
So this is very important. When duly notified, so it presupposes
that the parties are notified of the schedule of the pre-trial and
then the party and counsel failed to appear and their failure to
appear is w/o valid cause.
So what are the consequences?
PLAINTIFF
So if you are the plaintiff, and you did not appear, the Rule says it
shall cause the dismissal of the action and the dismissal shall be
with prejudice meaning you cannot refile the dismissal now it
becomes a res judicata and it shall bar the filing of similar case
involving the same cause of action unless otherwise provided. So
meaning, for example during pre-trial the plaintiff and counsel
did not appear and no justifiable reason for their absence so the
court now dismissed the case and the dismissal is silent,
dismissed lang so under Section 5 that is with prejudice. Pero
kung for example ang naa sa order sa court is without prejudice
pwede pud na sya as provided under the Rules so if naay
dismissed without prejudice you can still refile.
DEFENDANT
Q: So how about absence or failure to appear on part of the
defendant and the counsel?
The Rule says it shall cause to allow the plaintiff to present
evidence ex parte. So meaning the plaintiff now can present
evidence wala nay participation si defendant here and the court
to render judgment based on the evidence offered. So meaning,
magpresent si plaintiff ug evidence, wala nay right si defendant
to participate, he cannot cross-examine the witnesses for the
plaintiff. And then after the presentation of evidence on the part
of the plaintiff, the plaintiff will now formally offer the exhibits,
documents, and the court will now render judgment on the basis
only on the evidence offered by the plaintiff. There is no more
round na si defendant pwede magpresent ug evidence on his
behalf so mura pud syag nadeclare in default but it is not a
default so that is different from declaration of default although
parepareha sila in the sense na naay presentation of evidence ex
parte and wala nay right si defendant to cross examine witnesses
and to present evidence on his behalf.
Plaintiff dismissal shall be with prejudice unless
absent otherwise provided
Defendant allow the plaintiff to present evidence ex
absent parte
EFFECT OF FAILURE TO APPEAR BY THE PLAINTIFF (BAR
1989, 1981, 1980)
Th failure of the plaintiff to appear shall be cause for the
dismissal of the action. This dismissal shall be with prejudice
except when the court orders otherwise (Sec. 5 Rule 18;
Mondonedo vs CA, 252 SCRA 28)
EFFECT OF FAILURE TO APPEAR BY THE DEFENDANT
The failure of defendant to appear shall be cause to allow the
plaintiff to present his evidence ex parte and for the court to
render judgment on the basis of the evidence presented by the
plaintiff (Sec. 5 Rule 18, Rules of Court)
The order of the court allowing the plaintiff to present his
evidence ex parte does not dispose of the case with finality.
The order therefore is merely interlocutory hence, not
appealable. Under Sec. 1(c) of Rule 41, no appeal may be taken
from an interlocutory order. The defendant who feels aggrieved
by the order
o may move for the reconsideration of the order and
o if the denial is tainted with grave abuse of discretion,
he may file a petition for certiorari.
Q: What is the remedy of the defendant who did not appear
during pre-trial and the court allowed the plaintiff to present
evidence ex parte? Can the defendant appeal?
A: No because that order is merely interlocutory. The remedy is
to file motion for reconsideration and if denied, petition for
certiorari if there is grave abuse of discretion.
NEIL B AGUILAR AND RUBEN CALIMBAS VS
LIGHTBRINGERS CREDIT COOP.
GR 209605, Jan 12, 2015
The rule is that a court can only consider the evidence
presented by respondent in the MCTC because the petitioners
failed to attend the pre-trial conference on August 25, 2009
pursuant to Section 5, Rule 18 of the Rules of Court. The
Court, however, clarifies that failure to attend the pre-trial
does not result in the "default" of the defendant. Instead,
the failure of the defendant to attend shall be cause to allow
the plaintiff to present his evidence ex parte and the court to
render judgment on the basis thereof.
In this case, the SC discussed the consequence if the defendant
fails to appear during the pre-trial. So failure to attend the pre-
trial does not result in the default of the defendant
Q: Why?
A: Because only a defendant who did not file his answer could be
declared in default.
So again the effect is, it shall be cause to allow the plaintiff to
present evidence ex parte and the court to render judgment on
the basis thereof. In this aspect parepareho ug effect sa default
133
but again the defendant here is technically not in default. Ang
remedies lahi pud, if you are declared in default you can file a
motion to set aside the order of default or if later na ka nakabalo
you can move for a new trial, petition for relief, etc.
NEIL B AGUILAR AND RUBEN CALIMBAS VS
LIGHTBRINGERS CREDIT COOP.
GR 209605, Jan 12, 2015
In the case at bench, the petitioners failed to attend the pre-
trial conference set on August 25, 2009. They did not even
give any excuse for their non-appearance, manifestly ignoring
the importance of the pre-trial stage. Thus, the MCTC properly
issued the August 25, 2009 Order, allowing respondent to
present evidence ex parte.
The MCTC even showed leniency when it directed the
counsels of the parties to submit their respective position
papers on whether or not Aguilar and Calimbas could still
participate in the trial of the case despite their absence in the
pre-trial conference. This gave Aguilar and Calimbas a second
chance to explain their non-attendance and, yet,only
respondent complied with the directive to file a position
paper. The MCTC, in its Order, dated April 27, 2011, properly
held that since the proceedings were being heard ex parte,
Aguilar and Calimbas had no right to participate therein and
to cross-examine the witness.
Thus, as it stands, the Court can only consider the evidence on
record offered by respondent. The petitioners lost their right
to present their evidence during the trial and, a fortiori, on
appeal due to their disregard of the mandatory attendance in
the pre-trial conference.
SPOUSES SALVADOR VS SPOUSES RABAJA AND ROSARIO
GR 199990, FEB 4, 2015
The failure of the spouses Salvador to attend pre-trial
conference warrants the presentation of evidence ex-parte by
Spouses Rabaja
On the procedural aspect, the Court reiterates the rule that
the failure to attend the pre-trial conference does not result in
the default of an absent party. Under the 1997 Rules of Civil
Procedure, a defendant is only declared in default if he fails to
file his Answer within the reglementary period. On the other
hand, if a defendant fails to attend the pre-trial conference,
the plaintiff can present his evidence ex parte.
It shall be the duty of the parties and their counsel to appear
at the pre-trial. The non-appearance of a party may be
excused only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully authorized in
writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and of documents.
NPC VS SPOUSES ASOQUE
GR 172507, SEPT 14, 2016
The Regional Trial Court did not err in allowing respondents
to present their evidence ex parte. The action of the trial court
is expressly allowed under Rule 18, Section 5 of the 1997
Rules of Civil Procedure.
(Defendant) Petitioner and its counsel were absent during the
first pre-trial setting on May 8, 2000. (Complainant)
Respondents' counsel attended, although he was late. Had
petitioner and its counsel appeared on the first setting, they
would have been reasonably notified then and there of the
second pre-trial resetting on May 24, 2000 and would have
had the opportunity to ask for a later date. Nonetheless,
petitioner's counsel should have tried to inquire from the
court the next schedule of the pre-trial.
Petitioner alleges that it filed a motion for postponement of
the first pre-trial setting. This notwithstanding, it was still its
duty to appear at the pre-trial first set on May 8, 2000. A
motion for postponement should never be presumed to be
granted.
Petitioner does not refute respondents' argument that its
Urgent Manifestation and Motion, although dated May 24,
2000, was filed only one (1) day after the scheduled pre-trial
sought to be postponed, on May 25, 2000. The trial court was,
therefore, justified in denying petitioner's motion for
postponement for having been filed out of time. A motion for
postponement should be filed on or before the lapse of the
day sought to be postponed. In any case, "the matter of
postponement of a hearing is addressed to the sound
discretion of the court [and] unless there is a grave abuse of
discretion in the exercise thereof the same should not be
disturbed on review."
Petitioner's counsel received the Regional Trial Court Order
resetting the pre-trial to May 24, 2000 on May 22, 2000.
Assuming its counsel was unable to appear at the second pre-
trial setting, petitioner could and should have sent a
representative on May 24, 2000 to ask for postponement of
the second pre-trial setting. During the second pre-trial
setting, it was not only petitioner's counsel who failed to
appear, but petitioner as well.
Under the circumstances, petitioner cannot claim that it was
denied due process. "Parties are presumed to have known the
governing rules and the consequences for the violation of
such rules." Moreover, the essence of due process is an
opportunity to be heard. Petitioner was given that
opportunity. Yet, it failed to appear at the two (2) pre-
trial settings. A pre-trial cannot be taken for granted for it
serves a vital objective: the simplification and expedition of
the trial, if not its dispensation. Non-appearance of a party
may only be excused for a valid cause. We see none in this
case.
FAILURE TO APPEAR DURING PRE-TRIAL OF
PLAINTIFF DEFENDANT
Under the Old Rules, he is Under the Old Rules, he is “as
non-suited in default?”
Cause for the dismissal of Cause to allow the plaintiff to
the action with prejudice present his evidence ex parte
unless the court orders and for the court to render
otherwise. judgment on the basis of the
evidence presented by the
plaintiff
The remedy of the plaintiff is Because such order is
to appeal from the order of interlocutory, the defendant
dismissal because the who feels aggrieved by the
dismissal operates as an order may move for the
adjudication on the merits. reconsideration of the order
and if the denial is tainted
with grave abuse of
discretion, he may file a
petition for certiorari.
SEC. 6.
Pre-trial brief.— The parties shall file with the court and serve
on the adverse party, in such manner as shall ensure their receipt
thereof at least three (3) calendar days before the date of the pre-
trial, their respective pre-trial briefs which shall contain, among
others:
a. A concise statement of the case and the reliefs prayed for;
b. A summary of admitted facts and proposed stipulation of facts;
c. The main factual and legal issues to be tried or resolved;
d. The propriety of referral of factual issues to commissioners;
e. The documents or other object evidence to be marked, stating
the purpose thereof;
f. The names of the witnesses, and the summary of their
respective testimonies; and
g. A brief statement of points of law and citation of authorities.
Failure to file the pre-trial brief shall have the same effect as
failure to appear at the pre-trial. (8)
Ang pre-trial brief dapat MARECEIVE sa pikas party, at least 3
calendar days before date of pre-trial. Note: Dili serve –
RECEIVED.
Bisan pag niappear ka sa pre-trial,
if plaintiff ka ug wala ka nagfile ug pre-trial brief, same effect.
If defendant ka, pwede magreceive ug evidence ang court ex
parte.
SAMPLE:
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135

PURPOSE OF PRE-TRIAL BRIEF
The pre-trial brief serves as a guide during the pre-trial
conference so as to simplify, abbreviate and expedite the trial if
not to dispense with it. It is a devise essential to the speedy
disposition of disputes, and parties cannot brush it aside as a
mere technicality (TIU vs. MIDDLETON, 369 Phil. 829, G.R. No.
134998, July 19, 1999).
FILING OF PRE-TRIAL BRIEFS
The parties shall file with the court their respective pre-trial
briefs which shall be received at least three (3) days before the
date of the pre-trial. This pre-trial brief shall be served on the
adverse party (Sec. 6, Rule 18, Rules of Court).
IMPORTANCE OF IDENTIFICATION AND MARKING OF
EVIDENCE
It is vital to have documents and exhibits identified and marked
during the pre-trial. The current rule establishes the policy that
no evidence shall be presented and offered during the trial in
support of a party's evidence-in-chief other than those that had
been earlier identified and pre-marked during the pre-trial,
except if allowed by the court for good cause shown.
LEGAL EFFECT OF REPRESENTATIONS AND STATEMNTS IN
THE PRE-TRIAL BRIEF
The parties are bound by the representations and statements in
their respective pre-trial briefs. Hence, such representations and
statements are in the nature of judicial admissions in relation
to Sec. 4 of Rule 129 of the Rules of Court.
Just like what happens in a pre-trial, you make there stipulation
of facts. Mauna ning pre-trial brief sa pre-trial. Before the
scheduled date of the pre-trial, naa nakay pre-trial brief. During
the pre-trial, katong naa sa imong pre-trial brief, imuha lang
irepeat sa pre-trial. So kung unsa man imong admissions of fact,
na take up na to during pre-trial.
Example if you have admissions in your pre-trial brief, you are
bound by that representation, as a judicial admission. Plaintiff
does not have to prove anymore that which was admitted.
EFFECT OF FAILURE TO FILE A PRE-TRIAL BRIEF
The failure to file the pre-trial brief shall have the same effect as
failure to appear at the pre-trial (Sec. 6, Rule18). Hence, if it is
the
o plaintiff who fails to file pre-trial brief, such failure
shall be cause for dismissal of the action.
o defendant who fails to do so, such failure shall be
cause to allow the plaintiff to present his evidence ex
parte.
The dismissal of a complaint for failure to file pretrial brief is
discretionary on the part of the trial court (RAMOS vs. SPOUSES
LAVENDIA, G.R. No. 176706, October 8, 2008).
NO TERMINATION OF PRE-TRIAL FOR FAILURE TO SETTLE
The judge should not allow the termination of pretrial simply
because of the manifestation of the parties that they cannot settle
the case. Instead, he should expose the parties to the advantages
of pre-trial. He must also be mindful that there are important
aspects of the pre-trial that ought to be taken up to expedite the
disposition of the case (AM. No. 03-1-09-SC, July 13, 2004).
If all efforts to settle fail, the trial judge shall endeavor to achieve
the other purposes of a pre-trial like, among others, obtaining
admissions or stipulations of fact. To obtain admissions, the
judge shall ask the parties to submit
o whatever depositions have been taken under Rule 23,
o the answers to written interrogatories under Rule 25
and
o the ans to request for admissions by the adverse party
under Rule 26.
o He may also require the production of documents or
things requested by a party under Rule 27 and
o the results of the physical and mental examination of
persons under Rule 28 (AM. No. 03-1-09-SC, July 13,
2004).
Instances when the PLAINTIFF may be penalized by the
court with a dismissal of his complaint:
• Failure to appear during the presentation of his evidence-in-
chief to prove his cause of action;
• Failure to prosecute his action for an unreasonable length of
time;
• Failure to comply with the Rules or any order of the court such
(Rule 17, Sec 3);
• Failure to appear in the pre-trial conference (Rule 18, Section
5);
• Failure to file a pre-trial brief (Rule 18, Section 6);
• Failure to appear in the preliminary conference for an action
covered by Summary Procedure.
Instances when the DEFENDANT can be penalized by ex
parte presentation of Plaintiff’s evidence and judgment to be
rendered based purely on such evidence:
• Failure to file an answer under Rule 9 on Default;
• Failure to appear in a pre-trial conference (Rule 18, Section 5);
and
• Failure to file a pre-trial brief (Rule 18, Sec 6)
SEC. 7.
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Pre-Trial Order.— Upon termination of the pre-trial, the court
shall issue an order within ten (10) calendar days which shall
recite in detail the matters taken up. The order shall include:
a. An enumeration of the admitted facts;
b. The minutes of the pre-trial conference;
c. The legal and factual issue/s to be tried;
d. The applicable law, rules, and jurisprudence;
e. The evidence marked;
f. The specific trial dates for continuous trial, which shall be
with the period provided by the Rules;
g. The case flowchart to be determined by the court, which
shall contain the different stages of the proceedings up to the
promulgation of the decision and the use of time frames for each
stage in setting the trial dates;
h. A statement that the one-day examination of witness rule
and most important witness rule under A.M. No. 03-1-09-SC
(Guidelines for Pre-Trial) shall be strictly followed; and
i. A statement that the court shall render judgment on the
pleadings or summary judgment, as the case may be.
Upon termination of a pre-trial court will issue a pre-trial order.
This summarizes all that transpired during the pre-trial.
 The pre-trial conference happens before the pre-trial and
in practice, it is conducted before the clerk of court.
 The requirement of a flowchart is new and was not
required in the old rules.
 Most important witness rule: the court will determine if
the testimonies are merely corroborative and choose only
the most important witness.
 Usually, it’s just one day examination. Magmatter lang na
sya kung taas ang cross examination sa pikas party.
Under Sec 2(f) Rule 18, During pre-trial, the court will also the
propriety of rendering of judgment or summary judgment as the
case may be. Here, nakabutang na jud sa pre-trial order na the
court SHALL render judgment on the pleadings or summary
judgment as the case may be.
If we go to rule 34 and 35 there’s a need for a motion before
court can render judgment on the pleadings or summary
judgment.
 So dili sya motu proprio.
 Example, during pre-trial it was determined that it
should be subject to a summary judgment/judgment
on the pleadings, then it becomes an exception to
rule 34 and 35. So again in this case, if natackle sya
during pre-trial, di na kailangan ug motion of the other
party.
The direct testimony of witnesses for the plaintiff shall be in the
form of judicial affidavits. After the identification of such
affidavits, cross-examination shall proceed immediately.
Note: it’s not only the witnesses of the plaintiff which
testimony should be in the form of a judicial affidavit. It is also,
the defendant’s direct testimony should be in the form of
affidavits.
Direct testimony
the first testimony of the witness. He shall narrate how where
what when why.
Order of trial (plaintiff or defendant):
1. Direct examination
a. Where we will find out the statement of the
witness
2. Cross examination
a. Conduct questioning to verify
truthfulness/credibility of witness
3. Re direct examination
a. If there are matters in cross na gusto
ipaclarify sa lawyer sa nagpresent sa
witness
4. Re cross examination
Sa testimony, it’s only the direct testimony which should be in
the form of judicial affidavit. You cannot possibly conduct cross
examination in the form of judicial affidavits because you don’t
know yet what will be the testimony of the witness of the
opposing party. The same with redirect and recross.
This is pursuant to the one-day testimony of a witness. After
the identification of affidavits, cross examination shall proceed
immediately.
Ang practice sa una, magpresent ka ug witness in court to testify
orally. Taas nang direct examination kay magnarrate nang
witness. And then usually ang lawyer, nay mga items sa iyang
direct examination na you would like to be clarified on so it’s
very difficult to conduct cross direct after the direct exam. But
because of the judicial affidavit, Mabasa na nimo daan ang details.
Note that under the JAR – at least 5 days before the date of the
scheduled hearing you have to furnish the other party of the
judicial affidavit. So mabasa na nya ang judicial affidavit and the
adverse party’s counsel can already prepare.
POSTPONEMENT OF PRESENTATION OF WITNESSES
 Postponement of presentation of the parties’
witnesses at a scheduled date is prohibited,(pag naka
calendar nan a, you have to follow that)
 except if it is based
a. on acts of God,
b. force majeure or
c. duly substantiated physical inability of the
witness to appear and testify.
 (but even if there is a valid reason) The party who
caused the postponement is warned that presentation
of its evidence must still be terminated within the
remaining dates previously agreed upon. (so kung naa
kay 3 days, nag pa postpone ka sa 1 day, naa pa kay
remaining 2 dates. If you are the lawyer, sa pre-trial pa
lang, iestimate nan a nimo. Even if you have 2
witnesses, but feel nimo basi maka absent ka, i-3
nalang nang dates apra naa pakay ample time)
Should the opposing party fail to appear without valid cause
stated in the next preceding paragraph, the presentation of the
scheduled witness will proceed with the absent party being
deemed to have waived the right to interpose objection and
conduct cross-examination.
The contents of the pre-trial order shall control the subsequent
proceedings, unless modified before trial to prevent manifest
injustice.
Failure to appear means
 failure to appear without a valid cause during the
hearing.
Remember under sec 3 of rule 17, that failure to appear for
presentation of evidence in chief, could also be a cause for
dismissal with prejudice.
Q: Usually what happens, even if on the first date wala ka
kaappear for a valid reason,
A: it is possible na on the next date na. so dili dayon idismss sa
court.
Halimbawa 2 dates lang imong gi set unya wala ka nag appear.
Then, it could be na idismiss imong case because:
1. Failure to present evidence in chief or
2. Failure to prosecute for unreasonable length of time.
DID NOT DISMISSED/ DID NOT APPEAR WITHOUT VALID
CAUSE
Q: Example, there is the presentation of evidence on the part of
the defendant, if lawyer ka sa plaintiff, you should be present so
you can cross examine. If nag absent ka and no justifiable reason,
what will happen? Will the court postpone the hearing?
A. NO. The court will proceed with the presentation of the
evidence of the defendant. The witness scheduled that date will
be presented in court and identify his judicial affidavit and
because absent si lawyer for the plaintiff that date, he waives
the right to cross examine the witness. And he is deemed to
have waived the right to interpose objections.
Example iyahang testimony is to establish the existence of an
oral contract. Supposedly, ang defense is it is covered by the
statute of frauds so you cannot present oral evidence to prove its
existence. But on the date of presentation of that witness who
will testify on the presence of an oral contract ang lawyer sa
pikas party absent. So he cannot object anymore to the
presentation of that witness.
 Kay objection to an oral testimony must be made at
the time the witness is presented in court when the
lawyer for the party who offers the witness manifests
the purpose for the testimony and offers the
testimony. So kung absent ka waived and and you
cannot cross examine.
So guide na ninyo sa inyong trial nang pre-trial order.
137
“UNLESS modified before trial to prevent manifest injustice” calendar days from notice of failure of the court-annexed
 is the case of SESE vs. IAC (152 SCRA 585 [1987]) mediation.
where even if the pre-trial order does not recite the
issue, it can still be proven. If judicial dispute resolution fails, trial before the original court
shall proceed on the dates agreed upon.
Under Section 5 of Rule 10
 even if an issue was not raised in the pleadings and in All proceedings during the court-annexed mediation and the
the pre-trial order but they are tried with the express judicial dispute resolution shall be confidential. (n)
or implied consent of the parties. So it is as if it had
been raised in the pleadings. in reality, amicable settlement is preferred. That’s why there are
many proceedings where parties can be settled.
HEIRS OF CONAHAP vs. REGAFIA, 458 SCRA 741
These admissions embodied in the pre-trial order are binding 1. Like in barangay conciliation. The brgy has no power to decide.
upon the parties and conclusive upon them It can only guide the parties.
2. If dili masettle sa barangay, file sa court.
Also those admissions and stipulations in the pre-trial as well as 3. Then iset sa court ang pre-trial where the court determines the
the pre-trial order are binding and conclusive. Conclusive – you possibility of an amicable settlement.
cannot dispute that. 4. After pre-trial if wala nasettle, court annexed mediation, (in
the Phil. Mediation center, not in court)
5. Then if wla gihapon, back to court but the judge is convinced
na pwede gihapon masettle, irefer na nya sa judicial dispute
resolution. This will be conducted by another court.
IN CIVIL CASES IN CRIMINAL CASES
The pre-trial in a civil case is In a criminal case, the pre- Eg. Original case filed in branch 13. Then wala gihapon nasettle
made after the last pleading trial is ordered by the court sa mediation so back to court (branch 13) pero feel sa judge naa
has been served and filed after arraignment and within pay hope, irefer sa different court for Judicial dispute resolution
(Sec. 1, Rule 18, Rules of thirty (30) days from the (JDR). If wala gihapon, back to court. Sa branch 13. Dili katong
Court). date the court acquires other branch magpadayon.
jurisdiction over the person
of the accused (Sec. 1, Rule Note na if ikaw nagconduct sa JDR and magfail
118, Rules of Court). – See  dili ka pwede mag try sa case.
Continuous Trial Rule  Ibalik sa original court.Didto magproceed ang trial.
The pre-trial in a civil case The pre-trial in a criminal
considers the possibility of case does not include the Note that all proceeding in the mediation or JDR, dili na sya
an amicable settlement as an considering of the possibility magamit against the parties. That’s confidential.
important objective (Sec. of amicable settlement of Q: Why?
2[a], Rule 118, Rules of criminal liability as one of its A: to facilitate the amicable settlement. Para dili sila mahadlok
Court). purposes (Sec. 1, Rule 118, kung unsa man ilang istorya sa mediation or during the JDR.
Rules of Court). It, however,
considers plea-bargaining. Section 10.
In a civil case, A.M. No. 03-1- In a criminal case, there is a Judgment after pre-trial. – Should there be no more
09 SC dated July 13, 2004 stricter procedure required. controverted facts, or no more genuine issue as to any material
now requires the All agreements or fact, or an absence of any issue, or should the answer fail to
proceedings during the admissions made or entered tender an issue, the court shall, without prejudice to a party
preliminary conference to be during the pretrial moving for judgment on the pleadings under Rule 34 or
recorded in the "Minutes of conference shall be reduced summary judgment under Rule 35, motu prorio include in the
Preliminary Conference" to in writing and signed by both pre-trial order that the case be submitted for summary judgment
be signed by both parties the accused and counsel, or judgment on the pleadings, without need of position papers or
and/or counsel. The rule otherwise, they cannot be memoranda. In such cases, judgment shall be rendered within
allows either the party or his used against the accused ninety (90) calendar days from termination of the pre-trial.
counsel to sign the minutes. (Sec. 2, Rule 118, Rules of
Court). The order of the court to submit the case for judgment pursuant
  to this Rule shall not be the subject to appeal or certiorari. (n)
The sanctions for non- The sanctions in a criminal
appearance in a pre-trial are case are imposed upon the BEFORE NOW
imposed upon the plaintiff counsel for the accused or Before, ang judgment But now there’s another kind of
and the defendant in a civil the prosecutor (Sec. 3, Rule lang na possible after judgment after pre-trial. When
case (Sec. 4, Rule 18, Rules of 118, Rules of Court). pre-trial is kung there is will this happen? In these
Court).   a compromise particular instances:
A pre-trial brief is A pre-trial brief is not agreement after the 1. Should there be no more
specifically required to be specifically required in a pre-trial, parties submit controverted facts, or
submitted in a civil case (Sec. criminal case. the agreement and 2. no more genuine issue as to any
6, Rule 18, Rules of Court). court will render material fact, or
judgment. a. discussed when we go to
Section 8. summary judgment
Court-Annexed Mediation. – AFTER PRE-TRIAL AND, AFTER 3. an absence of any issue, or
ISSUES ARE JOINED, the court shall refer the parties for 4. should the answer fail to tender
mandatory court-annexed mediation. an issue,

The period for court-annexed mediation shall not exceed thirty

(30) calendar days without further extension. (n) The court shall MOTU PROPRIO include in the pre-trial order
that the case be submitted for summary judgment or judgment
BEFORE NOW on the pleadings – without need of position papers or
Before this pag mag pre-trial But diri, humanon sa ang memoranda.
na, and wala pay mediation, pre-trial then the court shall  So after it is determined that the case is appropriate
the court will postpone the refer the parties for for judgment on the pleadings or summary judgment,
pre-trial and refer the parties mandatory mediation and the court shall include in the pre-trial order that it be
to mediation. So mauna take note that the rules says submitted for summary judgment or judgment on the
mediation sa pre-trial. no further extension. pleadings. So wala nay additional papers to be filed.
 So diha, bisag wlay motion during the pre-trial for a
Section 9. summary judgment or judgment on the pleadings,
Judicial Dispute Resolution. – Only if the judge of the court to without any motion filed beforehand even, mao ni sya
which the case was originally raffled is convinced that settlement ang possibility na the court shall submit the case for
is still possible, the case may be referred to another court for summary judgment.
judicial dispute resolution. The judicial dispute resolution shall
be conducted within a non-extendible period of fifteen (15) Note that:

138
This is without prejudice to a party moving for judgment on the
pleadings under Rule 34 or summary judgment under Rule 35.
Example: If the court orders that this case be submitted for
judgment (on the pleadings or summary judgment) can the party
complain that it is not appropriate? Q: What is the remedy?
A: here, it is not subject to appeal or certiorari. Your remedy is to
appeal the judgment of the court already (that which is based on
the pleadings). That is the proper remedy. (HAAA? WA KO
KASABOT)
RULE 19
INTERVENTION
Section 1.
Who may intervene. — A person who has a legal interest in
the matter of litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the action.
The court shall consider whether or not the intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenor’s rights
may be fully protected in a separate proceeding.
NATURE OF INTERVENTION
1. Intervention is a legal proceeding by which a person who is
not a party to the action is permitted by the court to become
a party by intervening in a pending action after meeting the
conditions and requirements set by the Rules of Court. This
third person who intervenes is one who is not originally
impleaded in the action. (First Philippine Holdings
Corporation v. Sandiganbayan, 253 SCRA 30; Rule 19, Rules
of Court)
 Basically, by intervention, a person who is not the
plaintiff, or the defendant, becomes a party because he
is allowed by the court to intervene.
 Example: A (plaintiff) files a case against B
(defendant). X has an interest in the subject matter of
the litigation, who felt that if he will not participate, he
will be prejudiced if he will not protect his interest. So,
he will intervene in this case.
Q: How will he intervene?
A: There has to be a motion filed, then he will attach
the complaint in intervention, or answer in
intervention.
 The third party who intervenes may become:
o Plaintiff-intervenor, or
o Defendant-intervenor
2.It is a remedy by which a third party, not originally impleaded
in the proceedings, becomes a litigant therein to enable him to
protect or preserve a right or interest which may be affected by
such proceeding. (Office of the Ombudsman v. Samaniego, G.R.
No. 175573, Sept. 11, 2008)
3.Intervention is never an independent proceeding but is
ANCILLARY AND SUPPLEMENTAL to an existing litigation. Its
purpose is to enable a stranger to an action to become a party
to protect his interest (Santiago Land Development Corporation
v. CA, 267 SCRA 79)
 You are not filing an independent case. You want to
participate in an already existing case.
 Because intervention is ancillary and supplemental to an
existing litigation, it cannot also alter the nature of the
action and the issues already joined.
 Example: The original case filed by the plaintiff is for
collection, then there is an intervention, it still remains
to be an action for collection. It does not become a
foreclosure of mortgage, or any other case.
4.An intervention cannot alter the nature of the action and the
issues already joined (Castro v. David, 100 Phil. 454)
5.Intervention in an action is neither compulsory nor mandatory
but only optional and permissive (Mabayo Arms, Inc. v. CA,
G.R. No. 140058, Aug. 1, 2002). Hence, the court has the full
measure of discretion in permitting or disallowing the same
(Yau v. Manila Banking Corporation, G.R. No. 126731, July 11,
2002)
 Meaning, it does not mean that if you have an interest in
the subject matter of the litigation, that once you file a
motion for intervention, because you want that interest
to be protected, the court has no other option but to
allow you to intervene because it now becomes your
right.
o NO, it is discretionary upon the court to allow
your intervention.
NOTE: This discretion, however, must be exercised judiciously
and only after consideration of all the circumstances obtaining in
the case. Thus, where the substantial interest of the movant in
the subject matter is undisputed, a denial of a motion to
intervene is an injustice (Mago v. CA, G.R. No. 115624, Feb. 25,
1999)
 Example: There is a case for recovery of possession.
The defendant is not the owner of the property being
sought to be recovered. The real owner now, who is
not in possession, would like to intervene in that case
because he wants to protect his ownership over the
property. As we know, ownership includes the right to
possess. Suppose the owner has no other way to
ventilate his claim against the property. If you allow
the plaintiff to recover, it would prejudice the right of
the real owner of the property. If all the requisites of
intervention are present, then it would be an injustice
to disallow the intervention.
6.Intervention is NOT AN ABSOLUTE RIGHT as it can be secured
only in accordance with the terms of the applicable statute or
rule. In claiming the right to intervene, the intervenor must
comply with the requirements laid down by Rule 19 of the
Rules of Court (Office of the Ombudsman v. Samaniego, supra)
7.The definition of “intervention” under Rule 19 simply does not
accommodate contingent claims (Hilado v. CA, G.R. No.
164108, May 8, 2009)
 If you wish to intervene in a pending litigation, you must
be able to show that your interest in the subject matter
of the case is actual, present, material and direct
interest.
 In the case of Hilado v. CA, we have here an intestate
proceeding. Here, if a person dies without a last will and
testament, that is what we call intestate. There is a
person who want to intervene in that intestate
proceeding because according to him, he has a claim
against Benedicto (the one who died) because in his
lifetime, the intervenor filed against him for quasi-delict.
The intervenor sought to recover money or damages
from that proceeding.
Q: Is the intervention in the intestate proceeding proper,
given that the intervenor has a claim due to said prior
case which is pending?
A: NO, because he is yet to win that case. So, whatever
interest he is claiming against the estate of Benedicto
would be a contingent interest
NOTE: A contingent interest cannot be a subject of an
intervention.
Q: What is the proper remedy then?
A: The remedy is not to file a motion for intervention,
but to file a claim against the estate. However, the
problem here is that you can file a claim against the
estate if your claim is a monetary claim based on
contract, expressed or implied. If the debtor dies before
you institute the action, you can no longer file a case for
collection against that debtor. What you do is institute an
intestate proceeding, or if there’s already one, file a claim
against the estate.
Q: Remember the instances where during the pendency
of the case, the debtor dies, what happens to your action
for collection
A: It will continue, but there will be a substitution of
parties. But any favorable decision that the court may
render in that case cannot be enforced by motion for
execution. That favorable decision would have to be
presented as a claim against the estate. However, in
that case of Hilado v. CA, the case is not a money claim
arising from a contract, but quasi-delict. Therefore, the
remedy is just wait for the case to continue and there
will be a substitution in that case.
8.Intervention will not be allowed when it will unduly delay or
prejudice the adjudication of the rights of the principal parties,
139
 especially if intervenor’s rights may be fully protected in a
separate proceeding. Intervention is not intended to change
the nature and character of the action itself, or to stop or delay
the placid operation of the machinery of the trial. The remedy
of intervention is not proper where it will have the effect of
retarding the principal, suit or delaying the trial of the action.
 Even if you have a substantial, material, present, direct
interest over the subject matter of the litigation, but if
you allow that intervention, the main case would be
disturbed, and it would delay the proceedings. In the
first place, you can have that case adjudicated in a
separate proceeding.
9.Also, in general, an independent controversy cannot be
injected into a suit by intervention, hence such intervention
will not be allowed where it would enlarge the issues in the
action and expand the scope of the remedies. It is not
proper where there are certain facts giving intervenor’s case
an aspect peculiar to himself and differentiating it clearly from
that of the original parties; the proper course is for the would-
be intervenor to litigate his claim in a separate suit (Big
Country Ranch Corporation v. CA, G.R. No. 102927, Oct. 12,
1993).
Big Country Ranch Corporation v. CA
G.R. No. 102927, Oct. 12, 1993
What happened here was Palarca filed a case for recovery of
possession of two barges against the Philippine Coast Guard.
Another entity, Golden Flame Sawmill Inc. filed a motion for
intervention. Allegedly, the latter already owned the two
barges subject of the case because it acquired them in a public
sale.
Issue: Is the intervention proper?
NO. In this particular case, if we will allow the intervention,
you would look into the matter of the validity of the sale
made to Golden Sawmill. To allow it to intervene in the
replevin suit, which is primarily on the issue of possession, it
would make the proceedings unnecessarily complicated. New
and unrelated issues and conflicting claims of ownership,
authenticity of documents of title, and regularity in the mode
of acquisition, would arise and cause delay in the adjudication
of the rights claimed by the parties. In effect, it would enlarge
the issues and inject an issue which is peculiar only to the
intervenor.
The Supreme Court said the proper recourse for the
intervenor would be to litigate his claim in a separate suit.
10. A court which has no jurisdiction over the principal action
has no jurisdiction over a complaint-in-intervention.
Intervention presupposes the pendency of a suit in a court of
competent jurisdiction. Jurisdiction of intervention is
governed by jurisdiction of the main action (Asian
Terminals, Inc. v. Ricafort, et al., G.R. No. 166901, Oct. 27,
2006)
Asian Terminals, Inc. v. Ricafort, et al.
G.R. No. 166901, Oct. 27, 2006
A replevin suit was filed before the RTC. But under the law,
the collector of customs already had seized the property
(vehicles) and had set the sale of such in a public auction.
The intervenor filed a motion of intervention alleging that it
has a lien over the vehicles for accumulated and unpaid
storage, arrastre use.
The Supreme Court said that even assuming direct and
material present interest over the subject matter of the
litigation, but because the RTC has to dismiss the case,
because it has no jurisdiction over the subject matter of the
action, necessarily, the intervention in that particular case can
not be allowed. His remedy then is to file another case, not an
intervenor case because the court would have no power to
take cognizance over the intervention in as much as it does
not even have jurisdiction over the subject matter of the
complaint.
REQUISITES FOR INTERVENTION (BAR 2000)
The following requisites must be complied with before a non-
party may intervene in a pending action:
a) There must be a motion for intervention filed before
rendition of judgment by the trial court (Sec. 1, Rule
19, Rules of Court). A motion is necessary because
leave of court is required before a person may be
allowed to intervene (Sec. 1, Rule 19, Rules of Court).
b) The movant must show in his motion that he has a:
(1) Legal interest in:
 The matter of litigation
 The success of the parties in the
action, or
 Against both parties;
(2) That the movant is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the
court of an officer thereof (Sec. 1, Rule 19,
Rules of Court), and
(3) That the intervention must not unduly delay
or prejudice the adjudication of the rights of
the original parties and that the
intervenor’s rights may not be fully
protected in a separate proceeding (Mabayo
Farms, Inc. v. CA, G.R. No. 140058, Aug. 1,
2002, Acenas II v. CA, 247 SCRA 773).
PROCEDURE FOR INTERVENTION
1) The intervenor shall file a motion for intervention
attaching thereto his pleading-in-intervention. The
pleading to be filed depends upon the purpose of the
intervention. If the purpose is to assert a claim against
either or all of the original parties, the pleading shall be
called a complaint-in-intervention; If the pleadings seek
to unite with the defending party in resisting a claim
against the latter, he shall file an answer-in-intervention
(Sec. 3, Rule 19, Rules of Court);
2) The motion and the pleading shall be served upon the
original parties;
3) The answer to the complaint-in-intervention shall be
filed within fifteen (15) days from notice of the order
admitting the same, unless a different period is fixed by
the courts (Sec. 4, Rule 19, Rules of Court).
MEANING OF LEGAL INTEREST
The legal interest must be one that is actual and material, direct
and of an immediate character, not merely contingent or
expectant so that the intervenor will either gain or lose by the
direct legal operation of the judgment. Thus, when the title to the
property had been already declared void by final judgment,
intervention will not revive or reinstate the movant’s title
derived from the title declared void (Firestone Ceramics v. CA,
313 SCRA 522; Office off the Ombudsman v. Samaniego, supra).
 You must be a real party-in-interest insofar as your
interest in the subject matter of litigation is concerned.
EXAMPLES OF INTERVENTION ALLOWED
1. The assignee of a property who assumed payment of whatever
amount may be finally adjudged against the assignor may
intervene in a proceeding involving the execution of the property
pursuant to a judgment (Robles v. Timario, 6 SCRA 380).
2. In an action for foreclosure of mortgage, the alleged owners of
the land sought to be foreclosed may intervene (Roxas v.
Dinglasan, 28 SCRA 430).
These two cases above will show us that these are the kinds of
interest that a participant may have which will allow him to
intervene either as a complainant or as a defendant in a pending
litigation.
DISCRETION OF THE COURT
In fine, the allowance or disallowance of a motion for
intervention rests on the sound discretion of the court after
consideration of the appropriate circumstances.
PURPOSE OF RULE 19
We stress again that Rule 19 of the Rules of Court is a rule of
procedure whose object is to make the powers of the court fully
and completely available for justice. Its purpose is not to hinder
or delay, but to facilitate and promote the administration of
justice.
Quinto v. Commission on Elections
G.R. No. 189698, February 22 2010
Section 1, Rule 19 of the Rules of Court provides:
A person who has a legal interest In the matter in litigation or
in the success of either of the parties, or an interest against
both, or is situated ask to be adversely affected by a
distribution or other disposition of property in the custody of
the court or of an officer thereof may, with the leave of court,
be allowed to intervene in the action. the court shall consider
140
 whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties,
and whether or not the intervenor’s rights may be fully
protected in a separate proceeding.
DISPOSITION
The court ruled that, with the exception of the IBP - Cebu City
Chapter, all the movants-intervenors may properly intervene
in the case of bar.
First, the movants-intervenors have each sufficiently
established a substantial right or interest in the case.
As a senator of the Republic, senator Manuel A. Roxas has a
right challenged December 1, 2009 decision, which nullifies a
long established law; as a voter, he has a right to intervene in
a matter that involves the electoral process; and as a public
officer, He has a personal interest in maintaining the trust and
confidence of the public in its system of government.
On the other hand, former senator Franklin M. Drilon and
Tom V. Apacible are candidates in the May 2010 elections
running against appointive officials who, in view of their
December 1, 2009 Decision, have not yet resigned from their
posts and are not likely to resign from their posts. This time
to be directly injured by the assailed Decision, unless it is
reversed.
Moreover, the rights or interests of said movants-intervenors
cannot be adequately pursued and protected in another
proceeding. clearly, their rights will be foreclosed if this
Court's Decision attains finality and forms part of the laws of
the land.
With regard to the IBP-Cebu City Chapter, It anchors in
standing on the assertion that “this case involves the
constitutionality of election laws for this coming 2010
National Elections,” and that “There is a need for it to be
allowed to intervene xxx so that the voice of its members in
the legal profession would also be heard before this Highest
Tribunal as it resolves issues of transcendental importance.”
Prescinding from our rule and ruling case law, we find that
the IBP-Cebu City Chapter has failed to present a specific and
substantial interest sufficient to clothe it with standing to
intervene in the case at bar. Its invoked interest is, in
character, too indistinguishable to justify its intervention.
Section 2.
Time to intervene. – The motion to intervene may be filed at
any time before rendition of judgment by the trial court. a
copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties.
What is important in Section 2 is the time when an intervention
may be filed. So, remember, before rendition of judgment by the
trial court. At any time before that, you may file a motion for
intervention
Q: How?
A: You file a motion for intervention and in your motion for
intervention, the title should be “motion for leave to file
intervention.”
Then in your motion, you also attach the pleading so it could be a:
 complaint-in-intervention: if you wish to join in the
claim of the plaintiff; or
 answer-in-intervention: if you wish to join in the
defense of the defendant.
TIME FOR INTERVENTION (BAR 1991)
The motion to intervene may be filed at any time before
rendition of judgment by the trial court (Section 2, Rule 189,
Rules of Court: Heirs of Antonio Pael v. Court of Appeals, 325 SCRA
341). Hence, intervention after trial and decision can no longer
be permitted (Yau v. Manila Banking Corporation, G.R. No.
126731, July 11, 2002; Bar 1991)
Ongco v. Dalisay
G.R. No. 190810; July 18, 2012
To recall, the motion should be filed “at any time before
rendition of judgment.” The history and rationale of this rule
has been explained thusly:
The justification advanced for this is that before judgment is
rendered comma the court, for good cause shown, may still
allow the introduction of additional evidence and that is still
within a liberal interpretation of the period for trial. Also,
since no judgment has yet been rendered, the matter is
subject of the intervention may still be readily resolved and
integrated in the judgment disposing of all claims in the case,
and would not require an overall reassessment of said claims
as would be the case if the judgment had already been
rendered.
After the lapse of this period, it will not be warranted
anymore. This is because, basically, intervention is not an
independent action but is ancillary and supplemental to an
existing litigation.
There is wisdom in strictly enforcing the period set by Rule
19 of the Rules of Court for the filing of a motion for
intervention. Otherwise comma and you delay would result
from many belated filings of motions for intervention after
judgment has already been rendered, because a reassessment
of claims would have to be done. Thus, those who slept on
their lawfully granted privilege to intervene will be rewarded,
while the original parties will be unduly prejudiced.
“Aware of her fatal shortcoming, petitioner Ongco would now
like the Court to exceptionally allow intervention even after
judgment has been rendered by the MTC in the land
registration case. She cites instances in which this Court
allowed intervention on appeal. However, the cases she cited
are inapplicable to the present case, because the movants
therein who wanted to intervene were found by the Court to
be indispensable parties. Thus, under Section 7, Rule 3 of the
Rules of Court, they had to be joined because, without them,
there could be no final determination of the actions. Indeed, if
indispensable parties are not impleaded, any judgment would
have no effect.
In Galicia v. Manliquez, the first case cited by petitioner, the
Court found that the defendant-intervenors were indispensable
parties, being the indisputable compulsory co-heirs of the
original defendants in the case for recovery of possession and
ownership, and annulment of title. Thus, without them, there
could be no final determination of the action. Moreover, they
certainly stood to be affected by any judgment in the case,
considering their "ostensible ownership of the property."
INTERVENTION BEYOND PERIOD
This rule, however, is NOT INFLEXIBLE. Interventions have been
allowed even beyond the period prescribed in the Rule, when
demanded by the higher interest of justice.  Interventions have
also been granted to afford indispensable parties, who have not
been impleaded, the right to be heard even after a decision has
been rendered by the trial court, when the petition for review of
the judgment has already been submitted for decision before the
Supreme Court, and even where the assailed order has already
become final and executory. In Lim v.  Pacquing, the motion for
intervention filed by the Republic of the Philippines was allowed
by this Court to avoid grave injustice and injury and to settle
once and for all the substantive issues raised by the parties.
Only if the intervenors are indispensable parties.
As a general rule you cannot file a motion for intervention if it is
already beyond the rendition of judgment, meaning the court has
already rendered a decision in the case. Well of course, we
discussed before na intervention will not be allowed if it will
unduly delay the proceedings.
Illustration
For example, human na tanan nag present nag evidence
etc. and then diha ka magintervene, nahuman nagdecide.
So should you go back to the beginning, kanang evidence
napud halungkatun nato?
Pag mag intervene ka you would assail the defense
of the defendant if you are a complainant in intervention
and then if you are the defendant in an intervention
imuha napud halungkatun kung unsa man tung mga
evidence, pleadings, claims, cause of action ni
complainant.
Again we are just delaying the proceedings. It
should be before the rendition of judgment.
Also If the court has rendered a decision and naglapse
napud ang reglementary period within which to appeal or
file a motion for reconsideration then the decision
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 becomes final and executory. It could no longer revise or
modify its decision pursuant to the doctrine of
immutability of judgment. Kung diha pa ka magintervene
after judgment wala nay authority si court to change his
decision. It no longer has the authority to act on the case,
it can no longer consider claims or defenses that you may
have in an intervention. This is the GENERAL RULE.
However, there are cases na in which the Supreme Court held
pwede gihapon ang intervention to afford indispensable
parties who have not been impleaded the right to be heard even
after the decision has been rendered by the trial court. When the
petition for review of the judgment has already been submitted
for decision before the SC, and even where the assailed order has
already become final and executory. This is to avoid grave
injustice and inquiry to settle once and for all the substantive
issues raised by the parties.
Please remember in all those cases when the supreme court said
na iallow nato ang intervention even there is already a decision
and the decision has become final and executory those are the
cases when the party in intervention,
 those who seek to intervene are indispensable parties.
Q: Why?
A: Because as we have discussed before when we say
indispensable parties these are the parties who must be
impleaded in the case otherwise there is no final determination
that can be had in the case and when an indispensable parties not
impleaded in the case all the proceedings in the court whether as
to the person present with more reason as to those who are
absent, all the proceedings are null and void.
Usually, mahitabo na sya like there is a pending case, supposedly
nay indispensable parties na iimplead pero wala na implead sa
case. And then in the execution stage, we are contemplating that
the decision has been final and executory.
 In the execution stage diha pa madiscover na you
cannot implement the decision without affecting the
indispensable parties. Ang nay possession diay sa
property kay one of the co-owners. So here
magreklamo karun ang co-owner na wala na implead
sa case. So in the execution stage niingun sya na gusto
sya muintervene pero niingun ang isa ka party na you
cannot intervene anymore because it is already after
judgment. As a general rule, intervention may be
allowed before rendition of judgment.
EFFECT OF DISMISSAL OF THE MAIN COMPLAINT
BIG COUNTRY RANCH CORPORATION vs. COURT OF APPEALS
G.R. No. 102927, October 12, 1993
 
Intervention is merely collateral or accessory or ancillary to the
principal action, and not an independent proceeding; it, is an
interlocutory proceeding dependent on or subsidiary to the case
between the original parties. Where the main action ceases to
exist, there is no pending proceeding wherein the intervention
may be based.
So, where the main action ceases to exist, there is no pending
proceeding wherein the intervention may be based. However,
you have to take note in this particular case, at the time of
intervention a decision was rendered by the trial court and there
is no appeal taken on that decision.
So, the judgment in that main case is already final and executory.
It is also related as to when intervention shall be made na it shall
only legally possible before or during a trial. A motion for
intervention filed when there is already a decision or a judgment
or worse when judgment is already final and executory should be
denied.
METROPOLITAN BANK AND TRUST COMPANY vs. PRESIDING
JUDGE, RTC OF MANILA
G.R. No. 89909 September 21, 1990
The intervenor in a pending case is entitled to be heard like any
other party.  A claim in intervention that seeks affirmative relief
prevents a plaintiff from taking a voluntary dismissal of the main
action. Where a complaint in intervention was filed before
plaintiff's action had been expressly dismissed, the intervenor's
complaint was not subject to dismissal on the ground that no
action was pending, since dismissal of plaintiffs action did not
affect the rights of the intervenor or affect the dismissal of
intervenor's complaint. An intervenor's petition showing it to be
entitled to affirmative relief will be preserved and heard
regardless of the disposition of the principal action.
FACTS: Metro bank filed a complaint for replevin against
Uniwide Sales. Replevin is a complaint for recovery of personal
properties. The properties involve here were air conditioning
units. The intervenor, Ray Core in Control Systems filed a motion
for leave to intervene because according to ray core it has a
direct and immediate interest on the subject matter of the
litigation.
Actually, the air conditioning units were from Ray Core and wala
sila nabayaran and wanted to be paid, they want to protect their
interest over the air conditioning units. The Trial Court approved
the motion for intervention.
Now later on in the proceedings the plaintiff and the defendant
agreed to dismiss the case. Ray core filed a motion to reinstate
the complaint because the trial court previously dismissed the
case based on the motion of the plaintiff and defendant.
The intervenor filed a motion for intervention which the trial
court approved.
ISSUE: Would it be proper to reinstate the action for intervention
despite the dismissal of the main action?
RULING: The SC said na Yes because there was no final dismissal
of the main case.
The order of the lower court has the effect not only allowing the
intervention to proceed but also vacating its previous order of
dismissal. The reinstatement of the case in order to try and
determine the claims and rights of the intervenor is proper. The
motion before of the plaintiff and the defendant to dismiss the
case without notice to and consent of the intervenor has the
effect of putting to rest the respective claims of the original
parties inter se but the same cannot affect the claim of the
intervenor which if you remember is allowed to intervene by the
court without opposition from the original parties.
In this case the SC said na the right of the intervenor should not
be affected by the dismissal of the plaintiff and the defendant in
the case. An intervenors petition showing that it is entitled to
affirmative relief will be preserved and heard regardless of the
disposition of the principal action. What you have to note in this
case is that, there was already an approval of the intervention
so later on pa in the case nay settlement na nahitabo between the
plaintiff and the defendant and gipadismiss nila ang case so left
hanging karun si intervenor. But the SC said na dli proper na
idismiss ang intervention just because ang plaintiff in this case
dismissed the complaint against the defendant because gi allow
na ang intervention so the court should proceed to determine the
rights of the intervenor.
SEC. 3.
Pleadings-in-intervention.– The intervenor shall file a
complaint-in-intervention if he or she asserts a claim against
either or all of the original parties, or an answer-in-intervention
if he or she unites with the defending party in resisting a claim
against the latter. (3a)
SEC. 4.
Answer to complaint-in-intervention.– The answer to the
complaint-in-intervention shall be filed within fifteen (15)
calendar days from notice of the order admitting the same,
unless a different period is fixed by the court. (4a)
 Just take note that if it an answer to the complaint it
shall be filed within fifteen (15) calendar days from
notice of the order admitting the same,
 unless a different period is fixed by the court.
Q: Diba answer to the complaint is 30 days, while kani siya
shorter period. Why?
A: Because when you file a Motion for Intervention you already
attach in the Motion for Intervention your answer-in-
intervention or the complaint-in-intervention.
Now if it is a complaint-in-intervention kung ikaw naman si
defendant, of course at the time na gifile ni proposed intervenor
ang iyahang Motion for Intervention with the attached
complaint-in-intervention makita naman na nimo diba? Pero at
that time dili paka mutubag, you will not file your answer
because for all you know the Motion for Intervention will be
denied. So you’re just wasting your time answering.
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  You only answer when the Court already allows the
intervention.

Q: When do we start the counting of the reglementary period?

A: From the time na nareceive ni defendant ang copy sa order of
the court nga nagingun na the motion for intervention is
approved. Diha na sya magstart so 15 calendar days. There will
be an ample time for the defendant to answer the complaint in
intervention.

RULE 20
CALENDAR OF CASES

SECTION 1.
Calendar of cases.–The clerk of court, under the direct
supervision of the judge, shall keep a calendar of cases for pre-
trial, for trial, those whose trials were adjourned or postponed,
and those with motions to set for hearing.  Preference shall be
given to habeas corpus cases, election cases, special civil actions,
and those so required by law. (1)

 What is important here is kung what are those cases

na preference ang pag-calendar sa ilaha because they
invoke urgent relief:

1. Habeas corpus;
diba it involves the liberty of the person
2. Election cases;
3. Special Civil Actions; and
4. Those so required by law

SEC. 2.
Assignment of cases.–The assignment of cases to the different
branches of a court shall be done exclusively by raffle.  The
assignment shall be done in open session of which adequate
notice shall be given so as to afford interested parties the
opportunity to be present (2)
 Now, if you file a case.
For example, the case falls within the jurisdiction of
the Regional Trial Court.

Diba, in Davao City daghan man kayo nag Regional

Trial Courts: Branch 8, 9, 10, 11, 12, hantud 17 naa
pa gani’y 52, 53. So here when you file a case, you do
not know where it will be raffled. That is intended for
impartiality and integrity of our judicial system.

Kay ang uban ana “ay friend nako si Judge XYZ so

didto nako I-file sa iyahang sala.” No you cannot
decide asa siya nga sala maadto. So that is the
importance of raffling.

 And to assure further na wala na diu’y mahitabo na

milagro The assignment shall be done in open
session of which adequate notice shall be given so
as to afford interested parties the opportunity to
be present

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